Summary
holding that whether spending fifteen percent of a doctor's time on marketing for medical supply companies qualifies as being "regularly engaged" in a separate "occupation" is a question of fact for the jury
Summary of this case from Simon v. Unum GroupOpinion
Civil Action No. 00-3670, Section "N" (4)
June 25, 2002
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment [Rec. Doe 59] filed on behalf of the defendants, Provident Life Accident Company and Unum Provident Corporation (collectively referred to as "Provident"), and a Motion in Limine [Rec. Doc. 60] filed on behalf of the plaintiff Dr. Edward Soll ("Dr. Soll"), seeking to exclude evidence of his compensation. The plaintiff Dr. Edward Soll ("Dr. Soll") filed formal opposition [Rec. Doc. 61] to the defendants' Motion for Summary Judgment, contending that material issues of fact preclude summary judgment dismissing his claim for breach of contract for failure to provide total disability benefits. The matters were deemed submitted for decision, without oral argument. For the following reasons, both motions are DENIED.
I. BACKGROUND
The sole issue addressed by the instant motion is whether Dr. Edward Soll ("Dr. Soll"), a board certified radiologist, is "totally disabled" within the meaning of policy of disability insurance at issue, and thus entitled to disability benefits. The term "total disability" is defined as follows: "1) You are not able to perform the substantial material duties of your occupation; and 2) You are under the care and attendance of a physician." See Provident's Disability Income Policy Number 6-334-648872 issued to the Insured Edward L. Soll, M.D., at p. 4 [Provident Exh. "F"]. The term "your occupation" is defined as "the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled." Id. The policy contains a 90 day elimination period which is defined as "the number of days of disability, at the start of a period of disability, for which benefits are not payable." Id. Thus, the insured becomes eligible to receive total disability benefits on the 91st day following the onset of disability.
In March 2000, Dr. Soll resigned his position as clinical radiologist and medical director of Diagnostic Imaging Services, Inc. ("DIS"), and contemporaneously applied for disability benefits under the Provident policy. Dr. Soll resigned his position allegedly on the advice of his physicians. Provident admits that there is a factual dispute as to whether Dr. Soll's medical condition is causally related to his decision to retire from clinical practice. However, defendants submit that a resolution of that dispute is unnecessary. Assuming for the sake of argument that causation was established, Provident submits that Dr. Soll is still not entitled to benefits under the policy because it is not disputed that he is currently performing one or more of the substantial and material duties of his occupation.
It is further undisputed that Dr. Soll practiced radiology as a clinical radiologist for nearly 30 years until he resigned in March 2000 as a clinical radiologist and medical director of DIS and applied for benefits under his Provident policy. Dr. Soll's employment contract with DIS details his pre-disability duties, which consist of the following: (1) 50% of his time practicing as a clinical radiologist; and (2) 50% of his time performing approximately eleven medical directorship duties, including tending to quality assurance, review of non-financial and financial reports, personnel, budgeting, strategic planning, referring physician relationships, operations, public relations and periodic reports. Dr. Soll contends that 4.5% of is time was spent on each duty of the eleven directorship duties, and that post-disability he performs only four of the prior eleven duties, and that most his time is spent on public relations and marketing.
In 1988, Dr. Soll suffered an acute Myocardial Infarction (i.e., a heart attack). The emergency angioplasty performed to correct his heart condition was successful. Following a period of recuperation, Dr. Soll resumed occupational duties and remained asymptomatic for well-over a decade. By February of 2000, Dr. Soll was experiencing frequent angina attacks at work, and another angioplasty was performed along with stenting. The consensus at the time was that the surgery was successful. However, when Dr. Soll returned to work, the angina symptoms which precipitated the need for angioplasty and stenting recurred. Hence, his physicians advised him to reduce, back-off or eliminate the activities which precipitated the recurrence his symptomatolgy (i.e., stress-induced angina).
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is proper if the pleadings, depositions, interrogatory answers and admissions, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; and Celotex Corp. v. Catrett, 477 U.S. 317, 37, 106 S.Ct. 2548, 2555-56 (1986). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). Although the Court must consider the evidence with all reasonable inferences made in the light most favorable to the nonmoving party, the nonmovant must produce specific facts to demonstrate a genuine issue for trial. Webb v. Cardiothoracic Surgery Associates of North Texas, 139 F.3d 532, 536 (5th Cir. 1998). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. See Anderson, 477 U.S. at 248, 105 S.Ct. 2505.
