author: SHADUR, District Judge.

text:
    U.S. HOME CORPORATION, Plaintiff, v. GEORGE W. KENNEDY CONSTRUCTION COMPANY, Defendant.
    No. 82 C 7775.
    United States District Court, N.D. Illinois, E.D.
    May 28, 1985.

      Michael A. Braun, Craig P. Ehrlich, Braun & Rivkin, Ltd., Chicago, Ill., for plaintiff.
    Arthur DeBofsky, Mark D. DeBofsky, DeBofsky & DeBofsky, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

U.S. Home Corporation (“U.S. Home”) has moved under Fed.R.Civ.P. (“Rule”) 12(f) to strike the three affirmative defenses added by the Amendment to Answer (the “Amendment”) filed by George W. Kennedy Construction Company, Inc. (“Kennedy”). For the reasons stated in this memorandum opinion and order, U.S. Home’s motion is granted as to two of those defenses and denied as to the third.

Facts

Given the narrow scope of the current motion, only a skeletal outline of the relevant facts and a summary of the three defenses are called for. This outline and summary are drawn from the pleadings (U.S. Home’s Complaint and the Amendment), of course with no implication of any findings either way.

Real estate developer U.S. Home suffered more than $450,000 in damages when the sanitary sewer installation for its major single family residence development in Lindenhurst, Illinois proved defective and actually collapsed in part. Kennedy had installed the system under contract from U.S. Home.

U.S. Home sues Kennedy on four theories:

1. for breach of contract (including Kennedy’s nonconformity to the plans and specifications prepared by codefendant Mackie Consultants, Inc. [“Mackie”]) (Complaint Count I);
2. for breach of warranty of workmanship (Complaint Count II);
3. for negligence (including Kennedy’s (a) nonconformity to Mackie’s plans and specifications and (b) faulty workmanship) (Complaint Count III); and
4. for another, much smaller and separate breach of contract claim (Complaint Count IV).

Kennedy’s Amendment responds with three affirmative defenses:

1. Estoppel. Because U.S. Home inspected and accepted Kennedy’s work at all stages of construction and Kennedy reasonably relied on those acceptances, U.S. Home is now estopped from claiming a breach of contract or warranty by Kennedy.
2. Impossibility. Kennedy was bound to and did construct the sewers in conformity with Mackie’s plans, which U.S. Home had accepted. But those plans were so defective as to make it impossible for a sewer system conforming to them to function properly. Any breach of contract or warranty is therefore excused for impossibility.
3. Comparative fault. U.S. Home contributed to any defects in the sewer system by (a) providing faulty plans and specifications and (b) failing properly to supervise Kennedy’s work to ensure compliance with the plans.

Rule 12(f) Standards

United States v. 418.81 Acres of Land, 514 F.2d 627, 630-31 (7th Cir.1975) cast the criteria for Rule 12(f) motions in terms strikingly similar to those under Rule 12(b)(6). For Rule 12(f) purposes well-pleaded factual allegations in an affirmative defense are accepted as true, and the defense cannot be stricken if it presents a substantial question of law or fact or if there is any possibility the defense could succeed after a full hearing on the merits (id). Even under that lenient standard, Kennedy’s estoppel and impossibility defenses must be stricken.

Estoppel

U.S. Home’s Memorandum asserts several grounds for striking the estoppel defense. Because one of them clearly has merit, the others need not be discussed.

U.S. Home urges Kennedy expressly waived its right to raise the estoppel defense via its contract with U.S. Home. In relevant part Paragraph 27B of that contract reads:

[U.S. Home] shall not be precluded or estopped by ... acceptance of the work and payment therefor ... for [sic] recovering from [Kennedy] ... such damage as it may sustain by reason of [Kennedy’s] failure to comply with the terms of the contract. Neither the acceptance by [U.S. Home] or its representative, nor any payment for or acceptance of the whole or any part of the work ... shall operate as a waiver of any portion of the contract ... or of any right to damages herein provided.

That language admits of only one meaning: It is an unequivocal agreement U.S. Home’s acceptance of the sewer work would not bar U.S. Home from claiming faulty workmanship and recovering damages. Having so agreed, Kennedy must be held to its bargain. Brownell Improvement _Co. v. Critchfield, 197 Ill. 61, 69-70, 64 N.E. 332, 334 (1902); Ramonas v. Kerelis, 102 Ill.App.2d 262, 270-71, 243 N.E.2d 711, 715 (1st Dist.1968).

Impossibility

U.S. Home argues with considerable force that Kennedy’s impossibility defense is insufficient as a matter of law. This Court need not decide that issue, however, because in any event that defense seeks to controvert (or misses the whole point of) the Complaint. By definition an affirmative defense conforms to what, in the days of common-law pleading, was termed “a plea in confession and avoidance”: one that admits the truth of the complaint’s allegations but states new matter that exculpates the defendant. See Rule 8(c); Instituto Nacional de Comercializacion Agricola v. Continental Illinois National Bank and Trust Company of Chicago, 576 F.Supp. 985, 988 (N.D.Ill.1983).

Here U.S. Home has not sought to make Kennedy a guarantor of the proper functioning of the sewer system. Rather the Complaint charges Kennedy only with (1) faulty workmanship and (2) failure to conform its work to U.S. Home’s plans.

Kennedy’s purported affirmative defense does not contend the defective plans rendered impossible its performance of those two obligations. On the contrary, Kennedy’s position at every turn has been that its construction was both workmanlike and in strict compliance with the plans. Its contention that the system could not possibly have functioned properly in spite of Kennedy’s performance of its obligations is simply not an affirmative defense to U.S. Home’s claims as stated in the Complaint.

Comparative Fault

Kennedy’s comparative fault defense charges U.S. Home (1) provided faulty plans and (2) failed to supervise the construction work. U.S. Home states two baseless objections in support of its motion to strike.

First U.S. Home argues — without citation of authority — Kennedy’s failure-of-supervision defense must be stricken for its failure to allege U.S. Home was aware of Kennedy’s defective performance. U.S. Home apparently believes it cannot be held liable for a failure to direct Kennedy to repair Kennedy’s mistakes unless U.S. Home actually knew of those mistakes.

That position defies common sense. If U.S. Home were — as Kennedy alleges— under a duty to “oversee or supervise” Kennedy’s work, then U.S. Home had an obligation to inspect and investigate that work to ensure it was performed properly. U.S. Home’s ignorance of defects may therefore be a result of its negligence in supervision. Under that scenario U.S. Home’s ignorance — far from exonerating it — becomes a cornerstone of its liability.

U.S. Home’s second attack on the supervision defense — as groundless as the first — is that U.S. Home had no power to supervise Kennedy because Kennedy was an independent contractor. U.S. Home argues Kennedy’s independent status derives from Article 11 of the U.S. Home-Kennedy contract:

The status of [Kennedy] is that of independent contractor and an employing unit subject as an employer to all applicable unemployment compensation statutes so as to relieve [U.S. Home] from any and [sic] responsibilities thereunder toward employees of [Kennedy],

But that provision is obviously aimed toward rebutting any possible argument people on Kennedy’s payroll are employees of U.S. Home for unemployment compensation purposes. It does not by any stretch convey a general independent contractor status on Kennedy in all respects and for all purposes. Indeed, Kennedy’s independent contractor status (if it were to exist) is not mutually exclusive of a supervisory right and duty on U.S. Home’s part. Discernment of such status and its legal consequences are also matters best left for another day.

Conclusion

Kennedy’s First and Second Additional Defenses are insufficient as a matter- of law and are stricken from the Amendment. Kennedy’s Third Additional Defense remains intact.

      . It should be said at the outset that neither side’s submissions were particularly helpful in resolving the problems posed by the motion. Their presentations were fuzzy and beside the mark in a number of respects, apparently the result of counsel’s having failed to conceptualize and think through what was really at issue. Fortunately this Court's law clerk, Robert Jones, Jr., Esq., brought some order out of chaos in preparing a draft, which this Court then reshaped into the present opinion.

      . In fact this Court has analyzed each of the other grounds-advanced in the memorandum (and still another ground, Kennedy’s claimed lack of change of position, stated in U.S. Home’s motion but not argued in its memorandum). Each of U.S. Home’s contentions is flawed in a different way, but because the estoppel defense cannot survive anyway for the reason stated in the text, there is no point in protracting the discussion to deal with any of the other grounds.

      . In any event, Kennedy would be hard pressed, in light of the quoted contract provision, to establish its claimed reliance on U.S. Home’s acceptance of the work. See Wilson v. Illinois Benedictine College, 112 Ill.App.3d 932, 939, 68 Ill.Dec. 257, 264, 445 N.E.2d 901, 908 (2d Dist.1983).

      . Impossibility is normally invoked as a defense only when an unanticipated event occurring after execution of a contract renders one party’s performance either impossible or vastly more difficult than the parties had initially contemplated. Joseph W. O’Brien Co. v. Highland Lake Construction Co., 17 Ill.App.3d 237, 240-41, 307 N.E.2d 761, 764-65 (1st Dist.1974); Restatement (Second) of Contracts 2d § 261 (1981). No such later event occurred here. Kennedy had every opportunity before executing its contract with U.S. Home to examine the plans and to determine their soundness. Its failure to do so or to provide for the contingency the plans would be faulty cannot relieve Kennedy of the burden of its bargain. Joseph W. O’Brien, 17 Ill.App.3d at 241-42, 307 N.E.2d at 765.

      . Kennedy's contention, if proved, might perhaps affect the amount of its liability. Conversely, in a true joint and several liability situation Mackie’s fault would not reduce Kennedy's liability to U.S. Home (as distinct from possible rights of contribution among the tortfeasors). But those hypothetical possibilities need not be resolved for present purposes.

