Sandoval v. UNUM Life Insurance Company of America

Filing 157

ORDER Denying 137 Renewed Motion for Judgment as a Matter of Law and Granting 147 Motion for Stay of Enforcement of Judgment and Approval of Supersedeas Bond. Enforcement of this Court's judgment is STAYED under Rule 62 until a mandate is issued by the Tenth Circuit Court of Appeals. The Court hereby APPROVES Defendant's supersedeas bond submitted by Defendant at ECF No. 150 -1. ORDERED by Judge William J. Martinez on 4/26/2019. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-0644-WJM-KMT
BRENDA SANDOVAL,
Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, a/k/a UNUM,
Defendant.

ORDER DENYING RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
AND GRANTING MOTION FOR STAY OF ENFORCEMENT OF JUDGMENT AND
APPROVAL OF SUPERSEDEAS BOND

Plaintiff Brenda Sandoval (“Sandoval”) sued her insurance provider Defendant
Unum Life Insurance Company of America (“Unum”) for breach of contract after Unum
terminated benefits that Sandoval received under a long-term disability policy (the
“Policy”). On September 28, 2018, after a four-day jury trial, the jury returned a verdict
against Unum and for Sandoval, finding that she proved by a preponderance of the
evidence that Unum breached its contract, and awarded Sandoval $81,244.85 in
damages. (ECF No. 115.) After the jury trial, the Court sought supplemental briefing
from the parties on the appropriateness of injunctive and declaratory relief. (ECF
Nos. 118 & 122.) On January 17, 2019, the Court entered judgment in favor of
Sandoval. (ECF No. 133.) Within 28 days after the entry of judgment, Unum filed its
Renewed Motion for Judgment as a Matter of Law under Rule 50(b) (the “Rule 50(b)
Motion”). (ECF No. 137.)

Currently before the Court is Unum’s Rule 50(b) Motion, as well as Unum’s
“Motion to Stay Enforcement of Judgment, Approval of Supersedeas Bond and Request
for Expedited Briefing” (the “Motion to Stay”) (ECF No. 147). For the following reasons,
Unum’s Rule 50(b) Motion is denied and Unum’s Motion to Stay is granted.
I. LEGAL STANDARD
Judgment as a matter of law is appropriate where “a party has been fully heard
on an issue during a jury trial and the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ.
P. 50(a)(1). Stated another way, “[a] directed verdict is justified only where the proof is
all one way or so overwhelmingly preponderant in favor of the movant so as to permit
no other rational conclusion.” Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1045 (10th
Cir. 1993). In reviewing a Rule 50 motion, the Court must draw all reasonable
inferences in favor of the nonmoving party. Wagner v. Live Nation Motor Sports, Inc.,
586 F.3d 1237, 1244 (10th Cir. 2009).
Where a party properly moves for judgment as a matter of law prior to the case
being submitted to the jury, that party may renew the motion after the jury returns its
verdict. See Fed. R. Civ. P. 50(b); Atchley v. Nordam Group, Inc., 180 F.3d 1143,
1147-48 (10th Cir. 1999). In resolving a Rule 50(b) motion, the Court “will not weigh
evidence, judge witness credibility, or challenge the factual conclusions of the jury.”
Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000).
II. ANALYSIS
As further background, on September 26, 2018, at the close of Sandoval’s

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evidence, Unum moved for judgment as a matter of law under Rule 50(a), and the
Court took the motion under advisement. (ECF No. 102 at 2.) Unum renewed its
motion at the close of its own presentation of evidence. (Id. at 3.) The Court then
heard argument, and denied Unum’s Rule 50(a) Motion.
In its Rule 50(b) Motion, Unum argues, as it did in the Rule 50(a) Motion, that
Sandoval failed to meet the Policy definition for disability because she was working as a
cosmetologist and that Sandoval was not under the regular care of a physician after
October 10, 2016. (ECF No. 137 at 1.) The Court will address each argument in turn.
A.

Was Sandoval Working in an Occupation as a Cosmetologist?
Under the Policy, for the first two years, Sandoval would be considered disabled

if she met the following criteria “due to [her] sickness or injury”:
1.

