MAUREEN DUNN,                 :

                              :

     Plaintiff,               :

                              :

v.                            :

                              :

STANDARD INSURANCE COMPANY,   :

and BALFOUR BEATTY, INC.      :

a/k/a BALFOUR BEATTY          :

CONSTRUCTION, INC.,           :

                              :

     Defendants.              :

                              :

------------------------------x

Civil No. 3:00CV00219(AWT)

UNITED STATES DISTRICT COURT

   DISTRICT OF CONNECTICUT

             RULING ON MOTION FOR SUMMARY JUDGMENT

     The plaintiff, Maureen Dunn (“Dunn”), resides in Old

Saybrook, Connecticut.  Old Saybrook borders Old Lyme,

Connecticut, where Lyme disease was first reported in 1975.

From August of 1997 until June 23, 1998, Dunn was employed as a

full-time assistant document controller by defendant Balfour

Beatty, Inc., a/k/a Balfour Beatty Construction, Inc.

(“Balfour”).  On June 23, 1998, Dunn ceased working, as

recommended by her employer, due to disabling symptoms such as

depression, fatigue, anxiety, blurry vision, dizziness, memory

loss and numbness in her limbs.

     As an employee of Balfour, Dunn was covered under

Balfour’s self-funded short-term disability plan (“STD Plan”).

The 1996 summary of benefits for the STD Plan states that

short-term disability benefits last for up to 13 weeks.  The

summary also states that the benefits listed therein are

subject to being changed or canceled without notice.

     When the plaintiff stopped working, she applied for

coverage under the STD Plan.  She received disability benefits

for a period of 26 weeks, i.e., from July 7, 1998 through

January 1, 1999.  The plaintiff received 26 weeks of benefits

because it was Balfour’s policy at the time to give 26 weeks of

benefits under the STD Plan, notwithstanding the fact that the

1996 summary of benefits stated that only 13 weeks of benefits

would be provided.

      When Dunn’s short-term disability payments ceased, she

applied for benefits under Balfour’s long-term disability plan

(“LTD Plan”).  The LTD Plan was issued by defendant Standard

Insurance Company (“Standard”) to Balfour, and Standard is the

administrator of the LTD Plan.  It became effective May 1,

1996.

     The LTD Plan contains an “Exclusions and Limitations”

section whereby a pre-existing condition exclusion period of 90

days applies to any individual who has not been continuously

insured under the policy for twelve months.  Under this

exclusion, an employee may be denied long-term disability

benefits if the employee is claiming disability for a mental or

physical condition for which he or she, during the 90-day

exclusion period, a) consulted a physician, b) received medical

treatment or services, or c) took prescribed drugs or

medications.  The LTD Plan states that

Pavick Aff. Ex. A. at D 10013.  In Dunn’s case, the 90-day

period prior to her being covered by the LTD Plan commenced on

June 20, 1997 and ended on September 17, 1997.

     A.  Dunn’s Relevant Medical History

     Upon Standard’s receipt of the plaintiff’s claim under the

LTD Plan, it was assigned to Michelle Pavick, a disability

benefits analyst.  Pavick reviewed Dunn’s medical records.

Pavick learned that the plaintiff saw a general practitioner,

Dr. James Petrelli, on two separate occasions during the pre-

existing condition exclusion period.  During the plaintiff’s

first visit, on July 9, 1997, Dr. Petrelli noted Dunn’s

symptoms as follows:  “Complaint of nervousness.  Patient

having major stresses in life, marital difficulties with their

business and children.  Patient exhibiting signs of mild

depression, sleep disorder, lack of appetite, [emotionality].

Lack of energy.  Patient also complaining of symptoms of

sweats, chills, myalgias, runny nose.”  Pavick Aff. Ex. A at

10176.  Dr. Petrelli prescribed Paxil and Xanax for Dunn’s

“depression with anxiety.”  Id.  He also prescribed remedies

for a viral illness and for gastroesophageal reflux disease.

On July 22, 1997, for Dunn’s second office visit, Dr. Petrelli

recorded her symptoms as follows:  “Anxiety, depression.