      . Again another issue lurks in U.S. Home’s amorphous presentation. It appears to take the position it had no duty to Kennedy in part because Mackie had the responsibility to supervise. But the existence of such a right-duty pairing as between U.S. Home and Mackie, created by contract between them, does not necessarily negate the existence of a similar pairing when the U.S. Home-Kennedy relationship is the focus of attention. Once more, in the absence of a reasoned exchange between the parties on the subject, this Court is not now called on to explore the matter to its ultimate conclusion.

      . Here too U.S. Home tenders an argument without having made any effort to think it through. As n. 6 reflects, U.S. Home contends Mackie had supervisory duty and power over Kennedy. Yet Kennedy is obviously just as much an "independent contractor” vis-a-vis Mackie as it is vis-a-vis U.S. Home.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    William BUTTRON, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 Civ. 3627 (RWS).
    United States District Court, S.D. New York.
    May 30, 1985.

      Meltzer & Fishman, New York City, for plaintiff; Stanley F. Meltzer, Michael T. Lamb, New York City, of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Rosemarie E. Matera, Asst. U.S. Atty., New York City, of counsel.
   OPINION

SWEET, District Judge.

This is an action brought by plaintiff William Buttron (“Buttron”) under section 205(g) of the Social Security Act, as amended (the “Act”), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (the “Secretary”), which denied Buttron’s application for federal disability insurance benefits. The Secretary has now moved pursuant to Fed.R.Civ.P. 12(c) for an order affirming the decision below. Buttron has cross-moved for judgment on the pleadings. For the following reasons the decision of the Secretary is vacated, and the case is remanded to the Secretary for further proceedings consistent with this opinion.

Prior Proceedings

Buttron’s first application for disability-insurance benefits for the period beginning June 19, 1977 was denied on January 2, 1980 by decision of the Administrative Law Judge. The Appeals Council denied But-tron’s request for review and the Administrative Law Judge’s decision became the final decision of the Secretary. Buttron did not appeal that decision.

On April 8,1983 Buttron filed an application for disability insurance benefits stating an inability to work since May 2, 1980 due to acute lumbosacral strain with degenerative disc disease, removal of a kidney due to malignancy, severe arthritis.of the spine and loss of three toes on the right foot. His application was denied initially and on reconsideration, and Buttron subsequently requested a hearing to review his application. The hearing was held on February 2, 1984 before Administrative Law Judge Lloyd S. Greenridge (the “ALJ”) who considered the case de novo. At the hearing Buttron amended his application to include a psychological condition as an additional basis of disability. On February 28, 1984 the AU found that Buttron was not under a disability, and the Appeals Council affirmed that determination on April 18, 1984. Buttron subsequently commenced this action to review the final decision of the Secretary.

Buttron met the insured status requirement of the Act for the purpose of entitlement to Title II benefits only through December 31, 1982.

Facts

Buttron was born on April 13, 1935 and at the time of the hearing was forty-eight years of age. He has a high school diploma and attended one year of college. His relevant work background consists of employment as a truck driver from 1972 to 1977 following fifteen years of sporadic employment as a general construction day laborer. Prior to 1972 Buttron did not work steadily because of a severe drinking problem. Buttron testified that he is an arrested alcoholic, that he attends Alcoholics Anonymous’ meetings regularly, and that he last drank on July 4,1972. Buttron last worked on June 19, 1977 when he fell off a loading platform and injured his elbow.

The medical evidence of record may be summarized as follows. Dr. Jerome J. Moga examined Buttron on August 7,1981. On that occasion, Buttron complained that he injured his back on June 21,1977. Sincp that time he had responded slowly to intensive therapy and obtained some relief with acupuncture. Buttron indicated that he experiences lumbrosacral stiffness and pain after being up and about for more than two or three hours. Buttron reported that he requires two to three hours of extra bed rest each day. He informed Dr. Moga that he could engage in light physical activity on a limited and intermittent basis.

On examination, Dr. Moga noted no lumbrosacral tenderness. Straight leg raising tests were negative. No neurological changes were noted in the lower extremities and measurements of plaintiff’s thigh and calf region were equal bilaterally. Dr. Moga noted a limitation of forward bending at the waist to 45 degrees. Dr. Moga concluded that Buttron was not capable of sustained physical activity on a regular basis but that intermittent periods of ambulation and sitting were possible.

A July 28, 1982 report of Westchester County Medical Center showed that But-tron was receiving trigger point stimulation treatment for myositis and arthritis of the low back, with no complications. X-rays of Buttron’s lumbrosacral spine were taken by Dr. Albert Messina and Dr. Arie Liebeskind in October, 1982. The x-rays revealed mild narrowing at the Ll-2 and L2-3 interspaces with minimal posteri- or displacement of the vertebral bodies. There was evidence of minimal anterior osteophyte formation. There was no evidence of spondylolysis. The impression was that these x-rays were consistent with degenerative arthritis, most marked in the upper lumbar spine. An x-ray of the hips revealed osteoarthritis of both hips.

On February 15, 1983, Buttron was admitted to Northern Westchester Hospital Center for investigation of painless hematuria (blood in the urine). An intravenous urography revealed a mass lesion of the right kidney. On February 23, 1983 But-tron underwent a right radical nephrectomy (excision of the right kidney). The pathology report revealed renal cell carcinoma involving but not penetrating through the renal capsule. There was no evidence of vascular invasion and an examination of Buttron’s lymph nodes was negative. But-tron was discharged on March 8,1983. His condition was improved.

Dr. Eugene L. Hirsch, a chiropractor, began treating Buttron on July 1, 1974 and saw him most recently on June 1, 1983. Dr. Hirsch noted that Buttron “[o]riginally began one to two visits per week; now, approximately once every month to three months based on symptomatic need.” He indicated that, as a result of treatment “[Buttron] can move in any position, but does so guardedly.” In describing But-tron’s daily activities, Dr. Hirsch noted that “[Buttron] cannot do any heavy lifting or bending without pains in the low back.” He stated that Buttron “is physically unable to perform any type of occupation that would require prolonged sitting, standing, or even the mildest lifting.” Relying on the x-ray report of Dr. Messina and Dr. Liebeskind, Dr. Hirsch’s impressions were degenerative arthritis, most marked in the upper lumbar spine and osteoarthritis of the hips bilaterally. He described Buttron as totally disabled and noted “[t]he complication of his malignancy in the right kidney has, in my opinion, also added to the condition of total disability.”

Dr. Moga examined Buttron a second time on June 4, 1983. In a report to the Worker’s Compensation Board, Dr. Moga indicated that Buttron had informed him that he required six extra hours of bed rest a day to decrease his low back pain. Dr. Moga noted tenderness of the lumbosacral area and positive straight leg raising at 70 degrees. There were no neurological changes. He described Buttron as totally disabled.

Dr. Robert Silva, Buttron’s treating urologist, offered an assessment of Buttron’s ability to do work-related physical activities on January 9,1984. He reported that “urologically there are no physical restrictions.”

Dr. Richard Silverman, a staff psychiatrist with Phelps Memorial Hospital Mental Health Center noted in a report to But-tron’s representative dated January 19, 1984 that Buttron was referred to the Phelps Memorial Center in September 1983 for treatment of depressive symptoms. The diagnosis at that time was major depression with secondary diagnosis of alcoholism, resolved, and dependent personality disorder. Dr. Silverman felt that Buttron had been unable to maintain any gainful employment for the past five years. He noted that “[s]ince seen in our clinic, following surgery for renal carcinoma, he has had severe chronic depressive symptomatology, has exhibited severe thought disorder best characterized as looseness of associations, and has had chronic somatic symptomatology referrable to his orthopedic problems.” Dr. Silverman stated that But-tron exhibits social withdrawal, a paucity of motivation and restriction of affect. He has no cognitive impairment. In the opinion of Dr. Silverman he cannot maintain gainful employment. The current diagnoses offered were chronic schizophrenia, residual type, alcoholism, resolved, and secondary major depression. On the form supplied by the Administration for estimating residual functional capacity, Dr. Silver-man stated on January 23, 1984 that in his opinion the same level of severity set forth in his estimates had existed for at least three years.

On October 25, 1983, Dr. William Tom-back noted that Buttron visited him complaining of pain in the ball of his right foot. Dr. Tomback’s impression was bursitis. Buttron testified at the hearing that he is treated by Dr. Tomback, who he first saw in July or August of 1983, approximately once every ninety days.

Mr. Carl Henson, a clinical psychiatric social worker at Phelps Memorial Hospital Mental Health Center, testified at the hearing. He felt that the diagnosis of schizophrenic, paranoid type, was a fair assessment of Buttron’s condition. He noted that unless there are outside influences such as drugs or alcohol it can be controlled with a mild tranquilizer. Mr. Henson felt that Buttron’s psychiatric impairment had existed at the same level of severity as it did when he examined him for at least three years; i.e., since 1979. He suggested that this level of severity might be connected with something specific such as the cessation of work. He also mentioned Buttron’s discovery of his mother’s cancer, which he learned of in approximately 1980 but which was diagnosed as terminal in May or June of 1983, and Buttron’s surgery, as possible factors.

Mr. Henson stated that Buttron had been on no anti-depressant or anti-psychotic medication until prescribed Nortryptaline by Dr. Silverman in September 1983. He indicated that in general schizophrenia interferes with an individual’s ability to deal with physical disabilities.