You are unable to perform the material and
substantial duties of your regular occupation and are
not working in your regular occupation or any other
occupation

or
2.

You are unable to perform one or more of the
material and substantial duties of your regular
occupation, and you have a 20% or more loss in your
indexed monthly earnings while working in your
regular occupation or in any occupation.

(ECF No. 137-1 at 15.)
Unum does not dispute that Sandoval was “unable to perform the material and
substantial duties of [her] regular occupation.” Rather, it argues that the evidence
undisputedly shows that she was working in another occupation, namely, as a
cosmetologist out of her own home. At trial, Sandoval indeed testified that after her
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surgeries, she continued to provide styling services for less than ten individuals. (ECF
No. 127 at 98.) Sandoval also testified that she renewed her cosmetology license in
May 2018 because she had worked for the certification and did not want to let it lapse.
(Id. at 99, 102.) However, Sandoval also testified that she provided limited services
(cutting hair only, but not styling) to a small group of friends as a form of a social outlet
for her, and that the services she provided were much abbreviated. (Id. at 52–53.) Her
husband also testified that Sandoval occasionally still does hair for five or six people as
“more of a social thing,” for approximately one or two hours a month. (Id. at 11–12.)
He also testified that it is not a “moneymaking thing” and that she in fact lost money by
doing it. (Id. at 12–13.)
Unum emphasizes that, had Sandoval’s intentions been purely social, she could
have invited customers to her house to socialize or visited them. Instead, in Unum’s
words “she kept her salon open, incurred expenses for product, and charged her
customers for her time and services.” (ECF No. 137 at 4.) While this is certainly one
conclusion that a reasonable jury could draw, it is not the only reasonable conclusion
based on the evidence.
Citing cases from the Tenth Circuit and the District of Massachusetts, Unum also
argues that even if Sandoval lost money in her efforts as a cosmetologist, she was still
working in an occupation. However, the referenced Tenth Circuit case merely states
that medical providers had concluded that the plaintiff in that case was able to work and
“fit for multiple gainful occupations.” Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d
1187, 1194 (10th Cir. 2009). But Holcomb did not squarely address the more critical

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question presented here: whether the plaintiff was actually working in an occupation or
earning money.
The other case cited by Unum on this point is also easily distinguishable from the
present circumstances. Gillespie v. Allianz Life Ins. Co. of N. Am., 2004 WL 2660636,
at *1 (D. Mass. Nov. 18, 2004). In that case, the court f ound that a plaintiff who had
ceased work as a chiropractor but took subsequent jobs as a security guard, substitute
teacher, “Ed. Tech.”, and insurance salesman was not totally disabled because “these
jobs were of a substantial and not merely trifling character. . . [and] the disability policy
protected job income, not status.” Id. at *2 (internal quotation marks and citation
omitted) (emphasis in original). Here, the Court finds that there is more than sufficient
evidence in the record from which a reasonable jury could conclude that Sandoval’s
decision to continue, on a very limited basis, to cut hair for a few of her friends was in
fact not “substantial”, but rather of a “merely trifling character”—one that not only failed
to provide her with any income, but as a result of which she actually lost money.
Viewing the totality of the evidence, and taking drawing all reasonable inferences
in favor of Sandoval (as the Court must on a Rule 50 motion), the Court finds there are
sufficient facts from which a reasonable jury could conclude that Sandoval’s limited
cosmetology efforts were not work in “any other occupation,” but rather a hobby or
social activity, and a very limited one at that. See Wagner, 586 F.3d at 1244.
For the sake of completeness, the Court will briefly address an argument raised
by Sandoval for the first time in response to Unum’s Rule 50(b) Motion, namely that
Sandoval satisfied the second prong of the Policy’s disability definition, which considers
an individual disabled if she is unable to perform a part of her regular occupation and
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has “a 20% or more loss in . . . indexed monthly earnings while working . . . in any
occupation.”1 As Unum rightly observes, Sandoval did not raise this argument at trial.
(ECF No. 153 at 2, 4.) Even if not emphasized or argued by Sandoval (or Unum), the
jury was presented with the relevant information that would have allowed it to conclude
that Sandoval was disabled under the second prong of the Policy.
The second prong of the definition of disability seemingly tracks the Policy’s
definition of “gainful occupation”—“an occupation that is or can be expected to provide
you with an income at least equal to 80% of your indexed monthly earnings within 12
months of your return to work”—suggesting that a person is “disabled” if she is not
working in a gainful occupation. (ECF No. 137-1 at 34.) As noted above, Unum does
not dispute that Sandoval was “unable to perform the material and substantial duties of
[her] regular occupation,” and thus it is reasonable to infer that Unum does not dispute
that Sandoval was unable to perform “one or more of the material and substantial
duties of [her] regular occupation.”
In addition, the evidence that went to the jury included Sandoval’s annual salary
of approximately $47,000, or monthly earnings of $3,916.67, as a Training Supervisor
for the Douglas County Motor Vehicle Department. (Def. Trial Ex. A at 134–135, 157;
id. at 190 (70% of Sandoval’s monthly income prior to disability amounts to
1

