Tuesday, March 29, 2011

Coventry Health Care Corporate Brutality

"The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy." —Martin Luther King, Jr.


CHRISTINE STENGER                                                  Civil Action NO 07-C-466

Plaintiff,                                                                             (Judge Martin J. Gaughan)




I. The Factual Predicate

This is an action for discrimination, intimidation, and infliction of emotional distress by defendants during the course of plaintiff, Christine Stenger’s pursuit of a complaint to the West Virginia Insurance Commissioner. Plaintiff does not seek recovery of insurance benefits, but instead seeks recovery of compensatory damages for illegal treatment of her by defendants while plaintiff attempted to pursue her statutory right to seek redress from a public official. Because plaintiff’s complaint before the Insurance Commissioner involved the handling of her underlying claim of benefits, and the Insurance Commissioner’s ultimate conclusion in her favor, it is necessary to describe the events leading up to her complaint.

It is not disputed that plaintiff, Christine Stenger, was a beneficiary of a health care benefits plan marketed by defendant Carelink to Stenger Business Systems, an office supply company located in Wheeling, and owned by plaintiff’s husband. The plan was created by Carelink pursuant to the provisions of West Virginia’s Health Maintenance Organization Act, Code 33-25A-1 et seq.

For many years prior to 2005, plaintiff was treated for severe bipolar disorder. EXHIBIT A is Carelink’s payment history for plaintiff. It reflects payments beginning in 2000 to plaintiff’s treating psychiatrist, Mary N. Boren, and two of her therapists, Ann R. McGeary and Beth A. Andes, as well as pharmacy payment for psychotherapeutic drugs, including Zoloft, Lithium, and Clonopin. All these payments were for treatment of plaintiff’s mental illness. Although Carelink’s retained expert psychologist quibbles with the exact diagnosis, he agrees that plaintiff “appears to meet the criteria for several categories of personality disorders.” Her illness causes her to come across as “demanding, defensive, moody, and reactive.” He opines, “All of these behaviors have been demonstrated throughout her history and are part of a deeply enduring pattern that has led to ongoing problems in her life.” Finally, he concludes, “The history presented by Ms. Stenger does support the view that she will be more susceptible to emotional distress than an “average person.” The report of Carelink’s retained expert is appended to Defendants’ Motion for Summary Judgment as Exhibit D.

In the spring of 2005, plaintiff was also diagnosed with severe obstructive sleep apnea. For treatment of this condition, plaintiff was referred to Dr. Bernard Costello, Chief of the Division of Craniofacial and Cleft Surgery, University of Pittsburgh School of Medicine. Dr. Costello explained to Mrs. Stenger the potentially life-threatening effects of chronic, untreated sleep apnea. As described in his deposition:

Essentially when somebody has sleep apnea, they block off their airway multiple times during the course of a night. Individuals who have it more severely might do that 40, 60, 80, 100 times an hour where their oxygen level drops. That has been proven to be correlated very specifically with high blood pressure, which takes its toll on your heart and vasculature and puts you at risk for cerebral, vascular and cardiac events.

Dr.Costello deposition, page 46.

To eliminate these chronic health risks, Dr. Costello prescribed surgery known as Lefort osteotomy.(Note: 1. Dr. Costello actually prescribed five separate surgical procedures. For ease of reference, plaintiff will collectively refer to them as a “Lefort osteotomy.”) Dr. Costello’s office sought pre-authorization for the recommended surgery from Carelink, but coverage was denied by letter dated May 10, 2005, based upon an exclusion for cosmetic (orthodontic) surgery. (See Exhibit B). In its denial letter, Carelink encouraged the plaintiff to contact its Customer Service Department with any questions, and also advised plaintiff of her right to appeal the denial of coverage.

On May 16, 2005, Dr. Costello appealed Carelink’s denial, explaining in writing to Carelink (Exhibit C) that the surgery was not cosmetic surgery, and that this medically necessary surgery would eliminate substantial health risks, and the corresponding expense, in Mrs. Stenger’s later years. The success rate of the surgery in curing sleep apneas exceeds 85% (Costello deposition, p. 22). In the first instance of what was to become a recurring pattern, Carelink took no action on the appeal, and later claimed it never received Dr. Costello’s correspondence. As the administrative law judge ultimately found.

On June 6, 2005, (Dr. Costello’s nurse) again sent the May 16 letter with supporting materials to Carelink, this time by overnight UPS. Still no response was received from Carelink even in the circumstance of multiple unanswered phone messages. (Dr. Costello’s nurse) again sent the May 16 letter with support materials via fax on July 13, 2005. Carelink still did not respond despite multiple unanswered phone messages.

Recommended Decision of Hearing Examiner, p. 3. Appended hereto as Exhibit D.

