Argotte v. Nw. Mut. Life Ins.

• Decision Date: 26 March 2015
• Docket Number: Civil Action No. 5:13–CV–00045–TBR.
• Court: U.S. District Court — Western District of Kentucky
• Parties: Alex ARGOTTE, Plaintiff v. NORTHWESTERN MUTUAL LIFE INSURANCE, Defendant.

99 F.Supp.3d 726

Alex ARGOTTE, Plaintiff

v.NORTHWESTERN MUTUAL LIFE INSURANCE, Defendant.

Civil Action No. 5:13–CV–00045–TBR.

United States District Court, W.D. Kentucky, Paducah Division.

Signed March 26, 2015.

Bartley K. Hagerman, M. Austin Mehr, Philip G. Fairbanks, Mehr Fairbanks Trial Lawyers, PLLC, Lexington, KY, for Plaintiff.

Allison L. Brown, Cornelius E. Coryell, II, Wyatt, Tarrant & Combs, LLP, Louisville, KY, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court on competing motions for summary judgment. Defendant Northwestern Mutual Life Insurance (“Northwestern Mutual”) has moved for summary judgment on all claims (Docket # 39), Plaintiff Alex Argotte has responded (Docket # 45), and Northwestern Mutual has replied and supplemented that reply. (Docket # 52, 60). Argotte has moved for partial summary judgment (Docket # 43), Northwestern Mutual has responded (Docket # 49), and Argotte has replied (Docket # 55). Northwestern Mutual's motion (Docket # 39) will be GRANTED in part and DENIED in part. Argotte's motion (Docket # 43) will be DENIED.

BACKGROUND

This case arises out of six disability policies that Dr. Alex Argotte purchased from Northwestern Mutual. Argotte is a surgeon. He has suffered two maladies—carpal tunnel syndrome

and central serous retinopathy —which he claims qualify him for disability benefits. (Docket # 43).

The parties strongly disagree on how to interpret several medical examinations of Argotte.

In 1994, Argotte purchased his first “own occupation” disability insurance policy from Northwestern Mutual. (Docket # 43). Argotte added coverage, ultimately purchasing six disability policies. The policies define “total disability” as: “Until the end of the Initial Period,¹ the Insured is totally disabled when he is unable to perform the principal duties of his regular² occupation. After the Initial Period, the Insured is totally disabled when he is unable to perform the principal duties of his regular occupation and is not gainfully employed in any occupation.” (Docket # 1–1).

Argotte's first disability claim stemmed from the pain and limited range of motion he was experiencing in his right hand. In June, 2009, Argotte underwent surgery to remove a carpal boss in the joint of his right wrist. The surgery was performed by Dr. Charles Goldfarb. Argotte also received treatment from Dr. Shiraz Patel and underwent physical therapy at Restoration Physical Therapy. (Docket # 43). Argotte filed a disability claim for this ailment in November, 2009. (Docket # 43). In May, 2011, Northwestern Mutual had Argotte submit to an independent medical evaluation performed by Dr. Martin. (Docket # 43–17). In August, 2011, Northwestern Mutual denied Argotte's claim.

Argotte's second disability claim stemmed from central serous retinopathy

in his right eye. Central serous retinopathy is a condition in which fluid accumulates under the retina causing distorted vision. Argotte was diagnosed with central serous retinopathy in February, 2010. (Docket # 39). Argotte received treatment from Dr. Carl Baker and Dr. Steven Charles. (Docket # 43). Argotte filed a claim for this condition with Northwestern Mutual. Northwestern Mutual had Dr. Marilyn Kay perform a “paper review” of Argotte's medical records. (Docket # 43). Northwestern Mutual determined Argotte became partially disabled in February, 2010 and that his disability resolved in September, 2010. (Docket # 49). Argotte was paid disability benefits for this period. Argotte argues both that his condition is chronic and therefore unresolved and that Northwestern Mutual's calculation of benefits was incorrect. (Docket # 45).

In addition to these disputes, Northwestern Mutual argues “Argotte's surgical career was derailed, not by any physical condition, but by a grievance that was filed against him with the Kentucky Board of Medical Licensure involving allegations of drug use, domestic violence, and questionable medical practices.” (Docket # 49). Argotte was suspended from Lourdes Hospital in Paducah, Kentucky, and subsequently resigned his position. (Docket # 39–4). Argotte accepted a position with Southern Illinois Medical Services (“SIMS”) in Herrin, Illinois. However, several months later SIMS learned of grievance against Argotte and terminated him. (Docket # 49–10).