At the hearing, Buttron stated that he first sprained his back in 1975 and then again in June 1977. In June 1976 three toes on the right were amputated. The absence of these toes causes a limp and imbalance in weight bearing. He takes pain medication and sees a chiropractor once a month. He complains of back pain, which has been present since 1975 and continued even after surgery removed a kidney in February 1983. He testified that he had intermittent impotence and difficulty sleeping during the period at issue which he attributed to stress and back and kidney pain. Buttron also testified that his emotional condition existed at the level of severity indicated by Dr. Silverman as early as 1979.

Buttron further testified that he drives on occasion, attends Alcoholics Anonymous meetings at a hall two blocks from his home, watches television, and very occasionally goes into town or socializes with friends from Alcoholics Anonymous. But-tron was also involved with a political organization at one point and in approximately September 1982 made phone calls during the campaign.

At the conclusion of the second hearing, the AU found that during the relevant time period Buttron suffered from arthritis, a severe impairment, but that he also possessed the residual functional capacity for sedentary work. Given Buttron’s status as a younger individual with one year of college, the AU applied Rule 201.21 of Appendix 2 to Subpart P of 20 C.F.R. Part 404 to reach a conclusion of not disabled. The AU stated that “claimant's psychiatric condition is not relevant to a determination of his disability” because the record contained no medical evidence contemporary with the period at issue or any record of treatment during that period.

Buttron now claims that there was not substantial evidence to support the AU’s finding that he was not under a disability during the relevant period. He claims that the AU gave insufficient weight to the testimony of Buttron’s treating physicians as to Buttron’s residual capacity for work and that the AU improperly chose to disregard evidence of his mental impairment.

The Applicable Standard

In reviewing a denial of Social Security disability benefits, a court’s function is to determine whether the Secretary applied proper legal principles in reaching a decision and whether that decision is supported by substantial evidence on the record as a whole. Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418 (2d Cir.1983); Spicer v. Califano, 461 F.Supp. 40, 45 (N.D.N.Y.1978); 42 U.S.C. § 405(g). Substantial evidence in this context has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Donato v. Secretary of Health and Human Services, supra, 721 F.2d at 418. The reviewing court is not to decide the case de novo, and where supported by substantial evidence the Secretary’s findings of fact, as well as the inferences and conclusions to be drawn from those findings, are conclusive even where the reviewing court’s independent analysis of the evidence may differ from the Secretary’s analysis. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982). As the trier of fact, it is the function of the Secretary, and not the court, to resolve conflicts in the evidence and to pass on the credibility of witnesses. Richardson v. Perales, supra, 402 U.S. at 399, 91 S.Ct. at 1426; McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 705 (2d Cir.1980).

For purposes of the Social Security Act, disability is defined as:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. -§ 423(d)(1)(A). A physical or mental impairment is defined as “an impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

In Berry v. Schweiker, 675 F.2d 464 (2d Cir.1982), the Second Circuit set forth a five-step sequence to be utilized in evaluating disability claims:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.

In assessing an individual’s disability, the Secretary must consider: (1) the objective medical facts, (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant’s symptoms submitted by the claimant, his family, and others; and (4) the claimant’s educational background, age, and work experience. Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 n. 2 (2d Cir.1972); Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). These elements of proof must be considered in combination with each other. Bastien v. Califano, 572 F.2d 908, 916 (2d Cir.1978).

Because I find that the AU failed to give appropriate weight to the medical opinions of Buttron’s physicians in determining Buttron’s residual functional capacity for sedentary work, the case must be remanded for reconsideration.

The Second Circuit has repeatedly emphasized that a treating physician’s opinion is entitled to particular weight and is binding on the Secretary when it is not contradicted by substantial evidence. See, e.g., Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983); Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63, 64 (2d Cir.1980). The Second Circuit rule requires that “special weight ... be given to medical reports submitted by an applicant’s attending physician” even if there is contradictory medical evidence supplied by the agency-appointed physician. Chiappa v. Secretary of HEW, 497 F.Supp. 356, 360 (S.D.N.Y.1980). If the treating physician’s opinion is rejected, specific, legitimate reasons for doing so must be provided. Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984). Furthermore, the record must reveal whether and to what extent the Secretary considered all significant evidence. Wier v. Heckler, 734 F.2d 955, 961 (3d Cir.1984); Carnevale v. Gardner, 393 F.2d 889, 891 (2d Cir.1968). It is inappropriate for any AU to substitute his own opinion for that of an expert presenting competent medical evidence.

In the present case, the AU referred to the July 28, 1982 report of Westchester County Medical Center, the October 20, 1982 x-rays of Buttron’s hip and spine and Dr. Hirsch’s June 6, 1983 statement. He noted that the x-rays revealed arthritic changes in the hips and minimal arthritic changes. He also noted that Dr. Hirsch reported moderate decreased range of motion of the hips and lumbar spine and diminished reflexes and sensory function of both legs, and stated that the x-rays relied on by Dr. Hirsch showed only minimal lumbroscral changes. After listing Buttron’s problems with his feet, he stated that although Buttron complained of back pain at the hearing, he did not complain of severe foot pain. Finally, he noted that the postoperative course of Buttron’s kidney removal was uneventful. Following his recitation of the above medical information, the AU stated that “[b]ased on the foregoing, I find that the claimant is able to sit without difficult, stand one hour, walk thirty minutes and lift and carry up to ten pounds. Accordingly, he possesses the residual functional capacity for sedentary work.”

The AU’s decision is not consistent with the expert opinion of Buttron’s treating physician, Dr. Hirsch, and is not necessarily supported by the opinion of Dr. Moga.

The Regulations define sedentary work as:

... work involvpng] lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. § 404.1567(a). In the Second Circuit, the courts have generally required that a claimant be found capable of sitting approximately six hours in order to support a conclusion that he is capable of sedentary work. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984).

In his June 6, 1983 statement, Dr. Hirsch expressly stated that "Mr. Buttron is physically unable to perform any type of occupation that would require prolonged sitting, standing, or even the mildest lifting.” This opinion directly conflicts with a conclusion that Buttron could handle sedentary work. While Dr. Moga’s reports are more ambiguous, they also do not seem to support the conclusion that Buttron retained the residual functional capacity for sedentary work. In his first report on Buttron, Dr. Moga indicated that Buttron was not capable of sustained physical activity but that intermittent periods of ambulation and sitting were possible. See Ferraris v. Heckler, supra, 728 F.2d at 587 (“[Alternating between sitting and standing may not be within the concept of sedentary work.”)

The AU’s failure to give sufficient weight to Dr. Hirsch’s opinion or to deal specifically with Dr. Hirsch’s and Dr. Moga’s findings constitutes reversible error. While the AU may not have been bound by Dr. Hirsch’s conclusions if he reasonably determined that both Dr. Moga’s opinion and the other medical evidence contradicted Dr. Hirsch’s findings, he was required to give that opinion careful consideration and to set forth with specificity his reasons for rejecting that conclusion. Ferraris v. Heckler, supra, 728 F.2d at 587. The AU’s opinion does not provide sufficient information for a determination of whether his conclusion is supported by substantial evidence. A mere reference to clinical findings that may or may not contradict the conclusions of examining physicians is not enough to allow the AU to reject specific conclusions in favor of his own estimate of residual functional capacity. On remand, the AU must thoroughly evaluate the medical evidence, giving appropriate weight to the findings of the treating physicians, and provide convincing reasons for why his conclusion should stand despite the evidence submitted by Dr. Hirsch and Dr. Moga.

The grounds upon which the AU determined that Buttron was not suffering from a non-exertional disability during the relevant time period also constitutes reversible error. Both Dr. Silverman and Mr. Henson opined that Buttron’s mental impairment existed in a disabling degree prior to the expiration of his insured status on December 31, 1982. Without expressly discussing these conclusions, the AU concluded that Buttron’s psychiatric condition was irrelevant to any determination as to a disability on the grounds that the record contained no medical evidence contemporary with the period at issue. However, the mere fact that Dr. Silver-man’s diagnosis was made several years after the onset of Buttron’s impairment does not invalidate its effect. See Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981); McBrayer v. Sec. of HHS, 712 F.2d 795, 799 (2d Cir.1983). The AU was not entitled to ignore medical evidence simply because of a lack of contemporary findings. Furthermore, where a medical opinion remains unchallenged except by the AU’s inference to the contrary, the AU cannot substitute his own judgment for competent medical opinion. McBrayer v. Sec. of HHS, supra, 712 F.2d at 799; Grable v. Sec. of HEW, 442 F.Supp. 465, 470 (W.D.N.Y.1977). On remand, the AU must accept Dr. Silverman’s and Mr. Henson’s medical conclusions as to the existence of Buttron’s mental impairment prior to December 81, 1982 and make a determination based on their conclusions as to whether Buttron’s mental condition entitled him to disability benefits. Because the AU declined to consider any evidence of a psychiatric impairment, he failed to apply the required five-step sequence. He must evaluate the evidence of Buttron’s mental disability in accordance with the required sequence on remand.

In addition, even if the AU concludes on remand that Buttron’s condition was not in and of itself enough to render him disabled within the meaning of the regulations, he must then consider the combined effect of Buttron’s physical and mental impairments. See DeLeon v. Sec. of HHS, 734 F.2d 930, 934, 937 (2d Cir.1984); Kolodnay v. Schweiker, 680 F.2d 878, 880 (2d Cir.1982), 20 C.F.R. §§ 404.1522, 404.1545, keeping in mind that the rules pertaining to residual capacity may not be applicable where both exertional and non-exertional impairments are in existence. See Rule 200.00(e)(2) of Appendix 2, Subpart P, Part 404.

For the reasons discussed above, the decision of the Secretary is vacated and the case is remanded for further consideration in accordance with this opinion. The case is closed with leave to reopen ab initio, on the specific understanding that the court retains jurisdiction, on motion and without the payment of filing fees, to enter all necessary orders or conduct any necessary future proceedings in the case, as if it had not been closed.

