PLAINTIFF’S RULE 8 STATEMENT
JURISDICTION
1. Federal courts have
exclusive jurisdiction over the cause of action based on ERISA §502(a)(3).
Federal courts have concurrent jurisdiction with the State of California’s
courts over the cause of action based on ERISA §502(a)(1). The federal court
also has diversity jurisdiction, as the Defendants are corporations incorporated
in Indiana, Florida and Delaware; an individual who lives in Indiana or an
adjacent state; and a business form unknown, located in California.
PLAINTIFF’S PLAIN STATEMENT OF
THE CLAIM
2. Plaintiff is entitled
to receive health insurance benefits under a plan administered by Defendants (ERISA
§502(a)(1)). Plaintiff is entitled to injunctive relief requiring Defendants to
reinstate her health insurance plan and pay all covered claims denied by the
defendants (ERISA §502(a)(3)).
Plaintiff is entitled to recover
for her emotional distress arising from SAINT-GOBAIN CONTAINERS, INC. and SONJA
HEDGES’ repeated accusations to her and to third parties that she had committed
a crime.
PLAINTIFF’S DEMAND FOR JUDGMENT
3.
Plaintiff seeks the following
judgment:
(1)
That defendants SAINT-GOBAIN and
HUMANA shall be required to pay all health insurance benefits due to her under
HUMANA INSURANCE COMPANY Group Health Insurance Plan ChoiceCare® Network PPO
Group ID 91XXX (29 USCS 1132(a)(1)(B));
(2)
That defendants SAINT-GOBAIN,
EMPLOYEE PLANS, and HUMANA shall be enjoined from canceling, either
prospectively or retrospectively, HUMANA INSURANCE COMPANY Group Health
Insurance Plan ChoiceCare® Network PPO Group ID 91XXX.
(3)
Civil penalties as to SAINT-GOBAIN,
COBRASERV, and CERIDIAN of $100 per day for failing to provide proper COBRA
notification to P.M.G. beginning April 24, 1997, the date of the violation. As
of the date of filing of this complaint, 2,933 days have passed. Therefore, the
amount of penalties is $293,300 (ERISA §502).
(4)
That SAINT-GOBAIN shall be
assessed statutory fines of $100 per day for failure to provide disclosure of
its ERISA plan upon written request, first made on February 17, 2005. As of the
date of filing of this complaint, the total fines for this violation are $7,700
(ERISA §502(c); 29 USCS §1132(c)).
(5)
That SAINT-GOBAIN shall be
assessed statutory fines of $100 per day for refusing to respond to a second,
different request for document on March 15, 2005 (ERISA §502(c); 29 USCS
§1132(c)). Total fines are $2000 for the second request.
(6)
Civil penalties as to SAINT-GOBAIN,
EMPLOYEE PLANS, and HUMANA for breach of fiduciary duty (29 USCS §1132(l)),
which amount to 20% of the amount of recovery. The recovery under ERISA
502(a)(1)(B) is estimated at $200,000, so this amount will be around $80,000.
(7)
That Plaintiff shall receive all
damages arising from the emotional distress caused by SAINT-GOBAIN and SONJA
HEDGES, in an amount of approximately $80,000, the cost of her hospitalization
and treatment for the stroke that occurred 24 to 72 hours after SAINT-GOBAIN and
SONJA HEDGES accused her of committing a crime.
(8)
Compensatory and punitive
damages arising from the emotional distress claim.
(9)
Pre-judgment interest.
(10)
Attorneys’ fees and costs, 29
USCS 1132(g).
PLAINTIFF’S COMPLAINT
Come now PLAINTIFF P.M.G., an
individual, and alleges as follows:
4.
At all times mentioned herein,
P.M.G. an individual, is and was a resident of the County of Los Angeles, City
of Arcadia, California.
5.
P.M.G. is 64 years old, and turns 65 in May 2005.
THE DEFENDANTS
6.
At all times herein, SAINT-GOBAIN
CONTAINERS, INC., (SAINT-GOBAIN) a Delaware corporation, is and was a for-profit
Corporation authorized to do business in the State of California, County of Los
Angeles. SAINT-GOBAIN has a manufacturing facility located at 4000 N. Arden
Drive, El Monte, California.
7.
SAINT-GOBAIN is a wholly-owned
subsidiary of Saint-Gobain Group,
a multinational group headquartered in France. Saint-Gobain Group has
operations in 35 countries and its annual net income is approximately $1.3
billion dollars US per year, according to its publicly available financial
statements.
8.
SAINT-GOBAIN employs 20 or more
employees. As such, it is subject to Consolidated Omnibus Budget Reconciliation
Act of 1985 (COBRA) regulation.
9.
P.M.G. is informed and believes that SAINT-GOBAIN’S health
insurance plan is self-funded. Because the plan is self-funded, SAINT-GOBAIN is
a fiduciary within the meaning of 29 USC §1002(21)(a) and 29 CFR
§2560.503-1(g)(2).
10.
At all times mentioned herein,
Defendant HUMANA INSURANCE COMPANY (HUMANA), a Wisconsin corporation, is and was
a health insurance carrier admitted to write insurance in the State of
California, County of Los Angeles. HUMANA holds NAIC No. 73288, Group No. 0119.
11.
Plaintiff is informed and
believes that in exchange for a percentage of the medical claims processed,
HUMANA acts as an administrator for HUMANA INSURANCE COMPANY Group Health
Insurance Plan ChoiceCare® Network PPO Group ID 91XXX. Plaintiff is informed
and believes that HUMANA has discretionary authority in the control of the
administration of the plan. Therefore, HUMANA is a fiduciary within the meaning
of 29 USC §1002(21).
