United States District Court District of Massachusetts Judy Morris, 
M.D., Plaintiff v. UNUM Life Insurance Company of America, Defendant 
Civil Action No. 99-30200-FHF MEMORANDUM AND ORDER May 15, 2000 FREEDMAN, 
S.J..

This is one of two cases filed in this Court by Dr. Judy Morris (^ÓMorris^Ô) 
against Unum Life Insurance Company of America (^ÓUnum^Ô) seeking to 
recover long-term insurance benefits for the time period Chronic 
Fatigue Syndrome (^ÓCFS^Ô) purportedly rendered her disabled from her 
position as an emergency room physician.  Morris alleges that UNUM 
violated Title III of the Americans with Disabilities Act, 42 U.S.C. 
§ 12181-12189 (^ÓTitle III^Ô) and, specifically, 42 U.S.C. § 12182(a), 
through its claims process, by employing a policy of classifying 
her and others with CFS as mentally disabled.  Morris claims that 
CFS is a physical disability, but that Unum utilized the mental-disability 
classification to limit her coverage to two years under the policy 
terms, as opposed to the unlimited coverage due her for a physical 
disability.  Unum moves to dismiss Morris^Òs claims.

In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court 
must ^Óaccept as true the factual allegations of the complaint, construe 
all reasonable inferences therefrom in favor of the plaintiffs, and 
determine whether the complaint, so read, limns facts sufficient 
to justify recovery on any cognizable theory of the case.^Ô Beddall 
v. State Street Bank and Trust Co., 137 F. 3d 12, 16 (1st Cir. 1998) 
(citing Dartmouth Review v. Dartmouth College, 889 F. 2d 13,16 (1st 
Cir. 1989)).

Title III provides that:

No individual shall be discriminated against 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 leases to), or operates 
a place of public accommodation.  42 U.S.C. § 12182(a).

Denying individuals the opportunity to benefit from the goods, services, 
privileges, advantages or accommodations of an entity because of 
their disability constitutes impermissible discrimination.  See 42 
U.S.C. § 12182(b); Carparts Distrib. Center, Inc. v. Automotive wholesaler^Òs 
Assoc. Of New England, Inc., 37 F. #d 12, 18 (1st Cir. 1994).  Carparts 
made clear that Titles III^Òs application extends beyond simply granting 
the disabled access to physical places; rather, it requires a place 
of public accommodation to provide the same services to the disabled 
as it provides to those who are not.  See Carparts, 37 F. 3d at 19-20; 
Pallozzi v. Allstate Life Ins. Co., 198 F. 3d 28, 32-33( 2d cir. 
1999).  Title III applies to insurance companies and the services 
they provide in the same manner as it applies to any other place 
of public accommodation.  See Carparts, 37 F. 3d at 19-20. the Court 
recognizes other circuits^Ò disagreement with Carparts but finds their 
reasoning unpersuasive.

The Court take particular issue with the Six Circuit^Òs en banc opinion 
in Parker v. Metropolitan Life Insurance Co., 121 F. 3d 1006, 1014 
(1997).  In Parker, the Sixth Circuit limited Title III^Òs application 
to physical places and, in doing so, criticized the First Circuit 
for failing to take note of the principle of noscitur a sociis - 
failing to interpret questionable or doubtful words in the context 
of the words surrounding them.  See id.  It emphasized that despite 
the First Circuit^Òs focus on travel services, shoe repair services, 
accountant and attorney^Òs offices as well as insurance offices, these 
establishments nonetheless were physical places that provide services 
on the premises, and a fortiori Congress could only have intended 
Title III to cover a ^Óphysical place where services may be obtained 
and nothing more.^Ô Id.


The Sixth Circuit, however, failed to consider factors weighing against 
limiting Title III^Òs application to physical places alone.  First, 
42 U.S.C. § 12181(7) begins the definition of public accommodation 
by providing a list of ^Óentities,^Ô rather than ^Óplaces,^Ô that are 
considered ^Óplaces of public accommodation.^Ô Second, 42 U.S. C. § 
12181(7) continues on to provide a broad and extensive list of specific 
and general categories of businesses, services, and places, see id., 
arguably intended to cover all possible offenders of the statute^Òs 
purpose, ^Óto bring individuals with disabilities into the economic 
and social mainstream of American life.^Ô See H.R. Rep. No. 101-485, 
pt 2, at 99 (1990) reprinted in 1990 U.S.C.C.A.N. 303, 382.  Third, 
42 U.S.C. §12182(b)(2)(A) defines specific prohibitions under Title 
III: Imposing ^Óeligibility criteria^Ô to screen out the disabled and 
failing to modify policies and practices that do the same thing; 
but requiring the removal of architectural barriers to allow physical 
access.  The Sixth Circuit^Òs holding that Title III applies only 
to physical places open to public access, renders all but the third 
prohibition mere surplusage.

