Hepp v. Paul Revere Life Ins. Co.

• Decision Date: 31 July 2015
• Docket Number: Case No. 8:13–cv–02836–EAK–TBM.
• Citation: 120 F.Supp.3d 1328
• Parties: Walter R. HEPP, M.D., Plaintiff, v. The PAUL REVERE LIFE INSURANCE COMPANY, Provident Life and Accident Insurance Company, and the Unum Group, Defendants.
• Court: U.S. District Court — Middle District of Florida

120 F.Supp.3d 1328

Walter R. HEPP, M.D., Plaintiff,
v.
The PAUL REVERE LIFE INSURANCE COMPANY, Provident Life and Accident Insurance Company, and the Unum Group, Defendants.

Case No. 8:13–cv–02836–EAK–TBM.

United States District Court, M.D. Florida, Tampa Division.

Signed July 31, 2015.

120 F.Supp.3d 1331

Anita Rosenthal, Steven C. Dawson, Dawson & Rosenthal, P.C., Sedona, AZ, Jeffrey K. Rubin, Seatle, WA, Michael S. Taaffe, Jarrod Malone, Shumaker, Loop & Kendrick, LLP, Sarasota, FL, for Plaintiff.

David Harvey, Timon V. Sullivan, Ogden & Sullivan, PA, Tampa, FL, Kristina B. Pett, Pett Furman, PL, Boca Raton, FL, Theona Zhordania, Sheppard Mullin Richter & Hampton LLP, Los Angeles, CA, for Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

ELIZABETH A. KOVACHEVICH, District Judge.

THIS CAUSE is before the Court on Plaintiff's Motion for Summary Judgment as to Count One and Defendants' Affirmative Defenses (Doc. 145), Defendants' Motion for Summary Judgment (Doc. 149), Defendants' Response in Opposition to Plaintiff's Motion for Summary Judgment as to Count One and Defendants' Affirmative Defenses (Doc. 153), and Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment (Doc. 154). For the reasons set forth below, Defendants' Motion for Summary Judgment (Doc. 149) is DENIED and Plaintiff's Motion for Summary Judgment (Doc. 145) is GRANTED IN PART, with respect to Defendants' Seventh, Eighth, Eleventh, Twelfth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, and Twenty–First Defenses, and DENIED IN PART as to all other defenses and to Count One.

PROCEDURAL HISTORY

Plaintiff filed this action on November 6, 2013, against The Paul Revere Life Insurance Company, The Unum Group, and Provident Life and Accident Insurance Company for failing to pay total benefits on two long-term, own-occupation, professional disability insurance plans that Plaintiff had purchased to protect the income from his medical practice. (Doc. 1). In his Complaint (Doc. 1), Plaintiff alleges nine counts of misconduct by the Defendants. These include: (1) breach of contract, (2) violation of Chapter 624 of the Florida Statutes (bad faith), (3) breach of fiduciary duties, (4) breach of covenant of good faith and fair dealing, (5) violation of 18 U.S.C. § 1962(a), a Federal RICO statute, (6) violation of 18 U.S.C. § 1962(b), a Federal RICO statute, (7) violation of 18 U.S.C. § 1962(c), a Federal RICO statute, (8) fraud as to statements and omissions regarding the nature and quality of Plaintiff's policy, and (9) fraud as to Plaintiff's occupational determination, CPT code analysis, and claims determinations.

120 F.Supp.3d 1332

On May 29, 2015, both Defendants (Doc. 149) and Plaintiff (Doc. 145) filed Motions for Summary Judgment. On the same day, Defendants filed a Statement of Undisputed Facts (Doc. 148), Plaintiff filed a Statement of Undisputed Facts (Doc. 146), and Defendants filed a Joint Statement of Undisputed Facts (Doc. 147) on behalf of both parties. On June 18, 2015, both Plaintiff (Doc. 154) and Defendants (Doc. 153) filed Responses in Opposition to the respective Motions for Summary Judgment. Additionally, Plaintiff (Doc. 155) and Defendants (Doc. 152) filed Statements of Disputed Facts on June 18, 2015.

On June 23, 2015, Defendants filed a Motion to Strike the Declarations of Beverly Camp (Doc. 158). Plaintiff filed a Response in Opposition to the Motion to Strike (Doc. 161) on June 25, 2015. Additionally, Defendants filed Motion to Seal Exhibits "SS" and "TT" (Doc. 162) on June 26, 2015. Plaintiff filed a Response in Opposition to the Motion to Seal (Doc. 163) on June 26, 2015. The Court denied both of the Defendants' Motions on July 2, 2015. (Doc. 164).

On July 14, 2015, Plaintiff filed a Motion to Take a Deposition of Jack McGarry. (Doc. 166). Defendants filed a Response in Opposition to the Motion to Take Deposition (Doc. 168) on July 27, 2015. The Court denied Plaintiff's Motion for Leave to Depose Jack McGarry on July 28, 2015. (Doc. 171). Having decided these Motions, this Court can now decide Defendants' and Plaintiff's Cross–Motions for Summary Judgment. (Doc. 145); (Doc. 149).

