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April 21, 1997

PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation, Defendant.

The opinion of the court was delivered by: ORRICK

 The Memorandum Decision and Order filed in this action on March 24, 1997, is redesignated as an Opinion and Order and is amended as follows:

 Plaintiff Mark Cloutier filed this action on March 29, 1996 against defendant Prudential Life Insurance Company of America ("Prudential"), asserting claims under of Title III of the Americans with Disabilities Act ("Title III" or "ADA" ), 42 U.S.C. § 12101 et seq., the Unruh Civil Rights Act ("Unruh Act"), § 51 et seq. of the California Civil Code, and § 10140 of the California Insurance Code, and for negligent and intentional infliction of emotional distress. Prudential now moves for summary judgment as to all causes of action. By stipulation of the parties, the Court dismisses the § 10140 and emotional distress claims. For the reasons stated herein, the Court otherwise denies Prudential's motion for summary judgment.


 On February 8, 1995, plaintiff applied for an individual Variable Appreciable Life insurance policy from Prudential in the face amount of $ 500,000. With plaintiff's consent, Prudential reviewed his medical records, in accordance with its standard individual policy underwriting procedures. Those records revealed that plaintiff "has safe sex through [a] partner [who] is HIV [-positive]" and that plaintiff "has had persistently low CD-4 [white cell blood] count." (Joint Statement of Undisputed Facts ("Joint Statement") P 4; Spessard Decl. P 4, Ex. C.) The records also revealed an HIV-negative result in plaintiff's own blood test. Plaintiff attributes his low CD4 blood count to an unrelated bout with a viral infection many years ago, an assessment that Prudential apparently does not dispute.

 The Prudential underwriter, Sara Lang, referred the file to Prudential's Director of Medical Services, Dr. Amy Bennett, and to two other Prudential underwriting officials. Each recommended that Prudential decline plaintiff's application. Plaintiff alleges that deposition testimony of these key Prudential employees reveals that none of them "consulted medical literature, epidemiological experts, or even in-house actuaries," in arriving at their conclusion. (Pl.'s Opp'n at 4:1-2.) On March 31, 1995, Prudential issued a letter to plaintiff reciting its decision.

 Plaintiff requested further information, and on August 1, 1995, Prudential issued a second letter, characterizing plaintiff's situation as "rare," but explaining that Prudential had "consistently declined applications received from HIV negative individuals who [were] in a [sexual] relationship with an HIV positive partner." (Joint Statement P 13; Spessard Decl. P 9, Ex. F.) The parties do not dispute that Prudential refuses to issue individually underwritten life insurance policies to any individual regardless of gender, sexual orientation, race, etc., where the applicant's file reveals that the applicant engages in sexual relations with an HIV-positive partner.

 In October 1995, plaintiff applied to participate in his employer's group underwritten life insurance policy, in the face amount of $ 57,000, the maximum allowable under the employer's plan. Prudential issued that policy in November without consulting plaintiff's medical records, as the company's guidelines did not require a medical review for the issuance of policies to participants in group plans.

 On March 29, 1996, plaintiff filed his complaint, and Prudential now moves for summary judgment on all claims. Plaintiff does not contest Prudential's motion as to the § 10140 and emotional distress claims, leaving only the ADA and Unruh Act claims for the Court's resolution.



 Rule 56(c) of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." A party seeking summary judgment must show the absence of a genuine issue of material fact to prevail. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) Once the movant has made this showing, the nonmovant must "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citations omitted). Nonetheless, the Court must view inferences drawn from the evidence in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962).


 In relevant part, Title III of the ADA prohibits the discrimination of persons "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 operates a place of public accommodation." 42 U.S.C. § 12182(a) (1995). The list of specific prohibitions includes "the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully enjoying any goods, services, facilities, [etc.]" and "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, [etc.] to individuals with disabilities." 42 U.S.C. § 12182(b)(2)(A)(i)-(ii). While these provisions would appear to subject Prudential to the ADA's antidiscrimination provisions, § 501(c) (now codified at 42 U.S.C. § 12201(c)) contains an explicit "safe harbor" for insurance companies. Specifically, § 501(c)(1) provides that the ADA "shall not be construed to prohibit or restrict . . . (1) an insurer . . . 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) (1995).

 Plaintiff claims standing to sue under the ADA by virtue of the statute's prohibition of discrimination against "an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association." 42 U.S.C. § 12182(b)(1)(E). ...

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