Life, Annuities, Health, and Disability Products and Plan Litigation

DO&CB represents some of the most prominent insurers and administrators of life, annuities, health, and disability products and specializes in all forms of group and individual policy litigation.

Representative Matters

Individual Life and Disability Insurance and Annuities Litigation

  • Obtained summary judgment dismissing complaint seeking payment on two life insurance policies that lapsed due to non-payment of premiums. The Court held the Insurer provided proper notice of the premium due dates in accordance with New York insurance law, affirmed New York law that an insurance agent does not owe a fiduciary duty to his client and rejected Plaintiff’s attempt to credit timely payments on an in-force policy to the lapsed policies in order to reinstate them after the death of the insured. Teresa Williams v. Prudential Financial Inc., et al., (Index No. 113568/10, N.Y. Sup. Ct., May 27, 2015)
  • Obtained dismissal of lawsuit against insurance company and its broker-dealer and registered investment advisor unit on the basis that causes of action alleging that defendants negligently supervised a financial advisor, were vicariously liable for actions taken with respect to elderly customer’s insurance policies, annuities, and other investments, and had breached a direct fiduciary duty to Plaintiff were time-barred. Davoli v. Dourdas, 2015 N.Y. Misc. LEXIS 1345 (N.Y. Sup. Ct. Apr. 20, 2015).
  • Obtained dismissal of all six counts of complaint brought by former spouse of deceased and mother of adult children to whom MetLife has paid the death benefits. The Court held that the negligent infliction of emotional distress count was “utterly without merit and, indeed, frivolous” and that the breach of contract count alleging that plaintiff was due the insurance monies on her own behalf was barred by New Jersey’s divorce revocation statute. The Court dismissed the remaining counts for failure to state a claim, noting, inter alia, “In the absence of pled facts, Plaintiff’s allegation is merely a legal conclusion devoid of factual support.” Dean v. New England Mutual Life Ins. Co., Metropolitan Life Ins. Co. t/a MetLife, No. 14-2211 (D.N.J. Jan. 29, 2015).
  • Successfully opposed plaintiff’s summary judgment motion seeking life insurance benefits. Opposition was based on misrepresentations of medical history and identity of premium payor contrary to anti-money laundering and PATRIOT Act requirements. Successfully cross-claimed to add a cause of action under the New Jersey Fraud Protection Act. Decision was upheld by Appellate Division, First Department. Johnson v. Metro. Life Ins. Co., 24 Misc. 3d 956, 880 N.Y.S.2d 842 (N.Y. Sup. Ct. 2009), aff’d, 79 A.D.3d 450, 913 N.Y.S.2d 44 (N.Y. App. Div. 1st Dep’t 2010).
  • Obtained decision holding that plaintiff’s action was barred by his failure to opt out of a multi-state federal court class action settlement governing the policy. Greene v. Metro. Ins. and Annuity Co., No. 07-2903 (MLC), 2009 U.S. Dist. LEXIS 33767, 2009 WL 1045016 (D.N.J. Apr. 20, 2009).
  • Obtained summary judgment and successfully opposed class certification in a class action alleging age discrimination in premium charged on life policies with continuation of premium provision. Lunn v. Prudential Ins. Co. of Am., 283 F. App’x 940 (D.N.J.), aff’d,2008 WL 2569339 (3d Cir. 2008).
  • Obtained appellate court decision holding that, pursuant to the express terms of New York Insurance Law Section 3214, the interest to be awarded for the pre-judgment period is the interest settlement option rate of the life insurance policy at issue, and not the statutory nine percent rate. Gassman v. Metro. Life Ins. Co., 56 A.D.3d 608, 868 N.Y.S.2d 98 (N.Y. App. Div. 2d Dep’t 2008).
  • Obtained summary judgment dismissing complaint alleging improper sale of annuities, including allegation that monies should have been invested in the stock market, and that agent exercised undue influence and recommended annuities solely to obtain commissions. Gillette v. MetLife, No. 00/604042 (New York Supreme Court, New York County, 2000).
  • Obtained summary judgment dismissing claims relating to several disability riders. Jasmine v. MetLife, No. 99/11325 (New York Supreme Court, New York County, 1999). 

