KLAY v. AXA EQUITABLE LIFE INSURANCE COMPANY

ore the court in Fleishman, however, was not whether particular terms were ambiguous, but whether the jury instructions gave the proper guidance with respect to the meaning of total disability. Id. at 1087-88. In reviewing the trial court's decision to grant a motion for a new trial, the appellate court found that trial court erred in providing only a quantitative measure of disability when a qualitative measure also should have also been explained. Id. The appellate court reasoned that, although Pennsylvania law does not require the distinction, the court was obligated to explain crucial contract terms as the law understands them, and that "given the significance of the term total disability in understanding the case, the court's failure to provide a comprehensive definition was fatal." Id. at 1088.

Two federal courts analyzing Pennsylvania law determined that the words "material and substantial" — in the context of interpreting a disability insurance policy — were not ambiguous.Doe v. Provident Life and Acc. Ins. Co., No. Civ. A. 96-3951, 1997 WL 214796, at *4 (E.D. Pa. Apr. 22, 1997); Myers v. Liberty Life Assurance Co., No. Civ. A. 99-1077, 2002 WL 1019029, at *9 (E.D. Pa. May 20, 2002). In Doe, the court stated:

I find that the language "not able to perform the substantial and material duties of your occupation" is clear and unambiguous. This language contains neither legalese nor terms of art beyond the understanding of a reasonable policyholder. Instead, the terms are commonly-used words with generic meanings. Having found the policy language to be clear and unambiguous, the law directs that the language should be read by the jury in accordance with its plain and ordinary meaning. Accordingly, any evidence concerning the meaning of the definition of total disability contained in the three policies is inadmissible parol or extrinsic evidence under Pennsylvania law. See Commonwealth, Dep't of Transp. v. Brozzetti, 684 A.2d 658, 663 (Pa.Commw. 1996) (citing Pennsylvania Dep't of Transp. v. E-Z Parks, Inc., 153 Pa.Cmwlth. 258, 620 A.2d 712 (Pa.Commw. 1993)).

Doe, 1997 WL 214976, at *4 (footnote omitted). The court in Myers relied upon Doe in its findings of fact and conclusions of law and concluded:

The language "unable to perform all of the material and substantial duties of his occupation" needs no specific definition in the Plan because it is clear and unambiguous. See Doe v. Provident Life and Accident Ins. Co., No. Civ. A. 96-3951, 1997 WL 214796, at *4 (E.D.Pa. Apr. 22 1997). This language contains neither legalese nor terms of art beyond the understanding of a reasonable policyholder. See id.

Myers, 2002 WL 1019029, at *9.

With respect to this issue, the court, like the courts in Doe and Myers, finds that the words "material and substantial" as they relate to the interpretation of the definitions of total disability and residual disability are not ambiguous. Plaintiff's arguments that the language must be construed in his favor and that parole evidence is permissible to explain, clarify or resolve any ambiguity are moot. A finding that the terms "material" and "substantial" are not ambiguous does not end the court's inquiry. The real issue is whether the word "the" as used before the phrase "material and substantial duties" should be read as "all the."

It is noteworthy that in Fleishman, a decision relied upon by plaintiff, the language in the relevant policy was "unable to perform all the material and substantial duties of your regular occupation. . . ." Fleishman, 839 A.2d 1088 (emphasis added).

b.) Ability to Perform Some Duties

Plaintiff argues that his ability to perform some of the duties of his regular occupation does not disqualify him from recovery of total disability benefits. There is no dispute that plaintiff's regular occupation for purposes of the policies was as a cardiothoracic and vascular surgeon. The analysis whether the duties of a particular cardiothoracic and vascular surgeon are "material and substantial" at one point in time as compared to another point in time does not call for an interpretation of the words "material," "substantial" or "important;" rather, the analysis is whether the duties engaged in are material and substantial duties.