Meanwhile, Carelink’s Customer Service Department computer logging records reflect telephone calls from both Costello and plaintiff inquiring as to the status of her appeal. A log appended as Exhibit E, reflects a telephone contact from “COSTELLO MD, BERNARD” about “STENGER, CHRISTINE”: in which Dr. Costello was told “Not showing receipt of any appeal, gave fax # for appeals and directed to Nancy Phillips”. On July 25, 2005, plaintiff herself called Carelink, and in a follow-up note dated July 29, 2005 (Exhibit F), Carelink’s records reflect, “AS PER NANCY NO APPEAL ON FILE FROM MEM OR PROVIDER…” This despite the fact Dr. Costello’s office had mailed, faxed, and overnighted the May 16 letter on three separate occasions prior to July 29. Recommended Decision, Exhibit D, p. 3.

Astoundingly, on the day of this entry, that is, July 29, 2005, the very Carelink employee who denied there was any appeal on file caused two letters to be sent to plaintiff. (Exhibit G and H). In the first, the Carelink employee, Nancy Phillips, states:

We are in receipt of your written appeal on July 29, 2005.Your appeal is currently being processed and reviewed…Please refer to the enclosed “Your Right to Reeview of the Plan’s Determination” for further explanation regarding your appeal rights with Carelink. You have a right to appear at the hearing before the Appeal Committee. Please notify within five calendar days from the date of this letter if you intent to participate in the hearing…

Exhibit G.

The second letter, dated the same day, states: We have reviewed the appeal of our decision to deny authorization of coverage for Lefort Graft surgery for Carelink member, Christine Stenger.Upon consideration of the information available to us as of July 29, 2005 and the information presented during the Appeals Process, Carelink is upholding our original denial of authorization,…We appreciate the opportunity to help you.

Exhibit H.

As later found by the Hearing Examiner, On July 29, 2005, Carelink’s Medical Director, Dr. Rodney D. McKinney, considered Complainant’s appeal of Carelink’s denial of the requested procedures…In conducting his review upon appeal Dr. McKinney did not consider the May 16 letter and supporting material from Dr. Cosgtello as it was not provided to him by Carelink
staff. Carelink claims to have never received the May 16 letter and material until well after the appeal was considered on July 29, 2005. This is just not credible.

Recommended Decision, p. 4 (Exhibit D),

It is important to note that the policy exclusion relied upon by Carelink in its appeal denial – 7.1.35 for “orthongnathic surgery” Exhibit H. is a different exclusion than that relied upon in its original denial – 7.1.67 for “oral surgery which is part of an orthodontic treatment program” (Exhibit B). The Hearing Examiner castigated this behavior in his Recommended Decision. “It is equally important that Carelink not be permitted to abandon grounds for initial denial and substitute other grounds for denial upon internal appeal.” Exhibit D at page 8. The Insurance Commissioner adopted this finding, as she did all of the Hearing Examiner’s recommendations.

II. Defendants’ Campaign of Discrimination and Intimidation Began When Plaintiff Complained to the Insurance Commissioner

Upon Carelink’s denial of plaintiff’s internal appeal, on July 29, 2005, Carelink also placed the Insurance Commissioner on written notice of plaintiff’s complaint. Exhibit I. As advised by Carelink, plaintiff contacted the Insurance Commissioner’s office as to the appropriate procedure to be followed, and on September 28, 2005, she filed her formal written complaint on a form provided her by the Insurance Commission’s staff. Exhibit J.

In the meantime, there were two levels of concern for the plaintiff. First, the document sent to her by Carelink¸tited “Your Rights to Review of the Plan’s Determination” (Exhibit G, pp. 2 and 3) spoke of two levels of internal appeals in certain cases, and of an external review panel other then the Insurance Commissioner in others. Aware of her need to exhaust her internal appeals, and still naively believing that Carelink might actually recognize its responsibility to cover her surgery, plaintiff wanted to be certain she had complied with all of Carelink’s internal appeal requirements. Thus, on August 18, 2005, plaintiff telephoned Carelink’s Customer Service Office and spoke with customer service representative Lorrie Moore. As Carelink’s log records reflect, plaintiff called “asking how many levels of appeal there are”, and she was told by Ms. Moore, “adv that Appeal has 2 levels for mbr’s.” (Exhibit K) Later, however, on August 22, 2005, a log entry was made by Carelink employee, Nancy Phillips, “Member was advised of this when she was called on appeal decision.” 2 (Note: Not surprisingly, no one from Carelink ever actually called plaintiff concerning the appeal decision. There is no record in Carelink’s logs of such a call being made, and plaintiff will testify she learned of the decision when she received both ot the July 29 letters (Exhibits G and H) on the same day.) (Exhibit K) Not surprisingly, the truth is that no such telephone call was ever made. There is no record in Carelink logs of such a call, and plaintiff will testify she learned of the appeal decision when she received both of the July 29 letters (Exhibits G and H) on the same day. Then, on September 1, 2005, a supervisor instructed in Carelink’s logs, “Pls sent (sic) mbr correct letter for this 1st level of appeal.” (Exhibit K)

Thus, as Carelink’s computer logs plainly reflect, when plaintiff made reasonable inquiries as to whether another level of internal appeal existed, she was given conflicting answers with each call. Different Carelink employees gave different information¸ forcing plaintiff to continue to inquire until it was clear her only redress was to the Insurance Commissioner. One can safely assume that, had plaintiff failed to pursue the proper course, Carelink would later have contended she failed to exhaust her remedies.