Life Insurance Interpleader Actions

  • National coordinating counsel for three major life insurers involving the resolution and litigation of competing claims for life insurance proceeds and slayer statutes. Actively involved in interpleader litigation throughout the United States Federal District, state and probate courts.
  • Obtained dismissal in an interpleader action where adverse claimant opposed based on insurer’s failure to produce internal policies, including procedures for acceptance of change of beneficiary designations. The federal district court in Washington state concluded that the adverse claimant had failed to show that the lack of discovery from the insurer prevented her from presenting facts essential to her claims, namely that she was the rightful beneficiary of the policy proceeds, and refused to allow additional discovery for the adverse claimant to invent claims against the insurer that were not supported by the record and irrelevant to the issues in the case. New York Life Insurance Company v. Frieda Bostwick, et al. 14-CV-05931-RJB (July 22, 2015).
  • Obtained judgment on the pleadings denying plaintiff’s Motion to Remand a lawsuit seeking life insurance benefits, holding that the Insurer’s principal place of business (its nerve center under the United States Supreme Court decision in Hertz v. Friend) was in New Jersey. The federal district court also found that diversity of citizenship jurisdiction was not destroyed by the Insurer’s filing of a third party complaint in interpleader against another California claimant. The federal court held that it had ancillary jurisdiction over that third party claim. Reiter v. The Prudential Insurance Company of America, et al., CV 14-08351 PSG (C.D. Cal. March 25, 2015).
  • Obtained dismissal of a lawsuit pending in the Central District of California on the basis that it was an improperly filed anticipatory lawsuit in favor of a later-filed interpleader action filed by the insurer in the District of New Jersey. Brimberry v. The Prudential Ins. Co. of America, No. 13-00186 (C.D. Cal. May 2, 2013).
  • Obtained a preliminary injunction and constructive trust over funds paid to a putative beneficiary in the face of a competing claimant’s post-payment claim for the proceeds. Pruco Life Ins. Co. v. Noviello, No. OCN-L-496-13 (N.J. Super. Ct. May 1, 2013); The Prudential Ins. Co. of America v. Hewitt-Jackson, No. 13-00788 (W.D. Pa. Sept. 10, 2013).
  • Successfully argued to the District Court, Eastern District of Kentucky that the standard of review was arbitrary and capricious with respect to decision to interplead ERISA-governed life insurance benefits.

  Life, Health, and Disability Group Plans Litigation (ERISA and non-ERISA)

  • Successfully resolved numerous ERISA governed long-term disability benefits actions, frequently through mediation.
  • Obtained summary judgment in suits to recover benefits under ERISA plans.

Dismissals on the Merits

Benefit Determination Not Arbitrary and Capricious

  • Obtained summary judgment in New Jersey Federal District Court dismissing plaintiff’s denial of coverage claim and holding that a company’s denial of accidental death and dismemberment benefits based upon the sickness exclusion was not arbitrary and capricious. Wortendyke v. The Prudential Ins. Co. of America, No. 10-06060 (D.N.J. May 11, 2012).
  • Obtained summary judgment on ERISA-governed Accidental Death and Dismemberment plan upholding administrator’s determination that a partial loss of thumb and functional loss of fingers did not constitute “dismemberment” under the terms of the plan. Khan v. Prudential Ins. Co. of America, No. 08-02292 (D.N.J. Mar. 31, 2010).
  • Obtained summary judgment dismissing plaintiff’s denial of coverage claim and holding that Prudential’s denial of accidental death and dismemberment benefits based upon an intoxication exclusion was not arbitrary and capricious. Benoit v. Prudential Ins. Co. of Am., No. 07-CV-6407, 2008 LEXIS 56706, 2008 WL 2917492 (W.D.N.Y. July 24, 2008).
  • Obtained summary judgment dismissing claims for health and long-term disability benefits in numerous actions involving ERISA plans based on a finding that the determination was not arbitrary and capricious, including decisions regarding the appropriate treatment for Lyme disease and treatment for substance abuse. See, e.g., Healix Healthcare, Inc. v. Metrahealth Ins. Co., No. 97 Civ. 6838 JSM, 1999 U.S. Dist. LEXIS 1288, 1999 WL 61832 (S.D.N.Y. Feb. 10, 1999); Silver Hill Hosp. v. Rizzo, No. 97 Civ. 8207 (RPP), 1999 LEXIS 9896, 1999 WL 447446 (S.D.N.Y. June 30, 1999).


