--------- Forwarded message ----------
From: Judy Morris <judydoc@the-spa.com>
To: mpegasus@juno.com
Date: Sat, 10 Jun 2000 20:07:05 -0400
Subject: Discrimination lawsuit
 
Dear Meghan,
Please share this post with the CFS lists and other groups. There are rumors
going around that I "won" my case against UNUM.  I did not win any money.
All I won was the right to go forward with my Discrimination lawsuit.  It's
a "win" of sorts but in reality it just means my job is harder.  I NEED
WITNESSES, particularly those with CFS or FM who have been victimized by
UNUM or Provident insurance companies.  If you were harrassed or
misdiagnosed by one of these insurers, or had to accept one penny less than
what you are fully entitled to, than you have been victimized.
 
If your claims adjusters "lost" things, claimed things got "lost" in the
mail, misquoted you or your doctors, you are a victim and can testify.  If
your benefits were stopped, suspended or terminated when your own doctor
said you were still disabled, then you have been a victim of a crime.
 
Here's the  text of the judge's decision denying UNUM's Motion to Dismiss my
Discrimination lawsuit.  I'm going to have some lawyers by the time I get to
trial.  I'm getting very close to getting some of them involved. Sam Malat
is one. If witnesses don't want to contact me, they can contact Sam.
 
Judy Morris, M.D.
(413) 267-3606
judydoc@the-spa.com
 
Sam Malat, Esq.
(856) 547-3500
smalat@bellatlantic.net
 
--------------------------------------------------
United States District Court
District of Massachusetts
Judy Morris, M.D., Plaintiff
v.
UNUM Life Insurance Company of America, Defendant
Civil Action No. 99-30200-FHF
MEMORANDUM AND ORDER
May 15, 2000
FREEDMAN, S.J..
 
This is one of two cases filed in this Court by Dr. Judy Morris ("Morris")
against Unum Life Insurance Company of America ("Unum") seeking to recover
long-term insurance benefits for the time period Chronic Fatigue Syndrome
("CFS") purportedly rendered her disabled from her position as an emergency
room physician.  Morris alleges that UNUM violated Title III of the
Americans with Disabilities Act, 42 U.S.C. § 12181-12189 ("Title III") and,
specifically, 42 U.S.C. § 12182(a), through its claims process, by employing
a policy of classifying her and others with CFS as mentally disabled.
Morris claims that CFS is a physical disability, but that Unum utilized the
mental-disability classification to limit her coverage to two years under
the policy terms, as opposed to the unlimited coverage due her for a
physical disability.  Unum  moves to dismiss Morris's claims.
 
In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court must
"accept as true the factual allegations of the complaint, construe all
reasonable inferences therefrom in favor of the plaintiffs, and determine
whether the complaint, so read, limns facts sufficient to justify recovery
on any cognizable theory of the case."  Beddall v. State Street Bank and
Trust Co., 137 F. 3d 12, 16 (1st Cir. 1998) (citing Dartmouth Review v.
Dartmouth College, 889 F. 2d 13,16 (1st Cir. 1989)).
 
Title III provides that:
 
No individual shall be discriminated against on the basis of disability in
the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place of public
accommodation.  42 U.S.C. § 12182(a).
 
Denying individuals the opportunity to benefit from the goods, services,
privileges, advantages or accommodations of an entity because of their
disability constitutes impermissible discrimination.  See 42 U.S.C. §
12182(b); Carparts Distrib. Center, Inc. v. Automotive wholesaler's Assoc.
Of New England, Inc., 37 F. #d 12, 18 (1st Cir. 1994).  Carparts made clear
that Titles III's application extends beyond simply granting the disabled
access to physical places; rather, it requires a place of public
accommodation to provide the same services to the disabled as it provides to
those who are not.  See  Carparts, 37 F. 3d at 19-20; Pallozzi v. Allstate
Life Ins. Co., 198 F. 3d 28, 32-33( 2d cir. 1999).  Title III applies to
insurance companies and the services they provide in the same manner as it
applies to any other place of public accommodation.  See Carparts, 37 F. 3d
at 19-20. the Court recognizes other circuits' disagreement with Carparts
but finds their reasoning unpersuasive.
 
The Court take particular issue with the Six Circuit's en banc opinion in
Parker v. Metropolitan Life Insurance Co., 121 F. 3d 1006, 1014 (1997).  In
Parker, the Sixth Circuit limited Title III's application to physical places
and, in doing so, criticized the First Circuit for failing to take note of
the principle of noscitur a sociis - failing to interpret questionable or
doubtful words in the context of the words surrounding them.  See id.  It
emphasized that despite the First Circuit's focus on travel services, shoe
repair services, accountant and attorney's offices as well as insurance
offices, these establishments nonetheless were physical places that provide
services on the premises, and a fortiori Congress could only have intended
Title III to cover a "physical place where services may be obtained and
nothing more." Id.
 
The Sixth Circuit, however, failed to consider factors weighing against
limiting Title III's application to physical places alone.  First, 42 U.S.C.
§ 12181(7) begins the definition of public accommodation by providing a list
of "entities," rather than "places," that are considered "places of public
accommodation."  Second, 42 U.S. C. § 12181(7) continues on to provide a
broad and extensive list of specific and general categories of businesses,
services, and places, see id., arguably intended to cover all possible
offenders of the statute's purpose, "to bring individuals with disabilities
into the economic and social mainstream of American life."  See H.R. Rep.
No. 101-485, pt 2, at 99 (1990) reprinted in 1990 U.S.C.C.A.N. 303, 382.
Third, 42 U.S.C. §12182(b)(2)(A) defines specific prohibitions under Title
III:  Imposing "eligibility criteria" to screen out the disabled and failing
to modify policies and practices that do the same thing; but requiring the
removal of architectural barriers to allow physical access.  The Sixth
Circuit's holding that Title III applies only to physical places open to
public access, renders all but the third prohibition mere surplusage.
 