III. CONTENTIONS OF THE PARTIES
Provident's motion seeking summary dismissal of Soll's breach of contract claim is premised on the interpretation of the "total disability" provision when read in pari materia with the language provided by the "residual disability" rider issued contemporaneously with the Provident Disability Income Policy. See Provident Policy, at pp. 4 and 7 [Provident Exh. "F"]. As noted above, the policy defines "total disability" as not able to perform "the substantial and material duties of your occupation." Id. at p. 4. Provident contends that, as a matter of law, this provision should be interpreted as requiring that an insured be precluded from performing all of the substantial and material duties of an insured's occupation. Provident contends that the definition of total disability is not ambiguous when read in conjunction with other policy provisions.
In support of its position, Provident specifically relies on the definition of "residual disability" as evidence that the "total disability" provision should be interpreted as requiring that the insured be unable to perform all of his significant duties. The provision of "residual disability" coverage applies to an insured who, due to sickness or injury, is not able to perform one or more of his substantial and material daily business duties or is not able to perform such usual daily business duties for as much time as it would normally take to do them. Additionally, for residual disability benefits to apply the insured must suffer a loss of monthly income of at least 20%, and the insured must be under the care and attendance of a physician as well. Id. at p. 7. Provident argues that because Dr. Soll is capable of performing several of what Provident contends are "the substantial or material duties" of Dr. Soll's pre-disability occupation (i. e., 15% of his pre-disability occupation), he is not totally disabled. Provident highlights the fact that Dr. Soll is compensated even more handsomely now without any clinical practice, inter alia. Although this analysis constitutes a powerful argument which favors the conclusion that the few duties that Dr. Soll continues to perform post-disability are in fact the substantial and material duties of his pre-disability occupation, such is not the only reasonable view of the evidence.
Finally, Provident maintains that evidence of Dr. Soll's post-disability compensation is relevant and admissible. Even assuming pursuant to the terms of the policy that compensation from other employment is not properly considered in determining whether total disability benefits are due, in this particular case since the plaintiff only performs a fraction of his former duties and continues to be compensated at his pre-disability income level or higher. The issue before the jury is whether these post-disabilities duties are the substantial and material duties of his pre-disability employment. The plaintiffs unaffected income level constitutes relevant evidence that the plaintiffs post-disability duties may be properly considered the substantial and material duties of his pre-disability employment.
For his part, Dr. Soll contends that he became totally disabled within the meaning of the policy on March 13, 2000, when he resigned from the practice of medicine, and ceased performing eight of the eleven duties of his office as the medical director of DIS (i.e., all of which Dr. Soll contends are the substantial and material duties of his pre-disability occupation). See Deposition of Dr. Soll, at pp. 15-31 [Provident Exh. "I"]; Deposition of Dr. Soll, at pp. 13-30, 46 [Provident Exhibit "C"]; and Deposition of Dr. Stephen Newman, at pp. 30-44 [Provident Exh. "E"]. Dr. Newman explained in his letter dated August 8, 2000, that (1) Dr. Soll no longer practices medicine in any capacity; (2) his malpractice insurance coverage was canceled, with the exception of a "tail policy" to provide coverage for claims made for acts prior to June 12, 2000; and (3) his responsibilities as Chief Medical Officer are solely business development activities (i.e., cultivating referring physician relationships, developing staff radiologists' outreach to referring physician skills, and securing other new growth opportunities for business growth potential). Dr. Newman characterized Dr. Soll's post-disability occupation as more in the nature of a "Chief Marketing Officer," explaining that his post-disability duties mainly influence the revenue side, the emphasis being the growth of the business from a volume point of view, and not efficiency or productivity. See Deposition of Dr. Newman, at p. 39 [Provident Exh. "E"].
