Berry v. Paul Revere Life Ins. Co.

• Citation: 21 So.3d 385
• Decision Date: 09 July 2009
• Docket Number: No. 2008 CA 0945.,2008 CA 0945.
• Parties: R. Lee BERRY, M.D. v. The PAUL REVERE LIFE INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana (US)

21 So.3d 385

R. Lee BERRY, M.D. v. The PAUL REVERE LIFE INSURANCE COMPANY.

No. 2008 CA 0945.

Court of Appeal of Louisiana, First Circuit.

July 9, 2009.

Rehearing Denied September 14, 2009.

L. Kevin Coleman, Mandeville, Louisiana, and Fritz B. Ziegler, Covington, Louisiana,

for Plaintiff/Appellant R. Lee Berry, M.D.

Richard E. McCormack, Edward W. Trapolin Kelly G. Juneau, New Orleans, Louisiana, for Defendant/Appellee, The Paul Revere Life Insurance Company.

Before WHIPPLE, KUHN, GUIDRY, GAIDRY, and McCLENDON, JJ.

GAIDRY, J.

This is an appeal by the plaintiff, R. Lee Berry, M.D. (Dr. Berry), of a summary judgment granted in favor of the defendant, The Paul Revere Life Insurance Company (Paul Revere). That judgment dismissed the plaintiffs claims, finding that the two disability policies issued by the defendant to the plaintiff do not provide coverage for his claimed disability of drug addiction.¹ For the following reasons, we find the trial court erred in granting Paul Revere's motion for summary judgment, as there remain genuine issues of material fact. For the same reason, we affirm the trial court judgment denying Dr. Berry's motion for summary judgment. Accordingly, we reverse in part, affirm in part, and remand.

BACKGROUND FACTS

The facts leading up to Dr. Berry's claim for disability are generally undisputed. The plaintiff was a resident in anesthesiology in the early 1990s in Arizona. After completing his residency, he practiced as a board-certified anesthesiologist from 1996 through November 2002.² During that time, and culminating in November 2002, at the age of 35, Dr. Berry became addicted to prescription drugs, primarily Demerol, available to him in his practice in Covington, Louisiana. As a result, he left that medical practice in March 2001. According to Dr. Berry, he discontinued his abuse of Demerol for approximately one year, at which time he began working as an anesthesiologist in the state of Washington.

Dr. Berry began abusing Demerol again in the fall of 2002. On November 12, 2002, while employed in Washington, Dr. Berry attended a tubal ligation procedure while allegedly under the influence of Demerol. He was further alleged to have committed malpractice which rendered the patient under his care in a permanent vegetative state. Following this incident, he was investigated and found to have diverted narcotics from patients in five different cases. Immediately following that investigation, Dr. Berry entered the Primary Intensive Treatment portion of the Hazelden Springbrook program in Portland, Oregon. Following the completion of the initial phase of treatment at Hazelden, Dr. Berry returned to Louisiana in January 2003 and began treatment with the "Addictive Behavior Unit" at Ochsner Clinic Foundation, and continues to date under the care of a "treatment team" of Dr. Eileen Correa, a psychologist, and Dr. Dean Hickman, a psychiatrist, both specialists in addictive disease. According to Dr. Berry, he also attends Alcoholics Anonymous (AA) meetings two to three times a week and has been drug free since November 15, 2002.

As a result of the Washington incident and further investigations, Dr. Berry's medical licenses in Arizona, Washington, and Louisiana were suspended. The Louisiana State Board of Medical Examiners Consent Order, rendered in February 2005, specifically prohibits Dr. Berry from practicing in the field of anesthesiology. It further prohibits him from prescribing, dispensing, or administering a large variety of medications and from practicing in the fields of pain management, involving the use of controlled substances. Pursuant to the consent order, the prohibitions are to last "for the remainder of his medical career."

PROCEDURAL BACKGROUND

In January 2003, Dr. Berry filed claims for disability benefits pursuant to two separate policies he had through the defendant insurer, Paul Revere. Paul Revere paid him full disability benefits under both policies for approximately two and a half years, from March 2003 through August 2005, when it deemed him to be no longer presently disabled under the terms of the policy. At the time that Paul Revere discontinued paying disability benefits, Dr. Berry had been drug free since November 15, 2002, was in continuous rehabilitative treatment, and had no license to practice anesthesiology in the State of Louisiana (his covered occupation).