IT IS SO ORDERED.


author: DIANA E. MURPHY, District Judge.

text:
    Ernest B. RIDENS, Plaintiff, v. VOLUNTARY SEPARATION PROGRAM, Defendant.
    Civ. No. 4-82-651.
    United States District Court, D. Minnesota, Fourth Division.
    May 30, 1985.

      William D. Schutter, Babcock, Locher, Neilson & Mannella, Blaine, Minn., for plaintiff.
    Scott K. Goldsmith, Rider, Bennett, Egan & Arundel, Minneapolis, Minn., for defendant.
   MEMORANDUM OPINION AND ORDER FOR JUDGMENT

DIANA E. MURPHY, District Judge.

Plaintiff, Ernest B. Ridens, brought this action against defendant, Voluntary Separation Program, to recover severance benefits allegedly owing under the Voluntary Separation Program of Texaco Inc. (Texaco), an employee benefit plan within the coverage of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (ERISA), and for damages for loss of income. The action was filed in state court and removed to federal court by defendant. Jurisdiction is alleged under § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). In its answer, defendant denies that plaintiff has any rights under the Special Severance Allowance Program or any claim for loss of income. Defendant also asserts that plaintiff’s claim is barred because he failed to exhaust his administrative remedies. Both parties seek attorneys’ fees, costs, and disbursements. Voluntary Separation Program, an unfunded welfare/severance benefit program, No. (PN) 985, was subsequently substituted as the defendant in this action by stipulation of the parties. The action was tried to the court.

At the commencement of trial, the plaintiff agreed to voluntarily dismiss his nonERISA claim for loss of income. Accordingly, only the ERISA claim for benefits under the Special Severance Allowance Program was tried to the court.

The court has carefully considered all testimony, depositions, and exhibits presented at trial and all arguments and memoranda of counsel. The court has also evaluated the credibility of the witnesses, and enters this Memorandum Opinion and Order for Judgment as its findings of fact and conclusions of law as required under Rule 52(a) of the Federal Rules of Civil Procedure.

I. Facts

This dispute arises out of the decision of Ernest Ridens to leave Texaco and the determination of the defendant that Ridens was not entitled to any benefits under the Voluntary Separation Program upon leaving.

Ernest Ridens was first employed by Texaco in 1965 as a tires, batteries, and accessories clerk. By 1976 he was Division Tires, Batteries, and Accessories Sales Supervisor in Minneapolis, Minnesota. In the 1970s Texaco instituted a plan of market withdrawal from the Upper Midwest area, including the Minneapolis, Minnesota office where Ridens worked. Ridens’ job duties changed to include overseeing compliance with the federal guidelines on allocation of petroleum products and termination of customers. Ridens was aware that as an ultimate result of the market withdrawal plan his position in Minneapolis would be eliminated.

In January of 1981 Ridens was informed at a meeting in Chicago, Illinois that the office in Minneapolis would be closed and was offered a new position located in Oak-brook, Illinois. Ridens at that time elected to take the transfer and verbally informed Texaco of his decision. The new position was made effective February 1, 1981 with an increase in salary from $2,675 per month to $2,808.34 per month.

Ridens was aware that acceptance of the job transfer offer meant that he would not be eligible for severance benefits under the Voluntary Separation Program established by Texaco in connection with the consolidation of its Midwest operations. The Voluntary Separation Program was implemented on December 1, 1980 as an unfunded welfare/severance pay program under ERISA and assigned the Program No. (PN) 985.

The plan provides in pertinent part:

THE PROGRAM
sf: * * * sf! *
UNDER AGE 55
This third category of benefits applies only to those eligible employes who are offered a job transfer to a new location requiring a change in their primary residence as covered under the Company Moving Policy as a result of this consolidation of curtailment and who are unable to accept this transfer and remain in their job assignment until released by the Company. Payments under this Program will, therefore, not be made to employes who accept a transfer to another job assignment and later resign or terminate their employment.
TIMETABLE
Employees Under Age 55
Each employe eligible to participate under the third category of benefits will have two weeks from date of notification of the transfer offer to accept or reject the transfer. Those who do not accept the transfer offer as described above will be eligible for the benefits in this category providing they remain in employment until released by the Company.

The Voluntary Separation Program was administered by J.C. Grant, General Manager of the Employee Relations Department of Texaco located in White Plains, New York. The Voluntary Separation Program provides that the program administrator is to “perform all duties imposed upon him by the terms of [ERISA]. The decisions of the Program Administrator will be final and conclusive in respect to all questions relating to the Voluntary Separation Program.” Ridens had received a copy of this program well in advance of the meeting in Chicago, most likely in early December of 1980. He had reviewed the program and along with other employees had informally attempted to determine the amount of benefits to which certain individuals would be entitled.

On April 17, 1981 Ridens signed a form provided by Texaco which stated:

TO: L.C. Antonsen TEXACO INC.
This is to acknowledge that I have been offered an opportunity to transfer to Oak Brook, 111. and have accepted such offer.
Having elected to accept this opportunity, I understand I will not be entitled to any allowance under the special Severance Allowance Program in the event I resign my employment or am terminated by the Company following the transfer.

Ridens does not dispute that accepting the transfer eliminated any claim for benefits under the Special Severance Allowance Program created by Voluntary Separation Program if nothing else occurred. He argues that subsequent actions of the parties entitle him to receive benefits under the program, however. First, Ridens changed his mind about leaving Minnesota. He sought and obtained an offer of employment that would allow him to remain in Minnesota. Ridens testified that he accepted that offer of employment on June 15, 1985.

Ridens then attempted to rescind his earlier acceptance of the transfer and to come under the Voluntary Separation Program. On June 16, 1984, Ridens signed a form that he had prepared which provides:

TO: Mr. L C Antonsen
TEXACO INC.
This is to acknowledge that I have been offered an opportunity to transfer to Oak Brook, 111. but now decline such offer, and hereby recind my acceptance dated April 1981.
Having elected to reject this opportunity, I understand that if I (1) remain in the employment of Texaco at the location where I am now employed until Texaco decided that my services are no longer required and (2) have accumulated more than four months of service with Texaco at that time, I will be entitled to an allowance under the special Severance Allowance Program.

There is conflicting evidence on the issue of when this attempted recission was given to Lee Antonsen, Ridens’ supervisor at Texaco and what exactly was discussed at their meeting or meetings. Ridens testified that he officially notified Antonsen on June 16, 1981 that he did not want the transfer and was willing to give a week or two weeks notice before leaving Texaco. At that time he also gave Antonsen the document he had prepared and indicated that if possible he would still like to fall under the severance plan. Ridens testified that Antonsen knew that Ridens had the other job to go to and stated that he would get back to Ridens in a couple of days if the rescission could be honored. He further claims that on June 18, 1981 Antonsen assured him that the rescission had been received and honored by Texaco and that they agreed to provide severance benefits if he would stay and train a replacement. Ridens admitted that he could not remember the exact words of the conversation but stated that he was told the situation was handled and that his request was to be honored.

Lee Antonsen testified that Ridens initially disclosed only that he did not wish to transfer and that approximately one week later he requested in writing to be allowed to come within the Voluntary Separation Program. Antonsen asserted that in response he recommended to management by letter to division headquarters in Oak Brook, Illinois that Ridens be granted special severance. Antonsen stated that he never informed Ridens the request was handled or that if Ridens continued until a replacement was trained, he would be included in the program. He emphasized that he simply did not have the authority to make those decisions.

Ridens continued his employment with Texaco through the summer and had several conversations with Antonsen during this period. Ridens claims that in response to inquiries about the severance request Antonsen assured him several times that it was honored. Ridens claimed that he would have left Texaco without these assurances. Antonsen claims that no such representations were made. Ridens’ replacement was hired and was receiving training from Ridens by early August. Ridens completed what he thought to be the required two weeks of training and then went on vacation. Ridens stated that he took this vacation because Antonsen was not available to give him his release from Texaco.

During this period Ridens’ request for special severance benefits was being processed through Texaco’s corporate channels. On June 25, 1981 B.C. Smith, Jr., the manager of employee and labor relations in Oak Brook, Illinois, wrote to R.M. Skelly in the White Plains, New York office where the program was administered concerning Ridens’ request. On June 30, 1981 Ridens’ form attempting to rescind his acceptance was received by Texaco in Oak Brook, Illinois. B.C. Smith noted on June 30, 1981 that the form was “drafted by employee himself to fit his situation. Not designed or approved by the Company.”

An investigation into Ridens’ request was conducted and a summary of background information was compiled on July 2, 1981. The Voluntary Separation Program provides that the program administrator may delegate such tasks and rely on the information provided.

On July 21, 1981 R.M. Skelly wrote to B.C. Smith advising that Ridens’ request to come within the Voluntary Separation Program should be denied. Skelly stated in part:

A careful analysis was made of this entire situation. It is the opinion of this office that although thre are extenuating circumstances regarding Mr. Ridens’ case, it is in the intent of the Voluntary Separation Program to offer a time frame wherein an individual must make a decision as to whether or not to accept the program or to accept a transfer to a new location.

On July 30, 1981 B.C. Smith in turn wrote to Lee Antonsen. The letter indicated that Ridens’ request had been denied on the basis that the timeliness requirements of the program were not met. The letter from Smith went on to state:

You should so advise Mr. Ridens, and' then proceed to separate him from service at a time appropriate to your needs.
We are seeking approval for payment of regular severance, and will advise you as soon as possible.

Antonsen stated he elected not to inform Ridens of the denial at that time because they were pursuing regular severance benefits for him.

