BILEZIKJIAN v. UNUM LIFE INS. CO. OF AMERICA, Case No.: SA CV 07-1438 AHS (ANX).

• Decision Date: 25 January 2010
• Docket Number: Case No.: SA CV 07-1438 AHS (ANX).
• Citation: 692 F. Supp.2d 1203
• Parties: Zaven BILEZIKJIAN, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Central District of California

692 F. Supp.2d 1203

Zaven BILEZIKJIAN, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, et al., Defendants.

Case No.: SA CV 07-1438 AHS (ANX).

United States District Court, C.D. California, Southern Division.

January 25, 2010.

Jeffrey C. Metzger, Jeffrey C. Metzger Law Offices, Laguna Hills, CA, Michael

Anthony Penn, Aitken Aitken and Cohn, Santa Ana, CA, for Plaintiff.

Edwin A. Oster, Barger and Wolen, Los Angeles, CA, Jenny H. Wang, Barger and Wolen, Irvine, CA, for Defendants.

ORDER: (1) DENYING PLAINTIFF'S MOTION FOR (2) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ALICEMARIE H. STOTLER, District Judge.

I. INTRODUCTION

Plaintiff suffers from carpal tunnel syndrome (CTS) as a result of his performing "big-bone" orthopedic surgeries for many years. His disability income insurance policies with the insurer defendants provide for coverage of a disability—inability to perform one's occupational duties—that results from "accidental bodily injury" occurring while each policy is in force. Because the insurer defendants contend that plaintiff's disability is not covered by the policies, plaintiff brought claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The case finds itself in a federal forum after defendant removed the action based on diversity of citizenship, signifying that California's substantive law must be applied to resolve the parties' pending cross-motions for summary adjudication or judgment. In the absence of controlling authority by the state supreme court, state intermediate appellate court decisions will govern unless there is convincing evidence that the state's supreme court would not likely follow them. The Court concludes that, under applicable state appellate court decisions, defendants are entitled to judgment because plaintiff's disability is not an "accidental bodily injury" under the California law governing interpretation of the policies in issue.

II. PROCEDURAL BACKGROUND OF PENDING MOTIONS

Dr. Bilezikjian brought suit against Unum Life Insurance Company of America and Unum Group (collectively, "Unum Life") in the Superior Court for the State of California, County of Orange, on November 6, 2007, alleging claims for breach of contract and breach of the duty of good faith and fair dealing. On December 13, 2007, Unum Life answered and removed the action pursuant to 28 U.S.C. § 1441(b).

On August 10, 2009, Unum Life filed a motion for summary judgment, or in the alternative partial summary judgment, as to both of Dr. Bilezikjian's claims as well as his prayer for punitive damages. On the same date, Dr. Bilezikjian also filed a motion for partial summary judgment on the ground that his disabling condition constitutes an "injury" as a matter of law under his three disability income insurance policies. On August 31, 2009, all parties filed opposition to the respective motions for summary judgment or partial summary judgment, and on September 4, 2009, all parties filed replies. The motions came on for hearing on October 19, 2009, at the conclusion of which the Court took the matters under submission. On January 19, 2010, Dr. Bilezikjian filed a "sur-reply" to point out new California Supreme Court authority.

III. SUMMARY OF FACTUAL HISTORY

A. Plaintiff's Disability

Dr. Bilezikjian is an orthopedic surgeon who practiced until becoming disabled in 2000 from CTS. (Declaration of Zaven Bilezikjian ("Bilezikjian Decl."), Ex. 3 at 42; Declaration of Jeffrey C. Metzger ("Metzger Decl."), Ex. 11, 60:6-11, 62:16, 64:6-10.) His surgical practice consisted of big-bone surgeries such as knee and hip replacements, which involved forceful hand activities requiring extensive use of screwdrivers, tapping instruments, saws, drills, chisels, and hammers. (Metzger Decl., Ex. 11, 60:6-10, 67:24-68:3; Ex. 12, 76:4-7, 79:1-5.) The machinery used in his medical procedures "vibrated like crazy against bone." (Metzger Decl., Ex. 11, 67:25-68:1.)

Dr. Bilezikjian was first diagnosed with CTS in 1992. (Bilezikjian Decl., Ex. 8 at 71; Metzger Decl., Ex. 11, 60:22-61:10.) His symptoms consisted of pain, numbness, and loss of dexterity when performing his surgical activities. (Metzger Decl., Ex. 11, 60:11-12, 25.) He underwent bilateral endoscopic release surgery in August 1992, which allowed him to return to his surgical practice. (Bilezikjian Decl., Ex. 8 at 71; Metzger Decl., Ex. 11, 61:12-22.) Sometime in 1998 or 1999, the pain, numbness, and loss of dexterity returned. (Metzger Decl., Ex. 9 at 8; Ex. 11, 61:24-62:10.) His treating physician, Richard Braun, M.D., diagnosed plaintiff with bilateral recurrent CTS caused by his work activities, which was exacerbated by the scar tissue that had developed from his first surgery. (Metzger Decl., Ex. 10 at 57:3-20; Ex. 12, 75:23-77:2.) Dr. Bilezikjian underwent a second carpal tunnel release surgery in July 2000. (Metzger Decl., Ex. 9 at 8; Ex. 11, 63:8-10.) He has been unable to continue his surgical practice since that time. (Metzger Decl., Ex. 11, 62:14-19, 63:13-19.)

