Insurance Bad Faith Complaint

UNITED STATES DISTRICT COURT

DISTRICT of SOUTH DAKOTA

SOUTHERN DIVISION

Josh Brower, DDS,

Plaintiff

— versus —

Great-West Life & Annuity Insurance Company, now known as Empower Annuity Insurance Company of America,

Protective Life Insurance Company

Protective Life and Annuity Insurance Company

Protective Life Corporation, and

John/Jane Doe 1-10,

Defendants

Civil Action: ______________

Jury Trial Demanded

COMPLAINT

INTRODUCTION & SUMMARY OF FACTS

1. This is an insurance bad faith case about a disability insurance policy. The insurer tortiously refused to honor its contractual obligations.

2. When someone with an insurance policy makes a claim under the policy, the insurance company must investigate the claim fully and fairly. The insurance company must consider all reasonably available, relevant information to determine whether the company owes any policy benefits to the insured.

3. The insurance company — not the insured — is responsible for knowing the law governing the policy and knowing what benefits are payable.

4. In this case, the insurer failed to follow (or even acknowledge) legal principles that were obvious to the insurer and that eliminated the sole ground the insurer offered for denying the claim — an exclusion for disabilities caused by military service.

5. The insurer misled its insured and denied the claim despite knowing the claim was valid.

Army Background

6. Dr. Josh Brower is a dentist. He served in the US Army for three years (June 1997 – June 2000) on active duty. He was discharged as a Captain. (JBB 1213.)

7. In the Army, Dr. Brower suffered carpal tunnel syndrome that was temporarily debilitating but from which he recovered enough to function as a dentist. He suffered low back pain from spondylolysis. (See JBB 1213-18.) He suffered chronic neck pain. (See JBB 1210, 898.) Additionally, Dr. Brower suffered depression and anxiety. (JBB 1205-08.)

8. Despite these problems, Dr. Brower continued working as a dentist in the Army and after discharge in the inactive reserve.

VA Disability

9. After Dr. Brower’s discharge from the Army, in 2000 and again in 2001, the Veterans Administration (“VA”) evaluated whether Dr. Brower was entitled to veteran’s benefits pursuant to the statutes and regulations governing the VA.

10. VA disability decisions are governed by specific statutes and regulations (e.g., 38 CFR § 3.303.) that provide specific definitions and criteria for disability.

11. In 2001, the VA assessed Dr. Brower as partially disabled pursuant to the specific definitions, criteria, and standards of proof applicable to VA disability determinations.

12. The VA determined that as of June 30, 2000, Dr. Brower had a combined disability rating of 50%. (JBB 883.)

13. The VA disability ratings were based on generalized anxiety disorder, lower back spondylolysis, and carpal tunnel syndrome. (See JBB 883, 832.) The VA made no finding of a cervical strain disability on their initial rating.

14. The VA determined that a “service connection” existed for these problems pursuant to the standards set forth in 38 CFR § 3.303.

15. That regulation, 38 CFR § 3.303, provides that “Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.”

Private Disability Insurance

16. After discharge from the Army in June 2000, Dr. Brower began working in private practice. (JBB 1206.)

17. Around the same time, in 2000, Dr. Brower bought a disability insurance policy from Defendant Great-West Life & Annuity Insurance Company, now known as Empower Annuity Insurance Company of America (the “Company”).

18. The Company issued a Group Disability Income Protection Insurance policy to the American Dental Association (Group Policy No. 1105GDH-IPP).

19. As part of the application process, Dr. Brower submitted to a physical examination by the Company and signed a release to allow the Company broad access to his medical records.

20. The Company evaluated Dr. Brower’s medical history and offered him a disability insurance policy with a $3,200 monthly benefit for total disability, subject to a cost-of-living adjustment among other terms.

21. The Company issued an individual Certificate to Dr. Brower, providing him with disability insurance pursuant to the group policy.