12.
At all times mentioned herein,
Defendant COBRASERV NATIONAL SERVICE CENTER (COBRASERV) is and was a business
form unknown. Its mailing address is in Palm Harbor, Florida.
13.
At all times mentioned herein,
Defendant CERIDIAN BENEFITS SERVICES, INC. (CERIDIAN) is and was a Florida
for-profit corporation. CERIDIAN is named in this action in an abundance of
caution because CERIDIAN appears to be a successor-in-interest to COBRASERV.
14.
Plaintiff is informed and
believes that COBRASERV was retained by SAINT-GOBAIN to provide its employees,
retirees, and their dependents notice of their health insurance rights under the
COBRA.
15.
At all times mentioned herein,
Defendant EMPLOYEE PLANS LLC (EMPLOYEE PLANS) is and was an Indiana Domestic
Limited Liability Company. Plaintiff is informed and believes that EMPLOYEE
PLANS is and was retained by SAINT-GOBAIN CONTAINERS to accept and process
payments made by retirees and dependents under HUMANA INSURANCE COMPANY Group
Health Insurance Plan ChoiceCare® Network PPO Group ID 91XXX.
16.
EMPLOYEE PLANS has the authority
to determine who is entitled to benefits under HUMANA INSURANCE COMPANY Group
Health Insurance Plan ChoiceCare® Network PPO Group ID 91XXX. Therefore,
EMPLOYEE PLANS is a fiduciary within the meaning of 29 USC §1002(21)(a) and 29
CFR §2560.503-1(g)(2).
17.
Defendant SONJA HEDGES, an
individual, is and was an employee of SAINT-GOBAIN, working in the Human
Resources Department.
18.
The true names or capacities
whether individuals, corporate, associate or otherwise, of the Defendants named
herein DOES 1 through 100, inclusive, are unknown to the Plaintiffs, who sue
said Defendants by fictitious names. Plaintiffs will amend this Complaint to
show the true names and capacities when the same have been ascertained.
19.
The Plaintiffs are informed and
believe and thereon allege that the fictitiously named Defendants named herein,
and each of them, are in some way indebted to the Plaintiffs for the acts and
obligations alleged herein.
20.
At all time herein mentioned,
each of the Defendants was the agent and employee of each of their
Co-Defendants, and in doing the things herein mentioned, were acting in the
scope of their authority as such agents and employees, and within the permission
and consent of their Co-Defendants.
THE INSURANCE POLICY
21.
On February 18, 2005, P.M.G.
wrote to SAINT-GOBAIN and requested a copy of her health insurance policy.
SAINT-GOBAIN did not provide her with a copy of that policy and plan documents.
This is a violation of ERISA §502.
22.
On March 15, 2005, P.M.G. wrote
to SAINT-GOBAIN again and requested a copy of her health insurance policy.
SAINT-GOBAIN did not provide her with a copy of that policy. This is a
violation of ERISA §502.
23.
Because SAINT-GOBAIN willfully
and repeatedly refused to provide a copy of the policy, P.M.G. cannot attach a
copy of the policy, nor can she set forth the terms breached by the Defendants
in hac verba. Therefore, she makes her allegations of the terms of the
policy on information and belief, based on HUMANA’S pre-approval of the medical
procedures described herein.
24.
Because SAINT-GOBAIN willfully
and repeatedly refused to provide a copy of the policy, P.M.G. does not know if
benefits under HUMANA INSURANCE COMPANY Group Health Insurance Plan ChoiceCare®
Network PPO Group ID 91XXX are vested which requires that a health insurance
policy must cover an illness or injury contracted while the policy in force
which results in losses within 90 days from the termination of the policy, or
during a period of continuous compensable loss or losses that commences prior to
the end of the 90 days.
25.
Because SAINT-GOBAIN willfully
and repeatedly refused to provide a copy of the policy, P.M.G. does not know if
all of the medical treatment that she received from May 14, 2004 through
February 23, 2005 is covered by HUMANA INSURANCE COMPANY Group Health Insurance
Plan ChoiceCare® Network PPO Group ID 91XXX. However, because P.M.G.’S medical
providers obtained “pre-authorizations” from HUMANA for the services provided to
P.M.G. for treatment she received in this period of time, P.M.G. is informed and
believes that all of those medical services were covered under HUMANA INSURANCE
COMPANY Group Health Insurance Plan ChoiceCare® Network PPO Group ID 91XXX.
26.
Because SAINT-GOBAIN willfully
and repeatedly refused to provide a copy of the policy, P.M.G. does not know if
all of the medical treatment that she received from February 23, 2005 continuing
through and beyond the date of the filing of this Complaint is covered by HUMANA
INSURANCE COMPANY Group Health Insurance Plan ChoiceCare® Network PPO Group ID
91XXX. SAINT-GOBAIN and HUMANA should be estopped from denying coverage for
medical treatment P.M.G. received after February 23, 2005, because of the
willful failure to provide a copy of the insurance policy and the refusal to
adjust her claims for benefits.
DISPUTE RESOLUTION PROCEDURES
27.
Because SAINT-GOBAIN willfully
and repeatedly refused to provide a copy of the policy, P.M.G. only knew the
procedures for resolving coverage disputes as those were conveyed by Scott Grau,
the Manager of Human Resources for SAINT-GOBAIN.
28.