Patient has started marital counseling which she says is

helping a lot.  She stopped the Paxil because of dizziness and

dry mouth.  Complaining of some right shoulder pain.  Non-

specific, denies trauma.”  Pavick Aff. Ex. A at 10175.  Dunn

was directed to continue using the Xanax on a limited basis for

her “mild anxiety with depression.”  Id.

     On November 20, 1997, Dunn visited Dr. Kornelia Keszler at

her office in Madison, Connecticut.  Dunn states that she went

to see Dr. Keszler because of a complaint about an itchy red

rash that both the plaintiff and her husband had noticed on

Id.

     The plaintiff’s blood was tested twice more for Lyme

disease, on May 8, 1998 and December 28, 1998, by the

University of Connecticut Health Center.  On both occasions,

the test results were negative.

     B.  Standard’s Review of Dunn’s Claim

     In addition to reviewing the plaintiff’s relevant medical

records, Pavick also reviewed Dunn’s claim statement and her

physician statement.  On Standard’s Long Term Disability Claim

Employee’s Statement form, Dunn indicated that her disability

was due to depression, heart palpitations, fatigue,

nervousness, numbness in her back and arms, headaches, memory

problems, dizziness, blurry vision and pain in her left eye.

Dunn also noted that her “sickness” was Lyme disease.  On

Standard’s Long Term Disability Claim Attending Physician’s

Statement form, Dr. Keszler indicated that the plaintiff’s

primary diagnosis was Lyme disease and that her secondary

diagnosis was Hyperlipidemia.

     After collecting all relevant materials, Pavick forwarded

Dunn’s entire claims file to a vocational consultant.  Dr.

Bradley Fancher, an internist from Oregon, was the vocational

consultant who reviewed Dunn’s file.  He provides Standard

approximately 12 to 15 hours of consulting services per week.

Upon reviewing the file, Dr. Fancher concluded that Dunn’s

     On April 15, 1999, Dr. Fancher submitted his conclusions

to Pavick.  In his report, Dr. Fancher noted that because the

disabling symptoms Dunn complained of were similar to those

Dunn had experienced while being treated for depression by Dr.

Petrelli during the exclusion period, the plaintiff appeared to

be suffering from depression rather than from Lyme disease.

     On May 11, 1999, Pavick wrote to Dunn and informed her

that her claim had been denied.  Pavick gave the following

explanation:

Pavick Aff. Ex. A at D 10058.

     On May 20, 1999, consistent with Standard’s policy, the

plaintiff made a written request for a review of her claim.

Dunn stated that she had not contracted Lyme disease until

October of 1997 and that she saw Dr. Keszler in November of

1997 “because of red marks on [her] lower back and extreme

numbness in [her] face, arms and legs and back.”  Pavick Aff.

Ex. A at D 10053-54.

     In accordance with Standard’s review procedures, Dunn’s

claims file was referred to its quality assurance unit.  This

unit re-evaluates the entire claims file and either reverses or

affirms a group benefit examiner’s decision.  On December 22,

1999, Kim Gahan, a quality assurance specialist, informed the

plaintiff’s counsel that the quality assurance unit agreed with

the initial decision to deny Dunn’s claim.  Gahan stated that

although Dunn’s physician had diagnosed her as having Lyme

disease, Standard’s physician consultant had found that the

laboratory tests contradicted that diagnosis.  She stated

further that although the actual diagnosis of Lyme disease had

not been made during the exclusion period, Dunn was being

treated during the exclusion period for the same set of

symptoms which eventually led her physician to make a diagnosis

of Lyme disease.  In other words, the “set of symptoms for

which she received treatment [had] been existent since July

1997.”  Pavick Aff. Ex. A at 10031.

II.  LEGAL STANDARD FOR SUMMARY JUDGMENT

     A motion for summary judgment may not be granted unless

the court determines that there is no genuine issue of material

fact to be tried and that the facts as to which there is no

such issue warrant judgment for the moving party as a matter of

law.  Fed. R. Civ. P. 56(c).  See Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986); Gallo v. Prudential Residential

Servs., 22 F.3d 1219, 1223 (2d Cir. 1994).  Rule 56(c)

“mandates the entry of summary judgment . . . against a party

who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”  See

Celotex Corp., 477 U.S. at 322.

