Natarajan v. The Paul Revere Life Ins. Co.

• Decision Date: 18 June 2010
• Docket Number: Civil No. 8:04-cv-2612-T-17TGW.
• Parties: Ponnuswamy NATARAJAN, M.D., Plaintiff, v. The PAUL REVERE LIFE INSURANCE COMPANY, Unum Provident Corporation a/k/a the Unum Group, Defendants.
• Court: U.S. District Court — Middle District of Florida

720 F.Supp.2d 1321

Ponnuswamy NATARAJAN, M.D., Plaintiff,

v.The PAUL REVERE LIFE INSURANCE COMPANY, Unum Provident Corporation a/k/a the Unum Group, Defendants.

Civil No. 8:04-cv-2612-T-17TGW.

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

June 18, 2010.

COPYRIGHT MATERIAL OMITTED.

Jarrod Malone, Shumaker, Loop & Kendrick, LLP, Sarasota, FL, Michael S. Taaffe, Ft. Myers, FL, for Plaintiff.

Richard S. Maselli, Ogden, Sullivan & O'Connor, PA, Tampa, FL, for Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on Defendants' Motion for Summary Judgment (Doc. 143), Plaintiff's Motion for Summary Judgment as to Court One (Doc. 144), and responses thereto (Doc. 152, 153). For the reasons set forth below, Defendants' Motion for Summary Judgment is GRANTED IN PART, as to Count Seven of the Second Amended Complaint, and DENIED IN PART, as to all other counts. Plaintiff's Motion for Summary Judgment as to Count One is DENIED.

PROCEDURAL HISTORY

Plaintiff filed this action on December 1, 2004, against The Paul Revere Life Insurance Company, the Unum Life Insurance Company, and Unum Provident Corporation (a/k/a Unum Group) for failing to pay total disability benefits on several long-term, own-occupation, professional disability insurance plans Plaintiff had purchased to protect the income from his cardiology practice (Doc. 1). In his Second Amended Complaint (Doc. 72), filed December 5, 2008, Plaintiff alleges nine counts of misconduct by his insurers, the Defendants, throughout the claims settlement process. These include: (1) breach of contract, (2), fraud as to omissions regarding the nature and quality of the policy purchased, (3) fraud as to the medical billing code analysis used by defendants to analyze the claim, (4) fraud as to the appeal process with which Plaintiff appealed the denial of his total disability claim, (5) fraud as to various statements made by Defendants in clarifying the terms of the policy, (6) fraud as to the re-assessment process for reviewing appeals decisions that had upheld the denial of benefits to Plaintiff, (7) racketeering, in violation of 18 U.S.C. § 1512, a Federal RICO statute, (8) unlawful investment of racketeering income in violation of 18 U.S.C. § 1961(1), a Federal RICO statute, and (9) unlawful implementation of a scheme affecting foreign commerce in violation of 18 U.S.C. § 1961 and 18 U.S.C. § 1962(b).

On January 19, 2010, both Defendants (Doc. 143) and Plaintiff (Doc. 144) filed Motions for Summary Judgment. Both Plaintiff (Doc. 152) and Defendants (Doc. 153) filed Responses in Opposition to the respective Motions for Summary Judgment on February 9, 2010. On March 4, 2010, Plaintiff filed the Affidavit of Geoffrey G. Simon in Support of Plaintiff's Motion for Summary Judgment as to Count One of the Second Amended Complaint (Doc. 159). On March 5, Plaintiff filed the same Affidavit of Geoffrey G. Simon in opposition to Defendant's Motion for Summary Judgment (Doc. 160). On March 8, 2010, Defendants filed a Motion to Strike both affidavits (Doc. 162). By order dated June 1, 2010 (Doc. 168), this Court granted Plaintiff's Motion to Strike in part, as to the affidavit filed in support of Plaintiff's Motion for Summary Judgment, and denied the Motion to Strike in part, as to the affidavit filed in opposition to Defendants' Motion for Summary Judgment. Having decided the Motion to Strike, this Court can now decide Defendants' and Plaintiff's Cross-Motions for Summary Judgment (Doc. 143, 144).

STATEMENT OF 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 resolution of the pending motion.

Plaintiff, Ponnuswamy Natarajan, M.D., is a board certified cardiologist operating primarily out of Sarasota in the State of Florida. Defendants, The Paul Revere Life Insurance Company and Unum Provident Corporation (a/k/a Unum Group), are foreign corporations operating principally in Maine and Tennessee (Doc. 72). 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.

