Giddens v. Equitable Life Assur. Soc. of U.S.

Decision Date01 November 2004
Docket NumberNo. 1:02-CV-2094-RWS.,1:02-CV-2094-RWS.
CourtU.S. District Court — Northern District of Georgia

Kenneth L. Shigley, Shigley Law Firm, Atlanta, GA, for Plaintiff.

Michael Andrew Coval, Andrea K. Cataland, Carter & Ansley, Thomas Frank Richardson, Chambless Higdon & Carson, Macon, GA, for Defendants.


STORY, District Judge.

Now before the Court are Plaintiff's Motion for Partial Summary Judgment [41-1], Plaintiff's Motion for Leave of Court to Identify Economist and File Separate Motion for Summary Judgment on Calculation of Damages [45-1], Defendant's Motion for Summary Judgment [46-1], Consent Motion to Extend Time to Respond to Motions for Summary Judgment [52-1], Defendant's Motion in Limine to Exclude the Affidavit and Testimony of M. Patrice Webster, M.D. [62-1], Defendant's Motion in Limine to Exclude the Affidavit and Testimony of James R. Spivey, M.D. [63-1], and Plaintiff's Request for Leave to Supplement Record and Submit Supplemental Memorandum of Law [77-1].1

As a preliminary matter, the parties' Consent Motion to Extend Time to Respond to Motions for Summary Judgment [52-1] is GRANTED nunc pro tunc. Likewise, Plaintiff's Request for Leave to Supplement Record and Submit Supplemental Memorandum of Law is GRANTED [77-1].2 The Court considers the remaining motions before it following its review of the entire record.


Plaintiff Allen Giddens ("Dr.Giddens") initiated this action in the Superior Court of Fulton County, Georgia, seeking to recover benefits under certain Disability Income Policies (the "Policies") issued by Defendant The Equitable Life Assurance Society of the United States ("Equitable"). Equitable removed the case to this Court based on diversity of citizenship in July of 2002.

I. The Policies

The relevant Policies are consistent in defining "Total Disability" as follows:

TOTAL DISABILITY means your inability due to injury or sickness to engage in the substantial and material duties of your regular occupation. It will not be considered to exist for any time you are not under the regular care and attendance of a doctor.

(See Def.'s Mem. of Law in Supp. of Mot. for Summ. J. [46-1], Ex. 1.) The term, "your regular occupation," is in turn defined as "the occupation (or occupations, if more than one) in which you are regularly engaged for gain or profit at the time you become disabled." (Id.)

In addition to promising the payment of benefits during the pendency of any "totally disability" of the insured, the Policies contain a "Recurrent Disabilities" clause, which, as amended, states:

RECURRENT DISABILITIES. Successive periods of total disability or residual disability (if residual disability coverage is provided in this policy) will be considered one continuous period if: (1) they occur while this policy is in force; and (2) they result from the same or related causes; and (3) such periods are not separated by [twelve] months or more. Otherwise, they will be considered separate periods of disability.

(Id.; see also Aff. of Philip Verdi ¶ 9 (testifying that Policies were amended to expand recurrent period from six to twelve months).)

Under the terms of the Policies, written proof of any loss must be provided to Equitable at its home office within ninety days "of the end of the monthly period for which [it is] liable." (Id.) The Policies additionally contain a provision stating that "[n]o ... action may be brought after 3 years from the time written proof of loss is required to be given." (Id.)

II. The Insured

Dr. Giddens graduated from dental school and became a licensed dentist in the State of Georgia in 1982. (Aff. of Allen Giddens ¶ 2.) After completing an internship with the Veterans Administration Hospital, he began operating a private dental office in Hawkinsville, Georgia in 1983. (Id.) He continued to practice general dentistry in that capacity until 1994, when he sold his practice to another dentist. (Id.) According to Dr. Giddens, it was his intention to open another dental office in Macon, Georgia in a building he had previously acquired. (Id.) Dr. Giddens testified that he fell ill in 1994, however, and that his health from that point forward did not permit him to open the practice as he had contemplated. (Aff. of Allen Giddens ¶ 6.)