B.C. Smith communicated the attempt to obtain regular severance pay for Ridens to J.A. Miller in Houston, Texas and indicated that his office was recommending it be approved. On August 12, 1981 Miller forwarded the request to J.C. Grant, the program administrator in White Plains, New York and indicated that his office also supported granting Ridens regular severance.

Ridens returned from his vacation on August 31, 1981. While on vacation, Ridens was told by a friend that he was not getting severance pay. On September 2, he was able to see Antonsen and he inquired whether what he had been told was true. Antonsen informed Ridens for the first time that his request for special severance pay had been denied. As a result of this meeting, Ridens submitted a letter to Antonsen dated September 4, 1981, the letter was drafted with the assistance of his attorney and stated that Ridens had accepted employment with Molo Oil Co. effective September 8, 1981. The letter also requested that Ridens receive payment under the Special Several Allowance Program and further provided that if Texaco did not believe he was entitled to such benefits it should so advise him by mail.

On September 14, 1981 the Oak Brook office provided additional information on Ridens’ claim for benefits to the office in Houston, Texas. In the letter the Oak Brook office indicated that it continued to support severance for Ridens and asked for reconsideration of the original denial of Special Severance Allowance.

On October 13, 1981, J.C. Grant, the program administrator, wrote to the Houston office concerning both the Special Severance Allowance Program and regular severance for Ridens. Grant reiterated the basis for denying the request for special severance. He also denied the request for regular severance noting that Ridens did not fall within the terms of the program and that it was not appropriate to grant an exception in these circumstances.

On October 29, 1981 B.C. Smith responded to Ridens’ letter of September 4, 1981. The letter provided in pertinent part:

[T]his is to confirm that your request to come with the Special Severance Allowance Program has not been allowed. Your ineligibility to participate in the Special Severance Allowance is due to the fact that you initially accepted a position to be located in Oak Brook, Illinois. You have the right to appeal this decision. Such appeal must be in writing and must be made to the Program Administrator within sixty (60) days of receiving this notification. The Program Administrator is:
Mr. J.C. Grant General Manager Employe Relations Dept. Texaco Inc. 2000 Westchester Avenue White Plains, NY 10650 914/253-4000

Ridens never filed any appeal prior to the commencement of this action on March 24, 1982.

II Discussion

Ridens has not disputed that the December 1980 Voluntary Separation Program is a welfare/severance employee benefit program subject to the provisions of ERISA. ERISA applies to any “employee benefit plan” established or maintained by an employer engaged in commerce. 29 U.S.C. § 1003. Under ERISA those welfare programs subject to its requirements and limitations are:

(1) a “plan, fund or program” (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid legal services or severance benefits (5) to participants or their beneficiaries.

Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir.1982). The provision of severance benefits by Texaco throughout the Voluntary Separation Program falls within this definition and, accordingly, the Program is subject to ERISA. See id.; Dependahl v. Falstaff Brewing Corp., 491 F.Supp. 1188, 1196-97 (E.D.Mo.1980), affd in relevant part, rev’d in part, 653 F.2d 1208 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981); Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 634 (W.D.Wis.1979).

Ridens claims that he is entitled to benefits under the Voluntary Severance Program. At issue is the program administrator’s interpretation of the language of the plan and his determination that Ridens does not fall within the coverage enumerated. A program administrator’s interpretation of the language of a pension plan or a severance benefit plan is subject to review under the “arbitrary, capricious and abuse of discretion” standard. Quinn v. Burlington Northern Inc., 664 F.2d 675, 678 (8th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1976, 72 L.Ed.2d 444 (1982); Morgan v. Mullins, 643 F.2d 1320 (8th Cir. 1981). Thus, the administrator’s determinations regarding eligibility for benefits are to be upheld unless arbitrary and capricious. Offutt v. Prudential Ins. Co., 735 F.2d 948 (5th Cir.1984); Quinn, 664 F.2d at 678 (quoting Paris v. Profit Sharing Plan for Employees of Howard B. Wolff, Inc., 637 F.2d 357 (5th Cir.1981)). Ridens has not argued that any other standard of review is applicable and under the governing case law, the arbitrary and capricious standard is applicable.

A review of all the evidence provides overwhelming support that the program administrator’s decision was not arbitrary and capricious. The plain meaning of the explicit language of the program provides a basis for the denial. The program provides that “[pjayments ... will, therefore, not be made to employees who accept a transfer to another job assignment and later resign or terminate their employment.” Ridens does not dispute that he accepted the transfer immediately when offered, confirmed it in writing in April, and only in June decided to rescind his acceptance.

The office of the program administrator investigated Ridens’ case prior to making a decision. The administrator was aware that extenuating circumstances were involved in Ridens case and that the regional offices had recommended extending severance benefits. It was also clear to the program administrator as well as Ridens that granting benefits would be an exception to the program requirements. With this background in mind, the program administrator denied the request. R.M. Skelly of the program administrator’s office stated in his letter to the Oak Brook office that the request was denied because “it is the intent of the Voluntary Separation Program to offer a time frame wherein an individual must make a decision as to whether or not to accept the program or to accept a transfer to a new location.” The decision is fully supported by the language of the program and is reasonable under any view of the evidence.

Ridens attacks the denial of benefits solely on the basis that the defendant should be precluded or estopped from denying him benefits under the plan because of the representations and actions of Lee Antonsen. Ridens asserts that he justifiably relied upon the assurances that he was included in the Voluntary Separation Program so long as he would stay until his replacement’s training was completed. He also relies on the failure of Antonsen to inform him until confronted on September 2, 1981 that the request for Special Severance Allowance had been denied in July.

Defendant argues that Antonsen never made such representations and that, even if he had, Ridens had no basis to rely on them. It points out that Ridens had a copy of the Voluntary Separation Program and had reviewed the document. It argues that under the language of the program it is clear that only the program administrator is responsible for the administration of the program and his decisions are final and conclusive in respect to all questions relating to the program.

It is unnecessary to decide whether estoppel is an available defense against employee benefit funds, because the evidence demonstrates that Ridens has failed to establish the elements of estoppel. Estoppel requires a representation, to a party without knowledge of the facts and without the means to ascertain them, upon which the party asserting the estoppel justifiably relies in good faith to his detriment. Teamster’s Local 348 Health and Welfare Fund v. Kohn Beverage Co., 749 F.2d 315, 319 (6th Cir.1984); see also Johnson v. Williford, 682 F.2d 868, 872 (9th Cir.1982); Junker v. Crory, 650 F.2d 1349, 1357 (5th Cir.1981); NLRB v. J.D. Industrial Insulation Company, Inc., 615 F.2d 1289, 1294 (10th Cir.1980); Minnesota Mining and Manufacturing Company v. Blume, 533 F.Supp. 493, 517 (S.D.Ohio 1978), affd, 684 F.2d 1166 (6th Cir.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983).

Even if Antonsen did make the claimed representations, the estoppel defense fails. Ridens had knowledge about the plan and could not have reasonably relied upon representations by Antonsen. The reliance of a party seeking to assert estoppel must be reasonable. Kohn Beverage Co., 749 F.2d at 319. The terms of the Voluntary Separation Program indicate that Antonsen would have no authority to make those statements and that only the program administrator could decide to grant an exception under the program. The Program also lists the program administrator, J.C. Grant, and gives his name and telephone number in White Plains, New York. Ridens admitted this information was available to him, that he kept a copy of the Voluntary Separation Program in his desk, and that he discussed the plan with other employees. Ridens stated that he knew he did not qualify for benefits and that his request on June 16, 1981 was that an exception be made under the Program. Furthermore, to Ridens’ knowledge Antonsen was not in the employee relations department, and Ridens made no inquiry whether Antonsen talked with or had any connection with the program administrator. Ridens was familiar with Texaco corporate procedures and knew that the normal decision making process went through the Oak Brook, Illinois office and then either the Houston, Texas office or the White Plains, New York office or both.

Under these circumstances, Ridens could not reasonably rely on the statements he claims were made by Antonsen. Antonsen had no authority to make any such statements and Ridens knew or had a means of determining both that Antonsen had no authority and that what he is claimed to have stated was untrue. Courts have consistently held that there is no estoppel when these factors are present. E.g., Kohn Beverage Co., 749 F.2d at 319-20; Martin v. Hamil, 608 F.2d 725, 730 n. 8 (7th Cir. 1979); Knoll v. Phoenix Steel Corp., 465 F.2d 1128, 1132 (3d Cir.1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 941, 35 L.Ed.2d 257 (1973); Employer-Teamsters Joint Council No. 84, Health and Welfare Fund v. Weatherall Concrete, Inc., 468 F.Supp. 1167, 1170 (S.D.W.Va.1979).

In addition, under the evidence, Ridens has failed to establish that Antonsen made the representations that serve as the basis for his claim of estoppel. Ridens himself testified that at the close of the meeting on June 16 when the request for benefits was first made, Antonsen stated he would get back to me if rescission could be honored. Furthermore, while Ridens claims that Antonsen subsequently assured him on June 18 and throughout the summer that the rescission was honored, he cannot remember the exact words used.

Although both Ridens and Antonsen were believable witnesses, Antonsen was a more credible witness on this issue. Antonsen stated with conviction that he had never informed Ridens that the rescission was honored or that if Ridens stayed on until his replacement was trained that he would be included in the Program. He stated that he had no authority to make such a statement, but only to recommend to the Oak Brook office that Ridens be granted the special severance allowance. Antonsen did make this recommendation because he considered Ridens to be an excellent employee.

It does appear that it was inappropriate for Antonsen not to have informed Ridens of the denial of the special severance allowance when it was denied in July of 1981. That action, in and of itself, does not give rise to a cause of action, however.