Plaintiff argues that his lack of ability to perform open heart surgeries, as well as lengthy and complex vascular and thoracic surgeries — which he was able to do prior to the onset of his disability — qualifies him for the benefits of total disability, as defined under the policies. Plaintiff contends that his abilities to perform some surgeries, does not, by itself, preclude him from total disability benefits. Plaintiff relies onCobosco v. Life Assurance Company of Pennsylvania, 213 A.2d 369, 373 (Pa. 1965). In analyzing the question of total disability the Supreme Court of Pennsylvania in Cobosco instructed:

In our opinion, . . . the question of `total disability' must be decided in the context of the ability of the insured to perform the acts or duties necessary to the operation of a business owned by him, . . . the insured must prove that the personal efforts that he himself is capable of making in the operation of the business are insubstantial and unimportant, by reason of their low quality or quantity, in relation to the character and amount of work required to carry on the business. Moskowitz v. Prudential Insurance Company, supra [ 35 A.2d 567, 569 (Pa. Super. Ct. 1944)]; Cobb v. Mutual Life Insurance Company of New York, supra [ 30 A.2d 211 (Pa. Super. Ct. 1943)]; Feigenbaum v. Prudential Insurance Company of America, 144 Pa.Super. [Ct.] 412, 19 A.2d 542 (1941); Eisenhauer v. New York Life Insurance Company, 125 Pa. Super. [Ct.] 403, 189 A. 561 (1937); Butler v. Metropolitan Life Insurance Company, supra [ 186 A. 395 (Pa. Super. Ct. 1936)].

Cobosco, 213 A.2d at 373 (footnote omitted).

The Cobosco rationale does not help plaintiff. Plaintiff does not dispute that he is still performing some of the material and substantial duties of his prior occupation and that he is functioning as a cardiothoracic and vascular surgeon, albeit not doing or cutting back on complex surgeries. No reasonable jury could find the cardiothoracic and vascular surgeries he continues to perform are insubstantial or unimportant. While not as complex as some surgeries, i.e., open heart surgery, they are not in low quality or quantity in relation to the practice of cardiothoracic and vascular surgery. The thrust of plaintiff's argument is that he is not able to perform all the material and substantial duties of his prior occupation. It is somewhat of a misnomer to refer to a "prior" occupation in the context of this case. Plaintiff undisputedly continued after 2006 to perform as a cardiothoracic and vascular surgeon. What is different after July 2006 is that he cut back doing more complex cardiothoracic and vascular surgeries, such as open heart surgeries, but he is still doing cardiothoracic and vascular surgeries. Thus, he is doing some — but not all — of the material and substantial duties of his regular occupation.

Plaintiff argues that he adduced evidence to refute defendant's assertion that he is performing the material and substantial duties of his occupation. He contends that the record shows that he continues to suffer from diabetic complications, such as diabetic neuropathy, trigger fingers, Reynaud's Syndrome, stasis ulcers, and aggravated supra ventricular achycardia or paroxysmal atrial tachycardia — a condition that may cause interruption of blood flow to the brain. Defendant did not dispute any of plaintiff's medical diagnoses. Klay is insulin dependent and takes up to eight injections a day. He is physically unable to stand for extended periods of time, respond to prolonged hourly demands for patient care and management, or take medications at proper times during prolonged work hours. Overall, plaintiff argues that he is unable to carry out work as a cardiothoracic and vascular surgeon. Plaintiff, however, continues to perform some of the material and substantial duties of his occupation.

Upon the advice of his treating physician, plaintiff met with his office staff and told them he was cutting back on his practice. He reduced the amount of surgeries he performed at hospitals other than Wheeling Hospital, and discontinued office hours at several satellite offices. After July 2006, plaintiff did not perform open heart surgeries or several procedures that go hand-in-hand with open heart surgeries. Prior to July 2006, plaintiff's practice consisted of thirty percent cardiac, thirty percent thoracic and forty percent vascular surgeries. His practice now consists of eighty to ninety percent vascular surgeries, up to ten percent thoracic surgeries and up to ten percent pacemakers. The pacemaker surgery plaintiff states is simple in nature and takes no more than an hour to an hour and a half to perform. It is undisputed that pacemaker surgery is a cardiac surgery procedure.

