United States District Court, Eastern District of Pennsylvania
October 5, 2001
CHERYL DORSEY, PLAINTIFF,
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, DEFENDANT.
The opinion of the court was delivered by: Katz, Senior District Judge.
MEMORANDUM AND ORDER
Now before the court are cross-motions for summary judgment in the
above-captioned action filed under the Employee Retirement Income
Security Act of 1974, 29 U.S.C.A. § 1001 et seq. Because the court
finds that the insurance company's decision to deny benefits was
arbitrary and capricious, the plaintiff's motion for summary judgment is
granted and the defendant's motion for summary judgment is denied.
Plaintiff Cheryl Dorsey brings this action against the defendant,
Provident Life and Accident Insurance (Provident), following Provident's
denial of her claim for long-term disability (LTD) benefits. The
plaintiff applied for benefits on the grounds that she suffered from
fibromyalgia, a disorder characterized by diffuse musculoskeletal pain,
stiffness, paresthesia, nonrestorative sleep and easy fatigability.
Harrison's Principles of Internal Medicine 1706-07 (Kurt J. Isselbacher,
et al., eds., 13th ed. 1994). Fibromyalgia is a rheumatological disorder
that manifests itself through a variety of symptoms including,
generalized aching and stiffness of the
trunk, hip and shoulder girdles. Other
patients complain of generalized aching
and muscle weakness. Patients perceive
that their joints are swollen; however,
joint examination is normal. . . . Patients
complain of exhaustion and wake up tired.
They also awake frequently at night and
have trouble falling back asleep. Symptoms
are made worse by stress or anxiety, cold,
damp weather, and overexertion. . . .
Disorders commonly associated with
fibromyalgia include irritable bowel
syndrome, irritable bladder, headaches
(including migraine headaches), and
Id. at 1706. Fibromyalgia is diagnosed by its clinical manifestations,
and, in particular, manifestation of tender sites which "are exquisitely
more tender than adjacent areas." Id. Joint and muscle examination is
normal and there are no laboratory abnormalities associated with the
disorder. Id. While some patients respond well to treatment, "others
continue to have chronic disease which may be only partially relieved, if
at all." Id.
The history of plaintiff's claim for benefits is as follows.*fn1
Dorsey worked as Director of Sales and Marketing at Zurich Payroll
Solutions until she became ill in February, 1999. App. to Def's Summ. J.
Mot. at PLACL00004.*fn2 In August, 1999, she submitted an application
for long term disability benefits to defendant Provident Life and
Accident Insurance. App. at PLACL00001-55. Dorsey's application stated
that she suffered from severe migraines and cervical strain, and her
primary care physician indicated that she suffered from "severe
fibromyalgia, severe migraines, [and] cervical strain." App. at
PLACL00006. On August 24, 1999, case manager Karen Mathis, a registered
nurse (RN), spoke with the plaintiff and the plaintiff's employer, as
well as reviewed her medical records. App. at PLACL00060-61. In an
Mathis noted that an independent doctor had examined the
plaintiff; that she was receiving short-term disability payments, and that
her employer described her job as requiring some travel. Id. Mathis
recommended gathering more medical information from Dorsey's primary care
physician, rheumatologist, and physical therapist. Id.
On September 29, 1999, RN Julie Kennelly conducted a second review of
Dorsey's claim. App. at PLACL00071-72. In her report, titled "DCM
review," Nurse Kennelly discussed the medical records submitted by the
plaintiff and noted that many doctors had diagnosed Dorsey with
fibromyalgia. Id. Even though the doctors were unanimous in their
diagnosis, the Kennelly concluded that there was not enough data to
support their conclusions stating:
[a]lthough several physicians give the
insured the diagnosis of fibromyalgia
none of them list all the trigger points
or other findings of the syndrome. Depression
is usually associated with this diagnosis,
however, the insure [sic] denies any depression
and no diagnosis of such is given. Due to
lack of medical support the diagnosis does
not appear conclusive. . . . Duration of
disability cannot be made at this time, as
there is not enough information to support
insured's inability to perform her job
App. at PLACL00071-72. Kennelly then recommended that Provident obtain all
the available medical records and review the claim again.