When SAINT-GOBAIN decided to
deny P.M.G. all of her health benefits, it did not tell her of any appeals
process at all. On March 15, 2005, P.M.G.’S attorney sent a draft Complaint to
SAINT-GOBAIN and HUMANA, asking them to review their decision to deny P.M.G.
coverage. P.M.G.’S attorney gave SAINT-GOBAIN until March 25, 2005, to render a
decision
29.
On or around March 24, 2005,
Scott Grau, the Human Resources Director of SAINT-GOBAIN called P.M.G.’S counsel
and told her verbally that she needed to file an appeal to the SAINT-GOBAIN
Benefits Committee. Once again, despite the February 17, 2005 and March 15,
2005, letters, SAINT-GOBAIN provided absolutely no written information to P.M.G.
about the appeals process and procedures. This is a violation of ERISA §502.
30.
On March 25, 2005, P.M.G.
submitted a written Appeals Brief to the SAINT-GOBAIN Benefits Committee in care
of SAINT-GOBAIN.
31.
On or around April 20, 2005,
P.M.G.’S attorney learned from Scott Grau that although the SAINT-GOBAIN
Benefits Committee had not met to consider P.M.G.’S Appeal of SAINT-GOBAIN’S
denial of her benefits, SAINT-GOBAIN’S tentative decision was to deny P.M.G.’S
coverage.
32.
On April 20, 2005, P.M.G.’S
attorney submitted a written Supplemental Brief to the SAINT-GOBAIN Benefits
Committee, pleading for its reconsideration of the tentative denial.
33.
On April 20, 2005, P.M.G.’S
attorney had the Brief and the Supplemental Brief translated into French and
faxed and mailed those briefs to SAINT-GOBAIN’S parent corporation in France,
Saint-Gobain Group.
34.
On April 20, 2005; April 22,
2005; and April 25, 2005, P.M.G.’S attorney faxed and mailed letters both to
SAINT-GOBAIN and Saint-Gobain Group, in English and French, pleading that they
provide health insurance coverage.
35.
On April 29, 2005, Scott Grau
telephoned P.M.G.’S attorney and informed her orally that the SAINT-GOBAIN
Benefits Committee had met and denied P.M.G.’S Appeal. SAINT-GOBAIN did not,
and has not, provided written notification of its decision. This is a violation
of ERISA §502.
36.
P.M.G. has exhausted the administrative remedies made known to
her. The Court’s standard on review is review de novo.
ERISA
37.
Because SAINT-GOBAIN refused to
provide Plaintiff with a copy of her policy, she can only allege on information
and belief that HUMANA INSURANCE COMPANY Group Health Insurance Plan ChoiceCare®
Network PPO Group ID 91XXX is subject to the Employee Retirement Income Security
Act of 1974 (ERISA). This allegation on information and belief is based on the
representations of Scott Grau, the Director of Human Resources for SAINT-GOBAIN;
and on the description of HUMANA as to the operation and administration of the
plan. This is a violation of ERISA §502.
BENEFITS FOR RETIREES AND THEIR
DEPENDENTS
38.
J.G., an individual was employed by SAINT-GOBAIN at its El Monte,
California facility for more than thirty years. J.G. retired from SAINT-GOBAIN
in December 2003.
39.
J.G., as a retiree of SAINT-GOBAIN was a member of its HUMANA
INSURANCE COMPANY Group Health Insurance Plan ChoiceCare® Network PPO Group ID
91XXX, Member ID 00016XXXX XX, effective January 1, 2002. The terms of the
Group Health Insurance Plan include a deductible for certain medical expenses
but not for others, and a co-pay for some medical expenses and not for others.
40.
P.M.G. was a covered spouse, as defined by 29 USC §1167(3), under
the Group Health Insurance Plan offered by HUMANA through SAINT-GOBAIN P.M.G.’S
Health Insurance is and was Group Health Insurance Plan ChoiceCare® Network PPO
Group ID 91XXX, Member ID 00016XXXX XX.
THE SEPARATION AND DIVORCE
41.
P.M.G. married J.G. on July 20, 1963. P.M.G. stopped living with
J.G. on or about August 2, 1994. That day, J.G. moved in with a female employee
of SAINT-GOBAIN. To protect what little privacy remains with respect to
individuals involved this matter, P.M.G. refers to this female employee of
SAINT-GOBAIN as Ms. SLW.
42.
Beginning at least as early as
1997, P.M.G. began contacting HUMANA at least every other month because HUMANA
continued to send doctor’s bills, statements, and claim reports to J.G. Each
time that she contacted HUMANA, she told HUMANA that she did not live with J.G.
P.M.G. told HUMANA she did not live with J.G. about 30 to 36 times, from 1997 to
2003 or later.
43.
In addition to telling HUMANA
more than two dozen times that she did not live with J.G., P.M.G. is informed
and believes that SAINT-GOBAIN knew that J.G. lived with Ms. SLW, as invitations
to SAINT-GOBAIN social events were addressed jointly to J.G. and Ms. SLW at Ms.
SLW’S home address.
44.
After J.G. and P.M.G. stopped
living together in 1994, P.M.G. continued to live at the home in Arcadia,
California, which she had shared with J.G. for more than 30 years. This address
was known to SAINT-GOBAIN J.G. provided to SAINT-GOBAIN as his ‘contact
information’.
45.
Although P.M.G. and J.G. were
not living together from August 2, 1994 until the finalization of the divorce on
May 14, 2004, they were not legally separated as defined by California Family
Code §2330 et. seq.
46.
P.M.G. was an employee of the Monrovia Unified School District
for 27 years, well before COBRA was enacted in 1985. During that time, all of
her health insurance was obtained through J.G.’s employer, SAINT-GOBAIN.