Dr. Wetzel-Saffle testified that as of November 15, 2007, plaintiff was no longer able to perform the material and substantial duties of a vascular surgeon. That testimony, however, is inconsistent with plaintiff's current practice consisting of eighty to ninety percent vascular surgeries. Dr. Glorioso testified that plaintiff is unable to practice as a cardiovascular and thoracic surgeon due to his diabetic condition, as well as the diabetic complications that plaintiff has experienced, including neuropathy of the lower extremities and vascular problems. That testimony is inconsistent with plaintiff's current practice. The issue under the policies is not whether plaintiff should quit performing the material and substantial duties of his regular occupation, but whether he was unable to engage in those duties. No reasonable jury can dispute that his performing the duties is irrefutable evidence that he is able to perform those duties. Once again, plaintiff's argument is that the definition of total disability only requires that he is not able to perform one or more of the material and substantial duties of his regular occupation. The record demonstrates that he can show he no longer performs some of those duties. Indeed, AXA does not dispute that assertion and found plaintiff to be residually disabled.

Defendant argues that the total disability definition must be read in concert with the residual disability rider. Plaintiff responds that defendant's position necessarily implies that an insured who purchases only the total disability policy without the residual disability rider receives broader coverage than an insured — such as plaintiff — who purchased both. Nonetheless, plaintiff argues that even construing the residual disability rider and the total disability definition in concert only creates a continuum of disability under the entire policy and does not indicate where residual disability coverage ends and total disability coverage begins.

In DiTommaso v. The Union Central Life Ins. Co., No. 89-6323, 1991 WL 124601, at *2-5, (E.D. Pa. Jul. 08, 1991), the district court considered the plaintiff's eligibility for total disability benefits. In that case the plaintiff was an osteopathic practitioner. Id. at *3. His occupation was as a general practitioner and his practice included general medicine, minor surgery and manipulations. Id. at *1. The plaintiff could no longer perform surgeries due to an injury to one of his hands which affected his ability to perform surgery or most manipulations. Id. The plaintiff filed for total disability benefits under an insurance policy. The relevant policy inDiTommaso defined total disability as a disability which "continuously prevents the insured from engaging in the regular occupation of the insured at the time disability begins." Id. at * 2. The policy also contained a rider which provided for residual benefits if the insured was unable to perform: "one or more of the insured's daily business duties; or . . . the insured's usual daily business duties for as much time as is usually required to perform such duties." Id.

The court found that the plaintiff was not totally disabled within the meaning of that term in the policy and summary judgment was granted in favor of the insurer. Id. at *3. The court reasoned, that based upon the plain language of the policy as a whole, even though the plaintiff could no longer engage in surgery, the plaintiff was capable of performing the other duties of his occupation — a general practitioner — and continued to earn his living as an osteopathic physician, despite his disability. Id. The court noted that this interpretation was supported by the language of the residual clause, "which specifically provided for a situation where plaintiff would become unable to perform one or more of the duties of his occupation as an osteopathic physician" and that plaintiff's interpretation of the policy would "render [the] residual clause ineffective." Id.

In DiTommaso v. Union Central Life Insurance Co., Civ. A. No. 89-6363, 1991 WL 249977, at * 2 (E.D. Pa. Nov. 25, 1991), aff., 972 F.2d 1330 (3d Cir. 1992) ("DiTommaso II"), the district court reconsidered the grant of summary judgment with respect to the plaintiff's assertion that the court incorrectly referred to the residual insurance rider to change the meaning of the total disability policy. The court in DiTommaso II noted:

Plaintiff misunderstands the use of the residual disability rider in interpreting the total disability policy. I referred to the residual disability rider as an example to further support the interpretation I had already made of total disability provisions after considering it in the context of the whole policy. The residual disability rider provides benefits to the plaintiff in the event that he is unable to perform one or more of the duties of his profession. In my decision I pointed out that plaintiff's interpretation of the total disability policy would render the residual disability rider ineffective, and is therefore not reasonable.

All deposition testimony was carefully considered in my initial determination that the total disability policy was fully integrated, clear and unambiguous.

Furthermore, having found the policy to unambiguously require that the plaintiff's injury prevent him from engaging in his regular occupation at the time of his disability, that of an osteopathic physician, none of the statements, . . . viewed in a light most favorable to the plaintiff, show that he is not earning his primary living as an osteopathic physician.

DiTommaso II, 1991 WL 249977, at * 2.