On October 8, 1999, Dr. David Chesner, Dorsey's rheumatologist,
submitted a detailed letter to Provident on behalf of Dorsey. Dr. Chesner
gave a thorough description of the plaintiff's medical condition and
indicated that she was seeing a psychologist for the depression caused by
her illness stating:
[A m]usculoskeletal examination revealed severe
fibromyalgia trigger points present diffusely
throughout the axial and appendicular skeleton. . . .
Cheryl Dorsey is completely and totally disabled from
seeking gainful employment at this time. This is
secondary to severe fibromyalgia syndrome with chronic
fatigue and cognitive impairment. There is no cure for
fibromyalgia, and therefore the therapies are somewhat
limited. Her pain level has persisted despite numerous
attempts with narcotic analgesics and
antidepressants. Her prognosis for recovery is
App. at PLACL00465-67.
A physical therapist then examined the plaintiff at Provident's request
and conducted a functional capacity evaluation (FCE) on November 18,
1999. App. at PLACL00215. According to the therapist, the plaintiff's
performance during this evaluation placed her in the light category of
work. However, the therapist noted that it was "questionable" whether the
plaintiff gave her full effort throughout the entire test. App. at
PLACL00210-15. Provident conducted video surveillance of the plaintiff
for three full days beginning November 17th culminating in a fifteen
minute videotape showing the plaintiff driving her children to school as
well as walking slowly to and from her car for very brief periods of
On January 10, 2000, Dr. Nancy Beecher, conducted Provident's only
physician review of the plaintiff's disability claim. However, it is
unclear whether Dr. Beecher reviewed all of the medical records or simply
the FCE and surveillance tape,*fn4
and her report only referenced those
two sources. App. at PLACL00216-17. Dr. Beecher's report concluded that
the plaintiff was capable of performing light physical demand work, App.
at PLACL00216-17, and noted that Dorsey was "said to have given less
than [a] full effort [on] the evaluation based on grip testing." App. at
In addition, Pam Perdue, Provident's Rehabilitation Consultant,
performed an analysis of the FCE and the plaintiff's job requirements on
January 18, 2000. Perdue employed a generic description of Dorsey's job
at Zurich and determined that it fell in the medium work category. App.
at PLACL00222-30. However, Perdue concluded that the plaintiff could
return to her job even though the FCE listed her work capacity as light.
Id. Like Dr. Beecher, Perdue relied on the physical therapist's remark
that it was "questionable" whether the plaintiff had performed at full
capacity during the FCE. App. at PLACLOO229-30.
The claims file at this point included letters from the plaintiff's
physicians describing her disorder.*fn5 After performing an
electromyography,*fn6 Dr. Sea Hun Kim wrote to Dr. Robert Cherrey,
Dorsey's primary care physician, that "[u]pon palpitation of the upper
back the patient has an exquisite tender point in both upper trapezius
muscles. She also has a tender point on the right rhomboid and also the
left middle trapezius in rhomboid muscles." App. at PLACL00024. Dr. James
Burke, the plaintiff's neurologist, also wrote to Dr. Cherry that
"[Dorsey] continues to have significant tenderness with trigger points
over the trapezii, deltoid, cervical paraspinal musculative, and
occipital musculature as well as the interscapular region. . . . She does
have the clinical symptoms consistent with the diagnosis of fibromyalgia
as well." App. at PLACL00426-27. Dr. Burke followed up this letter with
another dated April 28, 1999 where he noted that "[t]here are numerous
points of exquisite tenderness on palpation along the trapezii, paraspinal
muscles, particularly in the interscapular and suprailiac regions as well
as in the quadriceps and glutei. . . . I believe that Ms. Dorsey has
fibromyalgia." App. at PLACL00409-10. Furthermore, the medical records
included a letter from Dr. Stephen Lewis, the independent doctor hired by
the plaintiff's short-term disability provider. Dr. Lewis wrote that
Ms. Dorsey's examination is consistent
with the diagnosis of fibromyalgia. She
has considerable muscular pains without
alteration of neurological examination.
This disorder may be quite difficult to
bring under control. It is usually quite
frustrating (as it is to Ms. Dorsey). As
she is here in the office, I did not see
how she would be able to physically
function at her prior position which
App. at PLACL000481-82.