22. In exchange, Brower continued to pay premiums to the Company to keep the private disability policy in force.

23. The policy and the certificate together constituted a contract between the Company and Dr. Brower (the “Policy”).

24. The Policy became effective 11/22/2000.

25. The Policy says it is governed by Illinois law.

Private Disability Insurance vs. Veteran’s Disability Benefits

26. The Policy the Company sold to Dr. Brower contained terms regarding disability that differed from the terms contained in VA regulations.

27. The Policy and VA regulations contained different terms concerning the relationship between a disability-causing condition and military service.

28. VA regulations authorize veteran’s disability benefits for injuries “incurred coincident with service” in the armed forces, regardless of whether military service was the dominant cause of the disability.

29. The insurance Policy, on the other hand, excluded coverage for disabilities for which the dominant cause was being on active, full-time military service.

Two Decades of Clinical Dentistry

30. In July 2001, Dr. Brower opened his own dental practice. (JBB 1147, 1206.)

31. For about the next 20 years, Dr. Brower worked full time as a dentist, and included multiple clinics owned by Dr. Brower with dental associates working with him at times in South Dakota where he lived.

32. Dr. Brower continued treatment for depression and anxiety, including medication and regular mental health visits.

33. Over the years, Dr. Brower had occasional injuries, including an injury to his left hand while woodworking, which was the hand he used to practice dentistry.

34. For about 20 years, though, Dr. Brower’s problems were not debilitating, and he continued working as a dentist despite multiple setbacks.

Development of Disability

35. Around 2020, a confluence of worsening mental and physical health made it harder and harder for Dr. Brower to work as a dentist. Among other things, his primary care provider (“PCP”) told Dr. Brower that his lab values had changed over time and required him to take fewer over-the-counter painkillers.

36. In the first half of 2020, Dr. Brower suffered a series of personal difficulties that exacerbated his depression and anxiety and interfered with his work.

37. Then his neck and back pain started getting worse, compounding his mental health difficulties and the difficulty of performing adequately at work.

38. By September 2020, Dr. Brower was planning to sell his dental practice and go to law school, but additional difficulties in his personal life scuttled that plan and deepened his depression, anxiety, and work problems.

39. In October 2020, a neck X-ray showed that Dr. Brower had bilateral cervical facet arthropathy most prominent in the mid to lower cervical spine — meaning, essentially, arthritis in his neck. (JBB 915, 953.)

40. In February 2021, the VA made a rating decision and recognized Dr. Brower’s deepening depression and anxiety and more than doubled his disability rating for that, from 30% to 70%, effective August 10, 2020. (JBB 883.)

41. In the meantime, the arthritis in Dr. Brower’s neck, and concomitant pain, worsened.

42. On May 5, 2021, since his neck pain originally was incurred coincident with service in the military, Dr. Brower inquired about a VA disability rating pertaining to his neck pain, despite having practiced successfully with no disability rating for his neck for over 20 years. (JBB 853.)

43. On May 10, Dr. Brower was in a car accident. (JBB 880.)

44. After the car accident, Dr. Brower’s pain, anxiety, and work problems got worse.

45. On July 12, 2021, Dr. Brower was in a second car crash.

46. On July 29, 2021, the VA issued a new disability rating for Dr. Brower specifically due to cervical strain with degenerative arthritis. That component rating was 30%, effective June 4, 2021. (JBB 898.)

47. On October 8, 2021, the VA confirmed its disability rating for Dr. Brower as 90% disabled overall, effective July 1, 2021. (JBB 6000.)

The Claim Under Private Disability Insurance Policy

48. Dr. Brower’s mental, physical, and work difficulties continued to worsen due to increasing pain.

49. By March 2022, the ordinary duties of his work caused intolerable pain, which in turn increased his stress, anxiety, and depression. Dr. Brower was able to practice as a dentist properly, without intolerable pain, only a few days a month. He resolved to wind down his practice and close it in July of 2022.

50. In March 2022, Dr. Brower contacted the Company to inquire about a claim under his disability Policy.

51. In May 2022, Dr. Brower told the Company his claim was based on his general condition, including physical pain and limitations as well as depression and anxiety. (JBB 1301.)