Plaintiff adduced evidence to reflect that in his regular occupation as a cardiothoracic and vascular surgeon he has many duties and he admitted that he continues to practice cardiothoracic and vascular surgery. He performs approximately eighty to ninety percent of his work in vascular surgery, up to ten percent of his work in thoracic surgery and up to ten percent in cardiac surgery, e.g., pacemaker surgery. Prior to the disability diagnosis he performed cardiac surgery as thirty percent of his work, vascular surgery as forty percent of his work, and thoracic surgery as thirty percent of his work. In other words, plaintiff is still functioning and earning his living as a cardiothoracic and vascular surgeon. See Cobosco, 213 A.2d at 373.

Plaintiff's arguments are undermined by plaintiff's applications for malpractice insurance renewals in 2006, 2007 and 2008. On each application, he stated that he performed minor and major surgeries. With respect to major surgeries, he reported in 2008 that he performed cardiac, thoracic and vascular surgeries. His regular occupation was not limited to being an open heart surgeon. He broadly performed the duties of cardiothoracic and vascular surgery.

The policies here define total disability as plaintiff's "inability due to injury or sickness to engage in the substantial and material duties of your regular occupation." (Pl.'s Concise S.F. at Exs. 1A-B.) (emphasis added.) Plaintiff's regular occupation is that of a cardiothoracic and vascular surgeon. (Pl.s Resp. to Mot. 1) (Docket No. 76.) Plaintiff concedes that he engages in "some" cardiothoracic and vascular surgeries. (Id.) He argues that because he no longer performs open heart surgeries and complicated vascular surgeries, he no longer performs the material and substantial duties of his regular occupation. To decide in plaintiff's favor, the court would have to insert the word "all" before the phrase "the substantial and material duties of plaintiff's regular occupation," changing the meaning of the intent of the parties. This the court cannot do.

Plaintiff's circumstances fit the plain language of the definition for residual disability. The policies define residual disability as:

your inability due to injury or sickness to perform:

(1) one or more of the substantial and material duties of your occupation; or

2) the substantial and material duties of your occupation for as much time as is usually required to perform them.

Id. (emphasis added.) Here, plaintiff's inability to perform open heart surgeries and complicated vascular surgeries means that he can no longer perform one or more of the substantial and material — or important — duties of his occupation. In other words, he has a residual disability, as defined in the policies.

Defendant is correct in pointing out that if the court found plaintiff's position to be reasonable, the definition of residual disability would be meaningless. In other words, to reach the conclusion sought by plaintiff, the court would have to regard the definition of total disability as having the same meaning as residual disability. The court must view each policy, which includes a residual disability rider, as a whole and cannot find reasonable an interpretation which would render the residual disability definition meaningless. DiTommaso, 1991 WL 124601, at *3; see Morgan Smith Auto. Prods., Inc., 210 A.2d at 275; STEVEN PLITT, DANIEL MALDONADO, JOSHUA D. ROGERS, 2 COUCH ON INSURANCE § 21:19 (3d ed. 2010). "Clauses should not be construed as repugnant unless irreconcilable with any reasonable interpretation which incorporates them as forming a harmonious plan for insurance of the nature contemplated by the parties; rather, the construction must, is possible, give force and affect to each clause." STEVEN PLITT, DANIEL MALDONADO, JOSHUA D. ROGERS, 2 COUCH ON INSURANCE § 22.44 at 22-189-90 (3d ed. 2010). Under these circumstances, to be totally disabled the plaintiff would need to show he is no longer primarily working as a cardiothoracic or vascular surgeon — his regular occupation. Plaintiff, undisputedly, did not adduce evidence to show total disability.

The true meaning of the contract must be ascertained from all the provisions in their entirety and not from a literal or technical construction of any isolated or special clauses.

Observation: The terms and conditions of the main insurance contract must be interpreted in light of any riders and endorsements. For example, if the description of the property covered is expanded by an endorsement and this expansion extends the coverage or creates an ambiguity, the two documents must be reconciled.

Further, no phrase should be isolated out of context, for the purpose of creating an ambiguity.
STEVEN PLITT, DANIEL MALDONADO, JOSHUA D. ROGERS, 2 COUCH ON INSURANCE § 22:43 a 22-188-89 (3d ed. 2010).

