Desrosiers v. Hartford Life and Acc. Co.

515 F.3d 87

Sheryl Serreze DESROSIERS, Plaintiff, Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant, Appellee.

No. 06-2609.

United States Court of Appeals, First Circuit.

Heard August 1, 2007.

Decided February 14, 2008.

Jordan M. Lewis, with whom Siegel, Brill, Greupner, Duffy & Foster, P.A., Christopher M. Lefebvre, Law Offices of

Claude F. Lefebvre & Sons, and S. Carolina Africano were on brief, for appellant.

Mark A. Pogue, with whom Edwards Angell Palmer & Dodge LLP was on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Sheryl Serreze Desrosiers appeals from two adverse summary judgment rulings which together upheld the denial of her claim for long-term disability benefits by Hartford Life & Accident Insurance Co. ("Hartford").¹ The district court first ruled that Desrosiers's common law claims² were preempted by ERISA. After allowing Desrosiers to amend her complaint to proceed under ERISA, the court upheld Hartford's determination that Desrosiers was not "totally disabled" within the meaning of the disability insurance policy. We affirm.

I. FACTUAL BACKGROUND

A. The Plan

Appellant, an attorney, began working at the United States Trustee Program in 1992. She became Assistant United States Trustee in the Program's Rhode Island office in 1995. As an employee of the Department of Justice, Desrosiers was eligible to enroll in the Federal Employee Group Long Term Disability Plan ("the Plan"), which is sponsored by the Department of Justice Recreation Association ("DJRA"). Plan benefits are paid by an insurance policy issued by Hartford, which also administers the Plan. To receive benefits pursuant to the policy, a claimant must demonstrate "total disability," which is defined in relevant part as "being prevented from performing the essential duties of your occupation" as a result of accidental bodily injury, sickness, or mental illness.

B. The Claim³

Desrosiers's claim for disability benefits resulted from three separate incidents in 1999. In April, she was struck in the head by a car door, and subsequently complained of resultant headaches, dizziness and difficulty with left eye vision. In May, Desrosiers was injured when she fell off a swing.⁴ She was treated by a neurologist about a month later for persistent headaches, nausea and dizziness. She was diagnosed with post-traumatic migraines. Desrosiers returned to work after the second injury⁵, but was injured again in December, when she fell down stairs at home. She suffered a cut on her head that required stitches and was admitted to the hospital for five days. She subsequently suffered from a host of maladies, including partial vision loss in her left eye, and weakness or paralysis in her right leg. Desrosiers was diagnosed with a sprained back and neck and was discharged with a walker. She continued to have headaches, dizziness and weakness in her right leg, as well as various cognitive problems, including forgetfulness, sleep issues and difficulty concentrating. While an MRI and spinal CT scan produced normal results, a brain MRI showed "slight hyperintensity of the left optic nerve."

Desrosiers did not return to work after the third accident. She submitted her disability insurance claim to Hartford on December 30, 1999. Desrosiers attempted to return to part-time work in June 2000, but stopped two weeks later on the advice of her doctor. During the period between Desrosiers's application and her cessation of work, she submitted medical information to Hartford, which in turn supplied the information to its own internal medical personnel. Hartford denied Desrosiers's claim in August 2000. Desrosiers pursued an internal appeal, in support of which she supplied additional medical information. Hartford denied the appeal in May 2001.

C. District Court Proceedings⁶

Desrosiers filed suit in Rhode Island Superior Court in November 2002. In January 2003, Hartford removed the action to federal court on diversity grounds. Hartford amended its answer in July 2003 to assert that Desrosiers's claims fell within ERISA's ambit.⁷ In February 2004, Hartford filed its first motion for summary judgment, asserting ERISA preemption of Desrosiers's state law claims. Hartford's motion was supported by an affidavit from DJRA President Arthur C. Smith III. Approximately one week later, Hartford moved to stay discovery pending resolution of its summary judgment motion. Desrosiers did not object to the stay, and the motion was granted. She filed her objection to Hartford's summary judgment motion in March. In April, Hartford filed a reply to the objection, which included a legal argument only briefly mentioned in its original motion, as well as a supplemental affidavit from Smith, which contained facts not in his original affidavit. In August, the district court conducted a hearing on the motion. In January 2005, the district court granted Hartford's ERISA-based motion, dismissed Desrosiers's state law claims, and allowed her to file an amended complaint asserting ERISA claims. Desrosiers, 354 F.Supp.2d at 129.