In addition, holding that protection to those with disabilities extends 
only to physical structures or services provided within these structures 
creates absurd results clearly unintended by Congress.  Many business 
and service establishments listed as public accommodations in 42 
U.S.C. § 12181(7) provide services in locations other than their 
premises.  For example, pharmacies and restaurants often have delivery 
services; gas and service stations provide towing services; hospitals 
and health care services provide ambulance services; and banks, attorneys, 
and accountants often provide services outside of their offices. 
 Under the physical place with public-access-only interpretation, 
a restaurant or pharmacy with a delivery service cannot lawfully 
deny a disabled person service at the restaurant or pharmacy.  But 
the same establishment could lawfully refuse to deliver a meal or 
prescription to the home of a wheelchair-bound patron.  Similarly, 
a tow truck driver could lawfully refuse to jump-start a disabled 
patron^Òs car on the street, but not if the patron rolled into the 
station^Òs premises.  An ambulance could lawfully refuse to pick up 
an AIDS patient dying of pneumonia.  A lawyer meeting a client at 
home could lawfully refuse to perform the necessary services because 
the client is quadripelegic, so long as she did so before she left 
the client^Òs house or returned to her office.  Because Congress listed 
many service, sales and rental establishments, including insurance 
offices, which provide goods and services in diverse locations other 
than their primary place of business, the Court concludes that Congress 
intended public accommodation under 42 U.S.C. § 12181(7) to cover 
more than simply physical places.  See Carparts, 37 F. 3d at 20. 
 As a result, the Court follows the First Circuit^Òs Carparts opinion, 
and concludes that Title III of the ADA applies not only to the offices 
of insurance companies but also to the services they provide.  See 
id.

Title 42 of the United States Code, Section 12201 carves out of the 
ADA a specific safe harbor provision for some practices of insurers 
stating that:

Titles I through IV of [the ADA] shall not be construed to prohibit 
or restrict ---(1) an insurer, hospital or medical service company, 
health maintenance organization, or any agent, or entity that administers 
benefit plans, or similar organizations 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).  Several 
courts have interpreted this safe harbor provision to preclude recovery 
under Title III of the ADA by plaintiffs alleging disability discrimination 
based on disparate coverage for different disabilities written into 
the insurance policy.  See, e.g., McNeil v. Time Ins. Co., 205 F. 
3d 179, 188-89 (5th Cir. 2000) (^ÓMr. McNeil has not alleged that 
Time interfered with his son^Òs ability to enjoy that policy as it 
was written and offered to the non-disabled public.^Ô) ($10,000 limitation 
on AIDS coverage in first two years of policy permissible); Ford 
v. Schering-Plough Corp., 145 F. 3d 601, 608-10 (3d Cir. 1998) (no 
parity required between coverage of mental and physical disability). 
 The courts reason that the ADA prohibits only disparate treatment 
of those with disabilities and because the policy is offered to disabled 
and non-disabled alike, no violation occurs.  See McNeil, 205 f. 
3d at 188-89; Ford, 145 F. 3d at 609 (citing Krauel v. Iowa Methodist 
Med. Ctr., 95 F. 3d 674, 678 (8th cir. 1996) and Parker v. Metropolitan 
Life Ins. Co., 121 D. 3d 1006, 1015-16(6th Cir. 1997)).  the general 
consensus provision, congress intended to preserve the essence of 
the insurance industry, allocating risk through ^Óunderwriting,^Ô ^Óclassifying,^Ô 
or ^Óadministering,^Ô and deciding what coverage limitations and terms 
to write into their policies.  The Court finds no precedent, however 
to suggest expanding this limitation beyond ^Óunderwriting,^Ô ^Óclassifying,^Ô 
or ^Óadministering^Ô risks, and holds that this exception does not 
allow insurers to discriminate against the disabled in the provision 
of any of their other services.  See generally Carparts, 37 F. 3d 
at 20 (Congress intended the disabled to benefit from ^Ógoods, services, 
privileges and advantages^Ô available to the general population).

While Morris^Òs brief lacks clarity, her complaint and reasoning at 
oral argument make apparent the basis of her claims.  Here, Morris 
alleges that Unum treated her differently in its claims process, 
all because she claimed disability based on CFS.  Specifically, Morris 
claims that Unum intentionally conducted an inadequate investigation 
of her case, harassed her, engaged in intentionally malicious claims 
tactics, and deliberately misdiagnosed her CFS as a mental disability 
in order to limit her benefits to the two-year mental disability 
period.  She claims that Unum formulated a policy of treating CFS 
claimants differently in the claims process than other claimants 
and denied her claims in accordance with that policy.  Morris asserts 
that Unum intentionally implemented the policy of mischaracterization 
to take advantage of, and profit from, CFS claimants^Ò lower energy 
and consequent inability to mount a sustained battle to recover rightful 
benefits.  The Court finds that Morris^Òs allegations of mischaracterizations 
do not relate to underwriting, classifying, or administering risks 
and concludes that would be permitted under the safe harbor provision 
of 42 U.S. C. §12201.  Because Unum^Òs claims process falls under 
the goods or services that it provides to all of its customers, the 
Court concludes that application of the claims process in an intentionally 
discriminatory manner violates Title III.

Consequently, Morris asserts a claim upon which relief may be granted 
when she alleges that Unum treated her differently in its claims 
process because she had CFS.  Accordingly, the Court DENIES Unum^Òs 
motion to dismiss Morris^Òs claims under Title III of the ADA.  Because 
the Court views the allegations supporting Morris^Òs claims of discrimination 
to be based upon substantially the same factual occurrences as those 
involved in her ERISA claims against Unum, the Court, of its own 
accord and in the interest of judicial economy, CONSOLIDATES the 
two cases (Civil Action No. 99-30200 and Civil Action No. 98-30204).

It is so ordered.

Frank H. Freedman Senior United States District Judge

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The URL for this document is:


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Created: May 27, 2000


Last Updated: May 28, 2000