Unum argues in its reply brief that the second prong relates to “partial disability” and
that Sandoval “misleadingly fails to explain the difference between” total and partial disability.
(ECF No. 153 at 2.) However, the Policy itself does not explain the difference between total
and partial disability under this definition, or how disability benefits would vary based on the
level of an individual’s disability. While it may be Unum’s internal practice to distinguish
between total and partial disability based on the Policy’s definition, this distinction is hardly
evident on the face of the Policy. As such, the Court can only conclude that “disability” under
either prong of the definition means “disability,” and the Court will not draw a distinction
between total and partial disability based on Unum’s arguments first raised in its reply brief.

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$2,741.67).)2 The evidence before the jury also included Sandoval’s monthly gross
earnings from hair cutting, which ranged between $89 and $290 per month. (Id. at
197–98.) The jury also heard testimony that the gross payments for cosmetology
services undertaken by Sandoval did not even cover her expenses resulting, as
discussed above, in what amounted to a social hobby of Sandoval from which she
actually lost money. (ECF No. 127 at 12–13.) On top of this, Sandoval testified that
she is unable to blow dry hair or see more than two customers per day because of her
resulting pain. (ECF No. 127 at 52, 55–59.)
Drawing all reasonable inferences in favor of Sandoval, the Court finds the jury
could have reasonably concluded that, even if Sandoval was working in an occupation,
she had a 20% or more loss in her monthly earnings. Indeed, Unum’s argument that
Sandoval has an occupation in which she lost money further supports a reasonable
conclusion that she had more than a 20% drop in monthly earnings. Given the
evidence presented to the jury, it could have reasonably concluded that Sandoval was
disabled under the second prong of the Policy’s definition of disability.
The Court thus concludes that there was sufficient evidence from which a
reasonable jury could conclude that Sandoval met the Policy’s definition of disability,
and denies Unum’s Rule 50(b) Motion as to that argument.

2

The Court notes that Sandoval’s response brief cites certain testimony that was not
provided to the jury. Sandoval cannot rely on such information at the Rule 50(b) stage. The
Court therefore relies only on the pages admitted from Defendant’s Exhibit A. (See ECF No.
105 at 2.) The Court presumes that Sandoval’s inclusion of evidence that did not go to the jury
was an oversight on the part of Sandoval’s counsel, rather than an intentionally misleading
representation to the Court. It is expected that counsel will be more careful in its statements
and arguments to the Court in the future.

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B.

Was Sandoval Under the Regular Care of a Physician?
The Policy also required Sandoval to be “under the regular care of a physician in

order to be considered disabled.” (ECF No. 137-1 at 15.) T he Policy defines regular
care to mean:
•

•

you personally visit a physician as frequently as is
medically required, according to generally accepted
medical standards, to effectively manage and treat
your disabling condition(s); and
you are receiving the most appropriate treatment and
care which confirms with generally accepted medical
standards . . . .