Furthermore, P.M.G.’S job duties with the Monrovia Unified School District had
nothing to do with health insurance or COBRA procedures. Therefore, P.M.G. had
no familiarity at all with COBRA rights, requirements, or obligations.
47.
J.G. filed for divorce from P.M.G. on September 17, 2002. The
divorce was finalized on May 14, 2004. As part of the court-approved Marital
Settlement Agreement, J.G. agreed to pay P.M.G.’S health insurance premiums.
INVOICES FOR HEALTH INSURANCE
PREMIUMS
48.
EMPLOYEE PLANS and SAINT-GOBAIN
sent invoices for J.G.’s premiums and for P.M.G.’S health insurance premiums on
separate invoices. EMPLOYEE PLANS and SAINT-GOBAIN sent the invoices for
P.M.G.’S health insurance to the home Jerry Green shared with Ms. SLW in Big
Bear Lake, California.
49.
P.M.G. is informed and believes that because EMPLOYEE PLANS and
SAINT-GOBAIN sent separate invoices for her health insurance premiums, they knew
that she and J.G. were separated or divorced.
50.
Each payment made by J.G. for
health insurance premiums was made from a joint checking account listing J.G.
and Ms. SLW as the account holders, and their shared address at Big Bear Lake,
California.
51.
J.G. wrote different checks for his premium payment to EMPLOYEE
PLANS and his payment and for P.M.G.’S payment.
52.
J.G. sent each premium payments for P.M.G.’S premiums to EMPLOYEE
PLANS in an envelope separate from his payment.
J.G.’S PAYMENT OF P.M.G.’S
HEALTH INSURANCE PREMIUMS
53.
J.G. paid P.M.G.’S August 2004 premium payment to EMPLOYEE
PLANS. P.M.G. is informed and believes that J.G. wrote a check just for her
August 2004 premium payment only, and included just the invoice for P.M.G.’S
health insurance in the envelope he sent to EMPLOYEE PLANS. EMPLOYEE PLANS
negotiated that payment without incident.
54.
J.G. paid P.M.G.’S September 2004 premium payment to EMPLOYEE
PLANS. P.M.G. is informed and believes that J.G. wrote a check just for her
September 2004 premium payment, and included just the invoice for P.M.G.’S
health insurance in the envelope he sent to EMPLOYEE PLANS. EMPLOYEE PLANS
negotiated that payment without incident.
55.
On October 30, 2004, J.G. wrote
to a check to EMPLOYEE PLANS specifically, to pay his own premium for August
2004. That check was returned by his bank non-sufficient funds on November 19,
2004. P.M.G. is informed and believes EMPLOYEE PLANS received notice that the
check was returned on or about November 19, 2004.
56.
EMPLOYEE PLANS waited until
December 13, 2004 to inform J.G. in writing that his check for his August 2004
premiums for his health insurance coverage had been returned.
57.
On December 13, 2004, EMPLOYEE
PLANS told J.G. that it was applying J.G.’s September 2004 payment for P.M.G.’S
premium to J.G.’s own health insurance premium. EMPLOYEE PLANS did not obtain
J.G.’s consent to apply his September 2004 premium payment for P.M.G.’S coverage
to his coverage.
58.
EMPLOYEE PLANS did not tell
P.M.G. that it was applying J.G.’s September 2004 payment for P.M.G.’S premium
to J.G.’s insurance coverage.
EMPLOYEE PLANS AND SAINT-GOBAIN’S
DECISION
TO TERMINATE P.M.G.’S COVERAGE
59.
At some point in December 2004,
Heather M. Brockhouse, an employee of EMPLOYEE PLANS orally told J.G. that if
J.G. did not catch up on payments by December 21, 2004 on his (J.G.’s) insurance
premiums that his (J.G.’s) health insurance would be cancelled. However,
EMPLOYEE PLANS did not send J.G. a letter telling him that if he (J.G.) did not
catch up on payments on his (J.G.’s) insurance premiums that his (J.G.’s) health
insurance would be cancelled.
60.
EMPLOYEE PLANS did not write to
P.M.G. and tell her that (1) it had applied premiums for her health insurance
coverage to J.G.’s health insurance coverage; or (2) that it would cancel her
health insurance coverage if J.G. did not become current on the payment for his
(J.G.’s) health insurance coverage.
61.
On December 18, 2004, J.G. made
a payment for P.M.G.’S premium for November 2004 coverage to EMPLOYEE PLANS.
Plaintiff is informed and believes that EMPLOYEE PLANS accepted and negotiated
this check.
62.
On December 18, 2004, J.G. also
paid his September 2004 premium to EMPLOYEE PLANS. Plaintiff is informed and
believes that EMPLOYEE PLANS accepted and negotiated this check.
63.
J.G.’s payments for the premiums, which were sent to SAINT-GOBAIN
were postmarked December 20, 2004. Each separate envelope has a “Received Dec
27 2004” stamp.
64.
EMPLOYEE PLANS and SAINT-GOBAIN
jointly decided to terminate P.M.G.’S health insurance on December 28, 2004.
SAINT-GOBAIN and EMPLOYEE PLANS “retroactively” cancelled P.M.G.’S coverage,
effective October 31, 2004. (SAINT-GOBAIN and EMPLOYEE PLANS may have also
retroactively cancelled J.G.’s insurance coverage, but that is not the subject
of this litigation.)
65.
P.M.G. is informed and believes that SAINT-GOBAIN knew that J.G.
divorced her in May 2004, but she does not know when SAINT-GOBAIN was informed
of this fact.