     When ruling on a motion for summary judgment, the court

must respect the province of the jury.  The court, therefore,

may not try issues of fact.  See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks

Board of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman

v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.

1975).  It is well-established that “[c]redibility

determinations, the weighing of the evidence, and the drawing

of legitimate inferences from the facts are jury functions, not

those of the judge.”  Anderson, 477 U.S. at 255.  Thus, the

trial court’s task is “carefully limited to discerning whether

there are any genuine issues of material fact to be tried, not

to deciding them.  Its duty, in short, is confined . . . to

issue-finding; it does not extend to issue-resolution.”  Gallo,

22 F.3d at 1224.

     Summary judgment is inappropriate only if the issue to be

resolved is both genuine and related to a material fact.

Therefore, the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly

supported motion for summary judgment.  An issue is “genuine

. . . if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.”  Anderson, 477 U.S.

at 248 (internal quotation marks omitted).  A material fact is

one that would “affect the outcome of the suit under the

governing law.”  Anderson, 477 U.S. at 248.  As the Court

observed in Anderson: “[T]he materiality determination rests on

the substantive law, [and] it is the substantive law’s

identification of which facts are critical and which facts are

irrelevant that governs.”  Id. at 248.  Thus, only those facts

that must be decided in order to resolve a claim or defense

will prevent summary judgment from being granted.  When

confronted with an asserted factual dispute, the court must

examine the elements of the claims and defenses at issue on the

motion to determine whether a resolution of that dispute could

affect the disposition of any of those claims or defenses.

Immaterial or minor facts will not prevent summary judgment.

See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir.

1990).

     When reviewing the evidence on a motion for summary

judgment, the court must “assess the record in the light most

favorable to the non-movant and . . . draw all reasonable

inferences in its favor.”  Weinstock v. Columbia Univ., 224

F.3d 33, 41 (2d Cir. 2000)(quoting Del. & Hudson Ry. Co. v.

Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).  Because

credibility is not an issue on summary judgment, the

nonmovant’s evidence must be accepted as true for purposes of

the motion.  Nonetheless, the inferences drawn in favor of the

nonmovant must be supported by the evidence.  “[M]ere

speculation and conjecture” is insufficient to defeat a motion

for summary judgment.  Stern v. Trs. of Columbia Univ., 131

F.3d 305, 315 (2d Cir. 1997) (quoting W. World Ins. Co. v.

Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)).  Moreover,

the “mere existence of a scintilla of evidence in support of

the [nonmovant’s] position” will be insufficient; there must be

evidence on which a jury could “reasonably find” for the

nonmovant.  Anderson, 477 U.S. at 252.

     A.   Counts I and II

     In Count I, brought pursuant to 29 U.S.C. § 1132(a)(1)(B),

the plaintiff asserts that Standard’s decision to deny the

plaintiff’s claim for long-term disability benefits is

“erroneous, and wrong and incorrect, and a breach of the

insurance policy for disability benefits . . ..”  Compl. ¶ 11.

In Count II, also brought pursuant to 29 U.S.C. §

1132(a)(1)(B), the plaintiff claims that Balfour’s decision to

stop disability payments “was erroneous and wrong and incorrect

and a breach of contract.”  Id. at ¶ 9.

     The plaintiff argues in opposition to the motion for

                              -14-

summary judgment that Standard’s decision to deny her claim for

long-term disability benefits is subject to de novo review, and

that even if the court does not apply the de novo standard of

review, the denial of Dunn’s claim was arbitrary and

capricious.  The court finds neither argument persuasive.

          1.   Standard of Review

     The LTD Plan qualifies as an employee welfare benefit plan

under the Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. § 1002.  Dunn seeks redress pursuant to the ERISA

section which provides as follows:

29 U.S.C. § 1132(a)(1)(B) (West 2001).

     The Supreme Court has held that “a denial of benefits

challenged under § 1132(a)(1)(B) is to be reviewed under a de

novo standard unless the benefit plan gives discretionary

authority to determine eligibility for benefits or to construe

the terms of the plan.”  Firestone Tire and Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989).  If the plan gives such

discretionary authority, the trust principles inherent in ERISA

“make a deferential standard of review appropriate . . ..”  Id.

at 111 (citing Restatement (Second) of Trusts § 187 (1959)).

