Eric Berg v. New York Life Insurance Compan, et al
Filing
Filed opinion of the court by Chief Judge Wood. REVERSED and REMANDED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6770862-1] [6770862] [15-1410]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1410
ERIC BERG,
Plaintiff‐Appellant,
v.
NEW YORK LIFE INSURANCE COMPANY and UNUM LIFE
INSURANCE COMPANY OF AMERICA,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 7939 — Milton I. Shadur, Judge.
____________________
ARGUED NOVEMBER 6, 2015 — DECIDED JULY 27, 2016
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
WOOD, Chief Judge. Eric Berg brought this breach of con‐
tract action when New York Life, through its administrator
Unum, refused to pay him disability benefits. At bottom, this
case turns on the meaning of one phrase: “requires and re‐
ceives regular care by a Physician.” Does the clause contain a
temporal element? The insurers say yes, and the district court
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agreed, granting them summary judgment. But it certainly
says nothing about timing on its face, and we can find no
other sign that such a requirement was meant to be engrafted
onto the phrase. Applying the basic principle that the lan‐
guage must be construed against the insurers, we reverse the
judgment of the district court.
I
Born in 1959, Eric Berg was a long‐time pit broker at the
Chicago Mercantile Exchange. In 1991 and 1994, Berg bought
two disability‐income insurance policies underwritten by
New York Life. In 2005, he started to experience a tremor in
his arms and hands. The tremor interfered with his ability to
write quickly and legibly, and in September 2007, the tremor
forced him to leave his job. In February 2010, a neurologist
diagnosed Berg with an “essential tremor,” and Berg applied
for total disability benefits.
Although New York Life and Unum approved Berg’s
claim on July 2, 2010, they designated his disability onset date
as February 3, 2010, rather than September 2007. Then, in
April 2012, Unum discontinued Berg’s total‐disability bene‐
fits. It asserted that he was eligible only for residual‐disability
benefits because when he applied, his regular occupation was
that of an “unemployed person.” Berg sued, seeking benefits
dating from September 2007 and a designation of “total disa‐
bility” for the purpose of future benefits. The district court
granted summary judgment to the defendants. Berg ap‐
pealed.
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II
We review the district court’s decision to grant summary
judgment de novo, construing the facts in the light most favor‐
able to the non‐moving party—here, Berg. See Jaburek v. Foxx,
813 F.3d 626, 630 (7th Cir. 2016). Summary judgment is appro‐
priate only when there is no dispute of material fact and the
moving party is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(a).
A
Before turning to the merits, we address the insurers’ no‐
tice defenses, which are dispositive if well taken. Berg does
not contest that his Notice of Claim and Proof of Loss submis‐
sions were untimely. Country Mut. Ins. Co. v. Livorsi Marine,
Inc., 856 N.E.2d 338, 343 (Ill. 2006). He asserts, however, that
the insurers waived these defenses.
In their answer to Berg’s first amended complaint, the in‐
surers raised the argument that Berg failed to comply with the
policies’ Notice of Claim or Proof of Disability or Loss provi‐
sions. They reiterated this point in their response to Berg’s
oddly styled “motion to narrow the issues” under Federal
Rule of Civil Procedure 16. This is not a use of Rule 16 that we
recognize. Rule 16, entitled “Pretrial Conferences; Schedul‐
ing; Management,” guides (not surprisingly) case manage‐
ment—it is not a tool for resolving dispositive motions,
whether under Rule 12(b) or Rule 56. Perhaps that is why the
district court’s rulings were silent on the insurers’ notice de‐
fenses. No matter: at that point, the insurers appear to have
abandoned this tack. In their summary judgment motion, the
insurers expressly relied upon the district court’s reasoning in
its previous opinions, but they did not bring up notice. We
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agree with Berg, therefore, that the notice defenses are
waived. See D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 800
(7th Cir. 2015) (arguments not raised in motion for summary
judgment are waived).
B
On to the main event: interpreting the insurance policies.
The parties agree that Illinois law governs here. Our primary
goal in interpreting an insurance policy “is to give effect to the
intent of the parties as expressed in the agreement.” DeSaga v.
W. Bend Mut. Ins. Co., 910 N.E.2d 159, 163 (Ill. App. Ct. 2009).
Where “the terms of an insurance policy are clear and unam‐
biguous, they must be given their plain and ordinary meaning
and enforced as written, unless to do so would violate public
policy.” Id. If a word is specifically defined in the policy, that
meaning controls. Am. Nat. Fire Ins. Co. v. Nat’l Union Fire Ins.