In addition, Ridens’ action to recover benefits under ERISA would also be barred because he failed to exhaust the available administrative procedures. It is well-settled that a claimant for benefits must exhaust the plan’s internal claim procedures before seeking federal court review. E.g., Challenger v. Local Union No. 1 of the International Bridge, Structural & Ironworkers, 619 F.2d 645 (7th Cir.1980); Mahan v. Reynolds Metals Co., 569 F.Supp. 482 (E.D.Ark.1983), affd, 739 F.2d 388 (1984); R.M. Bowler Contract Hauling Co., Inc. v. Central States, Southeast and Southwest Areas Pension Fund, 547 F.Supp. 783, 785 (S.D.Ill.1982).

In this case it is conceded that Ridens received notice of the plan’s procedure allowing him sixty days in which to make a written appeal to the program administrator, but that no appeal was filed. Ridens has not alleged that the procedures available were inadequate nor that it would have been futile to resort to them. Furthermore, the record would not support such allegations. On the evidence presented, Ridens’ claim also fails because the administrative procedures were not exhausted. See, e.g., Amato v. Bernard, 618 F.2d 559, 568 (9th Cir.1980).

ORDER

Accordingly, based on the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that plaintiff Ernest B. Ridens is not entitled to relief under the claims alleged in his complaint, and the complaint is dismissed in its entirety with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

      . On December 1, 1980 Texaco also announced to nonunion employees, a Strategic Marketing Plan. The Strategic Marketing Plan discusses the Voluntary Separation Program and outlines its provisions.

      . In actions arising under federal statutes, federal common law, rather than state law, controls with respect to the availability of the estoppel defense. Teamster’s Local 348 Health and Welfare Fund v. Kohn Beverage Co., 749 F.2d 315, 319 n. 5 (6th Cir.1984).

      . The party asserting the defense of estoppel must also show that his reliance was to his detriment. The evidence establishes that at the time Ridens accepted the transfer his annual salary was increased to $33,700. Ridens' deposition testimony, which was read into evidence, was that his starting annual salary with Molo Oil was $33,800. Thus, if Ridens had left Texaco at some point in June, July, or August rather than September, his financial gain would have been miniscule.

      . Plaintiff concedes that the remaining cause of action is brought under ERISA although the complaint fails to specify the governing provisions or even that it is brought pursuant to ERISA. The action is one to recover benefits and would fall under sections 502(a)(1)(B) and 502(a)(3) of ERISA, 29 U.S.C. §§ 1132(a)(1)(B), (a)(3).


author: TROUTMAN, Senior District Judge.

text:
    Arthur FIERRO v. RUESCH CORPORATION, formerly H.J. Ruesch Machine Co.
    Civ. A. No. 82-3290.
    United States District Court, E.D. Pennsylvania.
    May 30, 1985.

      John J. Speieher, Reading, Pa., for plaintiff.
    Richard A. Bausher, Reading, Pa., for defendant.
   MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

In this products liability action, plaintiff, Arthur Fierro, sustained severe and permanent injuries to his left hand, while working with a machine manufactured by Ruesch Corporation, during the course of his employment at Reading Industries. The accident occurred while the plaintiff was cleaning the marking rolls of the Ruesch machine as he had done “countless times” since he first operated the Ruesch in 1964. (N.T. of 9/26/84 at 59). Plaintiff’s task with respect to the Ruesch was to feed coils of pipe into the machine which drew the pipe through four sets of rollers, the last of which imprinted the Reading Industries logo and type of pipe, indicated by a letter designation, upon the finished product. There were two marking rollers, one rotating clockwise, the other counterclockwise, which came close together creating a nip or pinch point. From time to time as the pipe passed through the marking rolls, a “glob” of dirt would appear on the pipe at the point of the logo, indicating to Fierro that dirt or grease had been deposited on the marking rolls. (N.T. of 9/26/84 at 58). When that occurred, plaintiff would clean the marking rolls by holding a rag against the roll which rotated in a clockwise direction. (Id.).

On August 27, 1981, while engaged in that procedure, plaintiff’s hand was drawn into the pinch point and crushed. Plaintiff has been unable to work since the accident and continues to experience pain, disfigurement and psychological distress because of it.

The complaint alleged causes of action based on negligence, breach of warranty and strict liability. However, plaintiff pursued only the strict liability claim. Following a seven-day trial, the jury returned a general verdict for the defendant. Plaintiff now requests a new trial, arguing:

1. that the Court improperly refused to charge the jury that the evidence could not support a finding of assumption of the risk;

2. that the Court improperly denied plaintiff’s motion to excuse two members of the jury panel for cause;

3. that the Court improperly received testimony which the plaintiff characterizes as irrelevant, prejudicial, misleading and confusing.

We will consider plaintiff’s contentions in the order in which they were raised.

I. Assumption of the Risk

Although the basis of the jury’s decision cannot be known for certain, plaintiff contends that the jury’s questions to the Court during its deliberations reflect a preoccupation with assumption of the risk and apparently believes that the verdict for defendant was rendered on that basis. Hence, plaintiffs argument that it was error to deny plaintiffs proposed point for charge which effectively directed a verdict on that issue.

While he now assigns as error this Court’s refusal to charge the jury in that manner, plaintiff did not press the point during the trial. In fact, plaintiff submitted five additional points for charge on assumption of the risk, all of which were affirmed and four of which were read verbatim as part of the jury charge. Moreover, to one of defendant’s three proposed points on the issue plaintiff had no objection whatsoever, to another he objected only insofar as it was not a complete statement of the law, and as to the third, he objected only to some of the language. (N.T. of 10/4/84 at 62, 63). As modified, defendant’s points along with four of those submitted by plaintiff constituted the entire charge with respect of assumption of the risk. No objection by the plaintiff was recorded when the Court ruled on the points, (N.T. of 10/3/84 at 76-79), when the Court asked if there were exceptions to the

charge, (N.T. of 10/4/84 at 68-70), or when the Court twice reread the portion of the charge which dealt with assumption of the risk in response to the jury’s questions. (N.T. of 10/4/84 at 80-82 and 10/5/84 at 2-4).

Thus, the record amply supports defendant’s contention that the Court’s refusal to direct a verdict for plaintiff on this issue was not sufficiently preserved under Fed. R.Civ.P. 51, which reads in pertinent part:

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the ground of his objection.

However, it is not necessary to, and we do not, base our decision on procedural grounds only. Substantively, it was entirely proper to allow the jury to consider whether plaintiff assumed the risk of his injury on the basis of the evidence adduced and the law pertaining to this affirmative defense.

The crux of plaintiff’s argument that the issue should not have gone to the jury in this case is that there was no direct and specific testimony that plaintiff was subjectively aware of any risk to himself in proceeding to clean the marking rolls as he did at the time the accident occurred. Plaintiff testified that he always placed his hands as far away from the pinch point as possible when cleaning the marking rolls. (N.T. of 9/26/84 at 69). Although he indicated that he didn’t think the procedure was dangerous because he always took the precaution of reaching around the rollers to place the rag as far away from the pinch point as possible, (N.T. of 9/27/84 at 7), he also admitted that he was aware of the possibility of getting his hand caught in the machine. (Id.). The thrust of plaintiff’s testimony on this issue was that he was aware of the danger, but he didn’t think an accident was likely while following his procedure.

Assumption of the risk is a jury question unless reasonable people could not differ as to the result. Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1009 (3d Cir.1983). Appellate courts have considered it reversible error when trial courts refused to charge the jury on assumption of the risk where the testimony was very similar to that elicited here. See, e.g., Green v. Sanitary Scale Co., 431 F.2d 371 (3d Cir.1970); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). On the other hand, an instruction on assumption of the risk has been approved even though there was only circumstantial evidence that the plaintiff knew of and appreciated the risk of his actions because as the Court observed, “[Djirect proof of it is exceedingly difficult. Evidence that a party assumed a risk may, however, be inferred from surrounding circumstances; there need not be actual proof that he knew, understood or appreciated the risk”. Green v. Parisi, 478 F.2d 313, 315 (3d Cir.1978).

Here the circumstances were such that the jury might have found that the plaintiff assumed the risk of his injuries. The testimony as to plaintiff’s state of mind at the time of the accident was no more certain in this case than in others where a jury issue was presented. For example, in Carrender, supra., the plaintiff also acknowledged the possibility of accident but didn’t think it likely. In fact, she testified that when she placed herself in the dangerous position which ultimately led to her injuries, she “hadn’t given it (the possibility of falling) a thought”. 469 A.2d 122, n. 3. Although it was not a strict liability case and the duty of care owed to plaintiff by defendant could have been negated in that context (landowner/invitee) even if the plaintiff had not testified to her subjective awareness of an icy condition that caused her accident, the court noted that her testimony demonstrated that she was aware of and appreciated the risk of falling although she clearly was not thinking of the danger at the moment of the accident.

Finally, we observe in passing that plaintiff’s counsel implicitly recognized in several comments on the record that the assumption of the risk issue was not so free from doubt as to warrant taking it from the jury. For instance, in response to the Court’s explanation of the purpose and meaning of affirming or denying points for charge, one of plaintiff’s attorneys commented,

Well, under that system then, Judge, I think we would certainly understand that we are not going to make an argument to the jury that if they find that the product was defective, that the defendant is liable for all harm caused by that defective condition and that they should find that even if they find that the plaintiff assumed the risk. (N.T. of 10/4/84 at 60). (Emphasis added).

Similarly, in responding to defendant’s motion for a directed verdict on the grounds that the testimony established assumption of the risk as a matter of law, plaintiff's other attorney argued,

Well, your Honor, I believe, first of all, that any implication based on that testimony is just that. Its implication, which means it should go to the jury on the assumption of risk as far as what Mr. Fierro, what he meant when he said during cross-examination that he knew where he put his hand was less dangerous than putting it into the pinch point. (N.T. of 10/2/84 at 28).