Dr. Soll asserts that the 15% of his former duties that he is capable of performing post-disability are not "the substantial and material duties" of his former occupation as a clinical radiologist and the Medical Director of DIS. At the very least, Dr. Soll contends that such as there is a material issue of fact, the jury should determine whether he can be considered "totally disabled" within the meaning of the policy. The Court here notes, as did both Dr. Soll and the defendants, that the policy does not define the key phrase — i.e., "substantial and material."
Dr. Soll points out that Provident's argument regarding the interplay of the policy's provisions ignores the unambiguous caveat following the caption of the operative Residual Disability Rider, which expressly provides that "[n]othing in this [residual disability] provision limits the definition of `total disability.'" See Provident's Policy, Residual Disability Benefit Rider, at p. 7. The Specimen Policy Series 334 used by Provident's agents to market the various coverages to potential insureds contains the very same parenthetical language, to wit: "This option does not change the definition of Total Disability stated in your policy." See Provident Companies — Policy Specimen Series 334, at p. 9 [Soll Exh. "1"]. More specifically, Dr. Soll contends that with respect to the particular policy series at issue in this case, defendants' agents emphasize to the potential insured the utter absence of any interplay and/or relationship between the provision of total disability coverage and residual disability coverage. In other words, plaintiff submits that the fact that these two coverages are touted as being determined independently of the other, and that such information is utilized by Provident's agents as a marketing tool, thus enhancing the likelihood of selling both coverages to potential insureds, should factor into the determination of the merits of the case at bar.
Dr. Soll points out significant variances in the terminology utilized in the definitions of the policy terms "total disability" and "residual disability." Plaintiff highlights the fact that there is no reference to the term "occupation" in the definition of "residual disability." Instead, "residual disability" is determined by reference to substantial and material daily business duties or an inability to accomplish usual daily business duties in the same amount of time it would normally take to accomplish those tasks. Dr. Soll contends that another striking difference defying any parallel between "total disability" and "residual disability" is that the latter requires proof of some loss of monthly income (i.e., 20%), whereas the definition of "total disability" requires absolutely no loss of income to invoke the application such benefits. Id., at pp. 4 and 7. Dr. Soll highlights the fact that at no time has he made a claim that he is entitled to Residual Disability benefits. Rather his proof of loss and complaint each fairly state a claim for total disability in that, because of his sickness, he became unable to practice medicine; and because he had given up his medical practice, he was unable to perform eight of the eleven duties he formerly performed as medical director of DIS.
Finally, Dr. Soll argues that evidence of his post-disability compensation is not properly considered in determining whether he is entitled to total disability benefits, because the coverage he purchased was designed to indemnify against loss of capacity to work. That may well be the case, and is discussed herein below in relation to the defendants' motion for summary judgment. Nevertheless, the peculiar circumstances of the instant case include the fact that plaintiffs duties predisability were cut back to the nub at the onset of disability, and he continues to be compensated at the same income level or higher for the performance of only 15% of the duties he used to perform. Whereas such evidence is not admissible to prove that the defendant is not entitled to indemnity, because he has suffered no loss of income, it is admissible to prove that the few duties he continues to perform are the substantial and material duties of his occupation at the time of the onset of his alleged disability.
IV. LAW AND ANALYSIS
When the words are clear and explicit, a court must interpret the contractual provisions as written; courts lack authority to alter the terms of an insurance contract under the guise of contractual interpretation, when the contractual provisions are couched in unambiguous terms. See La. Civ. Code art. 2046; Fannaly v. Lafayette Insurance Company, 805 So.2d 1134, 1139 (La. 2002); and Louisiana Insurance Guaranty Association v. Interstate Fire Casualty Company, 630 So.2d 759, 764 (La. 1994); and Trinity Industries, Inc. v. Insurance Company of North America, 916 F.2d 267, 269 (5th Cir. 1990) (citing Pareti v. Sentry Indemnity Co., 536 So.2d 417 (La. 1988)).
