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Pakovich v. Verizon Ltd Plan

March 24, 2010


The opinion of the court was delivered by: Reagan, District Judge


I. Introduction

The Court will briefly recite the well-known history of this case. On June 22, 2005, Plaintiff Lisa Pakovich filed suit against Broadspire Services, Inc., and Verizon Communications, Inc., under ERISA, 29 U.S.C. § 1132(a)(1)(B), after Broadspire decided that she was no longer entitled to long term disability benefits.*fn1 Pakovich v. Broadspire Services, Inc., Case No. 05-445-MJR (S.D.Ill) (Pakovich I). The Court found in Pakovich's favor, in part, determining that Broadspire had unreasonably concluded that Pakovich was able to perform the essential functions of her sales position with Verizon Wireless, which was the standard for receiving disability benefits for the first 24 months. However, the Court also found that Pakovich was not entitled to disability benefits beyond the 24 months because benefits were only available in that instance if Pakovich was disabled under the "any occupation" standard. On July 24, 2008, the Seventh Circuit Court of Appeals remanded Broadspire's denial of disability benefits to Pakovich under the "any occupation" definition to the Plan Administrator. Pakovich v. Broadspire Services, Inc., 535 F.3d 601 (7th Cir. 2008). On September 4, 2008, the undersigned Judge vacated his grant of summary judgment for Broadspire and remanded Pakovich's claim to the Plan Administrator for determination of her eligibility under the "any occupation" provision. Pakovich I, Doc. 72.

On January 30, 2009, Pakovich commenced the current action under 29 U.S.C. § 1132(a)(1)B), claiming that the Plan's delay in making its determination constituted a "deemed denial" of her claim for benefits.*fn2 She asserted that the "deemed denial" was erroneous and that she was entitled to long-term disability benefits under Verizon's LTD Plan from July 2004 to the present time as well as interest on all unpaid amounts and cost of living adjustments. According to Pakovich, as of July 2004, the minimum monthly benefit owed to her was $720.20.

The case is now before the Court on cross motions for summary judgment, which are fully briefed.

II. Legal Standard

Summary judgment is appropriate where there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., -- F.3d --, 2010 WL 424580, *3 (7th Cir. Feb. 8, 2010); Durable Mfg. Co. v. U.S. Department of Labor, 578 F.3d 497, 501 (7th Cir. 2009), citing FED.R.CIV.P.56(c). Accord Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In ruling on a summary judgment motion, this Court must view in the light most favorable to the non-movant the evidence plus all inferences reasonably drawn from the evidence. Reget v. City of La Crosse, -- F.3d --, 2010 WL 424581 (7th Cir. Feb. 8, 2010); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007). When cross-motions for summary judgment are filed, "we look to the burden of proof that each party would bear on an issue of trial; we then require that party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact." Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 643 (7th Cir. 2007). As the United States Court of Appeals for the Seventh Circuit has explained, on cross-motions for summary judgment, the Court must construe "the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Durable, 578 F.3d at 501, citing Rickher v. Home Depot., Inc., 535 F.3d 661, 664 (7th Cir. 2008). Accord Jefferson v. United States, 546 F.3d 477, 480 (7th Cir. 2008).

And when the nonmoving party bears the burden of proof, he must demonstrate the existence of a genuine fact issue to defeat summary judgment. Reget, 2010 WL 424581, *2. That is, the non-movant must provide evidence on which the jury or court could find in his favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

III. Analysis

Pakovich contends that from July 24, 2008, through at least January 30, 2009, the Plan failed to communicate any decision regarding her eligibility for disability benefits, despite the Seventh Circuit's direction that the Plan make such a determination. On November 10, 2008, Pakovich's physician, Dr. Lawrence Harmon, provided the Plan with a report which concluded, based on objective findings made during the doctor's July 13, 2004, examination as well as his knowledge of Pakovich's specific medical conditions, "Lisa Pakovich was unable to work and unable to engage in any gainful employment of any sort for any period of time in excess of two hours." Doc. 2, Exhibit B. Dr. Harmon informed the Plan that Pakovich had been continuously unable to engage in any form of gainful employment from February 4, 2003, through the present. Id.

Pakovich claims that she was compelled to file the instant lawsuit because - despite the Seventh Circuit's July 2008 remand - the Plan had failed to communicate a decision on the merits of her claim for disability benefits some six months later. A little more than one month after suit was filed, on March 6, 2009, the Plan's claim handler, Maribel Amor, told Pakovich's counsel that the Plan had agreed to pay Pakovich "any occupation benefits" from July 15, 2004, "subject to final approval" from management. See Doc. 33, Exhibit A, Barron Affidavit.

Pakovich submits that an order of this Court finding for her and awarding her benefits is necessary to prevent the Plan from simply changing its determination and cutting off benefits in a manner inconsistent with the Plan documents and the applicable statutory provisions, rules, regulations and case law. Pakovich asserts that she has incurred substantial attorneys' fees and costs since November 2006 in an effort to recover the benefits to which she is entitled. She contends that but for the efforts of her attorney, she would not have received the benefits which, after five years of litigation, the Plan now concedes she is contractually entitled to receive.

The relief sought by Pakovich is fourfold: that the Court find that she is a prevailing party and as such is entitled to benefits in the amount of $720.00 a month until age 65 or until such time as she is determined to be no longer eligible for ...

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