66.
At the time EMPLOYEE PLANS and
SAINT-GOBAIN terminated P.M.G.’S health insurance, J.G. was current the payment
of P.M.G.’S premiums. EMPLOYEE PLANS itself caused P.M.G.’S health insurance
premiums to be in arrears by its unilateral decision to misapply premium
payments made for P.M.G.’S health insurance to J.G.’s health insurance.
67.
Under both ERISA and the
California Insurance Code, an insurer must give notice of cancellation of
health insurance benefits before, not after, the cancellation of the health
insurance. EMPLOYEE PLANS and SAINT-GOBAIN did not do so.
68.
On January 6, 2005, EMPLOYEE
PLANS wrote a letter addressed jointly to J.G. and Mrs. P.M.G. at J.G.’S Big
Bear Lake address. SAINT-GOBAIN told J.G. made the decision to terminate both
insurance plans.
69.
When EMPLOYEE PLANS sent this
letter, both SAINT-GOBAIN and EMPLOYEE PLANS knew that J.G. and P.M.G. were
divorced. No one contacted P.M.G. at her last known address to let her know her
insurance had been cancelled.
COBRA NOTIFICATION OBLIGATIONS
70.
Under the COBRA, Defendant
SAINT-GOBAIN and EMPLOYEE PLANS were required to notify P.M.G. about her COBRA
rights when she first became covered by the HUMANA INSURANCE COMPANY Plan Group
Health Insurance Plan ChoiceCare® Network PPO Group ID 91XXX.
71.
SAINT-GOBAIN claims to have
notified P.M.G. of her COBRA rights by a single letter sent on April 24, 1997,
by COBRASERV. The letter was created after J.G. began living with Ms. SLW in
1994, but before J.G. retired from SAINT-GOBAIN in December 2003.
72.
The letter SAINT-GOBAIN claims
to have through COBRASERV was addressed jointly to J.G. and P.M.G., even though
SAINT-GOBAIN knew that J.G. was living with Ms. SLW, not P.M.G.
73.
P.M.G. never received the April 24, 1997. The letter was not
sent using the United States Postal Service’s Certified Mail or Registered Mail
services. In fact, P.M.G. does not know if the April 24, 1997, letter was
mailed at all, or simply handed to J.G., or, for that matter, whether or not J.G.
every actually received the letter.
74.
Because P.M.G. was not living
with J.G., and because P.M.G. was a separate beneficiary SAINT-GOBAIN had a duty
under COBRA to provide her with separate notification of her COBRA rights and
obligations. It did not do so.
75.
Under COBRA, P.M.G. was entitled
to continuation of her Health Insurance Benefits, identical to the coverage she
had before her divorce on May 14, 2004. SAINT-GOBAIN and HUMANA were required
to notify P.M.G. about her right to continue her health insurance coverage
within 30 days, 26 USC §4980(B)(f)(6)(B), (D), 29 USC §1166(a)(2), (4).
However, as of the date of filing of this Complaint, SAINT-GOBAIN did not notify
P.M.G. about her COBRA right to continue her Health Insurance coverage within
thirty days of the qualifying event, or at all.
76.
Provided that she agrees to pay
for coverage with a premium payment not to exceed 102%, P.M.G. is entitled to
continuation of coverage under the HUMANA INSURANCE COMPANY Group Insurance Plan
offered SAINT-GOBAIN for a period of thirty-six months, 29 USC §4980B(f)(2)(B);
29 USC §1162(2); 42 USC §300bb-2(2), or until she becomes eligible for
Medicare. However, SAINT-GOBAIN has not notified P.M.G. about her COBRA right
to continue her Health Insurance coverage, provided that P.M.G. pay the
premiums. In fact, as of the date of the filing of this Complaint, P.M.G. has
never received an invoice or statement for Health Insurance premiums at all.
77.
SAINT-GOBAIN was required, with
180 days of expiration of the coverage under the Health Insurance plan, to
provide P.M.G. the option of enrolling under a conversion health plan otherwise
generally available under the plan, 26 USC §4980B(f)(2)(E); 28 USC §1162(5); 42
USC §300bb-2(5); 26 CFR §54.4980B-7, Q&A-8. However, SAINT-GOBAIN did not, and
has not as of the date of the filing of this complaint, notified P.M.G. of her
right to enroll in a conversion health plan. In fact, P.M.G. has never received
an invoice or statement for Health Insurance premiums at all.
78.
P.M.G.’S address is Arcadia, Los Angeles County, California, is
listed with HUMANA as her contact information. J.G. is listed with HUMANA as
the “Member”, and his address is in Big Bear City, San Bernardino County,
California.
P.M.G.’S MEDICAL PROBLEMS
79.
In May or June 2004, P.M.G.’S
physicians determined that P.M.G. had a deteriorating heart valve that would
eventually need to be replaced. At that time, P.M.G. was covered by HUMANA
INSURANCE COMPANY Plan Group Health Insurance Plan ChoiceCare® Network PPO Group
ID 91XXX. She submitted a claim for benefits, which were paid.
80.
Because SAINT-GOBAIN was
self-funded; because EMPLOYEE PLANS administered the payment of the benefits;
and because HUMANA arranged for the medical providers who treated P.M.G., these
defendants knew in May or June 2004 that P.M.G. had a serious medical problem
that would require treatment and eventual surgical intervention.
81.
From May or June 2004 to October
2004, P.M.G.’S physicians monitored her cardiac health. P.M.G. made claims for
benefits under her health plan, which were accepted for payment. Once again,
SAINT-GOBAIN, EMPLOYEE PLANS, and HUMANA knew exactly what medical condition
P.M.G. had.