If after applying other general rules of construction an ambiguity remains, the ambiguous policy provision is to be construed against the drafter, and in favor of coverage to the insured. Under this strict rule of construction, equivocal provisions seeking to narrow construed against the insurer, because the insured had no voice in the preparations. Louisiana Civil Code Article 2056 codifies this rule, which provides that in the case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished the text; and a contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party (i.e., the doctrine of contra proferentum). See Louisiana Insurance Guaranty Association, 805 So.2d at 764. Ambiguity is also resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. See Breland v. Shilling, 550 So.2d 609, 610-11 (La. 1989). The court should construe the policy to fulfill the reasonable expectations of the parties in light of the customs and usage of the industry — i.e., in insurance parlance, the reasonable expectations doctrine. See Louisiana Insurance Guaranty Association, 805 So.2d at 764 (citing La. Civ. Code Arts. 2045,, 2050, 2053 and 2054, W. Freedman, 2 Richards on the Law of Insurance § 11:2 (g)). Nevertheless, if the policy wording clearly and unambiguously expresses the intent of the parties, the insurance contract must be enforced as written. La. Civ. Code Art. 2046; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La. 1991).
The intention of the parties is a paramount consideration in the construction and interpretation of contracts of insurance under Louisiana law. The intention of the parties is properly discerned from the plain, ordinary and popular meaning of language set forth in the policy, with consideration being given to the practical and reasonable construction of the instrument as a whole. See Fannaly v. Lafayette Insurance Company, 805 So.2d 1134, 1137 (La. 2002); Kottle v. Provident Life Accident Insurance Co., 775 So.2d 64, 75 (La.App. 2nd Cir. 2000), cert. denied, 790 So.2d 635 (La. 2001); and Beard v. Peoples Industrial Life Insurance Company of Louisiana, 5 So.2d 340, 342 (La.App. 2nd Cir. 1941). Under Louisiana law, the rights of the beneficiary of an insurance policy depend, first and foremost, on the terms of the policy. See Gonzales v. Prudential Insurance Company of America, 901 F.2d 446, 445 (5th Cir. 1990) (citing W. McKenzie H. Johnson, Louisiana Civil Law Treatise-Insurance, Sections 3, 4 (1986)).
In the context of life, health and accident insurance policies, Louisiana courts construe the terms "disabled" and "total disability" broadly in favor of coverage. It is not disputed that instant case is governed by Louisiana law. See Provident's Memorandum in Support of Motion for Summary Judgment, at p. 14 (noting Louisiana jurisprudence and the Louisiana Civil Code articles applicable to the interpretation of contract of insurance at issue in this case).
In the seminal case, Crowe v. Equitable Life Assurance Society of the United States, the Louisiana Supreme Court opined:
It may be said, generally speaking the provisions of life, health and accident insurance policies for indemnity in the case the insured becomes totally, permanently or wholly disabled, etc., do not require that he shall be rendered absolutely helpless, but, rather, merely requires such disability as renders him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. At least such a rule has been in substance adhered to, where the policy required that he be totally disabled from transacting any and every kind of business.154 So. 52, 53-54 (La. 1934) (quoting 7 Couch on Insurance, § 1670, p. 5769); see also Johnson v. Trustmark Co., 771 So.2d 307, 308-309 (La.App. 2nd Cir. 2000) (citing an extensive and undeviating line Louisiana jurisprudential authorities which stand for the proposition that total disability does not mean a state of absolute helplessness, but contemplates an inability to substantially perform the material acts necessary in the insured's business or occupation), cert. denied, 786 So.2d 101 (La. 2001).
In Johnson v. State Farm Mutual Automobile Insurance Company, 342 So.2d 664, 668 (La. 1977), addressing the continuous nature of a plaintiffs disability, the Louisiana Supreme Court held that the whether a disability is continuous depends upon the facts and circumstances of each case. Id. at 668. An insured is "totally disabled" within the meaning of Louisiana law when he is unable to perform the "substantial and material duties of his occupation," and thus is entitled to recover policy benefits. See Johnson, 342 So.2d at 667. The pivotal issue in Johnson was whether the continuity of the plaintiffs disability was broken by his returning to work for seventeen weeks, during which period the insured apparently performed all of the duties of his occupation, albeit in pain. Ultimately, Johnson abandoned his employment because of his disabling injury. The appellate court considered the plaintiffs disability not to be continuous under the circumstances; the Louisiana Supreme Court disagreed. Id.