Those observations bring us full circle to the conclusion that plaintiff is not entitled to a new trial on the grounds that assumption of the risk should have been removed from the jury’s consideration. The issue was not raised at trial because plaintiff obviously realized at that time that a jury issue had been presented. Our subsequent examination of the testimony and the applicable law has convinced us of the correctness of that position.

II. Failure to Excuse Two Prospective Jurors for Cause

During voir dire two panel members indicated that they would have difficulty awarding a large amount of damages because of their experiences as Vietnam veterans with the severe injuries suffered by others who served in the war. At a sidebar conference the Court denied plaintiff’s motion to excuse those prospective jurors for cause. Eight jurors were then selected to try the case. Since none of the panel members were otherwise excused for cause and each party had three peremptory strikes, the jury was selected from among the first fourteen panel members. The panel members that plaintiff asked to have excused were # 10 and # 15. Because of the manner in which the jury was selected, # 15 could not have served as a juror in the case in any event. Plaintiff used his second peremptory challenge to eliminate # 10. Thus, neither panel member served on the jury and the Court is unable to determine how the failure to grant plaintiff’s motion prejudiced him. Plaintiff could and did exercise his privilege of peremptory challenge to eliminate the juror who may have had difficulty agreeing to a high award of damages. Plaintiff has presented no authority for the proposition that the elimination should have been in response to his challenge for cause rather than by peremptory challenge, nor has the .Court discovered such authority.

Moreover, the opinions expressed by the two veniremen did not bear upon a central issue in the case. Neither indicated that they could not render a true verdict upon the evidence, nor did they specify what amount of damages they would consider too high. Finally, the jury never reached the question of damages because the verdict was for defendant. Consequently, even if we concluded upon reflection that plaintiff’s motion should have been granted, the error was harmless and would not warrant a new trial. Fed.R.Civ.P. 61, Adkins v. Dirickson, 523 F.Supp. 1281 (E.D.Pa.1981).

III. Admission of Evidence in Violation of F.R.E. 402 or 403.

Plaintiff’s final argument in support of the motion for a new trial is based upon the purported error of allowing defendant’s witness to testify that Reading Industries had provided guards for all but the first set of rollers on the Ruesch machine. Plaintiff had no objection to testimony that a guard for the marking rollers was available before the accident because that is where the injury occurred. However, he argued that the testimony of C. Richard Cunnius, then plant manager of the site where plaintiff was injured, that upon his arrival at the scene of the accident he noticed that the guards provided for the vertical and horizontal rollers, as well as for the marking rollers, were on the floor next to the machine, was either irrelevant or unduly prejudicial because there was no dispute that the injury occurred solely in the marking rolls. Plaintiff was concerned both at trial and in the instant motion that the jury may have improperly inferred that he had a propensity for removing guards from the machine and could then conclude that a guard for the marking rollers would not have prevented the accident.

Earlier in the trial, defendant sought to cross-examine plaintiffs witnesses as to the existence of guards for the other rolls, but was prevented from doing so upon objection by plaintiff because the testimony sought was beyond the scope of the direct examination. Plaintiff had, however, introduced evidence with respect to the operation of the entire machine and in our discretion we determined that defendant, in presenting its own case, was entitled to put to the jury its theory that guards had been fabricated by plaintiffs employer for three of the four sets of rollers on the Ruesch machine but that all were unused prior to the accident. That issue was presented by one witness, Cunnius, who testified that all of the guards were on the floor when he arrived at the scene of the accident. (N.T. of 10/2/84 at 43, lines 7-20; 44, lines 7-13).

In contrast, plaintiff and several of his witnesses testified that no guards were ever made for the marking rollers prior to the accident. (N.T. of 9/26/84 at 73; 10/3/84 at 43, 47, 52). As noted, no testimony was permitted from those witnesses as to the existence of guards for any other set of rollers.

From this record, plaintiff asks us to conclude that the prejudice to plaintiff in allowing Cunnius’s testimony so far outweighed its probative value as to require a new trial. While it may be argued that the evidence adduced as to the other rolls was only slightly relevant, it was plaintiff who first opened the subject of the other rollers in eliciting testimony about the operation of the entire machine. He cannot now complain of the irrelevance of evidence concerning the other rollers. See, U.S. v. Bolin, 514 F.2d 554 (7th Cir.1975), quoted with approval in Government of the Virgin Islands v. Felix, 569 F.2d 1274 (3d Cir.1978).

Moreover, in order to find undue prejudice to plaintiff, we would be required to assume that the jury disregarded the testimony of all of plaintiff’s witnesses, which directly contradicted defendant’s witness as to the existence of a guard for the marking rolls, and instead focused upon and believed Cunnius’s testimony with respect to guards for all the rolls. We would then be required to conclude that the jury took that small portion of testimony and enlarged upon it in the way plaintiff theorizes. That chain of events is too speculative to support the conclusion that this Court abused its discretion in allowing the testimony to which plaintiff objected.

Having found that none of plaintiff’s asserted grounds for a new trial are substantial, the motion will be denied.

      . After deliberating for approximately one and a half hours, the jury sent the following message to the Court: We need clarification on assumed risk. Does the plaintiff have to be thinking of the risk at the exact time of the accident for it to be considered an assumed risk? (N.T. of 10/4/84 at 73).
      The Court responded, after consultation with counsel, by repeating the assumption of the risk portion of the charge in its entirety.
      Almost immediately upon resuming deliberations the next morning, the jury sent out two additional questions: May we have Art Fierro's testimony read back to us. Those portions where he described the cleaning of the marker rollers to both Mr. Speieher and Mr. Bausher? May we have another review of the law pertaining to assumed risk? (N.T. of 10/5/84 at 2).
      The first question was answered in the negative. Again, after consultation with counsel and having secured their agreement, the assumption of the risk portion of the charge was read to the jury in its entirety.

      . During a discussion in chambers with counsel prior to responding to the jury’s first questions, plaintiff’s attorney remarked, "Your Honor, I think our concern is not that these points should not be reread, but I think in light of their questions and knowing — certainly anticipating where they are at this stage of their deliberations ...”. To this comment the Court responded, "I don’t know where they are, at what stage of the deliberations. I only know what the question is, which is what you know.” (N.T. of 10/4/84 at 78).

      . Plaintiff proposed as his point #12 the following: "In this case the evidence will not support a finding that Plaintiff did, in fact, voluntarily expose himself to a known danger and you may not find for the Defendant on the basis of assumption of the risk”.

      . The text of defendant's points before modification was as follows:
      1. If you find that the plaintiff, Arthur Fierro, knew that the marking rollers were unguarded and voluntarily proceeded to attempt to clean the marking rollers while they were moving without stopping the machine with knowledge of the danger in doing so, he is barred from recovery. (Citation omitted)
      2. If you find that the plaintiff, Arthur Fierro, fully understood a risk of harm to himself in attempting to clean the marking rollers and nevertheless chose to enter or remain within the area of that risk under circumstances that manifest a willingness to accept it, he is not entitled to recover for harm within that risk. (Citations omitted).
      3. Evidence that a party assumed a risk may be inferred from surrounding circumstances; there need not be actual proof that he knew, understood or appreciated the risk. (Citations omitted).
      As read to the jury as part of the Court’s charge, after counsel discussed and agreed upon certain modifications, the points were as follows:
      If you find that the plaintiff knew that the marking rollers were unguarded and voluntarily proceeded to attempt to clean the marking rollers while they were moving without stopping the machine with knowledge of the danger in doing so and not as the result of inattention or inadvertence chose to proceed, then he is barred from recovery. If you find that the plaintiff fully understood the risk and (sic) harm to himself in attempting to clean the marking rollers and nevertheless chose to enter or remain within the area of that risk under circumstances that manifest a willingness to accept it, then he is not entitled to recover for harm so occurring.
      Evidence that a party assumed a risk may be inferred from surrounding circumstances. There need not be direct proof that he knew, understood or appreciated the risk, and the burden of establishing assumption of the risk, as I have stated, rests upon the defendant. (N.T. of 10/4/84 at 63, 64).

      . Although plaintiff contended in his brief that there was no testimony or indication that he was aware of the specific risk of getting the rag or his glove caught between the rolls, there was testimony that he always wore gloves, always cleaned the rolls with a rag and always positioned himself so as to minimize the possibility of getting his hand caught. (N.T. of 9/27/84 at 7, lines 5-10). From this testimony the jury could have inferred that plaintiff realized that the rag or glove could get caught, thereby pulling his hand into the pinch point.


author: MYRON L. GORDON, Senior District Judge.

text:
    Mary Jane JAEGER, individually, and as Special Administrator of the Estate of Ernest L. Jaeger, Deceased, Plaintiff, v. RAYMARK INDUSTRIES, INC., et al., Defendants.
    No. 84-C-924.
    United States District Court, E.D. Wisconsin.
    May 30, 1985.

      Leonard S. Zubrensky, Zubrensky, Pad-den, Graf & Maloney, Milwaukee, Wis., Theodore Goldberg, Henderson & Goldberg, Pittsburgh, Pa., for plaintiff.
    James Samuelson, Godfrey, Trump & Hayes, Milwaukee, Wis., for H.K. Porter.
    Nancy Rice Gruber, Otjen & Van Ert, Milwaukee, Wis., for Chemetron.
    James P. Brennan, Brennan & Collins, Milwaukee, Wis., for Raymark.
    Jack R. Teetaert, Appleton, Wis., for Lincoln Elec.
    Trevor J. Will, Foley & Lardner, Milwaukee, Wis., for Stoody Co.
   DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The plaintiff brought this action to recover for the disability and death of her husband, Ernest L. Jaeger, which she contends was caused by exposure to asbestos and other toxic materials while he was employed as a welder at Allis-Chalmers Corporation. The plaintiff seeks both compensatory and punitive damages. Jurisdiction in this court is based on diversity. 28 U.S.C. § 1332. The defendants have now moved for summary judgment contending that the plaintiff’s claims are barred by the statute of limitations. The motion will be granted in part and denied in part.