Provident denied Dorsey's claim on January 10, 1999. App. at
PLACL00282. The plaintiff appealed Provident's decision to deny long term
disability benefits in March 2000. App. at PLACL00246-47. During the
appeal process, the plaintiff submitted medical additional medical records
including another doctor's opinion, office notes from her psychologist,
and more information from her rheumatologist. App. at PLACL00257-62 &
PLACL00325-516. Dr. Charles Pritchard, who wrote that Dorsey had tried
numerous medications with only minor benefit, agreed with the plaintiff's
rheumatologist that she would not be able to return to work. Dr.
[Ms. Dorsey] has classic fibromyalgia
and meets the American College of
Rheumatology Criteria for this disease.
. . . I suggest that most likely Cheryl
will never be able to return to her past
position as Director of Sales and
Marketing or any other position requiring
the same demands. Unfortunately until her
pain and other symptoms can be controlled,
she would not be able to sustain any
App. at PLACL00260-61. Furthermore, Dr. Chesner explained that "Mrs.
Dorsey could get a job, but she would not be able to sustain it for more
than a week or two." App. at PLACL00364. Dr. Chesner also added:
Ms. Dorsey's symptoms affect various parts of her
body, causing her to be unable to function in any
capacity. It is important to note that Cheryl had the
ability on a given day to function for very short
periods of time. However, this activity results in
severe pain and the inability to function for 48 to 72
hours. . . . Although Cheryl may be able to secure
employment because of her past work record, she would
not be able to perform on a consistent basis to
sustain employment. Normal work related activities
such as walking, driving, writing, computer work,
bending, and turning her head, etc. result in her
being unable to function for an undetermined time
period. An employer would not be able to work with the
unreliable nature of her illness. The fact that she
can perform these activities at a given time does not
take into consideration the consequences of those
actions when dealing with this disease.
App. at PLACL00404. Also included in the appeal were notes from the
plaintiff's psychologist diagnosing her with major depressive disorder.
App. at PLACL00348.
On September 12, 2000, Dr. Nancy Beecher, the same person who conducted
the plaintiff's initial physician review, evaluated the additional
medical information and concluded that nothing had changed. App. at
PLACL00265-67. Dr. Beecher reported that "[the new medical records] do
not support any physical medical impairment that would cause [Dorsey] to
be unable to do a sedentary to light physical demand job." App. at
PLACL00265-67. During the appeal process, the Social Security
Administration awarded the plaintiff disability benefits, and Dorsey' s
attorney forwarded this information to Provident's appeal division. App.
at PLACL00268-77. On October 31, 2000, Provident denied the plaintiff's
appeal. App. at PLACL00284-85.
II. Legal Standards
A. Summary Judgment
Summary judgment is appropriate if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits
show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c). At the summary judgment stage, the court does not weigh the
evidence and determine the truth of the matter. Rather, it determines
whether or not there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242
, 249 (1986). In making this determination, all
of the facts must be viewed in the light most favorable to, and all
reasonable inferences must be drawn in favor of; the non-moving party.
Id. at 256.
The moving party has the burden of showing there are no genuine issues
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Mathews v. Lancaster General Hosp., 87 F.3d 624, 639 (3d Cir. 1996). In
response, the non-moving party must adduce more than a mere scintilla of
evidence in its favor, and cannot simply reassert factually unsupported
allegations contained in its pleadings. Anderson, 477 U.S. at 249;
Celotex, 477 U.S. at 325; Williams v. Borough of West Chester,
891 F.2d 458, 460 (3d Cir. 1989). Rather, there must be evidence on which
a jury could reasonably find for the nonmovant. Liberty Lobby, 477 U.S.
at 252. "Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the
burden of proof at trial." Celotex, 477 U.S. at 322.
B. Denial of Benefits under ERISA
Because the insurance policy at issue is an employee benefit plan, this
action is governed by the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. § 1001 et seq. In Firestone Tire & Rubber
Company v. Bruch, the Supreme Court set forth the standard for reviewing
a denial of benefits under an ERISA plan. 489 U.S. 101
to the Court, a denial of benefits must be reviewed de novo unless the
plan gives the administrator discretionary authority to interpret the
terms of the plan. Id. at 115. In the latter instance, judicial review is
limited to determining whether the administrator abused her discretion.