Whereas Provident contends that Dr. Soll cannot be totally disabled under the policy unless he is unable to perform all of the duties of his pre-disability occupation, the plaintiff, on the other hand, submits that he is disabled because he is unable to perform 85% of the duties associated with his pre-disability occupation (i.e., "the substantial and material duties of his occupation"). The Court finds that the construction of Provident's policy is governed by a series of Louisiana cases dealing with total disability policies.
Assuming arguendo that on March 13, 2000 Dr. Soll became unable to perform his duties as a clinical radiologist, and thus could only perform three of the eleven duties which were assigned to office of the medical director of DIS, it remains a question for the trier of fact to determine whether Dr. Soll's prior history of stress-related angina attacks on the job could reasonably support a determination of total disability, considering the particular facts of this case, notwithstanding his ability to function normally in most aspects of his life.
As previously noted, the primary determination for disability under Louisiana jurisprudence and as quoted in Provident's policy is that the insured is "not able to perform the substantial and material duties of his occupation." Provident contends that, if one harmonizes the "residual disability" definition of "one or more but not all" duties with the definition of "total disability," the policy implies that all duties must be impacted in order to constitute total disability. See Provident Policy, at p. 7 [Provident Ex. "F"]. The Court disagrees for the reason that the policy language itself explicitly prohibits reading the two provisions in pari materia. The policy at issue in this particular case expressly provides that nothing in the "residual disability" provision shall limit the definition of the term "total disability." Id.
Provident's argument that an interpretation of the policy which would allow an insured who is capable of performing one or more, but not all, of his occupational duties to recover under the "total disability" provisions of the policy without reference to income, while the same insured may not be liable for "residual disability" benefits unless he suffered sufficient loss of income, would produce anomalous and unintended results. Indeed, Provident's policy provisions clearly envision that there may be some instances where the "total disability" coverage and the "residual disability" coverage may overlap. In such a circumstance, the policy obviates this seemingly anomalous result. Provident's residual disability benefit rider excepts payment of such residual disability benefits for any days for which total disability benefits are paid. See Provident's Disability Policy, at p. 8. Had residual benefits coverage been structured so as to bridge the gap, and thus serve to limit total disability coverage, the two provisions would necessarily be read in pari materia, and there would be no need for the language set forth under "residual disability," excepting payment of such benefits in the event that the insured were payed total disability benefits.
The Fifth Circuit decision in Gonzales v. Prudential Insurance Company, 901 F.2d 446, 449 (5th Cir 1990) an ERISA case decided on the basis of an administrative record and federal common law, is inapposite. Moreover, unlike the policy under consideration in the case at bar, the policy construed by the Fifth Circuit in Gonzales provided residual disability coverage expressly designed to bridge the gap, where the insured does not qualify for total disability benefits. Id. at 448. For the purposes of this Court's discussion of the issues inherent in the case at bar, the only salient portion of the Fifth Circuit's decision in Gonzalez is that court's recognition of several well-settled rules of Louisiana insurance law, concerning the interpretation of clauses in health, accident, or disability insurance policies that purport to limit coverage to that period during which the insured suffers from "total disability." Gonzales, 901 F.2d at 450.
Provident's reliance on Dym v. Provident Life and Accident Insurance Co., 19 F. Supp.2d 1147 (S.D. Cal. 1998) is similarly misplaced. The Dym court reached its conclusion by relying on language in the residual disability portion of the policy. Such an interpretation would be improper here because the Provident Disability Benefit Policy at issue in this case specifically prohibits limiting the total disability coverage by reference to the residual disability benefits rider. It is not apparent that the caveat at issue in this case, disavowing any limiting effects of the residual disability provisions upon the applicability of total disability benefits, was either considered or discussed in Dym, or in any of the jurisprudence adopting the Dym court's analysis.
In Provident Life and Accident Insurance Company v. Cohen, one of several ERISA cases cited by the defendants, the district court denied summary judgment. 193 F. Supp.2d 845, 851 (D.C. Md. 2002). The court in Cohen held that there was a material issue of fact regarding whether the plaintiff was performing the substantial duties of his occupation following his surgery. Id. The court so ruled, notwithstanding its decision to follow the lead of the Dym line of cases, all construing the terms of total disability and partial disability coverage in pari materia. Id. at 850-51.