A second level of concern for the plaintiff arose from Carelink’s advice, in its appeal denial letter, that she has a “right to request documentation related to your appeal”. This advice was reinforced by the document “Your Right to Review of the Plan’s Determination”Exhibit G, and again naively, plaintiff took it to heart. On August 17, 2005, plaintiff asked for copies of records concerning telephone calls between her and Carelink. Carelink’s call log reflects, “adv that she had req copies of call doc from CSO and was adv that she would have to have her lawyer do this and her son is an Attorney…adv that this req needs to be in writing and sent to P O Box 7103”. Exhibit L On August 22, Carelink’s log reflects that Carelink employee, Lorrie Moore, called the plaintiff on this subject, “followed up w/Christine on 8/22/05 apologized (sic) for miscommunications regarding access to her records, adv a form to be completed for this req will be mailed to her today.” Exhibit M

Hence, Carelink’s records reflect legitimate inquiries by plaintiff concerning matters related to the processing of her complaint to the West Virginia Insurance Commissioner. Here again, Carelink responses are inconsistent and unhelpful. Initially, Carelink recommended that plaintiff request the documentation she need, but when she did so, she was told it would only be provided in a written request from an attorney she did not yet have. Then, Carelink changed its mind and said she actually needed to fill out a form they would send her. Believing she had a 60 – day window to file her written complaint with the Insurance Commissioner – another piece of faulty information provided by Carelink – plaintiff filed her written appeal without most of the documentation from Carelink.

The truth of the matter is that during this time, Carelink was not happy that plaintiff was pursuing her complaint to the Insurance Commissioner. It knew that is had completely botched the appeal process through repeated failures to respond to Dr. Costello’s letters and telephone calls, and through its failure to process the appeal in a remotely timely manner – both conclusions later reached by the Hearing Examiner. It knew that sending a denial letter on the same day it sent a letter inviting plaintiff to participate in the appeal hearing was not going to sit well with the Insurance Commissioner. Finally, it knew, as the Hearing Examiner later found, that its practice of fishing around for exclusions, none of which ever truly applied to the requested surgery¸ meant it had no chance of prevailing on the merits.

Carelink also knew that the plaintiff was mentally ill. Carelink’s call logs note her diagnosis of bi-polar disorder, (Exhibit N, for example) even though that diagnosis had no relation to the sleep apnea surgery that was the subject of the appeal. Carelink understood that plaintiff was “more susceptible to emotional distress than an ‘average’ person.” (Clayman report appended to Defendants’ motion as Exhibit D). So, it undertook a campaign of behavior specifically designed to exploit its knowledge of plaintiff’s mental illness, and avoid the Insurance Commissioner’s scrutiny of its own behavior, by blaming the plaintiff. In so doing, it knew it was attacking an emotionally fragile person, and it hoped that by demeaning her character, it would ultimately cause her to give and go away.

When, on September 7, 2005, Carelink’s Quality Improvement Committee, having been advised of repeated unanswered telephone calls¸ asked the Appeals Department, “Please address the issue of calls not being returned on the appeal request” (Exhibit O), the Appeals Department blamed the plaintiff. In response, the Appeals Department wrote, “Member has demonstrated several times with Robyn and Debi K. of CSO that she has forgotten when called and sometimes forgets and has had memory loss. Nancy has been asked about this and is unaware (sic) of any member or provider calls that were not returned. We have also asked the member to supply any evidence of this and has not been provided.” 3 (Note: One might reasonably wonder how someone is supposed to produce evidence that a phone call was not returned.)

(Exhibit O).

This excuse was 1) patently false, and 2) an obvious attempt to exploit plaintiff’s mental illness.
From this point on, Carelink personnel engaged in a pattern of behavior designed to discredit plaintiff based upon her mental illness. As noted earlier, Nancy Phillips falsely claimed the plaintiff was given information “when she was called on appeal decision” – a call that was never made. Exhibit K. The Chief Executive Officer of Carelink was enlisted in an effort to get plaintiff to go away. Defendant Patrick Dowd has testified that sometime in October 2005, he was approached by Carelink staff and asked to intervene:

And that had reached a point where they felt like every time they turned around there was another e-mail, there was another phone call¸ there was another inquiry on this, and that it was really distracting to their work and that it was basically ¬ it was really difficult. And so that was my assessment of the situation. And the specific request was that at my level something needed to be done and that  needed to so something.

