Final version of the Order. See Also the ORIGINAL motion of 01/28/99.







UNITED STATES FEDERAL COURT
    DISTRICT OF MASSACHUSETTS

JUDY E. MORRIS, MD   )
      )
   Plaintiff  ) Civil Action No. CA 98-30204 FHF
      )
v.      )
      )
UNUM CORPORATION OF AMERICA,  )
 et al.    )
   Defendants

 SECOND ORDER TO SHOW CAUSE TO ENJOIN UNUM INSURANCE TO
      SPECIFIC PERFORMANCE OF CONTRACTS AND TEMPORARY
      RESTRAINING ORDER PURSUANT TO FED.RUL. CIV. P. RULE 65
      CERTIFICATION OF PERSONAL CONSULTATION AND MEMORANDUM
      OF LAW

For the record and for purposes of Appeal, plaintiff wishes the

Court to note that this is her second filing of an Order to Show

Cause and Temporary Restraining Order against UNUM.  Her first

Order was filed January 29, 1999 and was completely ignored by

this Court.  Plaintiff reserved all rights to a jury trial on

underlying issues and RICO claims and to punitive and other

damages applicable to her Individual policy under State Laws.


CERTIFICATION OF PERSONAL CONSULTATION

Plaintiff hereby certifies that her attempt to confer with UNUM's
counsel in Good Faith, pursuant to Local Court Rule 7.1(a)(2) took the
form of the following:
1. Plaintiff sent Patricia Peard by Certified letter return

receipt the following letter on March 22, 1999 and received the

green confirmation card back in the mail. (Attachment A-1).

2.  Plaintiff would also like to clear up an apparent problem related to
Ms. Peard's, Ms. Robertson's and Harrington Hospital's Motions to Extend
Time for response to plaintiff^“s Amended complaint.  Despite the fact
Ms. Peard claims she did not receive her copy of the Amended Complaint
in a timely fashion and Ms. Robertson and Mr. Pierce claim to have not
received their copies at all, all copies were in fact mailed from a post
office on the date claimed by plaintiff in her Certificate of Service.
See Attachment A-2, copy of receipt from U.S. Post Office dated 3/16/99
showing mailing of multiple identical packages. (Nine of them went to
attorneys representing the defendants.)  Plaintiff mistakenly assumed,
since all parties appeared to have no trouble with the mails during the
flurry of motions related to her original complaint that it was once
again safe to use the mails without the added expense and effort of
sending everything certified return receipt.  Apparently plaintiff was
wrong and has no idea why these three defendants claim to have not
received their copies of the Amended Complaint in a timely fashion.
Obviously if it was plaintiff's intent to play some kind of games with
these defendants she would also not readily have agreed to their request
for an extension on the time to respond.

3. UNUM response to plaintiff's attempt to confer. (See
Attachment A-3)
ORDER TO SHOW CAUSE TO ENJOIN UNUM INSURANCE TO
     SPECIFIC PERFORMANCE OF CONTRACTS AND TEMPORARY
     RESTRAINING ORDER PURSUANT TO FED.RUL. CIV. P. RULE 65
     CERTIFICATION OF PERSONAL CONSULTATION AND MEMORANDUM OF
     LAW

A. PARTIES

Now comes plaintiff, Judy E. Morris, MD, for the second time

with this Order.  Plaintiff is a citizen of the State of Massachusetts
and has filed an amended complaint in US District Court, District of
Massachusetts, for disability benefits owed her under contracts from
UNUM Insurance Company of Portland, Maine (hereafter ^”UNUM^‘).
B. JURISDICTION
This court has jurisdiction over this action based on the pendancy of
the underlying ERISA lawsuit, diversity of citizenship, amount in
controversy over $75,000, and the case involves several Federal laws.
C. FACTS
1.  Plaintiff has two contracts of disability insurance from UNUM, an
individual policy Number LAD10632, Claim CLA963248 and a group policy
through her employer, Number 00052614-0001, Claim 0098463761.
Attachments B & C


