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Argued: November 19, 2001

Plaintiff sued for denial of disability benefits under ERISA. The United States District Court for the Southern District of New York, Barrington D. Parker, Jr., Judge, held that plaintiff was insured on the date of her injury and that defendant had waived its right to dispute her disability. The court awarded attorney fees and damages. Affirmed in part and vacated and remanded in part.

Barbara Lauder sued First UNUM Life Insurance Company (“First UNUM”) under ERISA for wrongfully denying her disability benefits on the basis that she was not covered by her employer’s policy at the time of her injury. The United States District Court for the Southern District of New York, Barrington D. Parker, Jr., Judge, held that Lauder was covered on the date of her injury and that First UNUM had waived its right to dispute whether Lauder was in fact disabled. The district court awarded as damages disability benefits in the amount of $95,234 and also awarded attorney fees. Although we agree that Lauder was covered under the policy and that First UNUM cannot now challenge her claim of disability, we disagree with the district court’s calculation of damages and award of attorney fees. We therefore affirm on coverage and waiver, and vacate and remand the question of attorney fees and the damages calculation.

 
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