Co. of Pittsburgh, PA, 796 N.E.2d 1133, 1141 (Ill. App. Ct. 2003).
On the other hand, if the policy language is “susceptible to
more than one reasonable meaning,” an ambiguity exists and
it will be construed against the insurer. Gillen v. State Farm
Mut. Auto. Ins. Co., 830 N.E.2d 575, 582 (Ill. 2005).
In determining whether a provision is ambiguous, we
read the policy in light of “the insured’s reasonable expecta‐
tions and the policy’s intended coverage.” Gen. Star Indemn.
Co. v. Lake Bluff Sch. Dist. No. 65, 819 N.E.2d 784, 793 (Ill. App.
Ct. 2004). A court should not “strain to find an ambiguity
where none exists.” Founders Ins. Co. v. Munoz, 930 N.E.2d 999,
1004 (Ill. 2010). Neither should it “adopt an interpretation
which rests on ‘gossamer distinctions’ that the average per‐
son, for whom the policy is written, cannot be expected to un‐
derstand.” Id. (quoting Canadian Radium & Uranium Corp. v.
Indem. Ins. Co. of N. Am., 104 N.E.2d 250, 255 (Ill. 1952)). “Any
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provision in a policy that limits or excludes coverage must be
construed liberally in favor of the insured and against the in‐
surer,” DeSaga, 910 N.E.2d at 164, and must “be read narrowly
and will be applied only where its terms are clear, definite,
and specific.” Gillen, 830 N.E.2d at 582.
1
The insurers argue that Berg did not meet the policy’s def‐
inition of “total disability” until he saw a physician on Febru‐
ary 3, 2010. They point out that under the policies, “Total Dis‐
ability means that the Insured can not [sic] do the substantial
and material duties of his or her regular job.” The definition
further stipulates that “[t]he cause of the total disability must
be an injury or a sickness.” Elsewhere in the policies, “Injury”
is defined as “an accidental bodily injury of the Insured.” In
the same provision, “Sickness” is defined as “an illness or dis‐
ease of the Insured.”
The Injury and Sickness provision sets out several require‐
ments. One is that “[t]he injury or sickness must be one which
requires and receives regular care by a Physician.” The insur‐
ers contend that because Berg did not receive “care by a Phy‐
sician” for his tremor until February 3, 2010, he did not have
an “illness or sickness” until that date. Because the “cause of
the total disability must be an injury or a sickness,” they con‐
tinue, Berg was not totally disabled for policy purposes until
February 3, 2010.
This syllogism might hold up in the rarified atmosphere
of formal logic, but it disintegrates when exposed to the cor‐
poreal world. To begin with the obvious, neither of these pro‐
visions contains any temporal element. There is no reason to
think that either of them demands that the injury or sickness
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have required and received the care of a physician at any
point except when the insured makes the claim. Both are writ‐
ten in the present tense. If the insurers had wanted the defini‐
tions to have force at any moment before the one at which the
relevant claim was adjudicated, they could easily have in‐
cluded language to that effect. They didn’t.
The insurers’ reading is not even the most logical of the
reasonable ones available. First, while there is no temporal
language in the physician‐care requirement, there is in one of
the preceding requirements: that the injury or sickness “first
manifest itself[] while this policy is in force.” If the insurers’
reading were correct, this provision would be surplusage: an
injury or sickness cannot require and receive regular care by
a physician before it manifests itself. “We will not interpret an
insurance policy in such a way that any of its terms are ren‐
dered meaningless or superfluous.” Pekin Ins. Co. v. Wilson,
909 N.E.2d 379, 387 (Ill. App. Ct. 2009).
Moreover, the use of the word “one” in the proviso that
“[t]he injury or sickness must be one which requires and re‐
ceives regular care by a Physician” indicates that the require‐
ment applies to the kind of malady that qualifies as an “injury
or sickness” under the policy, not when it qualifies. The provi‐
sion is thus best read as a description of the class of conditions
that qualify under the policy—not a prerequisite for their on‐
set date.
