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DONALD J. TOMPKINS v. CENTRAL LABORERS' PENSION FUND

November 29, 2010

DONALD J. TOMPKINS, PLAINTIFF,
v.
CENTRAL LABORERS' PENSION FUND, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore United States Magistrate Judge

E-FILED

Monday, 29 November, 2010 01:30:47 PM

Clerk, U.S. District Court, ILCD

ORDER

BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:

Plaintiff challenges Defendant's suspension of his disability payments and Defendant's determination that over $48,000.00 had been overpaid to Plaintiff. Much of the dispute focuses on Defendant's interpretation of the Plan's definition of total and permanent disability, in particular a "$14,000 provision" which addresses the effect of non-laborer earnings on permanent disability payments.

Discovery closed on October 1, 2010. Now before the Court is Plaintiff's motion to determine the sufficiency of Defendant's responses to Plaintiff's requests to admit. For the reasons below, the motion will be granted in part.

Fed. R. Civ. P. 36(a)(4) requires a response to a request for admission to: specifically deny it or state in detail the reasons why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of the matter, the answer must specify the part admitted and qualify or deny the rest. . . .

The requests for admission are not attached to Plaintiff's motion. Instead, Plaintiff "cut and pasted" portions of the requests and answers into his motion. At times, context is difficult to discern from this cut and paste job, but the parties seem to agree on the gist of the disputes. Accordingly, the Court sets forth the disputed requests verbatim as Plaintiff has set them forth in his motion, using Plaintiff's numbering system. Plaintiff's Request 2: Plaintiff seeks an admission that the "$14,000 provision" has not materially changed in two prior amendments or in a restatement to the Plan. The problem, however, is that Plaintiff's wording of his request is confusing. He asks Defendant to admit: The truth of each of the following statements at subparagraphs (A) thru (T):

(A) The following bolded Pension Plan language is provided consecutively in:

1) Plan Section 3.10 of Amendment No. 5, to the Restated Plan "Effective October 1, 1994" as adopted on May 19, 1997 and entitled "Total and Permanent Disability Defined," 2) Plan Section 3.10 of Amendment No. 7, to the Restated Plan "Effective October 1, 1994" as adopted on November 10, 1998, and entitled "Total and Permanent Disability Defined," and 3) Plan Section 1.31 of the Restated Plan "Effective October 1, 1999" as adopted on September 9, 2002 and entitled "Total and Permanent Disability" (Complaint Ex. 8) and which was referenced in and attached to the Fund's letter of June 1, 2007 (Comp. Ex 7). Said Pension Plan language (as in #3 above) is, in relevant part, as follows: A "Total and Permanent Disability" shall mean that, in the opinion of a licensed medical practitioner selected or approved by the Trustees, the Employee is totally and permanently unable as a result of bodily injury or disease to engage in other any further employment or gainful pursuit as a Laborer or other Building Trades Crafts employment in the construction industry for remuneration or profit, regardless of the amount, or unable to engage in further employment or gainful pursuit of non-Laborer or other non-Building Trades Crafts employment for which the employment is considered full-time and a primary source of income. For such non-Laborer or other non-Building Trades Crafts employment, notwithstanding the restrictions of Section 7.8, the Participant may earn up to $14,000 per calendar year in non-Laborer or other non-Building Trades Crafts employment and be considered totally and permanently disabled. (d/e 31, p. 2, bolded in Plaintiff's motion).

The Court agrees with Defendant that this request is confusing and ambiguous. First, the bolded part is not bolded in the plan documents, according to Defendant. Admitting that these sections are bolded would be incorrect and would also suggest emphasis exists in the Plan where it does not. Additionally, the Court agrees with Defendant that the word "consecutively" is ambiguous. Consecutive to what? A clearer approach would have been to set forth the relevant language of each version of the Plan in a separate request to admit for each version, in the exact form in which it is set forth in the Plan. Arguments about the inferences that can be drawn from the Plan's language belong at summary judgment.

However, Defendant will be directed to amend its response, to the extent that Plaintiff is seeking an admission that the paragraph at issue (if it had not been altered by Plaintiff) is contained in the identified Plan versions. This seems to be what Plaintiff seeks, and should be simple enough for Defendant to answer.

Plaintiff's Request 2(B):

(I) The above quoted Pension Plan language from Section 1.31 was a subject of the 2 e-mails from The Segal Company's David Dean identified in paragraph 1 (E) & (F) above. [quoted for reference to (iii)& (iv)].

(ii) The e-mail identified above at paragraph 1(F) attached a proposed "draft amendment [No. 5] that changes the language [of Section 1.31] so there is no longer an[y] question as to the meaning." [quoted for reference to (iii)& (iv)].

(iii) The purpose of said draft amendment was to limit a Participant's ability to earn up to $14,000 per calendar year, in non-Laborer or other non-Building Trades Crafts employment, to employment "that is not considered full-time and a primary source of income." (d/e 31, p. 4)(bracketed material in Plaintiff's motion).

This admission appears aimed at extracting an admission that the proposed draft amendment demonstrates that the original $14,000 provision was meant to apply to ...


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