Id. The Third Circuit subsequently held that district courts should apply
the arbitrary and capricious standard of review when a plan grants
discretionary authority to a plan's administrator.*fn7
Hoffman-La Roche, Inc., 2 F.3d 40
, 44-45 (3rd Cir. 2000). Under this
standard of review, a court may not overturn an administrator's decision
unless that decision "is not clearly supported by the evidence in the
record or the administrator has failed to comply with the procedures
required by the plan." Id. at 41.
In announcing the appropriate standard of review in ERISA actions, the
Supreme Court in Firestone also instructed courts to be wary of an
administrator's conflict of interest. The Court wrote "if a benefit plan
gives discretion to an administrator or fiduciary who is operating under
a conflict of interest, then that conflict must be weighed as a factor in
determining whether there is an abuse of discretion." Firestone, 489
U.S. at 115. The Third Circuit has interpreted this comment in Firestone
to require application of a heightened arbitrary and capricious standard
when an insurance company both determines eligibility for benefits and
pays those benefits out of its own fund. Pinto v. Reliance Standard Life
Ins. Co., 214 F.3d 377, 383, 387 (3rd Cir. 2000). According to the Third
Circuit, there is a strong incentive for an insurance company to deny
benefits when "the fund from which monies are paid is the same fund from
which the insurance company reaps its profits." Id. at 378. In
recognition of this potential for conflict, the Third Circuit directed
district courts to utilize a "sliding scale approach, according different
degrees of deference depending on the apparent seriousness of the
conflict." Id. at 391. Such an approach "allows each case to be examined
on its facts." Id. at 392. Factors a court may take into account in
determining the appropriate degree of deference to be employed include:
"the sophistication of the parties, the information accessible to the
parties, . . . the exact financial arrangement between the insurer and the
company [and] the current status of the fiduciary." Id. Moreover, a court
should look not only at whether the result is supported by reason but
also "at the process by which the result was achieved." Id. at 393. A
heightened arbitrary and capricious standard of review is a "range, not a
point [that is] more penetrating the greater . . . the suspicion of
partiality, less penetrating the smaller [the] suspicion." Id. at 392-393
(citation, punctuation omitted).*fn8
A. Standard of Review
Although the policy at issue in this case does not contain an express
grant of discretionary authority to Provident, a plan's terms may imply
discretionary powers even if they are not granted expressly. Luby v.
Teamsters Health, Welfare, and Pension Trust Funds, 944 F.2d 1176
(3rd Cir. 1991). Provident's policy states that benefits will only be
awarded if there is "proof of loss," which is defined as written evidence
satisfactory to Provident that a claimant is disabled. App. at
PLACL00297. In Pinto, the Third Circuit found that similar proof-of-loss
language implied discretionary authority in the plan's administrator.
Pinto, 214 F.3d at 378. Furthermore, the plaintiff concedes that
Provident had discretionary authority to determine benefit eligibility.
Pl.'s Mem. in Support of Mot. for Summ. J. at Id. Therefore, this court
must apply the arbitrary and capricious standard to Provident's decision
to deny benefits to Ms. Dorsey.
Now the question becomes whether to apply a heightened arbitrary and
capricious standard under Pinto. The defendant concedes that it both
funds and determines eligibility for benefits under the plan at issue and
that Pinto's heightened arbitrary and capricious standard should apply.
Def's Mem. in Support of Summ. J. at 10. Defendant, however, argues that
the scale should slide only slightly away from a very deferential review
because there is no evidence in the administrative record that
Provident's handling of the claim was affected by a conflict of
interest. However, as fully discussed in this court's memorandum and
order of even date granting plaintiff's motion for the inclusion of
evidence outside the administrative record, this court is not limited to
the administrative record in determining what level of deference to apply
to the claim administrator's decision.