Viewed in a light most favorable to plaintiff, the record reflects that Klay is still earning his primary living as a cardiothoracic and vascular surgeon. Under those circumstances, there is no genuine issue of material fact in dispute about whether defendant breached its duties to plaintiff under the terms of the policies defining total disability. Summary judgment must be granted in favor of AXA with respect to plaintiff's claims in count II of the amended complaint for breach of contract.

In plaintiff's response to the Motion, he asserts for the first time that defendant also breached the policies by failing to administer properly his residual disability claim, i.e., the onset date of his residual disability should have been July 6, 2006. Plaintiff argues that this claim is subsumed under his claim for breach of contract related to total disability. The court will not address this issue beyond noting that this issue was not raised in the amended complaint and plaintiff will need to seek leave to amend his complaint to assert that claim. See Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57 (3d Cir. 2010) (last minute attempt to amend a pleading for a fourth time; noting tension between Federal Rule of Civil Procedure 15(a)(2) and Federal Rule of Civil Procedure 16(b)(4)); Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend pleadings under Rule 15(a) of the Federal Rules of Civil Procedure is generally at the sound discretion of the trial court); see also Rule 16 Case Management Order ¶ 3(A) ("The parties will need an order of court to amend pleadings. . . .") (Docket No. 43).

C. Count III — Violation of the Covenant of Good Faith and Fair Dealing

A party is generally precluded from maintaining a claim for the breach of the implied duty of good faith and fair dealing separate and distinct from the underlying breach of contract claim. In JHE, Inc. v. SEPTA, No. 1790, 2002 WL 1018941, at *5 (Ct. Com. Pl., Phila. Cnty. May 17, 2002), the court stated:

[T]he implied covenant of good faith does not allow for a claim separate and distinct from a breach of contract claim. Rather, a claim arising from a breach of the covenant of good faith must be prosecuted as a breach of contract claim, as the covenant does nothing more than imply certain obligations into the contract itself.

Id.; see Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 91 (3d Cir. 2000); In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 549 (D. N.J. 2004) ("Although Pennsylvania imposes a duty of good faith and fair dealing on each party in the performance of contracts, there is no separate cause of action for breach of these duties under Pennsylvania law."); Blue Mountain Mushroom Co., Inc. v. Monterey Mushroom, Inc., 246 F.Supp.2d 394, 400 (E.D. Pa. 2002) ("Pennsylvania law does not recognize a separate claim for breach of implied covenant of good faith and fair dealing.");Commonwealth v. BASF Corp., No. 3127, 2001 WL 1807788, at *12 (Ct. Com. Pleas, Phila. Cnty. 2001) ("the duty of good faith, whether express or implied in contract, does not create independent substantive rights nor can it override the express contractual terms").

In the instant case, plaintiff concedes that his claim at count III for breach of the implied covenant of good faith and fair dealing sounds in contract and, under Pennsylvania law, is subsumed within the context of his claim at count II for breach of contract and repetitive of his claim at count IV for "bad faith." (Pl.'s Resp. to Mot. 14.) Therefore, defendant's Motion with respect to count III will be granted.

D. Count IV — Violation of the Unfair Claims Settlement and Practices Act

In count IV plaintiff claims that

[a]t all times material herein, defendant [AXA] was regulated by . . . 40 PA. STAT. § 1171.5(10) and 31 PA. CODE §§ 146.1 et. seq., with such frequency as to indicate a general business practice, including, but not limited to, the following acts:

a) Misrepresenting pertinent facts or insurance policy provisions relating to coverage at issue;

b) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;

c) Refusing to pay claims without conducting a reasonable investigation based upon all available information;

d) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed, and;

e) Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.

(Am. Compl. ¶ 29.) As a direct result of these allegations, plaintiff claims he was damaged and injured because:

a) He has suffered emotional distress, annoyance and inconvenience;

b) He has suffered additional deterioration of his medical condition;

c) He has suffered financially as a result of [AXA]'s failure to timely, fairly and equitably settle Plaintiff Klay's claim, and;

d) He has been forced to institute litigation in order to obtain the benefits to which he is entitled under the terms of this [policy].

(Am. Compl. ¶ 30.)