Approval of Claim; Reversal of Decision

52. The claims process extended into early 2023.

53. On January 24, 2023, the Company’s claim adjustor emailed Dr. Brower, writing in part: “I am writing with some good news! Upon meeting with management this morning I have confirmed that underwriting will not be pursuing any coverage issues. … I plan to review your file tomorrow to ensure I have all the financials needed for this calculation and will get back with you if any additional information should be needed.” (JBB 3205.)

54. Then something changed. Ten days later, on February 3, 2023, the Company’s claim adjustor sent Dr. Brower a denial letter (the “Denial Letter”).

55. The Company denied Dr. Brower’s claim on a single ground — that coverage was precluded by an exclusion for disabilities “caused by or due to” being on active full-time service with any armed forces. (JBB 1298.)

56. The Denial Letter recited facts showing that the VA had determined that a “service connection” existed for Dr. Brower’s disabling conditions. (JBB 1301-02.)

57. The Denial Letter made no mention of the standard for causation that applied to the exclusion.

58. The Denial Letter did not mention that the exclusion only applied if Dr. Brower’s military service 20 years earlier was the dominant cause of the disability. (JBB 1298-1304.)

59. The Denial Letter made no mention of the very different standard for causation for VA benefits — namely, that the condition causing the disability was incurred coincident with service. (JBB 1298-1304.)

60. The Denial Letter offered no explanation of how Dr. Brower’s military service 20 years earlier could be the dominant cause of the disability he suffered after two intervening decades of full-time work as a dentist. (JBB 1298-1304.)

Appeal & Denial

61. After receiving the Denial Letter, Dr. Brower filed an appeal, which the Company denied (the “Appeal Denial”). (JBB 115, 120.)

62. As with all insurers in the instance of a claim arising under one of its policies, once coverage is confirmed to apply to a loss, the burden was on the Company to prove that an exclusion applies.

Deception #1: Military Service Exclusion

63. In the Appeal Denial, again the Company relied on the same military-service exclusion without demonstrating that it properly applies.

64. The Company again failed to acknowledge the dominant-cause standard that applies to the exclusion.

65. The Company again did not explain how Dr. Brower’s military service could be the dominant cause of a disability that arose later, after 20 years of full-time work as a dentist.

66. The Appeal Denial was deceptive in suggesting that the VA’s finding that a “service connection” existed Dr. Brower’s disabilities meant that those disabilities were “caused by or due to” military service for purposes of the Policy.

67. The Company effectively substituted a more relaxed definition used by the VA for determining service-related disability benefits for the more stringent definition in the Policy exclusion to assert that Dr. Brower was not entitled to any benefits.

Deception #2: Time Requirement for “Regular Care of a Physician”

68. In the Appeal Denial, without citing it as a basis for denial, the Company included a discussion of whether Dr. Brower was under the “Regular Care of a Physician” for the conditions causing his disability. (JBB 121-22.)

69. The Appeal Denial’s discussion of “Regular Care of a Physician” was deceptive in two ways.

70. The Appeal Denial included discussion of “conversations with Dr. Brower dated July 13, 2022, and January 25, 2023” and “Medical records from the VA through March 30, 2022.”

71. The Appeal Denial implied that the policy provided benefits only if Dr. Brower had been under the “Regular Care of a Physician” from the beginning of the period in which he became unable to perform the substantial and material duties of his profession in the clinical practice of general dentistry.

72. There is no such requirement in the Policy.

73. The Policy does not exclude coverage if the insured was not under the “Regular Care of a Physician” from the beginning of the period in which the insured became unable to perform the substantial and material duties of his or her profession.

74. The Appeal Denial did not tell Dr. Brower that he might become eligible for benefits if he were to come under the “Regular Care of a Physician.”

75. The Appeal Denial did not request evidence to show that Dr. Brower was under the “Regular Care of a Physician.”

76. Prior to the Appeal Denial, the Defendants did not request medical records to show whether Dr. Brower was under the “Regular Care of a Physician” for his neck arthritis.