While courts must examine the nature and degree of an administrator's
conflict of interest, there is rarely "`smoking gun' direct evidence of
purposeful bias. . . ." Pinto, 214 F.3d at 379. In Pinto, the Third
Circuit found the procedural anomalies of the particular claim at issue
indicated a significant conflict of interest. Pinto, 214 F.3d at 394. In
that case, the Third Circuit noted that the insurance company reversed
its initial decision to award benefits, ignored a staff worker's
recommendation to reinstate benefits, and selectively relied on a
doctor's specific limitations to reject the claim while ignoring the
doctor's diagnosis of disability. Pinto, 214 F.3d at 393-94. In the
plaintiff's claim there are similar procedural anomalies, although they
are more structural in nature. While different divisions within Provident
handled Dorsey's initial claim and her appeal, Dr. Beecher conducted both
the plaintiff's first medical review as well as her appellate medical
review. Dr. Beecher reviewed her own work during the appeal process and,
not surprisingly, came to the same conclusion both times. Furthermore,
Noel Haynes, the appeals consultant responsible for Ms. Dorsey's appeal,
could not independently reverse Provident's denial of benefits. As Haynes
admitted in a deposition:
Q: [C]an you change that decision [to deny
A: I can make a recommendation to change the
Q: And who do you make that recommendation to?
A: The people who made the decision.
Q: In other words, you could send it back to the
general med unit? . . .
A: Yes, I would contact them and advise them of the
reasons why I came to a different conclusion and
sit down and discuss it with them.
Q: And then what would happen?
A: And then once we had an agreement, then we would
proceed with a recommendation.
App. to Pl.'s Mot. for Inclusion of Evidence at 10 (dep. of N. Haynes)
(emphasis added). Even though Haynes agreed with initial decision to deny
benefits to Dorsey, the fact that he must confront the people who made
that decision is a strong disincentive to attempt to overturn a benefits
denial. These procedural anomalies indicate a less-than-impartial appeal
process designed to make it more difficult for an appellant to succeed.
With fewer successful appeals, Provident's profits are greater. Because
these anomalies are evidence of a significant conflict of interest, this
court places the arbitrary and capricious standard at the far end of the
sliding scale and accordingly will review Provident's decision with a
"high degree of skepticism." Pinto 214 F.3d at 395.
B. Review of Provident's denial
As noted previously, this court's substantive review of Provident's
decision is limited to the evidence that was before the administrator at
the time of the benefit denial. Mitchell v. Eastman Kodak Co., 113 F.3d 433
(3rd Cir. 1997). The evidence in the record that supports Provident's
denial of benefits is the DCM review questioning the fibromyalgia
diagnosis, the medical reviews performed by Dr. Beecher, the vocational
therapist review, the functional capacity evaluation, and the
surveillance video tape. Even when viewed in a light most favorable to
the defendant, it is clear that Provident's denial of benefits was
arbitrary and capricious.
First, the court finds that the defendant's medical review of the
plaintiff's claims file was incomplete and inaccurate. In the DCM review,
Nurse Kennelly questioned the diagnosis of fibromyalgia because "none of
the doctors list all of the trigger points . . ." and there was no
diagnosis of depression that is usually present in fibromyalgia
patients. However, Dr. Kim, Dr. Burke, and Dr. Chesner all list Dorsey's
trigger points in their letters describing her condition. Furthermore,
Dr. Chesner noted in his letter of October 8, 1999 that the plaintiff
suffered from depression, and the plaintiff's psychologist submitted
medical records diagnosing her with major depressive disorder. Even
though the plaintiff submitted data that responded to Kennelly's specific
Provident's staff ignored the fact that Dorsey exhibited
classic symptoms of fibromyalgia. While the defendant cites the DCM
review as evidence that there was no medical support for a fibromyalgia
diagnosis, Def's Resp. to Pl.'s Mot. for Summ. J. at 3, this court
disagrees. According to Kennelly's description of the disorder and the
medical information contained in the record, there is no question that
Dorsey suffered from fibromylagia.
Most unreasonable is Dr. Beecher's review of the claims file. Dr.
Beecher never examined Dorsey personally and, during the initial claims
process, only referenced the FCE and video surveillance in her medical
review. When Dr. Beecher reviewed Dorsey's claim on appeal, she cited
some of the plaintiff's medical records but failed to address the
evidence supporting Dorsey's contention that she was disabled. Dr.