This deferential standard of review, referred to as the

“arbitrary and capricious” standard, enables a court to

“overturn a decision to deny benefits only if it was without

reason, unsupported by substantial evidence or erroneous as a

matter of law.”  Pagan v. Nynex Pension Plan, 52 F.3d 438, 442

(2d Cir. 1995) (internal quotation marks and citations

omitted).

     The section of the LTD Plan on “Allocation of Authority”

unambiguously grants Standard “full and exclusive authority” to

administer and interpret the Plan.  That section provides that:

     Our authority includes, but is not limited to:

Pavick Aff. Ex. A at D 10015-16.  Although “magic words such as

‘discretion’ and ‘deference’ may not be ‘absolutely necessary’

to avoid a stricter de novo standard of review,” clear use of

such words supports a conclusion that there has been an

unambiguous reservation of discretionary authority to determine

eligibility for benefits and, accordingly, that the arbitrary

and capricious standard of review applies.  Jordan v. Ret.

Comm. Of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d

Cir. 1995).

     The plaintiff claims that despite the unambiguous language

of the LTD Plan, Standard’s conduct shows that it has not

retained discretionary authority to determine eligibility for

benefits under the LTD Plan.  Dunn premises this argument on

the fact that Balfour’s 1996 summary of benefits states that

employees are entitled to 13 weeks of short-term disability

benefits, but Balfour paid Dunn 26 weeks of benefits.  Thus,

Dunn argues, Balfour took on the function of determining

eligibility for long-term disability benefits, and also took on

the function of paying long-term disability benefits at the end

of the 13 weeks.  However, this argument is based on mere

speculation.  The defendants have established that Balfour’s

policy at the relevant point in time was to provide 26 weeks of

benefits under the STD Plan and that Balfour did not play a

role in the determination of eligibility or administration of

long-term disability benefits.  Viewing all the evidence in the

light most favorable to the plaintiff, she has failed to create

a genuine issue of fact as to this contention.  See Weinstock,

224 F.3d at 41 (“[U]nsupported allegations do not create a

material issue of fact.”).

     Thus, the court concludes that Standard has full

discretionary authority under the LTD Plan, and consequently,

the highly deferential arbitrary and capricious standard of

review applies.

          2.   Standard’s Actions Were Not Arbitrary or

               Capricious

     In order to successfully oppose summary judgment in a case

where the arbitrary and capricious standard of review applies,

the plaintiff must show that there is a genuine issue of fact

material to the question of whether Standard’s decision to deny

Dunn benefits was “without reason, unsupported by substantial

evidence or erroneous as a matter of law.”  Pagan v. Nynex

Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995) (internal

quotation marks and citations omitted).  In resolving that

question, the finder of fact “must consider ‘whether the

decision was based on a consideration of the relevant factors

and whether there has been a clear error of judgment . . . .’”

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419

U.S. 281, 285 (1974) (quoting Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 401, 416 (1971)).  Additionally, “if a

benefit plan gives discretion to an administrator or fiduciary

who is operating under a conflict of interest, that conflict

must be weighed as a ‘facto[r] in determining whether there has

been an abuse of discretion.’”  Firestone, 489 U.S. at 115

(quoting Restatement (Second) of Trusts § 187 cmt. D (1959)).

     The plaintiff has failed to establish that a genuine issue

of material fact exists as to whether Standard’s decision to

deny benefits was supported by substantial evidence.

Substantial evidence “is such evidence that a reasonable mind

might accept as adequate to support the conclusion reached by

the decision maker [and] . . . requires more than a scintilla

but less than a preponderance.”  Sandoval v. Aetna Life & Cas.

Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992) (internal

quotation marks and citations omitted).  Under the highly

deferential arbitrary and capricious standard, the court

“cannot reweigh the evidence so long as substantial evidence

supports the plan administrator’s determination.”  Polizzano v.