82.
In November 2004, P.M.G.’S
physicians determined that she should undergo surgery to replace the
deteriorating heart valve. This heart valve replacement surgery was medically
necessary, but it could have been delayed to May 2005.
83.
P.M.G.’S physicians set her valve replacement surgery for January
13, 2005. They decided to have her admitted to the hospital on January 12,
2005, for the necessary pre-surgery blood work and testing.
84.
Beginning in December 2004, the
hospital, physicians and laboratories providing treatment for P.M.G. contacted
HUMANA to verify that P.M.G. had coverage for the treatment that she needed.
85.
Beginning in December 2004,
HUMANA confirmed to these medical care providers that P.M.G. had health
insurance coverage for the surgery and related services planned beginning on
January 12, 2005. Those medical service providers were issued
“pre-authorization” numbers by HUMANA.
86.
Although SAINT-GOBAIN, EMPLOYEE
PLANS, and HUMANA all knew that P.M.G. had heart surgery scheduled for January
12, 2005, not one of the Defendants contacted P.M.G. to tell her that her that
Defendants had decided on December 28, 2004, to cancel her health insurance
coverage.
87.
If P.M.G. had known that
Defendants intended to cancel her health insurance coverage, she could have –
and would have – delayed her cardiothoracic surgery until after May 2005, when
she was eligible for Medi-Cal or Medicaid coverage because she had turned 65.
88.
Totally unaware that Defendants
had chosen to cancel her health insurance benefits without telling her, even
though Defendants had known that P.M.G. had a serious heart condition and needed
a valve replacement, P.M.G. had her surgery and was in the hospital from January
13 to January 16, 2005.
89.
Thereafter, P.M.G. had a stroke
on January 19, 2005 and was hospitalized in a different hospital for six days.
90.
As a result of the surgery and
subsequent stroke, P.M.G. is informed and believes that she incurred over
$200,000 in bills for medical services.
91.
P.M.G. requires follow-up examinations and treatment for her
heart surgery. After learning from HUMANA that P.M.G. did not have health
insurance, her cardiothoracic surgeon cancelled a follow-up exam P.M.G. has
cancelled visits to other physicians because she cannot pay them.
92.
P.M.G. requires follow-up examinations, treatment and physical
therapy for the stroke she had after the heart surgery. However, she has
cancelled those examinations, treatments, and physical therapy, because she
cannot afford to pay her medical provider’s past due bills, and she cannot
afford to pay for new treatment.
ACTIONS OF SAINT-GOBAIN AND
SONJA HEDGES INTENDED TO CAUSE P.M.G. SEVERE EMOTIONAL DISTRESS
93.
Within a day or two after P.M.G.
returned home from her heart surgery, on or about January 18, 2005 at 7:30 a.m.,
SAINT-GOBAIN employee SONJA HEDGES called P.M.G. on the telephone and asked
P.M.G. if she was divorced. At the time that SONJA HEDGES called P.M.G., she
was asleep. P.M.G. was recuperating from the heart surgery. P.M.G. was feeling
extremely weak, as would be expected from someone who had just undergone major
surgery.
94.
P.M.G. told SONJA HEDGES that she was divorced, and that she had
been divorced since May of 2004. SONJA HEDGES then told her that because she
was divorced, she was committing fraud.
95.
SONJA HEDGES asked P.M.G. to
send a copy of the divorce order so that she could evaluate whether P.M.G. would
receive benefits. P.M.G. faxed her a copy on or around January 18, 2005.
96.
After the call from SONJA HEDGES
that happened on or around January 18, 2005, P.M.G. felt very distressed. She
was anxious and nervous. She had trouble sleeping, and felt very nauseated. At
that time, P.M.G. knew that the bills for her medical treatment were already
quite large and she was scared.
97.
24 to 72 hours after SONJA
HEDGES called P.M.G. and accused her of committing insurance fraud, P.M.G. had a
stroke and was hospitalized for six days. P.M.G. does not know if the stroke
was caused in part or in whole by SONJA HEDGES telephone call.
98.
After P.M.G. was released from
the hospital after a six day stay resulting from the stroke, she called SONJA
HEDGES repeatedly to find out whether or not she had insurance coverage. P.M.G.
called SONJA HEDGES at least three times a week for three weeks, or at least
nine times total. SONJA HEDGES did not return P.M.G.’S calls until February 17,
2005.
99.
On or around February 17, 2005,
SONJA HEDGES of SAINT-GOBAIN called P.M.G. At that time, A.G. was handling
calls from SAINT-GOBAIN for P.M.G., in order to avoid causing her stress. SONJA
HEDGES told A.G., on the telephone that SAINT-GOBAIN had “cancelled” P.M.G.’S
Health Insurance because P.M.G. had committed fraud.
100.
On February 17, 2005, SONJA
HEDGES knew, at the time she accused P.M.G. of being a criminal, that SAINT-GOBAIN
had never contacted P.M.G. about her divorce until about January 18, 2005. When
asked about the divorce, P.M.G. confirmed that she was divorced and promptly
sent a copy of the divorce order to SAINT-GOBAIN. SONJA HEDGES knew at the time
she accused P.M.G. of committing a felony that P.M.G. had made no false
representations to SAINT-GOBAIN at all.
101.