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment is appropriate if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The burden rests with the moving party to establish that no genuine issues of material fact exist. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

Any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). A court will accept as true, however, those facts in the movant’s affidavits which are uncontroverted. Wang v. Lake Maxinhall Estates, Inc., 531 F.2d 832, 833 (7th Cir.1976).

The facts relevant to the pending motion have been set forth by the defendants and are uncontroverted by the plaintiff. Ernest L. Jaeger was employed as a welder at Allis-Chalmers from 1949 to 1980. In November 1980, he was diagnosed as having lung cancer. On March 2, 1981, Mr. Jaeger filed a worker’s compensation claim alleging that his lung cancer resulted from occupational conditions. He died on July 13, 1981. The present action was filed on July 12, 1984.

The plaintiff seeks to have the court construe her complaint as stating claims under both the Wisconsin survival statute, Wis.Stat. § 895.01, and the Wisconsin wrongful death statutes, Wis.Stat. §§ 895.-03 and 895.04. The defendants’ position is that the complaint only states a survival claim and a related loss of consortium claim.

The survival action and the wrongful death action are distinct under Wisconsin law. The survival action is brought by the decedent’s estate for the injury to the decedent; the wrongful death action belongs to the named beneficiaries for their injury. Wangen v. Ford Motor Co., 97 Wis.2d 260, 312, 294 N.W.2d 437 (1980). “[T]he latter action begins where the former ends.” Id.

It is difficult to identify which paragraphs of the complaint comprise the survival claim and which paragraphs comprise the wrongful death claim. In fact, the basis for the claims, Mr. Jaeger’s disability and death, and the theories of liability, negligence, strict liability, and civil conspiracy, apply equally to both claims. Only the relief available varies for the two claims.

Under the liberal pleading rules, a complaint need only give notice to the opposing party of the substance of the allegations. Uptown People’s Community Health Services Bd. of Directors v. Bd. of Comm’rs, 647 F.2d 727, 739 (7th Cir.), cert. denied, 454 U.S. 866, 102 S.Ct. 328, 70 L.Ed.2d 167 (1981). The complaint gives the defendants sufficient notice of the basis for both a survival claim and a wrongful death claim; it charges that Mr. Jaeger contracted lung cancer and asbestosis resulting in his disability and death as a proximate result of his inhalation of asbestos fibers and nickel contained in the defendants’ products.

Furthermore, the defendants’ opening brief in support of their motion for summary judgment indicates that they are well aware that the complaint might be construed as stating a cause of actions for wrongful death. The defendant notes that the complaint does not specifically assert a claim under the Wisconsin wrongful death statutes. Although it may be better practice for a plaintiff to indicate in his complaint the state law on which he bases his claim, a plaintiff is not required to plead the specific state statute. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1253 (1969). Federal courts are required to take judicial notice of state law. Lamar v. Micou, 114 U.S. 218, 5 S.Ct. 857, 29 L.Ed. 94 (1885).

In sum, I believe that the complaint gives the defendants adequate notice of and an opportunity to defend the acts of which the plaintiff complains. See Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 102-103, 2 L.Ed.2d 80 (1957); Fed.R.Civ.P. 8(a), (e), and (f). Accordingly, the court will construe the plaintiff’s complaint as stating both a survival claim and a wrongful death claim. The plaintiff’s claim for loss of consortium damages, discussed infra, will be construed as part of the wrongful death claim and not as a separate cause of action.

SURVIVAL CLAIM

Claims for personal injury survive the death of the victim. Wis.Stat. § 895.-01. The defendants contend, however, that the plaintiff’s survival action is barred by the applicable statute of limitations, Wis. Stat. § 893.54. Section 893.54 requires that an action to recover damages for personal injuries must be brought within three years of the accrual of the action.

The parties agree that Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983), is the governing case for determining when a cause of action accrues under § 893.54. In Hansen supra, 113 Wis.2d at 560, 335 N.W.2d 578, the Wisconsin Supreme Court held that all tort claims, with the exception of those governed by a legislatively created discovery rule, “shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first.” The plaintiff does not contend that any legislatively created discovery rule applies to this case.

The injury allegedly caused by the defendants in this case was lung cancer. It is uncontested that Mr. Jaeger’s lung cancer was diagnosed in November 1980, over three and one-half years before this action was filed on July 12, 1984. The plaintiff’s survival claim for her husband’s personal injuries, therefore, is barred by the applicable three-year statute of limitations.

It is true that this action was commenced within three years of the date of Mr. Jaeger’s death, July 13, 1981. This fact, while relevant to the plaintiff’s wrongful death claim, discussed infra, is irrelevant to her survival claim.

Despite the clear holding in Hansen, the plaintiff asks this court to “extend” the discovery rule adopted by the Wisconsin Supreme Court and hold that a tort claim accrues only when the plaintiff discovers or, with reasonable diligence, should discover the cause of the injury and not merely when the injury itself is discovered or should have been discovered.

Federal courts in diversity actions are bound to accept the interpretations of state law by the state’s highest court. Hortonville Jt. School District No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 488, 96 S.Ct. 2308, 2312, 49 L.Ed.2d 1 (1976); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This court, therefore, must apply the Wisconsin Supreme Court’s holding in Hansen to this case. The court’s responsibility is to apply the relevant state law as it presently exists.

This is not a situation in which the Wisconsin Supreme Court has failed to address the statute of limitations issue raised by the defendants herein. In Hansen, the Wisconsin high court clearly and unequivocally adopted the rule that all tort claims, with one exception not applicable to this case, accrue on the date the injury is discovered or, with reasonable diligence, should have been discovered. The Hansen court, in fact, repeatedly advances this interpretation of the discovery rule. Hansen, supra, 113 Wis.2d at 556, 558, 559, 560, 335 N.W.2d 578. In light of the clear holding in Hansen, there is no basis for reading into that decision the rule advocated by the plaintiff. Accordingly, the defendants’ motion for summary judgment will be granted as to the plaintiff’s survival claim.

WRONGFUL DEATH CLAIM

Actions for wrongful death are governed by the three-year period of limitation in Wis.Stat. § 893.54(2). In contrast to a survival claim, however, a wrongful death claim accrues at the time of death. Terbush v. Boyle, 217 Wis. 636, 640, 259 N.W. 859 (1935). Mr. Jaeger died on July 13, 1981. The plaintiff commenced this action one day short of three years, on July 12, 1984. Therefore, the plaintiff’s wrongful death claim is not barred by the statute of limitations. Accordingly, the defendants’ motion for summary judgment will be denied as to the plaintiff’s wrongful death claim.

The court notes, however, that because the wrongful death action is a statutory creation which did not exist at common law, the available remedies are limited to those specified by statute. Wangen, supra, 97 Wis.2d at 312, 294 N.W.2d 437; Wis.Stat. §§ 895.03 and 895.04. Under Wis.Stat. § 895.04(4) and (5), the named beneficiaries may recover for their pecuniary injury, for their loss of society and companionship, and for medical and funeral expenses. Damages for loss of society and companionship, commonly referred to as loss of consortium, are limited to a statutory maximum which in this case is $25,-000. Wis.Stat. § 895.04(4). (This limit recently was raised to $50,000, but the new limit only applies to actions which accrued on or after May 1, 1984. Wis.Stat. § 895.-04(4) (West.Supp.1984)). Punitive damages are not recoverable in a wrongful death action. Wangen, supra, 97 Wis.2d at 315, 294 N.W.2d 437. The plaintiff’s wrongful death claim is the only cause of action which survives the defendants’ motion for summary judgment. Accordingly, the defendants’ motion for summary judgment on the plaintiff’s claim for punitive damages will be granted.

DAMAGES FOR LOSS OF CONSORTIUM

In her complaint, the plaintiff seeks damages for loss of consortium. The defendants construe this claim for damages as a distinct cause of action which, they allege, is barred by the statute of limitations for personal injury actions. Wis.Stat. § 893.-54.

The plaintiff’s claim for loss of consortium damages is appropriately construed as part of her wrongful death claim and not as a separate cause of action. As noted earlier, section 895.04(4), Wis.Stat., provides that a plaintiff in a wrongful death action may recover for loss of society and companionship. A damage claim for loss of society and companionship is properly construed as merely one element of the damages recoverable in a wrongful death action rather than as a separate cause of action. Nichols v. U.S. Fidelity & Guaranty Co., 13 Wis.2d 491, 497, 109 N.W.2d 131 (1961). Because the plaintiff’s damage claim for loss of consortium is part of her wrongful death claim, it is not barred by the statute of limitations.

CONCLUSION

The court construes the plaintiffs complaint as stating both survival and wrongful death claims. The defendants will be granted summary judgment on the survival claim but will be denied summary judgment on the wrongful death claim. Summary judgment will also be granted as to the plaintiffs claim for punitive damages.

Therefore, IT IS ORDERED that the defendants’ motion for summary judgment on the plaintiff’s survival claim be and hereby is granted.

IT IS ALSO ORDERED that the defendants’ motion for summary judgment on the plaintiff’s claim for punitive damages be and hereby is granted.

IT IS FURTHER ORDERED that the defendants’ motion for summary judgment as to the plaintiff’s wrongful death claim be and hereby is denied.