B. Insurance Policies

Dr. Bilezikjian purchased four disability income policies from Unum Life, three of which are at issue in this case (collectively, "Policies"): (1) LAN530516: issued August 1, 1975; (2) LAN571805: issued October 15, 1977; and (3) LAN635270: issued February 24, 1981. (Bilezikjian Decl., Ex. 1 at 3; Ex. 2 at 15; Ex. 3 at 32; Ex. 7 at 68.)

All Policies contain an identical "Insuring Provision," which states that Unum Life insures against "disability and loss, as indicated in the Schedule," subject to any provisions, exceptions and reductions contained in the Policies, that results from:

(a) Sickness or disease of the Insured which first manifests itself while this policy is in force, hereafter called "sickness," or

(b) Accidental bodily injury occurring while this policy is in force, hereafter called "injury."

(Bilezikjian Decl., Ex. 1 at 3; Ex. 2 at 15; Ex. 3 at 32.) The terms "sickness," "accidental," and "injury" are not further defined in the Policies. (See Bilezikjian Decl., Exs. 1-3.)

The Policies'"Benefit Provisions" section provides benefits in the event of "Total Disability—Sickness" and "Total Disability—Accident." (Bilezikjian Decl., Ex. 1 at 4, 6; Ex. 2 at 16, 19; Ex. 3 at 33, 35.) The Policies define "Total Disability" as follows:

"Total disability" means the inability of the insured to perform the duties of his regular occupation. However, the total loss by the Insured of the use of both hands, both feet, or one hand and one foot, or the total loss of speech, hearing of both ears, or sight of both eyes shall be deemed to constitute a "Total Disability" so long as such total loss of use, speech, hearing, or sight shall continue, irrespective of whether the Insured engages in his or any other gainful occupation. (Bilezikjian Decl., Ex. 1 at 11; Ex. 2 at 23; Ex. 3 at 39.) The maximum benefit period for the Policies terminated on the later of the following two events: (1) "Age 65 policy anniversary," or (2) "24 months after disability payments commence." (Bilezikjian Decl., Ex. 1 at 5; Ex. 2 at 17; Ex. 3 at 34.) The Policies also exclude "any loss caused by war or any act of war, whether declared or undeclared," and stated that "under no circumstances will the Insured be considered to be suffering from more than one total disability at the same time." (Bilezikjian Decl., Ex. 1 at 6; Ex. 2 at 19; Ex. 3 at 35.)

Dr. Bilezikjian purchased two disability riders—one for "Accident Total Disability" and the other for "Sickness Total Disability Commencing Before Age 50"—that provided lifetime monthly benefits "in consideration of payment of the Rider Premium." (Bilezikjian Decl., Ex. 1 at 9-10; Ex. 2 at 21-22; Ex. 3 at 37-38.) The sickness rider provided lifetime benefits for total disability resulting from sickness before age 50, while the accidental injury rider provided lifetime benefits for injuries occurring before the policy's anniversary, which occurs on or following the insured's sixty-fifth birthday. (Id.) Both riders stated that payment of benefits would be made "as long as such total disability continues." (Id.) The riders did not further define "accident" or "sickness." (See id.)

C. Plaintiff's Disability Claims

After becoming disabled in March 2000, Dr. Bilezikjian filled out a claim form under his policies with Unum Life, including the three policies at issue in this case. (Declaration of Scott J. Shea ("Shea Decl."), Ex. 4.) He described his disabling condition as "recurrent bilateral carpal tunnel syndrome and multiple trigger fingers." (Shea Decl., Ex. 4 at 2.) He stated that his condition has impacted his daily living in the following ways: "I have stopped doing surgery. Hands are painful and stiff all the time. Cannot do any sports. Difficulty sleeping." (Id.) He indicated that he first noticed the symptoms in 1992, and when the form queried: "If injury, where and how did the injury occur," he drew a line, ostensibly indicating that the question was inapplicable. (Id., Ex. 4 at 1.) He also left the box blank under "Date the injury occurred." (Id.)

On May 18, 2000, Unum Life sent a letter to Dr. Bilezikjian indicating that it was "accepting liability" on his claims. (Bilezikjian Decl., Ex. 6 at 66.) It enclosed a check in the amount of $10,875.00, and stated that his policies provided a maximum monthly indemnity of $18,875.00. (Id.) The Policies at issue in this case contributed approximately $5,000 to that monthly maximum. (Bilezikjian Decl., Ex. 1 at 5; Ex. 2 at 17; Ex. 3 at 34.) In the same May 18, 2000 correspondence, Unum Life indicated that payment was being made under the "sickness" provision: "Under the Sickness provision of your policies, your elimination period is 30 days." (Bilezikjian Decl., Ex. 6 at 66.)

On September 24, 2001, Dr. Bilezikjian called Unum Life to ask whether he would receive lifetime benefits under the Policies because his CTS was caused by an accidental...