SONJA HEDGES, as an individual
and on behalf of SAINT-GOBAIN, made these vicious, untruthful accusations to
P.M.G.’S son at a time when she knew that P.M.G. had only been released from the
hospital for 23 days. SONJA HEDGES’ attack caused P.M.G. a great deal of
emotional distress. P.M.G. was quite frightened. Since SONJA HEDGES made that
accusation, P.M.G. has been unable to sleep and worries constantly. She is also
ashamed and humiliated at being branded a felon. She is also extremely
distressed that SONJA HEDGES would tell A.G. that she had committed fraud.
102.
On February 17, 2005, P.M.G.
notified HUMANA and SAINT-GOBAIN, by facsimile that she was represented by
counsel with respect to her Health Insurance Coverage. The original signed
release and representation letters were sent to HUMANA and SAINT-GOBAIN by US
Mail.
103.
On February 17, 2005, P.M.G.,
through her counsel, contacted HUMANA, who told her that she had Health
Insurance Coverage that provided coverage for her health care services,
including those provided to her for her January 2005 heart surgery and the
subsequent hospitalization for her stroke. P.M.G. did this because she had an
appointment with her cardiologist on February 18, 2005.
104.
On February 23, 2005, HUMANA
informed P.M.G.’S counsel that it was denying coverage for P.M.G.’S health care
services, effective either October 31, 2004 or May 14, 2004.
105.
On February 25, 2005, P.M.G. was
represented by counsel. In order to avoid causing stress to P.M.G., that
attorney had directed SAINT-GOBAIN not to contact P.M.G. directly, but to
contact her. However, on February 25, 2005, SONJA HEDGES, on behalf of SAINT-GOBAIN
continued her malicious campaign to terrorize P.M.G. SONJA HEDGES personally
telephoned P.M.G.’S home told her son A.G. that SAINT-GOBAIN had “cancelled”
P.M.G.’S Health Insurance, effective May 14, 2004, the date P.M.G.’S divorce
became final.
106.
SONJA HEDGES did not communicate
this alleged decision to P.M.G.’S attorney. If SAINT-GOBAIN made the decision
to cancel P.M.G.’S health insurance effective May 14, 2004, SAINT-GOBAIN never
put that decision in writing.
107.
Because HUMANA had already
informed P.M.G.’S attorney of this decision, there was absolutely no legitimate
reason for SONJA HEDGES to call P.M.G. at all.
OFFER TO PAY PREMIUMS
108.
P.M.G. has offered to pay the required premiums either to SAINT-GOBAIN
or to HUMANA, but both Defendants have refused to accept P.M.G.’S payment of
those Health Insurance premiums.
DENIAL OF COVERAGE
109.
HUMANA has not sent P.M.G. or
her counsel any written explanation to P.M.G. about the reason for its apparent
denial of benefits. It simply has not paid the bills from P.M.G.’S health care
providers. This is a violation of ERISA §502.
110.
SAINT-GOBAIN has not sent P.M.G.
or her counsel any written explanation to P.M.G. about its apparent attempt to
retroactively cancel P.M.G.’S health insurance coverage. This is a violation of
ERISA §502
111.
EMPLOYEE PLANS has not sent
P.M.G. or her counsel any written explanation to P.M.G. about its apparent
attempt to retroactively cancel P.M.G.’S health insurance coverage. This is a
violation of ERISA §502.
FIRST CAUSE OF ACTION
ACTION TO RECOVER BENEFITS DUE UNDER THE TERMS OF EMPLOYEE HEALTH PLAN [ERISA
§502(a)(1) AND COBRA]
(AGAINST SAINT-GOBAIN;
EMPLOYEE PLANS; COBRASERV; CERIDIAN; HUMANA; AND DOES 1-50)
112.
Plaintiffs hereby incorporate
Paragraphs 1 to 113 as though set forth fully herein.
113.
At all times mentioned herein,
P.M.G. is and was an insured under HUMANA INSURANCE COMPANY Group Health
Insurance Plan ChoiceCare® Network PPO Group ID 91XXX, Member ID 00016XXXX XX,
effective January 1, 2002.
114.
P.M.G. is informed by SAINT-GOBAIN, and therefore believes that
COBRASERV, whose successor-in-interest may be CERIDIAN, was retained to provide
her with notice of her COBRA rights and obligations.
115.
SAINT-GOBAIN and COBRASERV did
not provide P.M.G. with proper notice of her COBRA benefits, obligations, or
rights.
116.
SAINT-GOBAIN and COBRASERV never
gave P.M.G. notice of her obligation under COBRA to give COBRASERV or any other
entity notice when she divorced J.G. As discussed above, the notice that
COBRASERV purportedly sent to P.M.G. was addressed to J.G. in 1997, three years
after SAINT-GOBAIN knew that J.G. had moved in with another SAINT-GOBAIN
employee, Ms. SLW.
117.
Nothing in P.M.G.’S background
or experience would have, or did, put P.M.G. on notice of any obligation under
COBRA to inform SAINT-GOBAIN or any other entity that she divorced J.G.
118.
Because P.M.G.’S Marital
Settlement Agreement with J.G. required J.G. to continue to pay premiums for
P.M.G., she had no direct communication with any Defendant regarding this matter
until after her heart surgery.
119.
Although they were obligated
under COBRA and ERISA, as described above, Defendants SAINT-GOBAIN, EMPLOYEE
PLANS and HUMANA did not notify P.M.G. that her coverage under HUMANA INSURANCE
COMPANY Group Health Insurance Plan ChoiceCare® Network PPO Group ID 91XXX had
been cancelled, changed, or modified until February 17, 2005.
120.