Dowd deposition, p. 58.

It did not matter to Carleink staff that plaintiff had every right to ask for the information she was requesting; indeed, that Carelink had encouraged her to do so. Instead, Carelink took advantage of plaintiff’s mental illness in an effort to divert attention from its own failures. Again, the appeals staff mislead Dowd about their interactions with plaintiff, “What Mr. Quinn told me is that he had spoken to your client on numerous occasions, and explained to her what the circumstance was…” Dowd depo., p. 53. In fact, defendants have been unable to produce a single log or telephone record documenting that Patrick Quinn ever spoke to the plaintiff¸ and the Hearing Examiner specifically found evidence of “multiple unanswered phone messages.” Exhibit D, p.3.

Then, Carelink representatives upped the ante by falsely claiming the plaintiff attempted to impersonate a representative of the Insurance Commissioner’s Office. On October 27, 2005, plaintiff placed a call to Carelink’s Customer Service Office seeking information needed to pursue her complaint with the Insurance Commissioner. The call log for that contact is appended hereto as Exhibit P. That document plainly reflects “Contact from: STENGER, CHRISINE”, meaning the caller specifically identified herself as Christine Stenger. The recipient of the call, Carelink employee Ruth Simpson, has testified she underwent an eight-week training course to learn how be to be a customer service representative. Defendant Dowd has testified that for a customer service representative responding to a telephone call, “The first thing would be the member’s name and ID card to confirm who they are talking with”, and that it is important that customer service representatives record information accurately. Dowd depo., pp. 34-6. Yet, despite the fact Carelink’s records plainly and unequivocally demonstrate the disputed call was from the plaintiff, they nonetheless concocted the story that plaintiff misrepresented herself as a representative of the Insurance Commissioner.

Carelink then set about to spread this falsehood as widely as possible. It sent an e-mail to the General Counsel of the Insurance Commissioner’s Office accusing plaintiff of misrepresentation, and contending, “We will be sending a termination notice to the member today.” Exhibit Q. Mr. Dowd sent a threatening letter to the plaintiff, with copies to Insurance Commissioner staff, contending she had engaged in criminal behavior and advising her “We have handed this matter over to the State for investigation.” Exhibit R.

Mr. Dowd now acknowledges he never saw Carelink’s call log concerning this telephone call, and never knew until the day of his deposition it plainly showed the call was from the plaintiff. Dowd depo, p. 75. Mr. Dowd brazenly admits he did not care whether or not the accusation was true, “So, it’s not really an argument about whether she was doing an impersonation act or not. It was an argument about, we can’t help you. That was the point.” Dowd depo, p. 82. He sent the letter in an effort to get the plaintiff to go away, “So what I hoped was that after these repeated phone calls and requests to reconsider something that had already come to a dead-end, that perhaps your client would understand that there really isn’t any option and that repeated calls couldn’t really go anywhere. And so by doing something, I thought that a letter might be a good way to go about it.” Dowd depo, p. 69.

In short, Mr. Dowd sent an accusatory and threatening letter without bothering to inquire whether Carelink’s own direct record of the call collaborated or refuted the accusation. He did so not because he cared about the truth of Carleink’s accusation, but because he was hoping this would intimidate the plaintiff into dropping her complaint. In the process, Carelink undertook to cast the plaintiff in a bad light with the Insurance Commissioner and to divert attention from the merits of the plaintiff’s complaint. Indeed, a subsequent communication from the Insurance Commissioner’s Office to Carelink referred to plaintiff as “the complainant who contacted your office claiming to be me.” Exhibit S. Carelink undertook these actions knowing that plaintiff was emotionally fragile, and specifically hoping to exploit her emotional illness by frightening her.

Sadly, Carelink’s campaign of character assassination did not stop there. When the Insurance Commissioner finally appointed a Hearing Examiner to take evidence concerning plaintiff’s complaint, Carelink immediately undertook to poison this as well. Upon being advised of a hearing date, and before an attorney had been appointed to represent the plaintiff, Carelink’s General Counsel wrote the Hearing Examiner, “(D)ue to certain concerns we have regarding this matter, we request an opportunity to hold this Administrative Hearing telephonically.” Exhibit T. Attorney Frank Hartman, the Consumer Advocate appointed to represent the plaintiff, was later told Carelink contended plaintiff was too dangerous for Carelink’s witnesses to be in the same room. Attorney Hartman objected to a telephonic hearing.

Exhibit U., the Hearing Examiner agreed, and the evidentiary hearing occurred without incident.

During the course of his several months of representing the plaintiff, Attorney Hartman observed numerous respects in which Carlink discriminated against the plaintiff because of her mental illness. His testimony, in part, is as follows:

Q. And you said that you thought that this discrimination – there was discrimination against Mrs. Stenger based on her mental condition?

