Mowers v. Paul Revere Life Ins. Co.

• Citation: 27 F.Supp.2d 135
• Decision Date: 25 November 1998
• Docket Number: No. 98-CV-86.,98-CV-86.
• Parties: Howard T. MOWERS, Plaintiff, v. The PAUL REVERE LIFE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of New York

27 F.Supp.2d 135

Howard T. MOWERS, Plaintiff, v. The PAUL REVERE LIFE INSURANCE COMPANY, Defendant.

No. 98-CV-86.

United States District Court, N.D. New York.

November 25, 1998.

COPYRIGHT MATERIAL OMITTED

John P. Speer, Little Falls, NY, for Plaintiff.

Kernan & Kernan, Utica, NY (Matthew E. Hamlin, of counsel), for Defendant.

MEMORANDUM-DECISION AND ORDER

HURD, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff, Howard Mowers ("Mowers" or "plaintiff"), originally commenced this action in state court alleging causes of action for breach of an insurance contract, tortious breach of duty of good faith and fair dealing, and fraud. Defendant, Paul Revere Life Insurance Company ("Paul Revere" or "defendant") removed the action to federal court and now moves for summary judgment dismissing plaintiff's complaint in its entirety, pursuant to Rules 56(b) and 12(b)(6) of the Federal Rules of Civil Procedure. In the alternative, defendant seeks to have a state court preliminary injunction declared void. Plaintiff has cross-moved for summary judgment on the breach of contract claim. Oral argument was heard on October 1, 1998 in Utica, New York. Decision was reserved.

II. FACTS

Plaintiff was a self-employed chiropractor and purchased a disability insurance policy from Paul Revere beginning in July 1989 which provided coverage in the event that plaintiff became totally disabled from his work. The pertinent contract provision states: "Total disability means that because of injury or sickness: a. You are unable to perform the important duties of Your Occupation; and b. You are under the regular and personal care of a Physician." (McKiernan Aff.Ex. A.) In August 1992, Mowers injured his lower back at work and was forced to reduce his work hours until, eventually, he ceased working entirely.

Plaintiff began receiving disability payments from defendant in November 1992 in the amount of $3760.00 per month. In the fall of 1993, Paul Revere stopped paying benefits to Mowers, requiring further confirmation of his injuries. At the request of Paul Revere, Mowers submitted to five Independent Medical Exams ("IME") by physicians of the defendant's choosing between 1993 and 1994. Three of the five explicitly confirmed that he remained totally disabled from his work as a chiropractor. The other two examinations confirmed that plaintiff cannot lift patients. Plaintiff was also under the continuous care of Dr. Gary Witchley. Upon confirmation of Mowers' continued disability, Paul Revere resumed paying benefits to plaintiff.

In February 1997, plaintiff submitted to a requested sixth IME, performed by Dr. Warren Rinehart. Dr. Rinehart indicated in his report that plaintiff might be able to resume part-time work, limiting his practice to conducting IMEs and working only with patients with problems in their cervical vertebrae. After Dr. Rinehart's report, the defendant made arrangements for two functional capacity evaluations ("FCE") for July 28, 1997 and September 3, 1997 to determine the extent of plaintiff's disability. Plaintiff did not attend either evaluation (the second one was scheduled after plaintiff was unable to attend the first one). Effective September 1, 1997, defendant stopped paying plaintiff benefits based upon Dr. Rinehart's opinion that plaintiff retained the ability to engage in some aspects of chiropractics.

Mowers filed suit in the Supreme Court of the State of New York, County of Herkimer. He brought an order to show cause for a preliminary injunction requiring Paul Revere to continue paying benefits during the pendency of the lawsuit. Acting Supreme Court Justice Patrick Kirk heard the motion on January 14, 1998. He granted the injunction by verbal order from the bench, but permitted Paul Revere to stop paying Mowers if he failed to attend a FCE within two months. The defendant removed the action to federal court pursuant to 28 U.S.C. § 1446, filing and serving a petition by mail on January 16, 1998. Judge Kirk did not sign a written order until February 6, 1998.

Thereafter, defendant scheduled a FCE three months later, on April 20, 1998, and notified plaintiff's attorney. After plaintiff failed to attend, Paul Revere never resumed disability payments. Plaintiff subsequently voluntarily submitted to a FCE on July 28, 1998, at JobReady, the same place the FCEs had previously been scheduled by defendant. The occupational therapist at JobReady concluded that plaintiff could not do his previous work as a chiropractor.

In its motion for summary judgment, Paul Revere alleges that plaintiff failed to meet a condition precedent in the insurance policy; that plaintiff submit to reasonable independent medical exams and cooperate in determining whether plaintiff is totally disabled. The contract states that defendant "can have a Physician of [its] choice examine [plaintiff] as often as reasonably required while [the] claim is continuing." (McKiernan's Aff.Ex. A.)

Defendant also seeks summary judgment on the plaintiff's fraud claim, arguing that plaintiff has failed to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). More specifically, defendant argues that (1) plaintiff has failed to plead the allegations of fraud with particularity, as required by Fed.R.Civ.P. 9(b) and (2) the Statute of Limitations has expired. Finally, as an alternative to summary judgment, defendant seeks to have the state court preliminary injunction declared void on the grounds that Judge Kirk's verbal order was ineffective and the state court was divested of jurisdiction at the time of removal.

The plaintiff has cross-moved for summary judgment on the breach of contract claim. He argues: (1) There is no dispute that defendant did not pay him benefits after September 1, 1997; (2) he has proven that he is totally disabled from his occupation; and (3) he was reasonable in not attending the FCE requested by Paul Revere after Dr. Rinehart's examination. Therefore, he claims, no issue of fact exists for a jury and he is entitled to payment of the contract benefits.

III. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

A motion for summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983), and pleadings of a pro se litigant must be construed liberally, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Nance v. Kelly, 912 F.2d 605 (2d Cir.1990).

When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348.

Moreover, material facts set forth in the movant's statement required by the local rules are deemed admitted unless controverted in the nonmovant's statement in opposition. L.R. 10(j) (current version L.R. 7.1(f)). Thus, no genuine issue exists as to facts set forth in a movant's 10(j) Statement if the nonmovant fails to put such facts into controversy by a response in opposition to the summary judgment motion. See id.

B. BREACH OF CONTRACT CLAIM

As noted above, Paul Revere claims that plaintiff's breach of contract claim should be dismissed because the plaintiff failed to perform the condition precedent of submitting to physical examinations as often as reasonably requested by defendant. In particular, plaintiff failed to submit to a FCE requested by defendant after Dr. Rinehart's IME and report. Plaintiff contends that the defendant's demands were unreasonable. Plaintiff further contends that he is entitled to summary judgment on the breach of contract claim because he has shown that he is totally disabled from his occupation as a chiropractor.

1. The IME Clause as a Condition Precedent

A condition precedent is "an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises." Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690, 660 N.E.2d 415, 418, 636 N.Y.S.2d 734, 737 (1995) (citations omitted). "Conditions can be express or implied." Id. "Express conditions are those agreed to and imposed by the parties themselves." Id. Implied or constructive conditions ordinarily arise from language of promise and are "imposed by law to do justice." Id. Express conditions must be literally performed, whereas constructive conditions need only be substantially performed. Doubtful language will be interpreted as constructive conditions rather than express conditions. Id. at 691, 660 N.E.2d at 418, 636 N.Y.S.2d at 737.

The IME provision in the insurance contract in ...