Nynex Sickness & Accident Disability Benefit Plan, No. 99-7160,

1999 WL 710256 at *2 (2d Cir., Sept. 2, 1999).

     Standard’s determination that Dunn’s disability was caused

or contributed to by a pre-existing condition was based on a

consideration of relevant factors.  Those factors were as

follows:

          obtained an explanation as to why the laboratory

          concluded the tests were negative for Lyme disease.

     Thus, the individuals involved in the decision-making

process at Standard had before them evidence that a reasonable

mind might accept as adequate when they concluded that Dunn did

not have Lyme disease and that she had been treated for the

same impairing condition during and after the exclusion period.

     The plaintiff attempts to create a genuine issue of

material of fact, as to whether Standard’s denial of benefits

was supported by substantial evidence, by arguing that Dr.

Fancher was not sufficiently independent.  She contends that

when approximately 30 percent of a doctor’s practice consists

of work from one client, that doctor cannot be independent.

However, the issue is not material in the context of this case.

Even if the court assumes, arguendo, that Dr. Fancher (as

opposed to Standard) was not independent and thus was operating

under a conflict of interest, and weighs that conflict as a

factor, there is nonetheless undisputed objective medical

evidence to support Dr. Fancher’s conclusions, namely the three

sets of laboratory test results, which were negative for Lyme

disease.  Moreover, in view of the totality of the relevant

factors, adding as a factor a conflict of interest on the part

of Dr. Fancher would not change the court’s conclusion that

there was no abuse of discretion by Standard here.

     Based on the foregoing discussion, the court also

concludes that the plaintiff has failed to create a genuine

issue of material fact as to whether Standard’s decision to

deny benefits was without reason.  The court notes that “[e]ven

if the plaintiff’s interpretation of the facts is as reasonable

as the interpretation adopted by the plan administrator, the

arbitrary and capricious standard requires the court to defer

to the interpretation of the plan administrator.”  Mormile v.

Metro. Life Ins. Co., 91 F. Supp. 2d 492, 495 (D. Conn. 2000).

The plaintiff does not argue that Standard’s decision to deny

benefits was erroneous as a matter of law.

     Accordingly, the court concludes that Standard is entitled

to summary judgment on Count I.  In addition, Balfour is

entitled to summary judgment on Count II because Dunn has

failed to offer any evidence that it had any duty to pay her

benefits under the LTD Plan.

     B.   Counts III and IV

     In Counts III and IV, the plaintiff claims that the

actions of Standard and Balfour, respectively, constitute

unfair and deceptive acts in the conduct of trade or commerce

in violation of CUTPA.  CUTPA provides in relevant part that

“[n]o person shall engage in unfair methods of competition and

unfair or deceptive acts or practices in the conduct of any

trade or commerce.”  Conn. Gen. Stat. § 42-110b(a) (2001).  In

determining whether an act or practice is unfair, “CUPTA

directs the courts of Connecticut to be guided by the

interpretations given to the Federal Trade Commission Act by

the F.T.C. [Federal Trade Commission] and the Federal courts.”

Bailey Employment Sys., Inc., v. Hahn, 545 F. Supp. 62, 68 (D.

Conn. 1982).  Accordingly, the Federal Trade Commission’s

“cigarette rule” requires a consideration of the following

three factors:

Rudel Mach. Co., Inc. v. Giddings & Lewis, Inc., 68 F. Supp. 2d

118, 129 (D. Conn. 1999) (quoting Williams Ford, Inc. v.

Hartford Courant Co., 232 Conn. 559, 591 (1995)).  “All three

criteria need not be satisfied to support a finding of

unfairness.”  Omega Eng’g, Inc. v. Eastman Kodak Co., 908 F.

Supp. 1084, 1099 (D. Conn. 1995).

     As the court finds that Standard’s denial of benefits was

neither arbitrary nor capricious and that it was not without

reason, the plaintiff cannot succeed in asserting that

Standard’s conduct offended public policy, or that it was

immoral and caused substantial injury.  Thus, Standard is

entitled to summary judgment on Count III.

     For the reasons stated above, the Defendant’s Motion for

Summary Judgment [Doc. # 19] is hereby GRANTED.

     The Clerk shall close this case.

     It is so ordered.

     Dated this 22nd day of August, 2001, at Hartford,

Connecticut.

____________________________

     Alvin W. Thompson

United States District Judge