2. Plaintiff is disabled from performing the material and substantial
duties of her occupation as an Emergency Doctor on a regular basis
according to the terms of both insurance policies.
Plaintiff has provided UNUM with medical documentation of her illness
and, although no tests currently exist to document the exact extent of
disability, numerous reputable organizations including the National
Institutes of Health have recommended
treatment guidelines that would clearly preclude plaintiff from engaging
in an occupation as stressful as that of an Emergency Room Physician.
Attachment D ^÷ Treatment recommendations from booklet Chronic Fatigue
Syndrome: Information from Physicians by National Institutes of Health,
^”Patient Management: CFS is debilitating in all patients, disabling in
some, but usually not progressive.  The debility and disability stem
from a combination of symptoms such as fatigue, muscle and joint pain,
sleep disturbances, cognitive impairment, and in some patients, from
associated depression^Ň..It is important for people with CFS to slow the
pace of their lives, and avoid or reduce their exposure to situations
that are physically or psychologically stressful.^‘ pages 7-8. Although
the disease itself may not be progressive, all kinds of stress make the
symptoms worse.
3.  Plaintiff has complied with all reasonable requests for
documentation from UNUM.  UNUM engaged in an investigation of

plaintiff^“s case that was biased, had a pre-determined outcome,
inappropriate methods, intentionally inadequate in following up
information that would support plaintiff^“s disability, and in violation
of the standards set up by ERISA, as well as other Federal and State
Laws. Attachment E -- Affidavit of Plaintiff's treating physician Dr.
Patricia McIlvaine.
4.  It has been over 2 years now that plaintiff has been deprived of the
monthly income of her disability benefits by UNUM^“s actions.  Plaintiff
has had to incur considerable expense to institute this litigation.
Plaintiff has been precluded from augmenting her income due to the
tremendous time and energy requirements of trying to get UNUM to honor
their policies. Plaintiff^“s illness has continued unabated with frequent
relapses requiring several days of bed rest to prevent or alleviate
deterioration and worsening of symptoms and the use of controlled
substances to control muscle pain, headaches, mood swings and anxiety
(much of these symptoms exacerbated by UNUM^“s behavior).
5.  UNUM continues to deny, without justification, plaintiff^“s claims
for benefits.  UNUM continues to refuse to reveal to plaintiff the Plan
Documents or give ^”a description of any additional material or
information necessary to complete the claim and an explanation of why
that material is needed.^‘ pg. 24

Group Policy ^”What are your Rights under ERISA?^‘ UNUM, it's claims
adjusters and other employees have consistently failed in their
fiduciary duties to a) administer claims ^”solely in the
interest of the participants and plan beneficiaries^‘ 29 U.S.C. ß
1104(a)(1); b) ^”make a full and fair review^‘; c)provide plaintiff with
Plan documents and other materials repeatedly requested by plaintiff.
D.    MEMORANDUM OF LAW
6.  Plaintiff^“s Group Disability Plan from Harrington Hospital does not
specifically grant discretion to UNUM. The plan calls
for plaintiff to submit ^”proof of claim,^‘ ^”proof of continued disability
and regular attendance of a physician.^‘  Plaintiff^“s
physician has continued to provide such proof as is possible based on
current medical knowledge.  UNUM has requested no other specific
documentation nor examination of plaintiff by any Independent Examiners,
and ignored what further documentation and expert opinions plaintiff
submitted in response to UNUM^“s request for ^”more compelling^‘ evidence.
Attachment F ^÷ Denial of Plaintiff^“s Group Disability Benefits by
adjuster Frankie Puthoff.
7.  Attachment G ^÷ Testimony of Vicki Carpman Walker, Public Policy
Coordinator of the CFIDS Association of America,


Submitted to The United States Department of Labor.  ^”Persons with CFIDS
who are too incapacitated to work and are covered by
ERISA-governed disability plans are forced to apply for benefits out of
economic necessity.  Under current regulations, they have
experienced unreasonable and unnecessary delays, harassment, and
denials^Ň.This conduct of disability carriers totally contradicts the
concept and original intent of disability benefits.^‘ ^”many
claimants cannot find or afford legal representation and are required to
represent themselves.  This is an arduous task.^‘
Armstrong v. Aetna Life Ins. Co., 128 F. 3d 1263 (8th Cir. 1997)
^”Aetna faces a continuing conflict in playing the dual role of
administrator and insurer of the health benefit plan.  As the insurer,
Aetna has an obvious interest in minimizing its claims payments.^‘ Fisher
v. Aetna Case No. AN-97-00291 civil, Superior
court for the state of Alaska, 3rd Judicial Circuit (1998) found that
^”the insurer later conceded, during a bad faith trial, that it conducted
an inadequate investigation of Fisher^“s claim, and that the claim should
not have been denied.^‘  ^”Fisher^“s evidence described a corporate
calculated risk, which encouraged shoddy claims investigations and
banked on the fact that sick and elderly disabled claimants ordinarily
don^“t file lawsuits.^‘
^”The Fisher case exemplifies the concept of risk management employed by
Aetna and other carriers.  Their experience tells

