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DOE v. PROVIDENT LIFE & ACCIDENT INS. CO.

August 14, 1996

JOHN DOE, a fictitious name, Plaintiff,
v.
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: REED

 Reed, J.

 August 14, 1996

 Currently before the Court is the motion by defendants to dismiss Count I of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") and to strike a portion of Count II pursuant to Federal Rule of Civil Procedure 12(f) ("Rule 12(f)"). (Document No. 9) For the following reasons, the motion will be granted.

 I. FACTUAL BACKGROUND

 The following facts are based upon the well-pleaded allegations of the complaint. See Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977).

 In the late 1980's, plaintiff purchased three "own occupation, non-cancellable" disability insurance policies issued by defendant. At the time, plaintiff was employed as a trial lawyer and had been so employed for many years. Plaintiff has consistently paid all of the premiums due under these policies.

 On November 17, 1993, plaintiff became disabled when he sustained serious injuries in an automobile accident. After reviewing information submitted by plaintiff and his treating physician, defendant agreed that plaintiff was totally disabled, as defined in the policies, from performing the duties of a trial attorney due to the physical injuries suffered in that accident. Defendant therefore paid plaintiff the benefits owed to him under the policies from the date of the accident to July 1994.

 In July 1994, plaintiff applied to have his benefits continued due to the fact that he remained totally disabled from performing his duties as a trial lawyer because of the severe clinical depression that he was experiencing in the wake of the automobile accident. After reviewing the information submitted by plaintiff and his treating psychiatrist, Jan W. Doeff, M.D., defendant agreed that plaintiff continued to be totally disabled from performing his duties as a trial lawyer and therefore continued to pay plaintiff the benefits owed to him under the policies.

 Shortly thereafter, defendant began requiring plaintiff to submit on a monthly basis a new application for benefits and a new report from Dr. Doeff. Plaintiff and Dr. Doeff complied with these requirements and continue to do so. Then, in August 1995, defendant requested that plaintiff submit to a psychiatric examination by a doctor chosen by defendant, Robert M. Toborowsky, M.D. Dr. Toborowsky examined plaintiff on September 14, 1995 and submitted his report to defendant on November 7, 1995; in that report, Dr. Toborowsky concluded that plaintiff was no longer disabled from performing his occupation as a trial attorney. Based on this report, defendant terminated the disability benefits of plaintiff effective November 8, 1995.

 Just before plaintiff received the letter informing him of the termination of his disability benefits, he was admitted to a hospital suffering from classic heart attack symptoms. Plaintiff was instructed to have a heart catheterization procedure, but his further treatment was complicated by the sudden and unanticipated termination of his disability benefits as this termination caused plaintiff great stress and anxiety. He was eventually able to have the procedure after defendant agreed to restore his disability benefits, although defendant paid these benefits under a full reservation of rights and continued to require plaintiff to submit benefit applications and reports from his treating physicians on a monthly basis. Plaintiff then underwent a balloon angioplasty operation and was ultimately diagnosed as having coronary artery disease.


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