Deception #3: Duty to Second-Guess the PCP

77. Prior to the Appeal Denial, Dr. Brower was continuously under “Regular Care of a Physician” for depression and anxiety — the ultimate cause of his disability.

78. Dr. Brower was also under the “Regular Care of a Physician” for the other causes of his disability, including the arthritis in his neck.

79. Dr. Brower informed his primary care provider of his chronic neck pain and other conditions, and he followed all recommendations of his primary care provider. (JBB 958, 854.)

80. Treatment options for arthritis in the neck are limited.

81. It was reasonable for Dr. Brower to follow the lead of his primary care provider concerning what diagnostic testing, consultations, and treatment were appropriate.

82. The Policy did not require Dr. Brower to second-guess his primary care provider concerning what diagnostic testing, consultations, and treatment were appropriate.

83. The Policy did not require Dr. Brower to do more than inform his primary care provider of his medical problems and to follow the primary care provider’s recommendations.

84. The Policy did not require Dr. Brower — a dentist, not a medical doctor — to decide on his own knowledge what diagnostic testing, consultations, or treatments were appropriate for any medical problem.

85. By reciting various measures that Dr. Brower’s primary care provider could have, but did not, recommend, the Appeal Denial gave the false impression that the Policy required Dr. Brower to second-guess his primary care provider concerning what diagnostic testing, consultations, and treatment were appropriate.

Deception #4: Non-Disclosure of Neck Arthritis

86. The Appeal Denial said, “Despite making sure the VA was aware of his cervical condition during his active military duty, Dr Brower failed to provide this information at the time of underwriting for review of disability coverage with Great West Financial.” (JBB 122.)

87. The Appeal Denial misleadingly omitted the fact that only fraudulent non-disclosures in the application process would have provided a basis for denying Dr. Brower’s claim.”

88. The Appeal Denial implied that Dr. Brower’s chronic neck pain was disabling during his active military service.

89. That implication was false. Dr. Brower’s chronic neck pain was not disabling during his active military service.

90. The Appeal Denial did not attach the original insurance application materials from 2000.

Deception #5: Cancellation of Insurance

91. In the February 3, 2023, Denial Letter, the Defendants did not just deny Dr. Brower’s claim; they also cancelled the Policy.

92. The Defendants cancelled the Policy based on a Policy provision that did not apply.

93. The Defendants cancelled the Policy based on a provision that says, “A Member's insurance under this Policy will end … on the date the insured Member is no longer Actively Working Full-Time. This does not apply if the insured Member is Totally Disabled or Residually Disabled and unable to be Actively Working Full-Time.”

94. The Defendants had already determined that Dr. Brower was totally disabled — as indicated by their January 24, 2023, email to Dr. Brower.

95. The Defendants did not deny Dr. Brower’s claim based on an assertion that he was not totally disabled. Rather, they denied the claim on the ground that despite his being totally disabled, his claim was barred by the caused-by-military-service exclusion (which did not apply).

96. So in addition to denying Dr. Brower’s claim in violation of the Policy, the Defendants — after collecting premiums from Dr. Brower for over 20 years — also cancelled his insurance in violation of the Policy.

—————

97. Dr. Brower suffered a total disability in 2022 as defined by the Policy.

98. Dr. Brower was (and remains) unable to perform the substantial and material duties of his profession (i.e., the clinical practice of general dentistry).

99. Dr. Brower remains unable to practice as a dentist properly more than a few days a month.

100. Dr. Brower’s disability is permanent.

101. The Company was contractually obligated to pay benefits under the Policy.

102. The Company breached that obligation by refusing to pay.

103. The Company’s refusal to pay was in bad faith.

DEFENDANTS & JURISDICTION

104. The Court has personal jurisdiction over all the Defendants because of their contacts with South Dakota in conducting business here.