A.. That’s my – yeah, I think so.

Q. Well, upon what do you base that?

A. Well, I base it upon the way things kind of went down, between this kind of phantom allegation –

Q. Well, let’s start there. Well, go ahead. I’m sorry. You finish.

A. No. I’m saying between the phantom allegation of this alleged fraud, and then that she’s somehow dangerous – and I think that that’s the leap or this perception that you can’t be in the same room with her or that she’s just too annoying to deal with ¬–I think those are all manifestations of her mental illness, the fact that people didn’t want to deal with her.

Q. Does that necessarily have anything to do with her mental illness?

A. I think it’s entirely about her mental illness, that she behaves the way she behaves because she is mentally ill.

Q. Who do you think knew that?

A. I think anybody who had access to her records, who was covering her mental health benefit.

Hartman depo., p. 61-62, appended to Plaintiff’s Motion for Partial Summary Judgment.

In summary, defendant’s behavior following referral of this matter to the West Virginia Insurance Commissioner discloses a pattern of discrimination and intimidation. Defendants knew that plaintiff was bipolar, and they knew that persons with bipolar disorder are aggressive demanding, and difficult. Because of her mental illness, and consistent with patients diagnosed with bipolar disorder, plaintiff was persistent in her request for information from Carelink and in her insistence of the rightness of her cause. Careink did not like that, so it set about to exploit plaintiff’s mental illness by falsely accusing her of not remembering telephone conversations¸ of impersonating a public State official, and of being a danger to Carelink’s witnesses. All of these accusations were made because of plaintiff’s mental illness, and were undertaken in the hope of improperly influencing the outcome of her complaint to the Insurance Commissioner; or better yet, getting her to drop the whole thing.

Finally, Carelink undertook this behavior knowing, as its retained expert has opined “that she will be more susceptible to emotional distress than an ‘average’ person.” Exhibit D to Defendants’ Motion for Summary Judgment. Carelink knew its behavior would be particularly distressing to the plaintiff; indeed, it counted on it. This campaign of character assassination did, indeed, cause the plaintiff severe emotional distress for which our law demands compensation.

III. Argument

Nothing more persuasively demonstrates Carelink’s continuing obsession with insulting and discriminating against a person with a mental illness than the shockingly snide opening remark of both its motion for and memorandum in support of summary judgment. According to Carelink, “By all appearances, this case is an unfortunate outgrowth of Plaintiff’s apparent, longstanding mental illness.”

What Carelink continues to misapprehend is that any claim for discrimination based on mental disability is, by definition, the “unfortunate outgrowth” of the victim’s mental illness. As far as Carelink is concerned, the whole notion that folks with mental disabilities have a right to bring discrimination claims is an outrage. Carelink’s brazenly offensive remark, itself a manifestation of discriminatory intent, is merely another in a seemingly endless litany of insults Carelink has unleashed at the plaintiff because she had the temerity to insist on her contractual and statutory rights. Virtually every witness whose deposition has been taken in this case has been asked whether the witness knew that on one occasion Christine Stenger danced in front of her television. 4 (As an example, at page 47 of Frank Hartman’s deposition, defense counsel asked, “ Did you know that she once danced in front of the television in some sort of state of something?” Not surprisingly, that subject had not come up during Mr. Hartman preparation of his client for the Insurance Commissioner hearing.) And counsel for defendants simply could not restrain himself from mentioning it one more time in his Memorandum in Support of Motion for Summary Judgment.


Yes, Christine Stenger is mentally ill. And yes, Carelink has known from the beginning that Christine Stenger is mentally ill. Carelink has known how to goad her into behaviors it later decries, and it has known just what buttons to push to get the strongest reaction out of an emotionally fragile human being. Then, when plaintiff behaves the way Carelink expected she would, says, “See, we told you so. She dances in front of television sets.” For Carelink, nothing about the proceeding before the Insurance Commissioner concerned the merits of its coverage denial. Knowing it had no substantive leg to stand on, it chose instead to exploit plaintiff’s mental illness by characterizing her as a violent liar; a woman who can’t remember what she’s been told; a dishonest, persistent sort not worthy of the Insurance Commissioner’s time. And now, Carelink continues its discriminatory crusade of personal affront to the final throes of this “unfortunate outgrowth of Plaintiff’s apparent, longstanding mental illness.”

The vast majority of defendants’ Motion for Summary Judgment is based on a repeated assertion that there is no evidence to support one or another of plaintiff’s claims. There are, of course, weight-of-the-evidence arguments that rarely have applicability in a deposition motion setting. This court is well aware of the standards applicable to consideration of motions for summary judgment, and plaintiff will not belabor them. There are, however, more specific consideration sto be applied in the context of discrimination cases.

