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FISHER v. STANDARD INSURANCE COMPANY

January 23, 2004.

ARBERZINE FISHER, Plaintiff,
v.
STANDARD INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Court is defendant Standard Insurance Company's ("Standard's) motion for summary judgment, filed December 23, 2003. Pursuant to Civil Local Rule 7-3(a), plaintiff Arberzine Fisher ("Fisher"), who is appearing pro se, was required to file an opposition no later than January 9, 2004, but has not opposed the motion. Having considered the papers filed in support of the motion, the Court finds the matter appropriate for decision without oral argument, see Civ. L.R. 7-3(a), and hereby VACATES the January 30, 2004 hearing on the motion. For the reasons set forth below, the motion is GRANTED.

BACKGROUND

  Fisher alleges that on January 29, 2002, she and Standard agreed that she would be paid a lump-sum settlement for future long-term disability coverage, in lieu of monthly payments over the next twenty years. (See Compl. at 3.) She now alleges that Standard Page 2 "showed bad faith and unfair insurance practices by pressuring plaintiff into settlement, knowing that plaintiff was not informed of the actual value of her claim over 20 yrs." (See id.) Fisher contends that the settlement was inadequate and insufficient to reasonably cover her medical bills, prescriptions, and basic living needs. (See id.) She also alleges that she "was under medication and pain at time of signing and defendants took advantage of her condition." (See id.) Fisher seeks punitive and compensatory damages. (See id.) Fisher has not sworn to the truth of her allegations under penalty of perjury and has not submitted any evidence in support of her contentions.

  According to the evidence submitted by Standard in support of its motion for summary judgment, Fisher filed a lawsuit in this Court against Standard, on May 9, 2001, seeking disability benefits under a long term disability benefits plan, pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). (See Rapoport Decl., Ex. 1 (complaint in Fisher v. Standard Ins. Co., C-01-1809 EDL). The parties participated in two Early Neutral Evaluation ("ENE") sessions with court-appointed evaluator, Michael Loeb ("Loeb"), which took place on December 18, 2001 and January 29, 2002. (See Rapoport Decl. ¶ 2.) Fisher attended each ENE session and was represented by her counsel, James Mellen, at each session. (See id. ¶ 3.) At the second ENE session, on January 29, 2002, the parties entered into a settlement agreement. (See id. ¶ 5.)

  Standard's Assistant Counsel and Director of Litigation, Simeon D. Rapoport ("Rapoport"), who attended the ENE sessions, attests that:
Standard had no direct contact with Fisher regarding the terms of the Settlement Agreement except on the limited occasions when all parties and counsel met with the ENE. All negotiations with regard to the Settlement Agreement occurred between Standard's in-house counsel, Standard's outside counsel, Fisher's attorney Mr. Mellen and the ENE Mr. Loeb. At no time did Standard, or any representative of Standard, state or indicate to Fisher that she must settle her case, that there could be any repercussions or that she did not have time to consult with an attorney or financial consultant before signing the Settlement Agreement. In fact, the Settlement Agreement was reached five months before the scheduled trial date of June 7, 2002, leaving Fisher plenty of time to consult with any advisers of her choice.
(Id. ¶ 8.) Rapoport also attests: "I had an opportunity to observe Fisher at both early neutral evaluation meetings and at no time during either meeting did Fisher appear to me Page 3 to be incompetent or unable to contract." (Id. ¶ 9.) In addition, "none of the licensed attorneys participating in the early neutral evaluation meetings, including the ENE, relayed any concerns about Fisher's competency or ability to contract." (See id. ¶ 10.)
  In the January 29, 2002 settlement agreement, which both Fisher and her counsel signed, Fisher agreed to release and forever discharge Standard from any claims "whether known or unknown, suspected or unsuspected, claimed or unclaimed, direct or indirect, asserted or unasserted, that she (i) has had in the past, or now has, or may have in the future against Standard based in any way upon Group Policy No. 605209 ("the Policy"), (ii) has had in the past, or now has, against Standard based in any way upon any other insurance policy issued or administered by Standard covering or insuring Fisher either as a named or additional insured, or, (iii) has had in the past, or now has, against Standard based on any other act or omission from the beginning of time to the date of execution of this Release." (See Rapoport Decl., ¶ 6, and Ex. A, ¶ 1.) The only exclusion was for Workers' Compensation coverage or benefits. (See id.) Fisher also specifically agreed:
Fisher understands and expressly acknowledges that it is possible that unknown losses or claims exist or that present losses may have been underestimated in amount or severity. Fisher warrants that she explicitly took this into account in determining the amount of consideration to be paid for the giving of this Release, and a portion of said consideration, having been bargained for between the parties with the knowledge of the possibility of such unknown claims, was given in exchange for a full accord, satisfaction and discharge of all such claims. Consequently, Fisher expressly waives all rights under California Civil Code section 1542[.]
(See id. ¶ 4.) Fisher also agreed that "she has conducted herself freely and voluntarily with respect to this Release and all matters covered by it and that she personally has reviewed and understands this Release," and that she had been fully advised by her attorney about her rights and obligations under the agreement. (See id. ¶ 11.) Finally, Fisher agreed that she entered into the agreement "freely and voluntarily, only after review of the Release, and without any duress from any person, corporate or natural." (See id. ¶ 17.)

  In exchange for these agreements, Standard agreed to pay Fisher $80,000. (See Id. ¶ 16.) Standard issued a check to Fisher in the amount of $80,000 seven days after she signed the settlement agreement. (See Rapoport Decl. ¶ 12.) Page 4

  Fisher filed the instant complaint on January 30, 2003, approximately one year after signing the January 29, 2002 settlement agreement. According to Rapoport, "[b]efore she filed the lawsuit, Fisher had never notified Standard of her dissatisfaction with the settlement amount and Fisher has continued to retain the settlement benefits[.]" (See id. ¶ 15.)

  LEGAL STANDARD

  Rule 56(c) of the Federal Rule of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." See Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. The Court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en bane) (citing Liberty Lobby, 477 U.S. at 255).

  The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325.

  A party opposing a property supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e); see also Page 5 Liberty Lobby, 477 U.S. at 250. The opposing party need not show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is submission of sufficient evidence to create a ...


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