  • Obtained summary judgment on disputed amount of AD&D benefit under ERISA-governed welfare plan. The Prudential Ins. Co. of Amer. v. Brimberry, No. 13-07429, 2014 WL 3510109 (C.D. Cal. July 11, 2014).
  • Obtained summary judgment dismissing a claim for accidental death benefits under an ERISA-governed policy on the basis that the loss was excluded under the policy’s medical treatment exclusion as well as time-barred by the policy’s contractual limitation provision. Eterovich v. Prudential Ins. Co. of Am., No. 11-2907, 2012 U.S. Dist. LEXIS 15271, 2012 WL 406272 (D.N.J. Feb. 8, 2012).
  • Obtained summary judgment dismissing plaintiff’s claim for damages under ERISA 510 (29 U.S.C. § 1140) and seeking a private right of action for a violation of HIPAA.  The court stated that the plaintiff had authorized the company to disclose information to relevant parties such as her employer. Further, the court rejected plaintiff’s HIPAA claim stating, among other things, that she had no standing to bring a private right of action against the company for violating HIPAA. Bamforth v. Frontier Commc’ns Corp., 2012 U.S. Dist. LEXIS 175882 (N.D.N.Y Dec. 12, 2012).
  • Obtained summary judgment holding that Prudential was not estopped from asserting that the ERISA benefit plan participant’s son was ineligible for coverage, participant was not entitled to convert dependent coverage to an individual policy retroactively, participant’s claim for breach of the common law duty of good faith and fair dealing was preempted by ERISA, and claim captioned as a request for “equitable relief” in fact sought nothing other than money. Bicknell v. Lockheed Martin Grp. Benefits Plan, 410 F. App’x 570 (3d Cir. 2011).

 Dismissals Based on ERISA Affirmative Defenses

          Exhaustion of Administrative Remedies

  • Obtained summary judgment dismissing claim for health benefits due to plaintiff’s failure to exhaust administrative remedies and successfully opposed motion for summary judgment dismissing ERISA causes of action for unjust enrichment and equitable restitution. Antell v. United Healthcare Ins. Co., No. 1:10-cv-03194-RJS, 2012 U.S. Dist. LEXIS 188246 (S.D.N.Y. Mar. 16, 2012).

Time Barred

  • Obtained judgment on the pleadings holding that courts must adhere to the accrual date as set forth in an ERISA plan, even if the limitations period begins to run before an individual can bring a legal action. The court also found that plaintiff’s notice of claim and proof of loss submissions were barred by the plan’s express time limits. Salerno v. Prudential Ins. Co. of Am., No. 1:08-CV-0787 (LEK/DRH), 2009 U.S. Dist. LEXIS 66804, 2009 WL 2412732 (N.D.N.Y. Aug. 3, 2009); see also Gassiott v. Prudential Ins. Co. of Am., No..08 Civ. 7358 (JFK), 2009 U.S. Dist. LEXIS 93136, 2009 WL 3188428 (S.D.N.Y. Oct. 6, 2009).
  • Obtained judgment dismissing action for long term disability benefits under group, non-ERISA plan on the basis that the claim was time-barred pursuant to the policy’s three year contractual limitations period providing that no action may be brought more than three years after the time proof of loss is required. The court rejected plaintiff’s argument that the accrual date provided for in the contractual limitations provision should be ignored and/or equitably tolled because plaintiff was engaged in an internal appeals process.