Our Supreme Court has been careful, and consistent, holding that, in the context of discrimination cases, an inference of discrimination is sufficient to overcome a summary judgment effort. In Conaway v. Eastern Association Coal Corporation, 178 W. Va. 164, 358 S.E.2d 423 (1986), a case involving alleged age discrimination in the workplace, our Court held:

Because discrimination is essentially an element of the mind, there will probably be very little direct proof available. Direct proof, however, is not required. What is required of the plaintiff is to show some evidence which would sufficiently link the (defendants’ actions) and the plaintiff’s status as a member of a protected class so as to give rise to an interference that the (defendants’ action) was based on an illegal discriminatory criterion. This evidence could, for example, come…by the elimination of the apparent legitimate reasons for the (action)…

358 S.E.2d at 439-30.

Conaway’s holding, that a mere inference of discrimination is sufficient for a prima facie case, was expanded upon in two important, and unanimous, opinions written by Justice Cleckley in the mid-1990’s –Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, S.E.2d 561 (1996) was a disability discrimination case; while Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995) involved a claim of age discrimination. In both cases our Supreme Court grappled with the weight of evidence needed to make a showing sufficient to overcome summary judgment, and in both cases our Court held that an inference of discrimination was sufficient.

In Skaggs, Justice Cleckley cited with approval the rationale behind the Third Circuit Court of Appeals in rejecting a direct evidence requirement:

Gone are the days (if, indeed they ever existed) when an employer would admit to firing an employee because she was a woman, over forty years of age, disabled  or a member of a certain race or religion.

Further elaboration on the prima facie case was offered in Barefoot.At the outset, we note some confusion about the prima facie case may have developed from the third prong of the analysis we set forth in Conaway that “(b)ut for the plaintiff’s protected status, the adverse decision would not have been made.” Use of the “but for” language in that test may have been unfortunate, at least if it connotes that a plaintiff must establish anything more than an inference of discrimination to make out a prima facie case…To further clarify, we now hold the
“but for” test of discriminatory motive in Conaway is merely a threshold inquiry, requiring
only that a plaintiff show an inference of discrimination.

457 S.E2d at 161 (citation omitted).

For all of these reasons, our Supreme Court has cautioned that summary judgment should rarely be used in discrimination cases, “In Hanlon v. Chambers, 195 W. Va. 99, 464, S.E.2d 741 (1995) we cautioned circuit courts to be particularly careful in granting summary judgment ( ) discrimination cases.” Tiernan v. Charleston Area Medical Center, Inc., 212 W. Va. 859, 864, 755 S.E.2d 618, 623, (2002).

Plaintiff asserts that the recitation of facts indulged above presents compelling, direct evidence of discrimination on the part of defendants, as well as more than sufficient evidence to defeat summary judgment on the remaining counts of plaintiff’s Complaint. Certainly, when only an inference of discrimination is required, plaintiff has demonstrated that summary judgment in defendants’ favor is not applicable.

Defendants do raise one legal issue in their Memorandum that warrants discussion. That is the applicability of the West Virginia Human Rights Act’s preclusion of discrimination in places of public accommodations.

To begin, defendants wrongly assert that, “A place of public accommodation is a physical location.” Memorandum in Support, p. 13. There is no West Virginia law to support this assertion, and indeed controlling authority plainly rejects it. The definition of “place of public accommodations” contained in the Act is found at W. Va. Code Section 5-11-3:

The term “place of public accommodations” means any establishment or person, defined herein, including the state, goods, facilities or accommodations to the general public…

W. Va. Code Section 5-11-3(j) (emphasis added)

If, by explicit statutory definition, a place of public accommodations can be a “person”, then it is specious to suggest that only physical locations qualify. According to the statutory definition of “person”, either the Insurance Commissioner or Carelink or Patrick Dowd, can be places of public accommodations. W. Va. Code Section 5-11-3(a)

In Israel v. West Virginia Secondary Schools Activities Commission, 182 W. Va. 454, 388S.E.2d 480 (1989) our Supreme Court considered the meaning of the “place of public accommodations” in the context of a female high school student who was denied the right to try out for the boys’ baseball team on the basis of her sex. No physical location was implicated. As the Supreme Court framed it:

The threshold question presented is whether the SSAC is a “place of public accommodations”
under the Human Rights Act, W. Va. Code, 5-11-1, et seq., and thereby subject to the provisions of W. Va. Code, 5-11-9(f)(1).

182 W, Va, at 462, 388 S.E.2d at 488.

Our Court had little hesitance in reaching the conclusion the SSAC was a place of public accommodations based on the statutory definition cited above, and the fact, “The SSAC undeniably falls within the definition of ‘person’ which is found in W. Va. Code, 5-11-3(a)….”

fn. 19.