Finally, Northwestern Mutual argues Argotte has repeatedly represented that he is physically able to perform surgery by seeking reinstatement at Lourdes Hospital, by applying for positions at other hospitals, and by applying for malpractice insurance. (Docket # 49).

Each party argues the record supports summary judgment in their favor. A review of the extensive evidence submitted by each party shows there are factual issues in dispute on most claims which render summary judgment inappropriate.

STANDARD

Summary judgment is proper if the moving party can establish that the “pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

“[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). The test is “whether the party bearing the burden of proof has presented a jury question as to each element in the case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The plaintiff must present more than a mere scintilla of evidence. To support this position, he must present evidence on which the trier of fact could find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Mere speculation will not suffice to defeat a motion for summary judgment: “[t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1177 (6th Cir.1996).

DISCUSSION

Argotte has alleged Northwestern Mutual (I) breached the insurance policy; (II) acted in bad faith; (III) violated the Kentucky Consumer Protection Act; and (IV) violated a fiduciary duty owed to Argotte. Northwestern Mutual has moved for summary judgment on all claims. (Docket # 39). Argotte has moved for partial summary judgment on his claim that he is disabled as defined in the insurance policy. (Docket # 43).

A federal court exercising diversity jurisdiction applies the law of the state whose substantive law governs the action. Estate of Riddle v. S. Farm Bureau Life Ins. Co., 421 F.3d 400, 408 (6th Cir.2005).

I. Breach of contract.

The interpretation of an insurance contract is a question of law for the court. Brown v. Ind. Ins. Co., 184 S.W.3d 528 (Ky.2005). However, the interpretation of conflicting medical testimony generally presents a question of fact for a jury. Ginsburg v. Insurance Co. of North America, 427 F.2d 1318, 1320 (6th Cir.1970) ; but see United Ins. Co. v. Brown, 432 S.W.2d 428, 430 (Ky.App.1968) (reversing judgment because the facts, as presented by plaintiffs, only showed partial disability, not total disability). To survive summary judgment, the plaintiff must present evidence of a disability that is more than merely speculative. Rudder v. Ohio State Life Ins. Co., 389 S.W.2d 448, 451 (Ky.App.1965).

The parties agree that Argotte's insurance policies are “own occupation” policies, as opposed to non-occupational policies. (Docket # 43, 49). Accordingly, the question before the Court is not whether Argotte could perform “any occupation for which he may be fitted,” but rather whether Argotte could “perform the duties of a specific occupation.”

Ginsburg, 427 F.2d at 1321. Specifically, Argotte must be able to perform the “essential duties of his regular occupation.” Phelps v. UNUM Provident Corp., 2006 WL 2846976 *5, 2006 U.S. Dist. LEXIS 71020 *13 (W.D.Ky.2006) (“a dentist who cannot drill is not a dentist at all”).

In this case, the questions are whether Argotte's wrist injury

prevented him from performing the motions required of a surgeon or whether Argotte's central serous retinopathy obstructed the vision required of a surgeon. Since each party has moved for summary judgment on these issues, the Court will decide whether the opposing party has raised a factual dispute.

Northwestern Mutual has provided evidence which clearly supports its claim that Argotte is not disabled. For example, Martin performed an independent medical examination of Argotte's wrist injury

and concluded Argotte has “no limitations in the use of his hands that would preclude his return to his occupation as a general surgeon.” (Docket # 43–17). Kay reviewed the medical records pertaining to Argotte's eye condition and opined he could still perform surgery with the use of a monitor. (Docket # 43–34). Argotte strongly challenges both findings, criticizing Martin's expertise as he is a plastic surgeon and Kay's methodology as she performed only a “paper review” of Argotte's file. (Docket # 45).

Similarly, Argotte has presented evidence in support of his claim that he is disabled. Baker examined Argotte's eye condition and concluded that the central serous retinopathy

“interferes with vision needed to perform surgery.” (Docket # 43–24). Baker diagnosed Argotte in May, 2010 and sent letters to Northwestern Mutual in November, 2010 and June, 2012 confirming that Argotte's eye condition was “definitely interfering with his ability to perform the duties of his profession.” (Docket # 43–24;...