them that most claimants will not sue.  As a result, they conclude that
denying a claim with merit is a low risk business decision.^‘ ^”Under
ERISA, there is no risk in denying a claim.^‘
Because of the Supreme Court decision in Pilot Life Insurance Co. v.
Dedeaux, 481 U.S. 41 (1987), a flood of ERISA benefits cases were
unleashed in the Federal courts as insurers ^”venue shopped^‘ for a forum
that would enable them to commit torts that
would carry punitive damages in State Court actions.  This clearly is
not the intent of ERISA to ^”protect participants in employee benefit
plans and their beneficiaries, by requiring the
disclosure and reporting to participants and beneficiaries of financial
and other information with respect hereto, by establishing standards of
conduct, responsibility, and obligation for fiduciaries of employee
benefit plans, and by
providing for appropriate remedies, sanctions, and ready access to the
Federal Courts.^‘ 29 U.S.C. 1101(b).
8.  In John Dishman v. UNUM 1997 U.S. Dist. LEXIS 22676; 98 Daily
Journal DAR 10340; 21 E.B.C. 2941, Judge Letts described the behavior of
UNUM and its claims adjuster Frankie Puthoff by stating ^”Most persons in
Dishman^“s position would not have had the legal sophistication or
financial ability to wait for the bad faith denial to be redressed by a
court.  Their only option would have been to settle on terms very
favorable to the

insurance company, because of the financial jeopardy which the insurance
company^“s bad faith denial had placed them.^‘  Frankie Puthoff is the
same claims adjuster in Plaintiff^“s case.  Judge
Letts characterized Ms. Puthoff^“s testimony as showing a "lack of
credibility." Attachment H -- Judge Letts opinion.
9.  What Judge Letts has described clearly meets the definition of
extortion by means of financial duress as spelled out by the
Hobb's Act and illustrated by the case, US v. Velanzano, 1997 FED app.
0240P (6th Cir.) in which an extortion conviction was upheld due to the
defendant gaining large sums of money by putting his victims in ^”fear of
economic loss.^‘  UNUM's behavior in the Dishman case, plaintiff's case,
and others is clearly meant to deny claimants of the full amount of
their benefits by putting them in such financial duress that they will
settle on
terms favorable to UNUM.  In other words UNUM gets to keep money that is
not rightfully theirs. Attachment I ^÷ US v. Velanzano.

10. Attachment J -- List of Case Law for Standard of Proof for awarding
disability benefits for Chronic Fatigue Syndrome, Fibromyalgia, Chronic
Pain and other ^”subjective disabilities.^‘
This case law has been consistently ignored by UNUM in plaintiff^“s case.

11.  In effect, to use Ms. Peard's own case law, UNUM is attempting to
render the judicial process futile by their

actions and their refusal to act. (From UNUM Opposition to Plaintiff's
first Order to Show Cause).  It is UNUM's intent to fail to honor
contracts so that the inherent hardships and
delays of the legal process and its technicalities will moot the
procedure wrongfully in UNUM's favor long before a trial on the merits
can occur and effectively deprive claimants of ^”ready access to the
Federal Courts^‘.  Ready access must mean more than
the ability to merely file a lawsuit or physically step into a Federal
Court but also the chance to have their case heard on its merits.  As
Ms. Carpman stated in her Department of Labor
testimony ^”disabled claimants are particularly vulnerable if their
claims are not processed in a timely manner.^‘
E. REQUEST FOR ORDER TO SHOW CAUSE ^÷ TEMPORARY RESTRAINING ORDER
11.  Plaintiff has already suffered and will continue to suffer
irreparable injury if the defendant is not enjoined from further
wrongful denial and breach of contract during the pendancy of this
lawsuit and if defendant is not ordered to immediately pay plaintiff her
disability benefits and fulfill the terms of her contracts.
12.  The irreparable harm threatened to occur to plaintiff if this
injunction is denied will take the form of the following:
     a. Economic harm, as described by Judge Letts in John Dishman's
case.  ^”Mr. Dishman has suffered irremediable harm by