Beginning in or about 1977, Plaintiff purchased a long-term, non-cancellable “own occupation” disability insurance policy from Defendants. Plaintiff purchased additional coverage in later years. The specific policy that forms the basis for the instant litigation is PRLSP000006-00031, signed by the Plaintiff on March 4, 1987 (Doc. 143, Ex. 1). That same year, Plaintiff opened the first cardiac catheterization laboratory in the city of Venice, Florida. Following the adoption of interventional cardiology as a separate and distinct specialty by the American Board of Medical Specialties in 1999, Plaintiff became board certified in interventional cardiology in the year 2001. (Doc. 144, Ex. 8, 10).

In or around the year 2000, Plaintiff developed severe arthritic degeneration of his hands and consequently lost the ability to perform surgeries (Doc. 152, Ex. 3). As a result of this condition, Plaintiff began to reduce the amount of interventional procedures he conducted, completing 140 in the year 2000, 93 in 2001, and only 28 in 2002 (Doc. 144, Ex. 18). Generally speaking, a physician must complete 75 interventional procedures in a given year in order to be categorically deemed an interventional cardiologist (Doc. 144, Ex. 16). By letter dated July 25, 2002, Plaintiff notified Defendants he was disabled and unable to perform the duties of his occupation, and on September 4, 2002, Plaintiff officially filed the claim upon which the extant litigation is based (Doc. 152, Ex. 33). In a statement dated August 3, 2002, Plaintiff's physician had restricted Plaintiff from “perform[ing] catheterizations, angioplasties, administer[ing] injections, perform[ing] patient examinations, carry[ing] heavy weights or perform[ing] any other duties that would manipulate or aggravate affected joints and muscles” (Doc. 144, Ex. 24). However, because Plaintiff's physician actually certified these restrictions to be retroactive to July 17, 2000, there is some dispute between the parties as to the exact date of disability (with Plaintiff asserting the claim should be assessed from the year 2000 and defendants apparently believing that 2002 is the proper point of reference from which to consider Plaintiff's claim).

Defendants' claims investigator, after speaking by telephone with Plaintiff, initially determined that Plaintiff was only partially disabled and explained that the Plaintiff might be eligible for residual disability benefits, but not total disability benefits (Doc. 143, Ex. 11). By letter dated October 23, 2002, Plaintiff advised Defendants through his attorney that he was seeking total disability benefits because, due to his disability and his inability to manipulate his thumbs, he was no longer able to perform invasive or interventional procedures (Doc. 152, Ex. 28). Essentially, Plaintiff asserts that he was an invasive/interventional cardiologist at the time of his disability and that, while he continues to be able to perform the general duties of a cardiologist, he is no longer able to carry out the duties of his specialty (invasive/interventional cardiology). Therefore, according to Plaintiff, as per his policy with Defendants, he is entitled to total disability benefits.

The disability policy in question provides for “Total Disability” benefits when the insured, due to injury or sickness, is “unable to perform the important duties of [his] occupation ... [and is] under the regular and personal care of a physician” (Doc. 72, Ex. B). Defendants completed a medical billing record/CPT code analysis “to assess the scope of Dr. Natarajan's practice both prior to and since the onset date of [his] disability” (Doc. 152, Ex. 28). Based upon that analysis, Defendants concluded that surgical (invasive/interventional) procedures accounted for only 12% of the total number of procedures performed by the Plaintiff and accounted for only 25% of all billing charges prior to the onset of disability (Doc. 143, Ex. 9-A). According to Defendants' claims investigator, the CPT Code analysis grouped the procedures performed by Plaintiff into surgeries and office consultations without considering those office visits that were associated with and intricately intertwined with Plaintiff's surgical procedures (for example, initial consultations and obtaining of informed consent, and postoperative office visits) (Doc. 144, Ex. 2).

Relying primarily on the CPT Code analysis, Defendants determined that Plaintiff was not engaged in the specialty of invasive/interventional cardiology at the time of his disability. Instead, Defendants concluded that Plaintiff was instead a general cardiologist with expanded knowledge and experience in the specialty of invasive/interventional cardiology (Doc. 152). Based upon that conclusion and the fact that Plaintiff continued to maintain an (albeit limited) office practice, Defendants denied Plaintiff's claim for total disability benefits on May 8, 2003, and instead suggested Plaintiff seek benefits under the residual disability provision of the policy (Doc. 143, Ex. 10).

Plaintiff appealed Defendants' decision to deny his claim for disability benefits, and on March 11, 2004, citing largely the same evidence it had used as the basis to deny Plaintiff's initial claim for total disability benefits, in addition to a claimed lack of any additional “substantive data” to support the contention that Plaintiff was in fact totally disabled (Doc. 152 Ex. 28), Defendants again denied the claim. Plaintiff subsequently filed suit in this Court on December 1, 2004 (Doc. 1). That same month, Defendants entered into a regulatory agreement with Attorneys General of forty-eight states and the District of Columbia, by which Defe...