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Donald D. Clow v. Life Insurance Company of North America

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Fresno Division


November 8, 2012

DONALD D. CLOW, PLAINTIFF,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA,
DEFENDANT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

STIPULATION OF DISMISSAL OF DEFENDANT GENERAL ATOMICS EMPLOYEE BENEFIT PLANAND [PROPOSED] ORDER

IT IS HEREBY STIPULATED by and between plaintiff DONALD CLOW ("Plaintiff") and LINA INSURANCE COMPANY OF NORTH AMERICA ("LINA"), by and through their respective counsel as follows:

1. The parties agree that this case is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001, et seq. The parties assert that the General Atomics Long Term Disability Plan (the "PLAN"), which is part of the General Atomics Employee Benefit Plan, is insured, at least in part, by long term disability policy number FLK-960289 (the "POLICY") for the time period at issue in this case. i.e., a date of disability of October 29, 2010. Plaintiff seeks benefits in this lawsuit solely under that portion of the PLAN that is funded by the POLICY.

2. If and to the extent the court awards long-term disability benefits to Plaintiff pursuant to the terms of the POLICY , then LINA agrees that it will be responsible for the payment of any such benefits under the terms of the POLICY. LINA also agrees that it will be responsible for any attorney fees, interest and costs awarded under ERISA in connection with an award of long term disability benefits to plaintiff under the POLICY. LINA is not responsible for the payment of any benefits beyond those available pursuant to the terms of the POLICY.

3. LINA states that it will not raise any defenses to any of the claims asserted in the Complaint based on dismissal of the PLAN and/or absence of the PLAN from litigation. The parties hereby stipulated and request that the General Atomics Employee Benefit Plan be dismissed without prejudice, with the parties to bear their own attorney fees and costs directly related to the instant Stipulation and the dismissal of the General Atomics Employee Benefit Plan. LINA remain the only named defendant.

Respectfully submitted, DONAHUE & HORROW, LLP DATED: November 8, 2012 By: /S/ Michael B. Horrow MICHAEL B. HORROW Attorneys for Plaintiff DONALD D. CLOW RIMAC MARTIN, P.C. DATED: November 8, 2012 By: /S/ Anna M. Martin ANNA M. MARTIN Attorneys for Defendants LIFE INSURANCE COMPANY OF NORTH AMERICA

Pursuant to stipulation, IT IS SO ORDERED. The clerk is directed NOT to close this action.

IT IS SO ORDERED.

20121108

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