105. The Court has subject matter jurisdiction of the case pursuant to 28 USC 1332 (diversity of citizenship).

106. During all times in question, Dr. Brower was a South Dakota resident. For purposes of diversity of citizenship, he currently maintains a home in Sioux Falls, South Dakota and another in Texas. Either way, there is complete diversity.

107. The matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.

Defendant Great-West Life & Annuity Insurance Company, now known as Empower Annuity Insurance Company of America (the “Company”)

108. The Company issued the Group Disability Income Protection Insurance plan (Group Policy No. 1105GDH-IPP) under which Dr. Josh Brower is insured (the “Policy”). The Company issued the policy to Dr. Brower knowing that he was a South Dakota resident. The Company communicated with him in South Dakota and took actions that affected him in South Dakota.

109. The Company promised to pay any amounts owed to Dr. Brower pursuant to the terms of the Policy.

110. The Company is a corporation organized under Colorado law.

111. On 8/1/2022, the Company filed Articles of Amendment with the Colorado Secretary of State to change its name to Empower Annuity Insurance Company of America.

112. The Company is subject to the personal jurisdiction of this Court, because it conducted business in South Dakota by issuing the Policy to Dr. Brower in South Dakota.

113. The Company is subject to the subject-matter jurisdiction of this Court in this case by virtue of the Court’s diversity jurisdiction.

114. The Company’s principal office address is 8515 E Orchard Rd, Greenwood Village, CO 80111.

115. The Company’s principal place of business is not in South Dakota.

116. The Company’s agent for service of process is the Director of the South Dakota Division of Insurance.

117. The Company’s registered agent is CT Corporation System.

118. The Company’s registered office’s physical address is 7700 E Arapahoe Road, Suite 220, Centennial, CO 80112-1268.

119. As of the date they answer this complaint, the Company has been properly and timely served with the summons and complaint in this case.

120. The Company has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

Defendant Protective Life Insurance Company (“Admin Sub A”)

121. Admin Sub A participated in administering Dr. Brower’s claim under the Policy, knowing that Dr. Brower was a South Dakota resident, communicating with him in South Dakota, taking actions that affected him in South Dakota, and profiting commercially from these contacts with South Dakota.

122. Admin Sub A is or was a corporation organized under Tennessee law.

123. Admin Sub A participated in the administration of the claim of Dr. Brower, a South Dakota resident.

124. Admin Sub A principal office address is 2801 Highway 280 S Birmingham, AL 35223-2479.

125. Admin Sub A’s principal place of business is not in South Dakota.

126. Admin Sub A’s registered agent is CT Corporation System.

127. Admin Sub A’s registered office’s physical address is 300 Montvue Road, Knoxville, TN 37919-5546.

128. As of the date they answer this complaint, Admin Sub A has been properly and timely served with the summons and complaint in this case.

129. Admin Sub A has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

130. On 1/14/2025, Admin Sub A filed Articles of Charter Surrender in Tennessee to convert its corporate status from active to inactive.

131. Admin Sub A is or was a subsidiary of Defendant Protective Life Corporation.

132. Admin Sub A is or was a corporate affiliate of Defendant Protective Life and Annuity Insurance Company.

Defendant Protective Life and Annuity Insurance Company (“Admin Sub B”)

133. Admin Sub B participated in administering Dr. Brower’s claim under the Policy, knowing that Dr. Brower was a South Dakota resident, communicating with him in South Dakota, taking actions that affected him in South Dakota, and profiting commercially from these contacts with South Dakota.

134. Admin Sub B is or was a corporation organized under Alabama law.

135. Admin Sub B participated in the administration of the claim of Dr. Brower, a South Dakota resident.

136. Admin Sub A and Admin Sub B shared claim-handling employees and thus intermingled their business operations.

137. Admin Sub B’s principal office address is 2801 Highway 280 S Birmingham, AL 35223-2479.

138. Admin Sub B’s principal place of business is not in South Dakota.

139. Admin Sub B’s registered agent is CT Corporation System.

140. Admin Sub B’s registered office’s physical address is 2 North Jackson Street, Suite 605, Montgomery, AL 36104.

141. As of the date they answer this complaint, Admin Sub B has been properly and timely served with the summons and complaint in this case.