Following a period of discovery, the parties filed cross-motions for summary judgment regarding Hartford's denial of benefits. In October 2006, the district court granted Hartford's motion and denied Desrosiers's. This appeal followed.

II. DISCUSSION

A. The First Summary Judgment Motion

Desrosiers's first argument on appeal is that the district court committed reversible error in its handling of the first summary judgment motion when it improperly relied on "new" facts contained in the affidavit submitted with Hartford's reply. It is important to note that this argument is based entirely on the district court's reliance on the second Smith affidavit, rather than a challenge to the result reached after the allegedly improper reliance. In other words, Desrosiers implicitly concedes that if the district court did not err in relying on the second Smith affidavit, then its decision to treat her complaint as an ERISA matter must be affirmed. We review the district court's consideration of evidence on summary judgment for abuse of discretion. Hoffman v. Applicators Sales & Service, Inc., 439 F.3d 9, 13 (1st Cir.2006). We will not set aside the decision without strong evidence that the district court "indulged in a serious lapse in judgment." Id. at 14 (citation and quotations omitted).

In support of her argument, Desrosiers cites a host of cases which stand for the proposition that a party seeking summary judgment may not add new facts or legal arguments in a reply. Hartford does not dispute this general premise. Instead, Hartford argues that Desrosiers waived the argument by not raising it in the district court.⁸

Desrosiers ostensibly argues that she was under no obligation to bring the issue to the court's attention. She contends that the "no new facts" rule is self-executing, and that the district court should therefore have ignored the second affidavit on its own initiative. To the contrary, however, we have consistently required some affirmative action from the aggrieved, litigant to preserve such an argument. In Davis v. Sears, Roebuck & Co., 708 F.2d 862 (1st Cir.1983), we held that if a party does not move to strike an inadmissible affidavit, "any objections to its consideration are deemed to have been waived and it may properly be considered by the court when ruling on the motion." Id. at 864. To be sure, we do not always require a written motion to strike, as we did in Davis. Nevertheless, some action is required. Our approach was summed up in Perez v. Volvo Car Corp., 247 F.3d 303 (1st Cir.2001):

We believe that what is required to preserve a party's rights vis-á-vis an allegedly deficient affidavit is for the dissatisfied party to (a) apprise the trial court, in a conspicuous manner and in a timely fashion, that she considers the affidavit defective; and (b) spell out the nature of the ostensible defects clearly and distinctly. Whether the dissatisfied party fulfills these requirements by means of a motion to strike or in some substantially equivalent way (say, by an objection, or as here, in a legal memorandum ...) is of little moment.

Id. at 314.

Here, Desrosiers had ample opportunity to object to Hartford's reply and accompanying affidavit, which were filed April 2, 2004. Oral argument took place almost exactly four months later, on August 3, 2004. Desrosiers took no action during that time. Nor did she act following oral argument, after which more than five months passed before the district court issued its ruling in January 2005. During that accumulated nine months, Desrosiers might have, for example, moved to strike the second affidavit or the reply in its entirety, filed a motion to lift the existing discovery stay, invoked Rule 56(f) to seek additional discovery, or moved for leave to file a sur-reply containing a supplemental affidavit of her own. In the absence of some form of objection, the district court was not required to ignore the second affidavit sua sponte.

Alternatively, in her reply brief before this court, Desrosiers for the first time points to statements made by her counsel during the summary judgment hearing which purport to register an objection to the second affidavit. We disagree that sufficient objection was made. During the hearing, Desrosiers's counsel bemoaned the additional information in the second affidavit; when the district court asked whether he was "requesting discovery now," he replied, "Well, we would very much like an opportunity here in Court or through deposition to conduct inquiry of Mr. Smith." This statement was both the first and last time that Desrosiers raised the issue in the district court between April 2, 2004 (when the reply was filed) and January 27, 2005 (when Hartford's motion was granted). We disagree with Desrosiers's assertion that this lone comment constituted a sufficient objection...