For further support for its conclusion, the Court referred to its earlier decision in Shepherdstown Volunteer Fire Dep’t v. West Virginia Human Rights Commission, 172, W.Va. 627, 309, S.E.2d 342 (1983), in which the Court concluded volunteer fire departments were places of public accommodations. The result as based, in part, on the conclusions:

First, we found our public accommodations definition to be broader than its federal
counterpart. Second, we reiterated the liberal construction of the Human Rights Act
which is required under its terms. 5 (In footnote 21, the Court cited W.Va Code
Section 5-11-15 which provides, “(t)he provision of this articles shall be liberally construed to accomplish its objectives and purposes.”)

182 W.Va, at 462, 388 S.E.2d at 488.

Given our Court’s conclusion that West Virginia’s concept of places of public accommodations is broader than its federal counterpart, it is appropriate to consider whether cases interpreting the federal statute have held an insurance company to be such a place. In Msarques v. Harvard Pilgrim Healthcare of New England, Inc., 883 A.2d 742 (R.I. 2005) the Rhode Island Supreme Court was confronted with interpretation of the Americans With Disabilities Act, 42 U.S.C. Section 12101 et seq. (“ADA”) , and in particular that Act’s prohibition of discrimination in places of public accommodations (Title III). Plaintiff has been denied a health insurance policy due to the fact he suffered from Arthrogryposis and Crohn’s Disease. The Court was therefore called upon to determine whether an insurance carrier can be a public accommodations under the ADA.

The next preliminary issue that must be addressed is whether or not HPHC-NE is a “place of public accommodation” within the meaning of Title III of ADA. The pertinent mandate within the provisions of Title III of the ADA is the following:

“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

883 A.2d at 748.

Against the insurance carrier’s claim that a place of public accommodation must be a physical place, the Court held:

In our judgment, the term “public accommodation” is not limited only to physical places. In Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., 37 F.3d 12, 15, 19 (1st Cir. 1994), the United States Court of Appeals for the First Circuit, in reversing a grant of Fed. R. Civ. P. 12(b)(6) motion to dismiss, held that the
term “public accommodation,” as used in Title III of ADA, should not be limited to “actual physical structures.”…The First Circuit went on to hold that “(t)he plain meaning of the terms (of the statute) do not require ‘public accommodations’ to have physical structures for persons to enter,” Id. We are in agreement with the First Circuit’s ruling in that case.

883 A.2d at 749.

To similar effect is Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2nd Cir. 2000). There, an insurance carrier denied a life insurance policy based on its underwriting standards to a mentally disabled applicant. The Second Circuit characterized the issue, and its conclusion, as follows:

Allstate contends that Title III of the ADA does not reach the underwriting practices of insurance companies. Plaintiffs, marshalling the test of the statute,.. argue that Title III does regulate insurance underwriting practices. We believe the text of the statute confirms Plaintiffs’ position,…Allstate argues that Title III defines the term “public accommodation” to include “insurance office(s),” not insurance companies. This choice of words, the carrier maintains, suggests that Congress intended the statute to ensure that the disabled have physical access to the facilities of insurance providers, not toprohibit discrimination against the disabled in insurance underwriting. Furthermore, Allstate contends¸because insurance policies are not actually used in places of public accommodation, they do not qualify as goods and services “of (a) place of public accommodation.”

We find those arguments unpersuasive. Title III’s mandate that the disabled be accorded “full and equal enjoyment of the goods, (and) services…of any place of public accommodation,” suggests to us that the statute was meant to guarantee them more than mere physical access. We believe an entity covered by Title III is not only obligated by the statute to provide disabled persons with physical access, but is also prohibited from refusing to sell them its merchandise by reason of discrimination against their disability.

198 F.3d at 32-3 (citations omitted).

Thus, given West Virginia’s law that the federal definition of “place of public accommodations” is more restrictive than our State’s definition, it is plain that our statute applies far beyond physical locations, and applies to the underwriting and policy-issuing practices of insurance companies generally.

Indeed, just earlier this year, our Supreme Court held the provisions of the West Virginia Human Rights Act to be applicable to claims handling practices of insurance companies. In Michael v. Appalachian Heating, LLC, __S.E.2d___,2010 WL 2346274 (W Va. 2010), our Court considered this certified question:

Does the West Virginia Human Rights Act prohibit discrimination by a tortfeasor’s insurer in the settlementof a property damage claim asserted by a member of a protected class under the Act?

In answering the question in the affirmative, our Court rejected an argument by the insurance carrier defendant phrased in terms remarkably similar to defendants’ arguments in this case:

State Auto contends that, under the UTPA, the Plaintiffs’ sole remedy is to file an administrative complaint with the Insurance Commissioner. In addition, State Auto submits that there is no common law cause of action for third-party claimants who allege discrimination by a tortfeasor’s insurance company. Additionally, State Auto argues that the rules of statutory construction support its interpretation of the relevant statutes. State Auto opines that, if this Court allows the instant action, it will open a flood of baseless litigation which the Legislature has already prohibited. According to State Auto, this action is simply a third-party bad faith claim disguised as a Human Rights claim.