being forced to sell stocks and make distributions from his IRA in order
to pay living expenses^Ň.. the purpose of disability payments is to
provide a disabled individual with periodic
income with which to pay living expenses^Ň^Ň.  the receipt of a lump sum
at the conclusion of an appeal of this case will not compensate Mr.
Dishman for the loss of periodic income.^‘ Plaintiff has already suffered
such irremediable economic loss by being forced to use investments and
retirement funds for living expenses, thereby incurring loss of
interest, penalties and taxes.  Plaintiff is also incurring loss of use
of her
disability benefits, loss of legal rights, loss of money rightfully owed
her, loss of health insurance and other benefits as a member of the
Harrington Hospital staff, and loss of justice if she is forced to
settle or give up due to financial duress.  Plaintiff's legal case may
be impaired if she is unable to conduct discovery, investigation, and
depositions due to lack of financial resources of which UNUM has the
overwhelming advantage.
     b. Physical deterioration by the added physical and emotional
burden of continual worries about finances and inability to pay others
to do physical tasks which contribute to her physical decline.  Many
other claimants have commented that were there any chance for recovery
and return to work, UNUM^“s

behavior and the added stress and work of obtaining benefits rightfully
owed them significantly diminished those chances.
     c. Additional mental stress relating to ensuring she can continue
to pay her expenses, keep up her medical licensure and the Continuing
Education requirement of licensure so she can eventually return to the
field of medicine, and pay her living expenses.
     d. Emotional deterioration related to the financial stresses and
constant false accusations and innuendoes put forth by UNUM.  Financial
stresses can cause problems in plaintiff's
personal relationships, and as attested to by her psychologist and even
UNUM's Dr. Pringle, there is a risk of suicide from physical and
emotional stresses.  As a result of UNUM's egregious breaches of
fiduciary duty and breach of contract and the stresses it has subjected
plaintiff to, in addition to her illness, plaintiff^“s risk of suicide is
certainly greater than it would be without those stresses.
    e.  If at any time, plaintiff is forced to cave in to UNUM's tactics
and give up her lawsuit or settle for less, UNUM will have succeeded in
their extortion attempt and a crime will have been committed.



13. Based on the evidence, law and precedent, by whatever standard
plaintiff's claims are reviewed, plaintiff will clearly prevail at trial
on the awarding of her disability benefits.
Despite the fact that she is a non-lawyer, plaintiff has been able to
amass an incredible amount of case law supporting her rights to
benefits.  UNUM, with all their lawyers and legal resources, must
clearly be aware of this case law and aware of the fact that their
investigation of plaintiff^“s claims was biased, incomplete and geared
towards a pre-determined outcome, that being to deny her benefits and
force her to sue. Plaintiff's right to relief is clear and unequivocal.
Mazurek v Armstrong, __U.S.__,__, 117 S.Ct 1865, 1967, 138 L. Ed 2d 162,
167 (1997), 11A Federal Practice & Procedures at 129-30.  UNUM's
behavior in this case clearly require ^”an extraordinary and drastic
remedy.^‘  UNUM has not presented one shred of credible evidence that
proves plaintiff has failed to fulfill the terms of her contracts and
that UNUM has any chance of succeeding at trial.  Plaintiff is
considered disabled from her occupation due to the disease of CFS, and
not suffering from any mental illness, by 3 doctors (one her long-term
internist, one a specialist in Infectious Disease who is also a local
CFS specialist, and the third a nationally recognized CFS specialist