(ECF No. 137-1 at 36.) At trial, the parties introduced evidence regarding whether
Sandoval was under “regular care” of Dr. John Barker.
Unum contends that after October 10, 2016, Sandoval was no longer under the
regular care of Dr. Barker.3 In support, Unum argues that “regular care” requires “more
than merely being a patient of a physician.” (ECF No. 137 at 5.) At trial, Dr. Barker
testified that after October 10, 2016 (one year after Sandoval’s surgery), he did not
schedule any further visits with Sandoval and classified her as “PRN . . . meaning come
back when needed.” (ECF No. 128 at 115.) At that point, Dr. Barker testif ied that
Sandoval was no longer under his “scheduled care.” (Id.) When questioned whether
“scheduled care” differed from “regular care,” Dr. Barker responded: “I don’t know what
regular care means. I mean, as you already pointed out, she didn’t have a scheduled
follow-up appointment. They’re always under my care. I didn’t just discharge her as a

3

Unum concedes that Dr. Barker provided “regular care” up to October 10, 2016. (ECF
No. 137 at 5.) Sandoval’s disability benefits were terminated in May 2016. Therefore, given the
Court’s ruling in Part III.A, a favorable ruling for Unum on this issue would only provide partial
relief from the jury verdict.

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patient.” (Id. at 116.) Unum’s counsel then summarized Dr. Barker’s testimony: “[S]he
was no longer under the regular care, but a patient that could come back and see you if
she felt she needed to,” to which Dr. Barker replied: “correct.” (Id. at 116.)
To prevail on its Rule 50(b) Motion, Unum must demonstrate that the only
conclusion a reasonable jury could draw is that Sandoval was not under Dr. Barker’s
regular care. See Hinds, 988 F.2d at 1045. However, reviewing Dr. Barker’s testimony,
that proposed conclusion is but one of multiple conclusions that the jury could draw. A
reasonable jury could also have concluded that being able to return to a providing
physician when needed was, at that point in Sandoval’s post-surgical life, “as frequently
as is medically required,” and “the most appropriate treatment and care.” Dr. Barker
testified that he did not “discharge her as a patient” but rather continued to m aintain a
physician-patient relationship with Sandoval after October 2016, exercised on an asneeded basis to manage her condition. (ECF No. 128 at 116.) Thus, the jury could
have reasonably concluded based on the evidence that Sandoval remained under the
regular care of Dr. Barker during the pertinent time period. The Court thus denies
Unum’s Rule 50(b) Motion as to its regular care argument.
C.

Motion to Stay
Unum moves for a stay of proceedings to enforce the judgment pursuant to Rule

62(b) and approve Unum’s proposed supersedeas bond. (ECF No. 147.) Sandov al
does not object. (ECF No. 152.) The Court has independently reviewed Unum’s
Motion to Stay, and is satisfied that a stay would serve the purpose of Rule 62, namely
“to preserve the status quo while protecting the prevailing party’s interest in the

9

judgment.” Romero v. Helmerich & Payne Int’l Drilling Co., 2017 WL 5900361, at *8 (D.
Colo. Nov. 30, 2017). Unum has offered a bond in total amount of $180,747.39,
comprised of the final judgment plus twenty-five percent, two years of post-judgment
interest at a 2.59% rate compounded annually, 24 months of benefits for Plaintiff under
the Policy, and Plaintiff’s requested costs. This amount is sufficient for the purpose of
staying enforcement of the judgment under Rule 62.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant’s Renewed Motion for Judgment as a Matter of Law under Rule 50(b)
(ECF No. 137) is DENIED;

2.

Defendant’s “Motion to Stay Enforcement of Judgment, Approval of
Supersedeas Bond and Request for Expedited Briefing” (ECF No. 147) is
GRANTED;

3.

Enforcement of this Court’s judgment is STAYED under Rule 62 until a mandate
is issued by the Tenth Circuit Court of Appeals; and

4.

The Court hereby APPROVES Defendant’s supersedeas bond submitted by
Defendant at ECF No. 150-1.
Dated this 26th day of April, 2019.
BY THE COURT:

William J. Martínez
United States District Judge
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