Provident's Disability Policy at issue in our case is without question an "occupational disability policy," as opposed to a "general disability policy." The latter type of disability coverage defines disability in terms of the insured's inability to engage in any gainful occupation. See 10 Couch on Insurance 3d § 146:3. The former (i.e., an occupational disability policy/own occupation coverage), like the policy in question, requires only that the insured be unable to perform the substantial and material duties of his or her particular occupation in order to be considered "totally disabled." See id. The suggested "Best Definition" of the meaning the policy term "total disability" as set forth in the Provident's Specimen Series 334 Disability Policy is that "you are totally disabled even if you can work in another occupation." Provident's Specimen Policy Series 334, at p. 4 [Plaintiffs Exh. "1"]. Provident's Specimen Series 334 Disability Policy further bears the annotation under total disability benefits coverage that it "[p]ays even if you can work," and provides that an insured's "ability to engage in any occupation will not matter." Id. at p. 5 (emphasis supplied). Contrary to Provident's assertions, the Series 334 Policy Provisions are hardly a model of clarity. Nevertheless, it is clear that Dr. Soll purchased a type of coverage that protected him against the risk that an accident or sickness would prevent him from working in his regular occupation (i.e., "own occupation" coverage and not general disability coverage).
Louisiana cases expressly reject the requirement that Provident seeks to foist upon the policy at issue — i.e., that in the case of "total disability," all duties of an occupation must be affected by the sickness or injury. In Laborde v. Employers Life Insurance Co., 412 So.2d 1301 (La. 1982), the Louisiana Supreme Court found that the plaintiff could no longer work as a journeyman carpenter, and was therefore disabled under the disputed policy, even though plaintiff continued working as a carpenter inspector doing lighter work throughout the two year benefit period provided by the policy. See id. at 1304-05 (holding that the plaintiff was unable to perform the substantial and material part of his job in the customary and usual manner); see also Kottle v. Provident Life and Accident Ins. Co., 775 So.2d 64 (La.App. 2nd Cir. 2000), cert. denied, 790 So.2d 635 (La. 2001).
In the case at bar, the definition of "total disability" provided by Provident's policy is in harmony with Louisiana's well-established jurisprudential rule that the insured who is unable to perform the "substantial and material duties of his occupation" is entitled to policy benefits. See Laborde, 412 So.2d at 1304; and Johnson, 342 So.2d at 667. The Johnson court noted that the insured's intent to obtain coverage in form of economic protection from loss of employment should not be thwarted by narrow policy definitions for total disability requiring absolute helplessness. Id.
In Stender v. Provident Life and Accident Insurance Company, 2000 WL 875919 (N.D. Ill.), the court considered an occupational disability policy substantially similar, if not identical, to the disability policy's provisions in the case at bar. In light of the identical policy language at issue, this Court finds the analysis employed by the court in Stender a better reasoned approach than the Dym line of cases. Particularly persuasive is the Stender court's discussion of the policy language expressly limiting any correlation between the terms defining "total disability" coverage and the terms defining residual disability coverage. In this vein, the court highlighted the caveat also at issue in the case at bar, to wit: "Nothing in this residual disability provision limits the policy definition of total disability." Stender, 2000 WL 875919, at 2.
The plaintiff in Stender performed his occupation as commodities pit scalper up until the time of disability. In 1993, his career in the pit abruptly ended because he could no longer hear well enough to trade in the pits, and his voice had deteriorated to the point that he could no longer be heard on the trading floor. Based upon these disabling conditions, Stender filed a claim of total disability with his insurer Provident. Stender then started to trade commodities from his home, and he retained the right to use the trading pit at the Commodities Exchange ("CMOE"). The court observed that the entire focus of the case law is on how the claimant earned his "primary living" before his injury. Id. at 6. Addressing Provident's specific arguments, the court in Stender concluded that: (1) the fact that Stender had listed his occupation as broker/trader on his 1992 income tax return was irrelevant, considering that such a characterization did not in any way define his the substantial and material duties of his occupation at the time he became disabled; (2) Stender's concessions that he subsequently traded his own commodities or had access to the screens and information on the trading floor actually supported the fact that he could no longer work in the pit; and (3) the fact that Stender's limitations did not preclude him from trading off the floor of the CMOE sidestepped the fact that the most substantial and material part of his trading at the time he became disabled was shouting the buy and sell prices until a striking price was reached. Stender, 2000 WL 875919, at 6-7. The district court observed that, without the ability to shout or hear, Stender could not trade in the pit — i.e., the most substantial function of his occupation. Granting summary judgment in favor the plaintiff, the district court noted that the policy in no way restricted Stender from pursuing other career options, including earning a living by means of continuing his computer trading. Id. at p. 7.