and member of the Government's CFS task force), her psychiatrist, her
employer, her insurance agent, and her insurance broker.  UNUM has
offered no medical evidence that plaintiff^“s disability is psychiatric
or not disabling except the assertions of two In-house administrators,
neither licensed to practice medicine in Massachusetts (one with no
medical license at all).  These assertions include fabricated
statements, diagnoses unsubstantiated and in conflict with the written
reports of plaintiff^“s physicians and in conflict with the interviews
UNUM's adjusters conducted with plaintiff by phone (of which plaintiff
has tape recordings legally obtained in Kentucky ^÷ a one-party state).
UNUM's in-house doctors are both executives at UNUM and have an obvious
conflict of interest.  Plaintiff^“s doctors have actually examined her,
treated her over time, or have special expertise in the field of Chronic
Fatigue Syndrome and have conducted laboratory testing which revealed
both immunological abnormalities and an abnormal sleep study.  UNUM is
the one attempting to use the Alice in Wonderland Procedure cited by Ms.
Peard ^”Sentence First-Verdict Afterwards^‘ by essentially accusing
claimants and their treating physicians of fraud and/or exaggeration, by
the denial of their claims, and then making the claimants file lawsuits
to prove


their innocence.  Plaintiff has most certainly proven here that the
evidence and the ^”four factors [supporting a preliminary injunction]
weigh heavily and compellingly in [her] favor.^‘
SCFC ILC, Inc. 936 F.2d at 1099.  The ^”status quo^‘ which UNUM seeks to
retain in this case was fraudulently created by UNUM
in order to harm the plaintiff.  Morris^“s harms in financial, physical,
mental and emotional well-being, far from being speculative, are in fact
ongoing and continuous by UNUM^“s
continued actions and the actions UNUM has taken ever since plaintiff
first filed her claims.  Plaintiff has experienced periods of
^”hypervigilance,^‘ high blood pressure, anxiety, fear, and despair as a
direct and proximate result of UNUM^“s actions.  It is only because, when
plaintiff resources are depleted, her
boyfriend has pledged to let her live in his house that she might not be
forced into the streets or forced to give up her claims.  Attempting to
earn an income would in fact completely eliminate any chance for
plaintiff to pursue this litigation because UNUM^“s claims procedures and
denial tactics have made this a full-time job for most claimants, even
those with attorneys.  It is a known fact that emotional upheavals and
shocks such as those that occur in litigation can, in fact, precipitate
suicidal crises in susceptible people.  Plaintiff


cannot just hire an attorney on a contingent-fee basis because the legal
questions are so technical and complicated there are
very few such attorneys around and they have heavy caseloads.  Many
disability attorneys refuse to take ERISA cases at all, and most refuse
to take them on contingency.  Even with an attorney, it takes years to
get a judgment paid.  Although UNUM claims
that the harms inflicted upon plaintiff would be ^”self-inflicted,^‘ this
argument is merely another of UNUM^“s cruel deceptions.  It is only the
fact that plaintiff finds herself in unusual circumstances, mostly of
her own making ^÷ i.e. with some financial reserves, without children to
support, without the usual debts that many people accumulate, with
computer skills, reading skills, and educational level far above those
of the average claimant, and with a strong emotional and family support
system that she has not caved in so far and is able to continue fighting
for what is rightfully hers.
14.  The threatened harm to plaintiff if this injunction is not granted
clearly outweighs any harm to UNUM, a multibillion dollar corporation.
Fairness would clearly dictate that if there were any ambiguity (which
there isn^“t), plaintiff cannot possibly be expected to endure prolonged
periods of no income while attempting to leap all the legal hurdles UNUM
will put in her path to trial.  As evidenced by other UNUM claimants, it

will take years to get to trial.  Good faith would dictate that UNUM
should not only pay claimant's benefits while litigation
proceeds but also pay for ongoing legal expenses as well so that the
playing field in the litigation will be a little more even.
If plaintiff is deprived of Due Process by the above duress, her
interest free ^”loan^‘ to UNUM will turn into a permanent robbery by UNUM.