In any event, an alternate reading does not have to be the
best one: for ambiguity to exist, there need only be more than
one reasonable interpretation of the provision. Gillen, 830
N.E.2d at 582. Finding ambiguity in the possible temporal ef‐
fect of the provision is unavoidable given the commandments
that (1) the language must be read in light of “the insured’s
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reasonable expectations and the policy’s intended coverage,”
Gen. Star, 819 N.E.2d at 793; (2) interpretations may not rest
on picky distinctions that the average person would not un‐
derstand, Munoz, 930 N.E.2d at 1004; and (3) “[a]ny provision
in a policy that limits or excludes coverage must be construed
liberally in favor of the insured and against the insurer,” De‐
Saga, 910 N.E.2d at 164, and must “be read narrowly and will
be applied only where its terms are clear, definite, and spe‐
cific.” Gillen, 830 N.E.2d at 582. Average insureds would pre‐
sume that their benefits will flow from the date that their mal‐
ady became severe enough to prevent them from working or
require medical care, not when they actually went to the doc‐
tor. The provisions at issue do nothing to put them on notice
that this is not the case.
Finally, construing the provisions as the insurers suggest
would create the kind of absurd results we must avoid. U.S.
Fire Ins. Co. v. Hartford Ins. Co., 726 N.E.2d 126, 128 (Ill. App.
Ct. 2000). Under their reading, the existence of an insured’s
“illness or injury” would depend entirely on the date the in‐
sured saw a physician for it; it would change arbitrarily with
no regard for the insured’s bodily condition or ability to work.
Hypochondriacs might find a doctor who spots an illness at
the earliest possible moment, while those who lack the re‐
sources to see doctors regularly might suffer for months or
years and yet not be considered to have an illness or injury.
A few examples illustrate this point. Say, for instance, that
an insured fell down the stairs to his basement, severing his
spinal cord and rendering him a paraplegic. He happens also
to be a doomsday prepper and thus has ample food and water
for an extended period of time. He survives in the basement
for six months until he is discovered. Finally, he is taken to a
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physician and his care begins. According to the insurers, his
injury did not exist, and he was not totally disabled, for those
six months. Or suppose that an insured’s hands were ampu‐
tated in an industrial accident. She would need immediate
care from a physician, but eventually, when there was nothing
more that a doctor could do for her, she would cease receiving
care from a physician. Would she not be totally disabled after
that point? Or what about a woman who discovers a lump in
her breast, but who cannot see a doctor for several months
and only then is told she has Stage 4 cancer? In each of these
cases, it is plain that the person is either disabled or ill without
regard to the timing of the visit to the physician.
These hypotheticals show why it would have made no
sense to impose a requirement that a physician visit deter‐
mines the time when a disability commenced. Illinois courts
do not read insurance policies in such a counter‐intuitive way.
The insurers suggest there could be some way for these un‐
fortunate individuals to show cause for the late detection, but
this is just another effort to re‐write the policy. There is no
show‐cause exception to the “Injury and Sickness” provision;
it determines basic eligibility. Show‐cause provisions do exist
elsewhere in the policies, in the Notice of Claim and Proof of
Disability or Loss provisions. This is further evidence that the
provisions’ temporal effect is at least ambiguous, and there‐
fore must be construed against the insurers under Illinois law.
Gillen, 830 N.E.2d at 582. If Berg can prove that his essential
tremor prevented him from performing his pit broker duties
in September 2007, then he was disabled under the policies
starting at that time. The facts in the light most favorable to
Berg show just that.
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2
Unlike the definitions of “total disability” and “injury and
sickness,” the policies’ definition of “regular job” does contain
a temporal element. “Regular Job” is defined as “[t]he occu‐
pation, or occupations if more than one, in which the Insured
is engaged when a disability starts.”
The insurers’ argument hangs on the date when Berg be‐
came totally disabled—and thus on the outcome of our anal‐
ysis in the previous subsection. They assert that because Berg
first received care from a physician for his tremor on February
3, 2010, that was the first date on which he was totally disa‐
bled under the policy. They argue that because he was unem‐
ployed on that date, his “regular job” was that of “unem‐
ployed person.” But, as we have just shown, the evidence fa‐
vorable to Berg shows that he met the policies’ definition of
“total disability” when he left his job as a pit broker at the
Chicago Mercantile Exchange. If that is accepted by the trier
of fact, then his “regular job” under the policies was that of a
pit broker.
III
Unum contends that it is not properly joined as a defend‐
ant to this action. But the defendants did not include this ar‐
gument in their motion for summary judgment, and it is
therefore waived. See D.S., 799 F.3d at 800. All that remains,
therefore, is to REVERSE the district court’s judgment and
REMAND for proceedings consistent with this opinion.
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