Defendant argues that plaintiff's claims under 40 PA. STAT. § 1171.5(10) ("UIPA") and 31 PA. CODE §§ 146.1 et seq. should be dismissed because neither statute provides a private cause of action; rather, only the insurance commissioner can assert a cause of action under those provisions. In support, defendant relies upon D' Ambrosio v Pennsylvania National Mutual Casualty Insurance Co., 431 A.2d 966, 969 (Pa. 1981), and Smith v. Nationwide Mutual Fire Insurance Co., 935 F.Supp. 616, 623 (W.D. Pa. 1996).

Plaintiff acknowledged he cannot assert a claim under those provisions. Defendant's Motion will be granted with respect to plaintiff's claims at count IV for violations of the unfair claims and settlement practices act. Plaintiff, however, argues he did set forth claims for bad faith under PA. CONS. STAT. § 8371. See Emp'rs Mut. Cas. Co. v. Loos, 476 F.Supp.2d 478, 493 (W.D. Pa. 2007) ("`[T]he UIPA and the Department of Insurance Regulations can only be enforced by the State Insurance Commissioner and not by way of private action'. . . . [A]a court may look to the language of the UIPA as a guide for determining whether an insurer's conduct constitutes `bad faith' within the meaning of section 8371. . . . even though the conduct alleged to constitute bad faith falls within the purview of acts and practices prohibited by the UIPA.") (quoting Romano v. Nationwide Mut. Fire Ins. Co., 646 A.2d. 1228 (1994)); see also Boring v. Erie Ins. Group, 641 A.2d 1189, 1190 (Pa. Super. Ct. 1994) (holding that even though appellant's insurance claim had yet to be decided, appellant's bad faith claim was premised upon section 8371, and it constituted a clear and distinct cause of action, therefore, the dismissal of appellant's section 8371 claim was appealable). Defendant disagrees and argues that plaintiff should not be able to boot-strap his alleged unfair insurance practices act violations into a bad faith claim under 42 PA. CONS. STAT. § 8371 at this juncture. The court agrees. Plaintiff's claims filed at count IV will be dismissed without prejudice to allow plaintiff to file a motion seeking to amend his complaint to include a claim for bad faith under Pennsylvania's insurance bad faith statute.

E. Count V-Punitive Damages

In count V, plaintiff claims defendant acted willfully or with reckless disregard for the rights of plaintiff or with actual malice, such that punitive damages should be assessed. "A request for punitive damages is similar to a derivative claim . . . and may properly be characterized as `a separate but dependent claim for relief' that must be supported by independent allegations and proof." In re Collins, 233 F.3d 809, 811 (3d Cir. 2000) (quoting 1 James D. Ghiardi, et al., Punitive Damages L. Prac., § 12.07 at 22-23, 25 (1999)). Under Pennsylvania law, punitive damages are not recoverable in an action for breach of contract. See McShea v. City of Phila., 995 A.2d 334 (Pa. 2009); Ash v. Continental Ins. Co., 932 A.2d 877 (Pa. 2007). Recovery of punitive damages are available under 42 PA. CONS. STAT. § 8371:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

Section 8371 permits a bad faith claim which is distinct from the underlying contract claim against the insurer. Boring, 641 A.2d at 1190. Here, plaintiff cannot recover punitive damages absent a finding of defendant's violation of Pennsylvania's insurance bad faith statute. Because defendant's Motion will be granted with respect to count IV, the Motion will also be granted with respect to count V for punitive damages; provided, that if plaintiff seeks to amend his complaint to include a claim for bad faith under 42 PA. CONS. STAT. § 8371, he may also seek to include a claim for punitive damages.

VI. Conclusion

After a careful review of the submissions of the parties, the court concludes that summary judgment must be GRANTED in defendant's favor with prejudice with respect to counts I and III, and without prejudice with respect to counts II, IV, and V. No reasonable jury could render a verdict in plaintiff's favor on any claim asserted in the amended complaint. Plaintiff is granted thirty days to file a motion to amend the amended complaint with respect to counts II, IV, and V to seek to include a claim for breach of contract relating to the administration of his residual disability benefits, a bad faith claim for delay in payment of residual disability benefits and a claim for punitive damages. If plaintiff fails to file a motion to amend the amended complaint within that timeframe, the court will enter judgment in favor of defendant and against plaintiff and the case will be closed. An appropriate order will be entered.

Date: September 28, 2010