Karlin v. the Paul Revere Life Ins. Co.
| Decision Date | 24 September 2010 |
| Docket Number | Case No. 09–2079–JAR. |
| Parties | Charles KARLIN, M.D., Plaintiff,v.The PAUL REVERE LIFE INSURANCE COMPANY and The Unum Group f/k/a Unumprovident Corporation, Defendants. |
| Court | U.S. District Court — District of Kansas |
OPINION TEXT STARTS HERE
Adam B. Walker, Finra, Carly Duvall, Robyn Lyn Anderson, Lathrop & Gage, LLP, Kansas City, MO, for Plaintiff.Christopher J. Leopold, William E. Hanna, Stinson Morrison Hecker LLP, Kansas City, MO, for Defendants.
After his claim for total disability benefits under a disability insurance policy was denied, plaintiff Charles Karlin, M.D. filed this lawsuit against defendants, The Paul Revere Insurance Company and The Unum Group fka Unumprovident Corporation, alleging claims for breach of contract, attorney's fees pursuant to K.S.A. § 40–256, negligent misrepresentation, and declaratory judgment. This matter is before the Court on the parties' cross-motions for summary judgment (Docs. 18, 21). For the reasons set forth in detail below, the Court grants defendants' motion in part on the issue of whether the Policy is ambiguous and on Dr. Karlin's negligent misrepresentation claim, and denies both parties' motions on the issue of whether Dr. Karlin is totally disabled, without prejudice for renewal.
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” 1 In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.2 A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” 3 An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” 4
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.5 In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.6
Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” 7 The nonmoving party may not simply rest upon its pleadings to satisfy its burden.8 Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” 9 To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” 10 Rule 56(e) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.11 The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.12 “Where, as here, the parties file cross motions for summary judgment, we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” 13
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” 14 In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” 15
The following facts were jointly submitted by the parties,16 who stipulate that no genuine issue exists with respect to these facts, which are deemed admitted for purposes of the pending cross-motions for summary judgment.
On August 4, 1992, The Paul Revere Life Insurance Company (“Paul Revere”) 17 issued individual disability income policy, No. 0102576479 (“the Policy”) to Charles A. Karlin, M.D. (“Dr. Karlin”), who purchased the Policy at that time. The policy was delivered to Dr. Karlin in Kansas, and is attached to the Complaint as Exhibit 1.
Dr. Karlin is a 60–year–old medical doctor who has practiced in the area of radiology for more than twenty-five years. He is a full partner in two medical practices, Alliance Radiology and Johnson County Imaging. At various times during his career, Dr. Karlin has practiced both interventional radiology and general radiology. Interventional radiology uses radiological images to perform both surgical and non-surgical procedures. General, or “diagnostic” radiology involves the review of x-rays, MRI scans and other radiologic images outside of the operating room for diagnostic purposes.
The Policy provides that Paul Revere “will periodically pay a Total Disability benefit during Your Total Disability.” “Total Disability” is defined as:
because of Injury or Sickness:
a. You are unable to perform the important duties of Your Occupation; and
b. You are receiving Physician's Care.
The Policy defines “Your Occupation” as “the occupation or occupations in which You are regularly engaged at the time Disability begins.”
“Residual Disability” is defined as:
a. (1) You are unable to perform one or more of the important duties of Your Occupation; or
(2) You are unable to perform the important duties of Your Occupation for more than 80% of the time normally required to perform them; and
b. You are receiving Physician's Care....
c. You are not Totally Disabled.
Residual Disability also requires a “Loss of Earnings,” which is defined by the Policy to mean loss of at least 20% of prior earnings.
The application for disability insurance submitted by Dr. Karlin is attached to the Policy. In the application, dated January 14, 1991, Dr. Karlin identified his “Occupation” as “Radiologist–Physician, M.D.”
In the event of Total Disability, Dr. Karlin's Policy provides a monthly benefit of $16,600 after a 90–day elimination period. Dr. Karlin's Policy also contains a cost-of-living adjustment provision and a rider extending the maximum benefit period through his entire lifetime.
In a letter from Paul Revere to Dr. Karlin dated March 17, 1993, Paul Revere stated:
We are glad to welcome you as a policyholder, and to clarify what we mean in your policy by “Your Occupation.”
... We understand your current occupation to be that of a specialist in the field of diagnostic radiology.
If immediately prior to the time disability begins, you were performing the important duties of that specialty and then, were unable to perform those duties, you would be considered unable to perform the important duties of Your Occupation. The fact that you could be working in some other occupation or specialty would not preclude the payment of Total Disability benefits.
If you returned to your occupation performing some or all of your important duties, you could be eligible for Residual or Recovery benefits based on proportionate income loss due to the injury or sickness.
In May 2004, Dr. Karlin first made a claim for “Total Disability” under the Policy. The claim forms did not identify an onset date of disability. In his claim, Dr. Karlin listed his occupation as “Physician interventional radiologist.” He also listed his job title as “Physician” and identified his fields of specialty as “Interventional & Neuro Radiology.” Dr. John Browne, Dr. Karlin's treating physician, listed his diagnosis as “Rt. Knee end stage patellofemoral degenerative joint disease.” Dr. Karlin maintained that he could no longer practice as an interventional radiologist because, as a result of his knee condition, he could not stand for long periods of time. As a result of his knee pain, Dr. Karlin stated that he switched from performing the duties of an interventional radiologist to those of a diagnostic radiologist.
In the course of subsequent investigation by Paul Revere, Dr. Karlin stated that his onset of disability was May 1, 2004, when a newly hired radiologist took over Dr. Karlin's interventional radiology duties, but that he had resumed his interventional radiology duties when his replacement left the practice on January 31, 2005.
On December 1, 2004, Paul Revere referred Dr. Karlin's claim for a “Vocational Rehabilitation Review.” The referral stated: “The insured is an interventional radiologist.”
On February 24, 2005, Dr. Karlin notified Paul Revere that, because of personnel changes at his practice, he had temporarily resumed interventional radiology duties as of February 1, 2005. Dr. Karlin continued to pursue benefits under the Policy for the period ending February 1, 2005.
On March 11, 2005, Paul Revere notified Dr. Karlin that it was paying Total Disability benefits from May 1, 2004 through February 1, 2005, less the 90–day elimination period. Dr. Karlin's Total Disability benefits for this period totaled $100,706.66. The March 11, 2005 letter stated:
We also understand that you will continue to work as an interventional radiologist until a replacement is hired by your employer. At that time you will consider right knee surgery, and after your surgery, you plan to return to work as a general diagnostic radiologist. We would like to inform you that, should you pursue further disability benefits in the future, we will need additional information to verify your status at that time.
On March 24, 2006, Dr. Karlin submitted a second claim form, again alleging Total Disability from his occupation resulting from degenerative...
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