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.
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
"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
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.
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
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.)
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.)
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
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 ...