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Lawsuit Against TIAA and Tulane University for Denial of Disability Benefits

Judge Ginger Berrigan Once Again Proves to be a Staunch Tulane Ally


Following completion of his cancer treatment regimen in 1996, Bernofsky applied to Teachers Insurance and Annuity Association (TIAA) for the disability benefits for which he was eligible under the terms of an insurance contract in which he was enrolled.  He had paid into the plan for nearly 20 years through payroll deduction.  Tulane's Faculty Handbook description of the plan follows.

d.       Disability Insurance Plan

The long term total disability insurance plan is underwritten by Teachers Insurance and Annuity Association.  Faculty members who work at least 50% of full-time on a permanent basis are covered by this plan. The employee pays for this coverage by payroll deduction.  Complete details concerning this plan are contained in the certificate of coverage available from the Office of Personnel Services.
Faculty Handbook, 7/20/95, p. IV-5

Bernofsky was astonished to learn that his disability claim was denied on the basis of a technicality put forward by Tulane — that he had been terminated about six weeks before his cancer was diagnosed (yet 10 weeks before the end of his employment contract with Tulane).  However, the condition clearly existed prior to his termination, and Bernofsky sued TIAA and Tulane for the benefits to which he was entitled.  The lawsuit was filed April 8, 1998 in State Court.

In a classic example of forum shopping, Tulane removed the case from State Court to Federal Court, where it would be heard by Judge Ginger Berrigan.  The federal court's jurisdiction over an insurance matter that is regulated by the state was questionable.  At the time, neither Bernofsky nor his attorney had yet appreciated the significance of Berrigan's employment by Tulane as an adjunct professor.  Also, George Phillip Shuler, III served as lead attorney for both TIAA and Tulane.

Once in federal court, Tulane shifted its defense strategy to claim that it was the primary provider of the disability insurance plan, which it offered as an employee benefit, and that the policy was subject to regulations described by the Employee Retirement Income Security Act of 1974 ("ERISA") [1].  This entitled Tulane to the protections and powers imparted by ERISA, and in particular the provision that severely restricts remedies available to employees through the preemption of state laws relating to the regulation of insurance.

Bernofsky's attorneys argued that Tulane's plan was not subject to ERISA because the disability plan was neither established nor funded by Tulane; that TIAA was the primary insurance provider; that Tulane simply subscribed to TIAA to provide the insurance service for its employees; and that Tulane merely collected the premiums for TIAA, the insurer from which benefits were actually due.  However, TIAA collaborated with Tulane and supported the university's position, thus avoiding having to pay any benefits.

Judge Berrigan once more proved to be a loyal ally for Tulane.  She accepted Tulane's claim to be the primary insurance provider, denied Berrnofsky a jury trial on the merits, and gave Tulane the green light to file for summary judgment.  When it was clear that Bernofsky would again lose his case on summary judgment, his counsel filed a motion to dismiss his claim for a disability benefit.  It was a fitting victory for a university whose measure of success is dependent on corrupting public institutions.  Since Tulane had no financial stake in TIAA's payment of Bernofsky's disability claim, its motive for interfering was primarily vindictive.  This demonstration of Tulane's influence over the courts sends a powerful message to employees with a grievance — that it would be futile to litigate no matter how just their cause.


Key Dates in Lawsuit for Disability Benefits*

Bernofsky files lawsuit against TIAA and Tulane University in Civil District Court for the Parish of Orleans, State of Louisiana (Case No. 98-6317).
05/27/98 TIAA & Tulane file notice of removal of the case to U.S. District Court for the Eastern District of Louisiana. The case is assigned to Judge Ginger Berrigan and redesignated No. 2:98-cv-01577-HGB (Civil Action No. 98-1577).
Bernofsky files motions to: 1) Remand the case back to state court, and 2) Request a trial by jury if the motion to remand is denied.
06/23/98 TIAA & Tulane: 1) File a memorandum opposing Bernofsky's motion to remand the case back to state court, and 2) Inform the court of their intent to file for summary judgment against Bernofsky.
Bernofsky files a reply memorandum in support of his motion to remand the case back to state court.
07/21/98 Judge Berrigan: 1) Denies Bernofsky's motion to remand the case back to state court, and 2) Denies his motion for a trial by jury.
Bernofsky files a motion to dismiss the case (in anticipation of summary judgment and to avoid being taxed again for defendants' expenses.).
07/27/98 Judge Berrigan orders the case dismissed.

*The full docket report is available via PACER from the Web site of U.S. District Court for the Eastern District of Louisiana (

  1. See: Wikipedia, "Employment Retirement Income Security Act,", accessed 08/21/07.

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Web site created November, 1998     This section last modified August, 2007
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