Chitkin

AMENDED ORDER GRANTING LINCOLN NATIONAL’S MOTION FOR SUMMARY JUDGMENT ON ITS COUNTERCLAIM

This matter comes before the Court on Defendant and Counterclaimant Lincoln National Insurance Company’s (“Lincoln National’s”) Motion for Summary Judgment on its counterclaim. For the reasons given be low, Lincoln National’s Motion for Summary Judgment is granted.

I. Background

On June 8, 1987, twenty-month-old Danielle Chitkin nearly drowned in a duck pond. Danielle wandered out of an open sliding glass door at the home of Ed and Judy Way while Nancy Chitkin visited with Judy Way. Danielle then made her way across the backyard, through an unlocked, unauthorized gate, and toward the duck pond, before falling into the pond. Danielle suffered severe brain damage as a result of the incident.

Lincoln National provided medical benefits to Danielle Chitkin because her father, John Chitkin, participated in a the Jerome’s Furniture Warehouse Health VEBA Plan (the “Plan”). Lincoln National issued a group policy of insurance to the Plan. Lincoln National has paid claims totalling $701,048.66 under the Plan for medical treatment for Danielle.

The Plan includes a section entitled “Return of Over…