Dr. Giddens cancelled his dental malpractice liability insurance coverage in 1994, shortly after he sold his Hawkinsville, Georgia office and ceased to engage in the active practice of dentistry. (See Dep. of Allen Giddens at 74.) Nevertheless, he remained a licensed dentist in good standing with the State of Georgia until December 31, 1999. (See Def.'s Resp. to Pl.'s Statement of Material Facts as to Which he Contends There is No Genuine Issue to be Tried [64-1] ¶ 21.) In addition, Dr. Giddens continued to subscribe to certain professional journals in the field of dentistry, and at some point following the sale of his practice, applied for a position as a dentist with the State Merit System. (Dep. of Allen Giddens at 33-34, 52-56.) Furthermore, Dr. Giddens testified that he continues to perceive his primary profession as that of dentistry, and that it was his intention to open a dental office in Macon until the time he became disabled. (Id. at 51, 156-57.)3

According to Dr. Giddens, "the functional requirements and tasks" involved in the practice of dentistry include:

stamina to do detailed work while standing and interacting closely with patients several hours per day; good hand coordination; ability to do precise and detailed work; good communication skills; ability to concentrate; examination of patients' teeth and mouth; analyze x-rays and evaluate dental needs; plan treatment and health promotion programs; treat teeth and tissue problems; keep records of the work done on patients; perform surgery, such as on gums or on supporting bones; extract teeth; make models for replacement teeth; take accurate measurements for new teeth; provide instruction on dental care; administer anesthetics to patients; write prescriptions for patients; use equipment and tools, such as drills or mouth mirrors; manage and hire staff, supervise workers and office processes; and manage business and financial operation.

(Aff. of Allen Giddens ¶ 3.)

Concurrent with his practice of dentistry, and following the sale of his dental practice in 1993-94, Dr. Giddens also engaged in real estate development and investment. (Id. ¶ 4.) Although Dr. Giddens has come forward with testimony that, health permitting, his role in this enterprise occasionally involved physical components, the evidence of record shows that this endeavor was primarily administrative in nature, with the physical labor being performed by others. (See Def.'s Mem. of Law in Supp. of Mot. for Summ. J. at Exs. 7, 9 & 10.) Dr. Giddens has testified that, with his wife's assistance, he was able to engage in this undertaking until 1998, when his health prevented him from continuing. (See Aff. of Allen Giddens ¶ 4.)

According to Dr. Giddens, the "functional requirements and tasks for the occupation of construction management and real estate development" are as follows:

entrepreneurial vision and energy; planning real estate projects; selection of house plans and materials; selection of contractors; supervision of construction superintendent(s); periodic inspection of contractors' work quality; financial management of development and construction projects; supervise compliance with building and other regulatory codes; project scheduling; pay bills; pay contractors; work with banks, government agencies, and financial consultants as needed; calculating the feasibility of projects, reviewing sites, and planning for contingencies; and coordination dealings with realtors and agents.

(Id. ¶ 5; see also Lawrence Stewart Harris Dep. at 17-18.)

III. The Insured's Claims and Condition

Dr. Giddens has submitted two claims to Equitable under the subject Policies. In the first, made in February of 1995, Dr. Giddens stated that he became disabled on June 7, 1994 due to "terrible pain in [his] left hip[.]" (Def.'s Mem. of Law in Supp. of Mot. for Summ. J., Ex. 11.) The accompanying Attending Physician's Statement, submitted by a Dr. James R. Robertson, diagnosed Dr. Giddens as suffering from "transient osteoporosis" and "a vascular necrosis," (id.), characterized as "the sum of the morphological changes indicative of cell death and caused by the progressive degradative action of enzymes" resulting from deficient blood supply. Dorland's Illustrated Medical Dictionary 1101 (27th ed.1988). Dr. Robertson opined that the condition dated back to a slipped capital femoral epiphysis Dr. Giddens encountered at the age of 12. (Def.'s Mem. of Law in Supp. of Mot. for Summ. J., Ex. 11.)

Following its receipt of this claim, Equitable requested certain information from Dr. Giddens in accordance with the Policies, including an occupational description, a progress report, the names of his treating physicians, and a statement explaining why the claim was submitted outside the thirty day window prescribed by the Policies. (Aff. of Philip Verdi ¶ 5.) Dr. Giddens did not respond to these requests, and in his own words, failed to "follow through" with his claim because he was optimistic regarding his condition and believed his hip was improving. (Def.'s Mem. of Law in Supp. of Mot. for Summ. J., Ex. 4.) According to Dr. Giddens, in the years following the submission of this first claim, his health "waxed and waned[.]" (Aff. of Allen Giddens ¶ 6.) Then, in October of 1998, Dr. Giddens began experiencing symptoms such as fatigue and abdominal pain. (Def.'s Mem. of Law in Supp. of Mot. for Summ. J., Ex. 14.) He sought treatment at the Mayo Clinic located in Jacksonville, Florida, where he was diagnosed with cryogenic cirrhosis, a...

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  • Giddens v. Equitable Life Assur. Soc. of U.S., No. 05-10816.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 12 Abril 2006 to the 1999 claim based on his being totally disabled from his real estate occupation. Giddens v. The Equitable Life Assurance Soc'y of United States, 356 F.Supp.2d 1313 (N.D.Ga.2004). The district court determined that Giddens was engaged in the "regular occupation" of real estate devel......

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