On April 5, 2006, Dr. Berry filed a petition for damages against Paul Revere, claiming that his addiction to prescription medications rendered him permanently and totally disabled from the practice of anesthesiology, because resuming his practice would require him to handle a great variety of narcotic and other controlled substances, in turn, increasing his risk of relapse. Dr. Berry alleged that Paul Revere was arbitrary and capricious in terminating his benefits, thereby entitling him to recover the full benefits under both policies, as well as statutory penalties, interest, costs, and attorney's fees.

In May 2007, Dr. Berry filed a Motion for Summary Judgment, or alternatively, for Partial Summary Judgment, declaring that he is totally disabled from his occupation under the terms of both disability policies for the remainder of his life. He also sought judgment ordering the payment of benefits from September 1, 2005 (the date after benefits were terminated) through the date of the judgment,³ together with legal interest from the date due until paid. Finally, he prayed for judgment also ordering payment of the present value of all future benefits due under the two policies,⁴ together with legal interest from the date of the breach of the contract (August 31, 2005), the date benefits were terminated, until paid. Dr. Berry also alleged that Paul Revere was in bad faith and without just and reasonable grounds for terminating benefits and therefore sought statutory penalties pursuant to La. R.S. 22:657, in the amount of double the value of all past due benefits, which the plaintiff asserted to be $242,970.00 on June 13, 2007, together with costs and reasonable attorney's fees.

The trial court denied Dr. Berry's motion. Paul Revere subsequently filed its own motion for summary judgment asserting that there are no genuine issues of material fact and that the plaintiffs risk of relapse does not constitute a present total disability as defined and provided for in the policies at issue. Therefore, according to the defendant, Dr. Berry is not entitled to benefits, and Paul Revere is entitled to judgment in its favor, dismissing his claims with prejudice.

The trial court granted Paul Revere's motion and dismissed plaintiffs claims in a judgment dated October 24, 2007. Dr. Berry appeals that judgment.

STANDARD OF REVIEW

An appellate court reviews the district court's decision to grant or deny a motion for summary judgment de novo using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 07-2555, p. 5 (La.App. 1st Cir.8/11/08), 993 So.2d 725, 729-30.

SUMMARY JUDGMENT

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party's claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Samaha v. Rau, 07-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883. The plaintiff may not rest on mere allegations or denials, but must set forth specific facts that show that a genuine issue of material fact remains. If the plaintiff fails to meet this burden, there is no genuine issue of material fact, and the defendant is entitled to summary judgment as a matter of law. Bd. of Supervisors of La. State Univ. v. Louisiana Agr. Fin. Auth., 07-0107, p. 9 (La.App. 1st Cir.2/8/08), 984 So.2d 72, 79-80.

As mover, Paul Revere bore the burden of proving that no genuine issue of material fact remains regarding Dr. Berry's disability status, and that it is entitled to judgment in its favor as a matter of law.⁵ Since Dr. Berry would bear the burden of proving entitlement to benefits at trial, Paul Revere need only show the absence of factual support for one or more elements of Dr. Berry's claim for benefits.

ARGUMENTS

The sole issue in this appeal is whether Dr. Berry is entitled to disability benefits, a determination that is controlled by the policy language and the facts herein. Both policies in relevant part provide:

1.6 "Sickness" means sickness or disease which first manifests itself after the Date of Issue and while Your Policy is in force.

1.7 "Physician" means any licensed practitioner of the healing arts practicing within the scope of his or her license. A Physician must be a person other than You.

1.8 "Physician's Care" means the regular and personal care of a Physician which, under prevailing medical standards, is appropriate for the condition causing the disability.

1.9 "Your Occupation" means the occupation or occupations in which You are regularly engaged at the time Disability begins.

1.10 "Total Disability" means that because of Injury or Sickness:

a. You are unable to perform the important duties of Your Occupation; and

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