15.  Issuance of this Order is in the public interest because it would
clearly a) enforce the law that states that ambiguities in ^”insurance
contracts are liberally construed in favor of the
insured.^‘ United States Fidelity & Guar. Co. v Annunziota, 67 N.Y. 2d
229,232,492 N.E. 2d 1206, 1207, 501 N.Y.S. 2d 790, 791 (1986),
^”ambiguities in standard-form contracts supplied by one
party are generally construed against that party^‘ See Westchester Rosco
Co. v New England Reinsurance Corp. 818 F. 2d 2,3(2d Cir. 1987), M.G.L.
175 ß 2 Note 5 ^”Where there is ambiguity in the terms of an insurance
contract, the ambiguity must be interpreted strictly against the
insurer.^‘ Ciaramitaro v. Saskatchewan Government Ins. Office (D.C.1956)
144 F. Supp. 237, b) help somewhat in leveling the playing field, at
least financially, and c) deter powerful and wealthy insurance companies
from making ^”business decisions^‘ to deny legitimate claims, flagrantly
defying the provisions of the ERISA law and

other laws, and then using the inherent hardships and delays of the
legal system for extortion.
16.  Plaintiff asks the court to Order UNUM to honor said contracts
immediately and set its application for a hearing if the court requires
it, at the earliest possible time and, after hearing the application,
issue a preliminary injunction against the defendant UNUM.
F.  REQUEST FOR A PERMANENT INJUNCTION
17.  Plaintiff asks the court to set its application for injunctive
relief for a full trial on the issues in this
injunction and, after trial, to issue a permanent injunction against the
defendant.
G. PRAYER
18.  For these reasons, plaintiff asks that the court Order UNUM
immediately to enforce the contracts, enter judgment for plaintiff for
the amount $399,492.00, to include benefits payable on both policies
from February 1, 1997 to April 1, 1999, including pre- and
post-judgement interest at a rate of 10%, annual cost of living
increases of 4%, refund of premiums paid on Individual policies from
November 1996 until June 1998, and expenses to date.  Attachment K.



19. Plaintiff requests the court order to UNUM to pay her continuing
monthly benefits in the amount of $12,378.00 as required by her
contracts.
20.  Order Harrington Hospital to immediately re-instate plaintiff in
any employee benefit plans or benefits that she would have been entitled
to if she had been appropriately deemed disabled by UNUM in February
1997 and not been coerced into resigning from her position as an
Emergency Room Physician.
21.  Plaintiff requests the court set up sanctions, injunctions, or
other relief the court deems appropriate to prevent non-payment, delayed
payment, harassment or other inappropriate
behavior by UNUM towards plaintiff, other claimants, and witnesses and
potential witnesses in plaintiff^“s lawsuit.
22.  If the Court is still unconvinced, plaintiff would like to submit
ex-parte (out of fear of repercussion, retaliation, or harassment by
UNUM of the persons in this report) a comprehensive listing of
approximately 198 claimants and 75 attorneys with cases against UNUM and
their comments as to UNUM's pattern and practice in evaluating
disability claims.
SUMMARY
I did not voluntarily ^”choose^‘ to have Chronic Fatigue Syndrome and in
fact endured great discomfort and disability for


years until it became overwhelming.  I wish that I did not have Chronic
Fatigue Syndrome and that I could ^”will^‘ these symptoms away.  But after
years of trying, after finding out that others had tried and failed,
after watching my condition
deteriorate as I tried, I have been forced to accept and live with my
condition.  UNUM must be forced to accept the reality of Chronic Fatigue
Syndrome and pay their obligations to their policyholders.
  Signed under the penalties of perjury this 1st day of April, 1999.
       Judy Morris, MD
       PRO SE
       261 Bumstead Rd.
       Monson, MA  01057


CERTIFICATE OF SERVICE

   I hereby certify that a true copy of the above document was delivered
in person April 1, 1999 to US District Court, District of Massachusetts,
Springfield and served by United States Postal Mail, postage prepaid,
certified, return receipt upon the following attorneys representing all
defendants in Morris v. UNUM, et al.  Mailed on April 1, 1999.


       Judy Morris, MD
       PRO SE
       261 Bumstead Rd.
       Monson, MA  01057

Patricia A. Peard, Esq., Katherine A. Robertson, Esq., William J.
Kayetta, Esq., H. Gregory Williams, Tracy L. Devlin, Esq., E. Michael
Sloman, Esq., Thomas H. Hayman, Esq., Robert Pierce, Esq., Christopher
N. Jones, Carolyn G. Sullivan





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The URL for this document is:
http://graham.main.nc.us/~bhammel/INS/DOCS/order040199.html
Created: April 7, 1999
Last Updated: May 28, 2000