After engaging in a thorough discussion of the applicable provision of the West Virginia Human Rights Act, the Court analyzed the issue as follows:

To analyze the applicability of the foregoing holding to the circumstances presented in the instant case, we first consider whether the statute is applicable to an insurance company….The term “person” is broadly defined in the Human Rights Act as “one or more individuals, partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups of persons.” W.Va. Code Section 5-11-3(a) (1998) (Repl. Vol. 2006).
This plainly worded definition clearly indicates an insurance company, as an “organization” or “corporation” within the meaning of the term “person.” …Therefore, an insurance company is included within the meaning of the term “person” as used in W.Va. Code Section 5-11-9(7)(1998)(2006).

Based on its reading of the statute, our Court held, at Syllabus Point 7:W.Va. Code Section 5-11-9(7)(A)(1998)(2006) of the West Virginia Human Rights Act, prohibits unlawful discrimination of a tortfeasor’s insurer in the settlement of a property damage claim when the discrimination is based upon race, religion, color, natural origin, ancestry, sex, age, blindness,
disability or familial status.

Although the Michael case was  not decided upon the basis of an interpretation of “place of pubic Accommodations, its conclusion that the Act applies to the claims settlement practices of an insurance company provides compelling support for the position asserted by the plaintiff here.

In the present case, plaintiff’s claims for discrimination and intimidation are not limited to those for access purely to the Insurance Commissioner herself, or the offices of the Commissioner, or to Carelink itself, or to Patrick Dowd. Instead, plaintiff contends the discrimination occurred, as her Affidavit says, “during the course of the administrative proceeding before the West Virginia Insurance Commissioner.” This means any aspect of her access to the complaint mechanism established by law whereby a policyholder may seek redress for misbehavior of an insurance carrier. It includes her access to Carelink’s records as they may be necessary to pursue her complaint; it includes her right to a clear explanation of her appeal rights, and it includes her right to pursue her complaint in a fair, equal and non-discriminatory manner.

The complaint mechanism of the Insurance Commissioner is a statutorily created mechanism that is open to all citizens of this State. W.Va. Code Section 33-2-13. Careink, as a health maintenance organization, is a creature of statute, endowed with unique regulatory and legal protections designed to promote the goal of low¬-cost health insurance. Code Section 333-25a-1 et seq. Fees are imposed, by statute, on health maintenance organizations that are to be placed into a special fund to be used “for the operation of the department of insurance” Code Sections 33-25a-22 and 33-3-13. Thus, Carelink partially funds the complaint mechanism through which plaintiff sought redress, and it does so in exchange for unique statutory protections accorded by the Legislature to health maintenance organizations.

Defendants should not now be heard to claim they are not part of a place of public accommodations when they clearly fit within the statutory definition of that term, and are an integral part of the complaint mechanism during which the complained of discrimination in a “place of public accommodations” provides a viable avenue of relief to the plaintiff against these defendants.

Finally, it should be noted that defendants’ argument disputing the applicability of Code Section 5-11-9(6) has no applicability to plaintiffs’ alternative theory of recovery under the Human Rights Act contained in Paragraph 9 of plaintiff’s Complaint. Whether or not the “place of public accommodations” provision is applicable, there is no dispute that the Human Rights Act’s broader prohibition of discrimination contained in Code Section 5-11-9(7) remains a viable claim. As to that claim, defendants’ sole argument is that plaintiff’s have presented no evidence of discrimination. The extensive discussion contained in the earlier portions of this Memorandum will have laid that assertion to rest. Likewise, as to the remaining Counts of the Complaint, defendants’ weight-of-the-evidence are unavailing.

For all these reasons, Defendants’ Motion for Summary Judgment should be denied in its entirety.

Anthony Werner
Counsel for Plaintiff

W. Va. State Bar No. 5203

1226 Chapline Street
P O Box 351
Wheeling WV 26003
(304) 233-3511
(304) 233-3199 (fax)


CHRISTINE STENGER Plaintiff,                                                        (Judge Martin J. Gaughan)




Service of the PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT was had upon defendans via fax transmittal a true and complete copy thereof this the 13th day of October, 2010, as follows:

Eric W. Iskra, Esq.
Grant P. H. Shuman, Esq.
Spilman¸Thomas & Battle, PLLC
P. O.. Box 273
300 Kanawha Blvd.m, East
Charleston, WV 25301

Anthony Werner
Counsel for Plaintiff

W. Va. State Bar No. 5203

1226 Chapline Street
P O Box 351
Wheeling WV 26003

(304) 233-3511
(304) 233-3199 (fax)


Ohio County Courthouse

Brenda L. Miller, Circuit Clerk

1500 Chapline Street

City/County Building

Wheeling, WV 26003

Ph. 304-264-3611

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