142. Admin Sub B has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

143. Admin Sub B is a subsidiary of Defendant Protective Life Corporation.

Defendant Protective Life Corporation (“Admin Parent”)

144. Admin Parent has succeeded to the liabilities of Admin Sub A.

145. At all relevant times, Admin Parent, Admin Sub A, and Admin Sub B shared officers and employees and intermingled their operations.

146. Admin Parent participated in administering Dr. Brower’s claim under the Policy, knowing that Dr. Brower was a South Dakota resident, communicating with him in South Dakota, taking actions that affected him in South Dakota, and profiting commercially from these contacts with South Dakota.

147. Admin Parent is or was a corporation organized under Alabama law.

148. Admin Parent’s principal office address is 2801 Highway 280 S Birmingham, AL 35223-2479.

149. Admin Parent’s principal place of business is not in South Dakota.

150. Admin Parent’s registered agent is Mark L. Drew.

151. Admin Parent’s registered office’s physical address is 2801 Highway 280 S Birmingham, AL 35223-2479.

152. As of the date they answer this complaint, Admin Parent has been properly and timely served with the summons and complaint in this case.

153. Admin Parent has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

John/Jane Does (1-10)

154. Defendants John/Jane Does (1-10) are natural or legal persons involved in and liable for the claims stated below.

VICARIOUS LIABILITY

The Administrators

155. In their involvement in Dr. Brower’s claim, Admin Sub A acted as an agent of the Company and in all its dealings with Dr. Brower acted within the scope of such agency.

156. In their involvement in Dr. Brower’s claim, Admin Sub B acted as an agent of the Company and in all its dealings with Dr. Brower acted within the scope of such agency.

157. In their involvement in Dr. Brower’s claim, Admin Parent acted as an agent of the Company and in all its dealings with Dr. Brower acted within the scope of such agency.

Cinda Alvarado

158. Cinda Alvarado was a claims adjustor who interacted with Dr. Brower in connection with his claim under the Policy.

159. At all relevant times, Cinda Alvarado acted as an employee or other agent of the Company and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

160. At all relevant times, Cinda Alvarado acted as an employee or other agent of Admin Sub A and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

161. At all relevant times, Cinda Alvarado acted as an employee or other agent of Admin Sub B and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

162. At all relevant times, Cinda Alvarado acted as an employee or other agent of Admin Parent and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

Kathleen Nordlund

163. Kathleen Nordlund was a claims adjustor who interacted with Dr. Brower in connection with his claim under the Policy.

164. At all relevant times, Kathleen Nordlund acted as an employee or other agent of the Company and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

165. At all relevant times, Kathleen Nordlund acted as an employee or other agent of Admin Sub A and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

166. At all relevant times, Kathleen Nordlund acted as an employee or other agent of Admin Sub B and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

167. At all relevant times, Kathleen Nordlund acted as an employee or other agent of Admin Parent and in her dealings with Dr. Brower acted within the scope of such employment or other agency.

Other Individuals

168. Other individuals were involved in deciding whether to approve Dr. Brower’s claim under the Policy.

169. In their involvement in Dr. Brower’s claim, some of those other individuals acted as employees or other agents of the Company and in their dealings with Dr. Brower acted within the scope of such employment or other agency.

170. In their involvement in Dr. Brower’s claim, some of those other individuals acted as employees or other agents of Admin Sub A and in their dealings with Dr. Brower acted within the scope of such employment or other agency.

171. In their involvement in Dr. Brower’s claim, some of those other individuals acted as employees or other agents of Admin Sub B and in their dealings with Dr. Brower acted within the scope of such employment or other agency.

172. In their involvement in Dr. Brower’s claim, some of those other individuals acted as employees or other agents of Admin Parent and in their dealings with Dr. Brower acted within the scope of such employment or other agency.