In another decision construing similar policy language, the district court considered a practicing dentist's claim for total disability. See Shapiro v. Berkshire Life Insurance Company, 1999 WL 566372 (S.D.N.Y. 1999), aff'd, 212 F.3d 121 (2nd Cir. 2000). The plaintiff Dr. Shapiro used his time primarily to perform the functions of a dentist who treated patients. However, he also had an ownership interest in his and other dental practices, and also performed managerial and administrative duties for those dental practices. The court in Shapiro held that those functions related to his ownership interest in other practices, and his managerial and administrative duties with respect thereto, did not amount to a dual occupation. Id. Affirming the district court's decision, the Second Circuit in Shapiro observed:
It is well-settled in New York that occupational disability policies are designed to indemnify against the loss of capacity to work, not against the loss of income. Recovery will not, therefore, be precluded even if the plaintiff were to earn a larger income from his new occupation.
Although earnings may have some bearing on the question of a policyholder's capacity to work, the appropriate inquiry in this case concerns the net income of the individual, rather than his gross revenue (much less the gross revenue of his business). An individual whose sole occupation had been the practice of chair dentistry could suffer total disability without losing a cent of gross revenue simply by hiring a substitute dentist to treat his patients. Here, the record evidence shows that Shapiro's net income decreased following the onset of his disability. This fact tends to support Shapiro's argument that he was, in fact, a dentist.
Shapiro, 212 F.2d at 125 (citations and quotation marks omitted).
V. CONCLUSION
The determination of whether or not Dr. Soll was unable to perform the substantial and material duties of his occupation at the time of his disability is inherently a fact question. There is no contractual definition of the term "the substantial and material duties of the your occupation." See Provident Policy, at p. 4. While there is certainly no shortage of evidence that would support a verdict finding that Dr. Soll was not totally disabled, the Court cannot say that such is the only reasonable view of the evidence, or that the great weight of the evidence set forth in the summary judgment record forecloses on any other reasonable or logical conclusion. There is a material issue of fact as to whether Dr. Soll was able to perform the substantial and material duties of the occupation in which he was regularly engaged at the time of he allegedly became disabled. Stated another way, considering Dr. Soll's post-disability business (i.e., assuming that it was in the nature of Chief Marketing Officer), the issue for the jury is whether these duties constituted, at most, an insubstantial part of his work.
Cf. Shapiro v. Berkshire Life Ins. Co., 212 F.3d 121, 125 (2nd Cir. 2000) (highlighting the fact that the record evidence showed that Dr. Shapiro's net income decreased following the onset of his disability, and noting that such evidence tended to support Shapiro's argument that he was, in fact, practicing as a dentist prior to the onset of his disability).
The Court here notes that the fact that Dr. Soll's compensation remained constant or increased despite the elimination of 85% of his duties is highly probative of Provident's contention (i.e., that the 15% Dr. Soll continued to perform was the substantial and material part of his pre-disability occupation). An appropriate limiting instruction will diffuse any potential for unfair prejudice or jury confusion in connection with the introduction of such evidence. The parties shall submit such a proposed instruction no later than Wednesday, July 3rd, 2002.
Accordingly,
IT IS ORDERED that the defendants' Motion for Summary Judgment [Rec. Doc. No. 59] is DENIED, there being material issues of fact for the jury's determination.
IT IS FURTHER ORDERED that the plaintiffs Motion in Limine [Rec. Doc. # 60] is DENIED, and on or before July 3rd, 2002, the parties shall submit a proposed limiting instruction regarding evidence of post-disability compensation.