  • Successfully argued that an ERISA plan beneficiary’s New Jersey Consumer Fraud Act claim was preempted by ERISA. Grimes v. Prudential Fin., Inc., No. 09-419 (FLW), 2010 LEXIS 64530, 2010 WL 2667424 (D.N.J. June 29, 2010).
  • Obtained decision denying motion to remand based on assignment of claims to provider, and holding that ERISA pre-empted all of the state statutory and common law claims relating to claims under ERISA plans. Weisenthal v. UnitedHealthCare Ins. Co. of New York, Nos. 07 Civ. 1175 (LAP), 07 Civ. 0945 (LAP), 2007 U.S. Dist. LEXIS 91447, 2007 WL 4292039 (S.D.N.Y. Nov. 29, 2007).
  • Obtained summary judgment holding that ERISA preempted breach of contract and duty of good faith and fair dealing claims and dismissing ERISA complaint for failure to exhaust plan’s administrative procedures before seeking judicial relief. Majka v. Prudential Ins. Co. of Am., 171 F. Supp. 2d 410 (D.N.J. 2001).

Health Plan Litigation

          Provider Litigation

  • Successfully moved to compel arbitration and stay litigation in action brought by hospital against insurance company regarding DRG payments under a hospital service agreement. Montefiore Medical Center v. Aetna Health, Inc., 2013 N.Y. Misc. LEXIS 2356 (N.Y. Sup. Ct. Mar. 22, 2013).
  • Obtained partial summary judgment based on affirmative defenses on behalf of a health insurer and plan sponsors defending against action brought by group of neurosurgeons seeking additional payments for over 190 surgeries paid by health insurer according to plan terms. Neuroaxis Neurosurgical Assocs., PC v. Costco Wholesale Co., 919 F. Supp. 2d 345 (S.D.N.Y. 2013).
  • Represented health insurers in connection with New York and New Jersey state court actions brought by non-participating providers seeking to avoid ERISA protections and standing issues by claiming negligent misrepresentation, and other torts allegedly unique to the providers.
  • Obtained full recovery of overpayments made by insurer under hospital contract. Successfully arbitrated claims brought by hospital that insurer has underpaid hospital pursuant to contract.

Benefits Litigation

  • Obtained summary judgment dismissing a putative class action challenging secondary payer status of the group plan when the member was eligible for Medicare coverage. When the same class plaintiff commenced a similar putative class action in federal court, the court granted summary judgment and denied class certification. Regan v. N.Y.S. Dept. of Civil Serv., 284 A.D.2d. 950, 725 N.Y.S.2d 917 (N.Y. App. Div. 4th Dep’t 2001). Regan v. Metro. Life Ins. Co., 80 F. App’x 718 (2d Cir. 2003), denied, 543 U.S. 875, 125 S. Ct. 84, 160 L. Ed. 2d 126 (U.S. 2004).
  • Obtained summary judgment in numerous actions based on anti-assignment, reasonable and customary charge and/or statute of limitations provisions in health insurance plans. See, e.g., Basri v. MetLife Ins. Co., 306 A.D.2d 302, 760 N.Y.S.2d 654 (N.Y. App. Div. 2d Dep’t 2003).
  • Successfully litigated, through trial and appeal, a lawsuit challenging the reduction of skilled nursing benefits from twenty-four to two hours per day. Recovery Home Servs. v. Metro. Life Ins. Co., 284 A.D.2d 178, 726 N.Y.S.2d 253 (N.Y. App. Div. 2d Dep’t 2001).
  • Obtained summary judgment upholding Medicare supplemental plan’s determination that plaintiff’s stay in skilled nursing facility was not covered under the terms of the health plan at issue, as her medical condition did not require skilled care. Berkowitz v. Neuman v. United Health Care, No. 98-6831 (New York Supreme Court, Bronx County, 1998).
  • Obtained summary judgment with respect to RICO, fraud, and New York State Consumer Fraud statute claims regarding denied claims for skilled nursing care. Hutton v. MetLife, No. 97-09312 (New York Supreme Court, Westchester County, 1997).
  • Obtained summary judgment and denial of a motion for class certification in connection with a putative class action under New York State’s Well Baby statute. Gosinski v. MetLife, No. 95-126777 (New York Supreme Court, New York County, 1995).


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