CAUSES OF ACTION

1. Breach of Contract (against the Company)

173. The Policy constituted a contract between the Company and Dr. Brower.

174. Dr. Brower’s claim was valid and payable under the Policy.

175. Disability insurance benefits were owed to Dr. Brower under the Policy.

176. The Company violated the contract by failing to pay benefits to Dr. Brower.

177. Dr. Brower is entitled to full payment of all contractually required payments.

178. The Policy provided for (i) a Long Term Monthly Benefit of $3,200, (ii) a Cost of Living Adjustment (COLA) Benefit, (iii) a Residual Plus Monthly Income Benefit, and (iv) a Future Increase Option Benefit 500.

179. Benefits were payable for Dr. Brower up to the age of 67 — thus, given his date of birth, for approximately 17 years in total.

180. The basic monthly payments owed to Dr. Brower under the Policy over 17 years amount to approximately $650,000.

181. Including yearly COLA adjustments, the total payments owed exceed $1 million.

182. Plaintiff seeks recovery of all contract damages in an amount to be determined at trial.

2. Bad Faith (against all Defendants)

Duties

General Duty of Good Faith

183. As Dr. Brower’s insurer (or as agents of his insurer), each Defendant was in a non-adversarial, quasi-fiduciary relationship with Dr. Brower.

184. Each Defendant owed Dr. Brower a duty of good faith and fair dealing in handling his claim under the Policy.

185. Each Defendant had a duty to act with honesty, fairness, and good faith in all dealings with Dr. Brower throughout the claims process.

186. Each Defendant had a duty to refrain from putting their own interests above Dr. Brower’s interest in making a legitimate claim under the Policy.

Claim Process

187. Each Defendant had a duty to assist Dr. Brower in the claims process rather than create obstacles to recovery.

188. Each Defendant had a duty to assist Dr. Brower in understanding how to properly present his claim.

189. Each Defendant had a duty to conduct a fair, thorough, and unbiased investigation and assessment of losses rather than seeking reasons to deny coverage.

190. Each Defendant had a duty to collect all reasonably available information relevant to Dr. Brower’s claim.

191. Dr. Brower was responsible for cooperating in the Defendants’ investigation of his claim, but the responsibility for the investigation remained with the Defendants.

192. Each Defendant had a duty to give Dr. Brower all the information he needed concerning the requirements of the Policy for his claim.

193. Each Defendant had a duty to assist Dr. Brower in understanding what the Policy required for a claim to be payable.

194. Each Defendant had a duty to tell Dr. Brower if there was some additional action he could take that would make his claim eligible for payment under the Policy.

195. Each Defendant had a duty to tell Dr. Brower specifically of any deficiency in his claim that he could correct.

196. Each Defendant had a duty to communicate about Policy provisions, exclusions, and the claims process in a way that would be clear and understandable to the average policyholder.

197. Each Defendant had a duty to refrain from communicating with Dr. Brower in a way that would mislead the average policyholder.

198. Dr. Brower was entitled to rely on the Defendants to tell him all he needed to know to make an eligible claim under the Policy.

199. Dr. Brower was entitled to rely on the Defendants to tell him specifically of any deficiency in his claim that he could correct.

200. The various third-party administrators gave substantial assistance or encouragement to the Company in tortiously denying Dr. Brower’s insurance claim.

Application of Terms & Law

201. Each Defendant had a duty to know, understand, and correctly apply the Policy terms that applied to Dr. Brower’s claim.

202. Each Defendant had a duty to know, understand, and correctly apply the legal principles that applied to Dr. Brower’s claim.

203. Each Defendant had the ability to know, understand, and correctly apply the Policy terms and legal principles that applied to Dr. Brower’s claim.

204. Each Defendant had access to experienced lawyers who were able to know, understand, and correctly apply the Policy terms and legal principles that applied to Dr. Brower’s claim.

205. Each Defendant did in fact know and understand the Policy terms and legal principles that applied to Dr. Brower’s claim and were able to apply them correctly.