Beecher's cursory report did not discuss the significance of plaintiff's
irritable bowel syndrome, migraine headaches, and major depression
— all symptoms that support a diagnosis of fibromyalgia. In her
report Dr. Beecher gave no explanation for her rejection of Dr. Chesner's
diagnosis and only referred to the plaintiff's lack of laboratory
abnormalities. However, there is no test that can be performed to confirm
the diagnosis since fibromyalgia only manifests itself through clinical
symptoms.*fn9 While Provident may not have had a duty to obtain an
independent medical review of the claimant,*fn10 the fact that five
doctors diagnosed Dorsey with a severe case of fibromyalgia and three
concluded she was permanently disabled suggests that Provident's medical
review needed to be more substantial than a half page summary of
This court is also highly skeptical of the vocational rehabilitation
consultant's conclusions that Dorsey could return to her previous
position. In order to be eligible for long term disability benefits under
Provident's plan, a covered person must be "unable to perform all the
material duties of their own occupation on a full-time or part-time
basis. . . ." App. at PLACL00310 (emphasis added). Under Provident's
policy, a claimant does not need to prove that she is unable to perform
any occupation. Id. Based on Dorsey's functional capacity evaluation, Pam
Perdue, the consultant, concluded that Dorsey had the physical capacity
to return to her job. However, Perdue never evaluated Dorsey's actual job
description and requirements. Even though Provident was aware that
Dorsey's job required traveling, the vocational consultant never
addressed this issue. Even though the FCE placed Dorsey's ability to work
in the light category, and Perdue determined her job fell in the medium
category, Perdue still found that the plaintiff could return to her job.
In light of the inadequate review, the consultant's conclusion that the
plaintiff could return to work is unreasonable.
In addition, throughout the claims process, Provident employees
frequently pointed to the FCE and surveillance videotape as evidence that
Dorsey was not disabled. In particular, Dr. Beecher and the vocational
consultant both relied on the physical therapist's questioning of the
plaintiff's effort during the FCE. However, the therapist ultimately
concluded that Dorsey could perform work in the "light" category of
work. While the therapist merely questioned Dorsey's performance,
Provident employees essentially concluded that Dorsey could do heavier
work than the FCE actually indicated. Furthermore, there is evidence that
an FOE is a highly questionable tool for determining whether a
fibromyalgia patient is disabled. As Dr. Chesner noted in his letter to
Dorsey's attorney, a patient who suffers from fibromyalgia may be capable
of performing some tasks for brief periods of time and yet will not be
able to sustain activity for long periods of time. In addition, the
surveillance tape offers no support for Provident's contention that
Dorsey could return to work. The fifteen minute videotape is the product
of three days of surveillance and only captures Dorsey driving her
children to school on one occasion and slowly walking across a parking
lot. Provident's substantial reliance on the FCE and surveillance tape is
Finally, every doctor who personally examined the plaintiff determined
that she suffered from a severe case of fibromyalgia. None of these
doctors concluded that Dorsey was capable of returning to her position as
Director of Payroll Marketing. Notably the plaintiff also qualified for
both short term disability benefits from another provider as well as
social security benefits.*fn11 In sum, every individual or organization
that examined or reviewed the plaintiff's medical information found the
plaintiff to be disabled — everyone except those individuals
employed by Provident.
The medical reviews conducted by Provident were incomplete and
disregarded the substantial evidence of disability as submitted by
plaintiff's treating physicians. The vocational consultant's evaluation
inadequately assessed plaintiff's ability to return to her job.
Furthermore, the FOE and the surveillance tape provide no support for
Provident's finding of no disability. For these reasons, Provident's
denial of plaintiff's benefits is simply not supported by reason. Even
when viewed in the light most favorable to the defendant, Provident's
denial of Dorsey's claim is
arbitrary and capricious, there is no genuine
issue of material fact, and the plaintiff is entitled to judgment as a
matter of law. In fact, this court finds that the evidence weighs so
heavily in favor of the plaintiff that plaintiff's motion would succeed
even if the court were to apply a deferential arbitrary and capricious
For the foregoing reasons, the plaintiff's motion for summary judgment
is granted and the defendant's motion for summary judgment is denied.
An appropriate order follows.
AND NOW, this 5th day of October, 2001, upon consideration of
Plaintiff's Motion for Summary Judgment, the Defendant's Motion for
Summary Judgment, the responses thereto, Defendant's reply to Plaintiff's
response, and after a hearing, is it hereby ORDERED that plaintiff's
motion is GRANTED and defendant's motion is DENIED.
AND NOW, this 5th day of October, 2001, judgment is entered on the
claims in FAVOR of plaintiff, Cheryl Dorsey, and AGAINST defendant,
Provident Life and Accident Insurance Company.