Because SAINT-GOBAIN and
EMPLOYEE PLANS have not provided a written communication regarding P.M.G.’S
coverage, P.M.G. does not know if SAINT-GOBAIN and EMPLOYEE PLANS cancelled her
policy effective May 14, 2004 or October 31, 2004.
121.
As descried above, P.M.G. was
diagnosed with a heart valve problem in May or June 2004. That problem was
reported to SAINT-GOBAIN, EMPLOYEE PLANS and HUMANA.
122.
Because SAINT-GOBAIN willfully
refused to provide a copy of the Policy to P.M.G., P.M.G. does not know if her
rights were vested under the Policy. If her rights were vested under the
Policy, SAINT-GOBAIN was not legally permitted to cancel P.M.G.’S policy because
she was diagnosed with the heart valve problem before cancellation of the
policy.
123.
Prior to receiving treatment
covered by HUMANA INSURANCE COMPANY Group Health Insurance Plan ChoiceCare®
Network PPO Group ID 91XXX, Member ID 00016XXXX XX, P.M.G.’S health care
providers verified that P.M.G. was covered under that policy. Her treatment was
‘pre-authorized’ by HUMANA. These verifications and pre-authorizations took
place with respect to all treatment that P.M.G. received between May 14, 2004
and February 23, 2005.
124.
On February 17, 2005, SAINT-GOBAIN
notified P.M.G. that it was working with HUMANA to have her retroactively
removed from its Group Health Insurance Plan. SAINT-GOBAIN and EMPLOYEE PLANS
were doing this because J.G. had not timely paid insurance premium payments
125.
On February 23, 2005, HUMANA
notified P.M.G. that it was retroactively canceling P.M.G.’S health insurance
benefits and would not be paying her medical bills. HUMANA was apparently doing
this because SAINT-GOBAIN and EMPLOYEE PLANS had informed HUMANA that J.G. had
not timely paid insurance premium payments.
126.
Upon learning that J.G. had not
paid P.M.G.’S Health Insurance Premium Payments, P.M.G. promptly to pay all
Health Insurance Premium Payments due. P.M.G. complied with the terms of her
insurance policy by offering to tender all premiums due to HUMANA and/or SAINT-GOBAIN,
or any other entity that would accept those payments. However, neither HUMANA
nor SAINT-GOBAIN would accept payment by P.M.G. P.M.G. was therefore excused
from making premium payments, because neither HUMANA nor SAINT-GOBAIN would
accept the premium payments.
127.
HUMANA and SAINT-GOBAIN
therefore breached their contract to pay insurance benefits under HUMANA
INSURANCE COMPANY Group Health Insurance Plan ChoiceCare® Network PPO Group ID
91XXX, Member ID 00016XXXX XX.
128.
P.M.G. is therefore entitled to:
(a)
Payment, in full, of all of her
medical claims from May 14, 2004 to the present, as against SAINT-GOBAIN and
HUMANA, in an amount estimated to be in excess of $200,000.
(b)
Statutory fines for violation of
COBRA/ERISA in an amount in excess of $302,300 plus any additional fines that
accrued after the date of filing of this Complaint, as to SAINT-GOBAIN,
COBRASERV and CERIDIAN.
(c)
Attorneys’ fees and costs.
SECOND CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY [ERISA
§502(a)(3)]
(AGAINST DEFENDANTS SAINT-GOBAIN,
EMPLOYEE PLANS, HUMANA, AND DOES 1-50, INCLUSIVE)
129.
Plaintiff hereby incorporates
Paragraphs 1 to 128 as though set forth fully herein.
130.
At all times mentioned herein,
P.M.G.’s and was an insured under HUMANA INSURANCE COMPANY Group Health
Insurance Plan ChoiceCare® Network PPO Group ID 91XXX, Member ID 00016XXXX XX,
effective January 1, 2002.
131.
As described above, SAINT-GOBAIN,
EMPLOYEE PLANS, and HUMANA have a special duty under federal law to protect the
interests and rights of participants and beneficiaries.
132.
ERISA fiduciaries have a duty to disclose truthful and complete
information, particularly when specific inquiries are made regarding benefits.
133.
HUMANA did not disclose truthful
and complete information to P.M.G. HUMANA did not tell P.M.G. that she did not
have health insurance coverage until February 23, 2005.
134.
SAINT-GOBAIN did not disclose
truthful and complete information to P.M.G. SAINT-GOBAIN did not tell P.M.G.
that she did not have health insurance coverage until February 25, 2005.
135.
ERISA fiduciaries may not make false representations regarding
employee benefits.
136.
In this case, up to February 23,
2005, HUMANA told P.M.G. she had health insurance coverage. This was not true.
137.
ERISA fiduciaries must exercise their duty with the care, skill
and prudence that a prudent person would use under the circumstances.
138.
SAINT-GOBAIN, EMPLOYEE PLANS,
and HUMANA have known since May or June 2004 that P.M.G. had a deteriorating
heart valve that needed replacement.
139.
SAINT-GOBAIN, EMPLOYEE PLANS,
and HUMANA have known since November 2004 that P.M.G. had heart surgery
scheduled for January 13, 2005.
140.
SAINT-GOBAIN and EMPLOYEE PLANS
decided to terminate P.M.G.’S health coverage on December 28, 2004. Even though
they knew that P.M.G. had heart surgery scheduled in two weeks, SAINT-GOBAIN and
EMPLOYEE PLANS made absolutely no effort to contact her at all.
141.
P.M.G. is therefore entitled to all damages arising from SAINT-GOBAIN,
EMPLOYEE PLANS and HUMANA’S Breach of Fiduciary duty, including:
(1)
