United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge United States District
matter is before the Court on the motion of Plaintiff William
Kennedy to strike the declaration of Richard Lodi (“the
Lodi declaration”), ECF No. 32. Defendant Life
Insurance Company of North America (LINA) responded, ECF No.
33. Kennedy replied, ECF No. 36. For the reasons explained
below, the Court will deny Kennedy's motion to strike.
Allegations in the Complaint
was an insured under a long term disability policy that LINA
had issued to his employer. Compl. ¶¶ 6-8, ECF No.
1. Kennedy stopped working in August 2012 because of
limitations caused by his disabling conditions and
corresponding treatments. Id. ¶ 9. After
ceasing work, Kennedy remained continuously disabled.
Id. ¶ 10. He was unable to participate in any
gainful employment. Id.
submitted a disability claim to LINA for short term and long
term disability benefits using the insurance company's
standardized disability claim form, which was entitled
“Report of Claim.” Id. ¶¶
denied Kennedy's claim for short term disability
benefits. Id. ¶ 13. It did not issue a decision
for his application for long term disability benefits.
Id. ¶ 14. LINA's internal administrative
policy required it to process Kennedy's long term
disability benefits claim, even though it had denied his
claim for short term disability benefits. Id. ¶
wrote to LINA after it had failed to issue a decision on his
claim for long term disability benefits. Id. ¶
17. In the letter, he requested that LINA (1) provide a copy
of the claim that would have confirmed that it had reviewed
his long term disability claim, (2) confirm that he had
exhausted his short term and long term disability claims, or
(3) process his letter as a claim for long term disability
benefits and render a decision. Id. LINA did not
respond to Kennedy's letter. Id. ¶ 18. When
LINA failed to respond to the letter, Kennedy again wrote to
the insurance company and reiterated his request.
Id. ¶ 19. LINA again failed to respond.
Id. ¶ 20.
filed suit in this Court under the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§
1132(a)(1)(B) and 1132(a)(3). Id. ¶ 27. He
seeks to enforce the contractual terms of his disability
policy, to obtain past benefits, to receive reinstatement for
payment of future benefits, to obtain declaratory relief, and
to obtain other equitable relief, including surcharge.
Id. He also seeks attorney fees and costs under 29
U.S.C. § 1132(g). Id. ¶¶ 28-29.
has moved for summary judgment on Kennedy's claims. Mot.
Summ. J. 1, ECF. No. 28. The motion for summary judgment is
still pending. Id. In support of its motion for
summary judgment, LINA attached the Lodi declaration. Lodi
Decl., ECF No. 28-2. In the declaration, Lodi states that he
is a senior operations representative who maintains custody
and access to records pertaining to LINA's short term
disability benefits. Id. ¶ 1. He explains
LINA's claim procedures. Id. ¶¶ 2-5.
He further affirms that LINA never received a request for an
appeal of its denial of Kennedy's short term or long term
disability benefits. Id. ¶¶ 6-7. Lodi
further maintains that LINA did not receive a proof of loss
within the time allotted for filing a proof of claim, never
received satisfactory proof of loss, and never received a
request for appeal of the denial of a long term benefit
claim. Id. ¶¶ 8-9. Finally, Lodi affirms
that LINA has not paid any short term or long term disability
benefits related to a claim that Kennedy became disabled on
August 18, 2012. Id. ¶ 10.
now moves to strike the Lodi declaration. Mot. Strike 1,
ECF No. 32. Kennedy asserts that the Court should not
consider the Lodi declaration because its review of the
denial of ERISA benefits is limited to the administrative
record. Id. at 1-3. LINA argues in opposition that
failure to exhaust administrative remedies is an affirmative
defense that is properly raised on a motion for summary
judgment and that declarations may be submitted in support of
a motion for ...