In addition, holding that protection to those with disabilities extends only
to physical structures or services provided within these structures creates
absurd results clearly unintended by Congress.  Many business and service
establishments listed as public accommodations in 42 U.S.C. § 12181(7)
provide services in locations other than their premises.  For example,
pharmacies and restaurants often have delivery services; gas and service
stations provide towing services; hospitals and health care services provide
ambulance services; and banks, attorneys, and accountants often provide
services outside of their offices.  Under the physical place with
public-access-only interpretation, a restaurant or pharmacy with a delivery
service cannot lawfully deny a disabled person service at the restaurant or
pharmacy.  But the same establishment could lawfully refuse to deliver a
meal or prescription to the home of a wheelchair-bound patron.  Similarly, a
tow truck driver could lawfully refuse to jump-start a disabled patron's car
on the street, but not if the patron rolled into the station's premises.  An
ambulance could lawfully refuse to pick up an AIDS patient dying of
pneumonia.  A lawyer meeting a client at home could lawfully refuse to
perform the necessary services because the client is quadripelegic, so long
as she did so before she left the client's house or returned to her office.
Because Congress listed many service, sales and rental establishments,
including insurance offices, which provide goods and services in diverse
locations other than their primary place of business, the Court concludes
that Congress intended public accommodation under 42 U.S.C. § 12181(7) to
cover more than simply physical places.  See Carparts, 37 F. 3d at 20.  As a
result, the Court follows the First Circuit's Carparts opinion, and
concludes that Title III of the ADA applies not only to the offices of
insurance companies but also to the services they provide.  See id.
 
Title 42 of the United States Code, Section 12201 carves out of the ADA a
specific safe harbor provision for some practices of insurers stating that:
 
Titles I through IV of [the ADA] shall not be construed to prohibit or
restrict ---(1) an insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that administers benefit
plans, or similar organizations from underwriting risks, classifying risks,
or administering such risks that are based on or not inconsistent with State
law.   42 U.S. C. § 12201(c)(1).  Several courts have interpreted this safe
harbor provision to preclude recovery under Title III of the ADA by
plaintiffs alleging disability discrimination based on disparate coverage
for different disabilities written into the insurance policy.  See, e.g.,
McNeil v. Time Ins. Co., 205 F. 3d 179, 188-89 (5th Cir. 2000) ("Mr. McNeil
has not alleged that Time interfered with his son's ability to enjoy that
policy as it was written and offered to the non-disabled public.") ($10,000
limitation on AIDS coverage in first two years of policy permissible);  Ford
v. Schering-Plough Corp., 145 F. 3d 601, 608-10 (3d Cir. 1998) (no parity
required between coverage of mental and physical disability).  The courts
reason that the ADA prohibits only disparate treatment of those with
disabilities and because the policy is offered to disabled and non-disabled
alike, no violation occurs.  See McNeil, 205 f. 3d at 188-89; Ford, 145 F.
3d at 609 (citing Krauel v. Iowa Methodist Med. Ctr., 95 F. 3d 674, 678 (8th
cir. 1996)  and Parker v. Metropolitan Life Ins. Co., 121 D. 3d 1006,
1015-16(6th Cir. 1997)).  the general consensus provision, congress intended
to preserve the essence of the insurance industry, allocating risk through
"underwriting," "classifying," or "administering," and deciding what
coverage limitations and terms to write into their policies.  The Court
finds no precedent, however to suggest expanding this limitation beyond
"underwriting," "classifying," or "administering" risks, and holds that this
exception does not allow insurers to discriminate against the disabled in
the provision of any of their other services.  See generally Carparts, 37 F.
3d at 20 (Congress intended the disabled to benefit from "goods, services,
privileges and advantages" available to the general population).
 
While Morris's brief lacks clarity, her complaint and reasoning at oral
argument make apparent the basis of her claims.  Here, Morris alleges that
Unum treated her differently in its claims process, all because she claimed
disability based on CFS.  Specifically, Morris claims that Unum
intentionally conducted an inadequate investigation of her case, harassed
her, engaged in intentionally malicious claims tactics, and deliberately
misdiagnosed her CFS as a mental disability in order to limit her benefits
to the two-year mental disability period.  She claims that Unum formulated a
policy of treating CFS claimants differently in the claims process than
other claimants and denied her claims in accordance with that policy.
Morris asserts that Unum intentionally implemented the policy of
mischaracterization to take advantage of, and profit from, CFS claimants'
lower energy and consequent inability to mount a sustained battle to recover
rightful benefits.  The Court finds that Morris's allegations of
mischaracterizations do not relate to underwriting, classifying, or
administering risks and concludes that would be permitted under the safe
harbor provision of 42 U.S. C. §12201.  Because Unum's claims process falls
under the goods or services that it provides to all of its customers, the
Court concludes that application of the claims process in an intentionally
discriminatory manner violates Title III.
 
Consequently, Morris asserts a claim upon which relief may be granted when
she alleges that Unum treated her differently in its claims process because
she had CFS.  Accordingly, the Court DENIES Unum's motion to dismiss Morris'
s claims under Title III of the ADA.  Because the Court views the
allegations supporting Morris's claims of discrimination to be based upon
substantially the same factual occurrences as those involved in her ERISA
claims against Unum, the Court, of its own accord and in the interest of
judicial economy, CONSOLIDATES the two cases (Civil Action No. 99-30200 and
Civil Action No. 98-30204).
 
It is so ordered.
 
Frank H. Freedman
Senior United States District Judge