STATEMENT OF THE FACTS

The following facts are submitted by the parties in support and/or in opposition to their respective motions for summary judgment. The Court recognizes these as "facts" only in regard to the resolution of the pending motion.

Plaintiff, Walter R. Hepp, M.D., ("Dr. Hepp"), is a medical doctor operating primarily out of Sarasota in the State of Florida. (Doc. 1:2). Defendant The Unum Group ("Unum") is a Delaware corporation with its principal place of business in Tennessee. (Doc. 28:1). Defendant The Paul Revere Life Insurance Company ("Paul Revere") is a Massachusetts corporation with its principal place of business in Massachusetts. (Doc. 28:1). Defendant Provident Life and Accident Insurance Company ("Provident") is a Tennessee corporation with its principal place of business in Tennessee. (Doc. 28:1–2). Plaintiff alleges an amount in controversy in excess of $75,000.00, and diversity jurisdiction is therefore proper pursuant to 28 U.S.C. § 1332.

On or about June 4, 1992, Dr. Hepp was issued an individual disability policy from Paul Revere. (Doc. 147:1). This Policy was # 01025591750 ("Policy 1"). (Doc. 147:1). On or about September 19, 1994, Dr. Hepp was issued another individual disability policy. (Doc. 147:1). This policy was from Provident and is Policy # 52–05103794 ("Policy 2"). (Doc. 147:1). Collectively, Policy 1 and Policy 2 will be referred to as "the Policies." Paul Revere and Provident are subsidiaries of Unum. (Doc. 28:2). Unum administers all claims on behalf of Paul Revere and Provident. (Doc. 28:2).

Dr. Hepp obtained a degree in medicine from Tufts University in 1984. (Doc. 147:4). He completed three years of internship and residency in internal medicine from 1984 to 1987 at Harvard–Deaconess Hospital in Boston, Massachusetts. (Doc. 147:4). Following two years of cardiology fellowship at Presbyterian University in Philadelphia, Pennsylvania, Dr. Hepp completed a one-year fellowship in electrophysiology at Presbyterian University.

120 F.Supp.3d 1333

(Doc. 147:4). Electrophysiology is a subspecialty of cardiology. (Doc. 148:2).

Dr. Hepp received board certification in Internal Medicine in 1987, board certification in Cardiovascular Disease in 1989, and board certification for Clinical Cardiac Electrophysiology in 1994. (Doc. 147:5). At all times up until May of 2011, Dr. Hepp was board certified in Clinical Cardiac Electrophysiology and performed invasive cardiac electrophysiology procedures. (Doc. 147:5). From 2010 through the present, Dr. Hepp has worked for The Heart Specialists in Sarasota, Florida. (Doc. 147:5).

Dr. Hepp suffered sudden numbness and severe pain in his arm during a surgical procedure on May 20, 2011. (Doc. 147:5). Dr. Hepp suffered two herniated discs. (Doc. 147:5). The invasive procedures performed by an electrophysiologist require the use of a lead apron. (Doc. 148:3). After his injury, Dr. Hepp was medically restricted from performing any invasive electrophysiological procedures that require the use of a lead vest. (Doc. 147:5). The invasive procedures that Dr. Hepp was performing, EP studies and ablations, both require the use of a lead vest. (Doc. 147:5). Dr. Hepp continues to work, however his practice is devoid of invasive electrophysiology procedures. (Doc. 148:17).

On June 5, 2011, Dr. Hepp filed a written notice of claim with Unum stating that he was an invasive Electrophysiologist who could no longer perform procedures due to herniated discs in his neck. (Doc. 147:5). Plaintiff's claim was initially assigned to Dawn Doud, a Disability Benefits Specialist at Unum. (Doc. 148:14). On March 9, 2012, Ms. Doud informed Plaintiff that he did not qualify for "Total Disability" benefits, but rather only qualified for "Residual Disability" Benefits. (Doc. 146:15). Melissa Walsh, an Appeals Specialist at Unum, conducted an internal appeal at Plaintiff's request on September 18, 2012. (Doc. 148:16). On December 14, 2012, Ms. Walsh informed Plaintiff's counsel that the initial determination on Plaintiff's claim was upheld. (Doc. 148:16).

The parties dispute whether Plaintiff was entitled to residual disability benefits or total disability benefits. Defendants contest that Plaintiff's pre-injury practice consisted of both electrophysiology and general cardiology. (Doc. 148:2). Defendants argue that Plaintiff's ability to continue to practice non-invasive, general cardiology procedures precludes his recovery of total disability benefits under the Policies. (Doc. 149). Additionally, Defendants argue that Plaintiff's inability to perform only invasive procedures precludes his ability to recover total disability benefits under the Policies. (Doc. 149). Conversely, Plaintiff argues that Defendants solely denied Plaintiff's claim for total disability benefits as part of a larger "scheme" to use CPT codes to classify medical specialists out of their occupations and pocket the money. (Doc...