206. Each Defendant knew that VA disability decisions are governed by specific statutes and regulations (e.g., 38 CFR § 3.303.) that provide specific definitions and criteria for disability.

207. Each Defendant knew that the VA provides benefits where a “service connection” exists for a disability pursuant to the standards set forth in 38 CFR § 3.303.

208. Each Defendant knew that 38 CFR § 3.303 says, “Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.”

209. Each Defendant knew that the private disability insurance Policy the Company sold to Dr. Brower contained terms that differed from the terms contained in VA regulations.

210. Each Defendant knew that the private Policy and VA regulations contained different terms concerning the relationship between a disability-causing condition and military service.

211. Each Defendant knew that VA regulations authorize veteran’s disability benefits for injuries “incurred coincident with service” in the armed forces, regardless of whether military service was the dominant cause of the disability.

212. Each Defendant knew that the private Policy, on the other hand, excluded coverage for disabilities for which the dominant cause was being on active, full-time military service.

Violations

213. Each Defendant (directly or through its agents) violated the duties stated above.

Lack of Reasonable Basis & Knowledge Thereof

214. The Defendants had no reasonable basis for denying Dr. Brower’s claim under the Policy.

215. The Defendants knew they had no reasonable basis for denying Dr. Brower’s claim under the Policy.

216. As indicated by the January 24, 2023, email, the Defendants knew Dr. Brower was totally disabled.

217. The Defendants knew that the sole basis on which they denied the claim — the caused-by-military-service exclusion — did not apply.

Causation, Damages & Request for Relief

218. The Defendants’ violations of their duties caused Dr. Brower to be deprived of payments he otherwise would have received under the Policy.

219. The Defendants’ violations of their duties caused Dr. Brower to suffer:

a. delay in payments of contractually owed amounts

b. otherwise unnecessary attorney fees

c. aggravation and emotional distress

d. exacerbation of his pre-existing anxiety and depression.

220. Plaintiff seeks recovery for the foregoing damages.

PUNITIVE DAMAGES

221. Plaintiff seeks punitive damages because each of the Defendants (directly or through their agents) engaged in willful misconduct.

222. Each of the Defendants is sophisticated.

223. Each of the Defendants knew their duties.

224. Each of the Defendants (directly or through their agents) willfully violated their duties.

225. In connection with Dr. Brower’s claim, each Defendant acted in accordance with its normal practices.

226. Each Defendant treated Dr. Brower and his claim the same way they would treat any other insured in Dr. Brower’s circumstances.

227. On or before January 24, 2023, the Defendants determined that Dr. Brower’s claim was eligible for payment.

228. Nonetheless, on February 3, 2023, the Defendants denied Dr. Brower’s claim.

229. The Defendants deceptively used Dr. Brower’s past military service and service-connected injuries against him.

230. The Defendants knew Dr. Brower had long-standing depression and anxiety as well as physical injuries and that he was struggling to hold his life together.

231. The Defendants knew Dr. Brower was vulnerable and that their misconduct would cause him further harm, but they did it to him anyway.

REQUEST FOR RELIEF & JURY DEMAND

232. Plaintiff seeks contract damages in an amount to be determined at trial, likely exceeding $1 million.

233. Plaintiff seeks tort damages in an amount to be determined at trial, likely exceeding $1 million.

234. Plaintiff seeks punitive damages of up to 10 times the amount of contract and tort damages — likely exceeding $20 million.

235. Plaintiff seeks prejudgment and post-judgment interest on contract and tort damages.

236. Plaintiff seeks such other and further relief as the Court deems just and proper.

237. Plaintiff demands trial by jury.

March 17, 2025

Respectfully submitted,

/s/ Seamus Culhane

Turbak Law Office, PC

26 S. Broadway, Suite 100

Watertown, SD 57201

605-349-1722

seamus@turbaklaw.com

/s/ Daniel E. Holloway

DEH Law

2062 Promise Road, Unit 1305

Rapid City, SD 57701

404-670-6227

dan@dehlegal.com

Attorneys for Plaintiff