Thomas v. The Northwestern Mutual Life Insurance Company

Filing 77

ORDER denying 54 Motion for Final Summary Judgment and Referring Case for Settlement Conference. Signed by Judge Robin L. Rosenberg on 5/30/2019. See attached document for full details. (sk01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 2:18-cv-14166-ROSENBERG/MAYNARD
JOSEPH J. THOMAS,
Plaintiff,
v.
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY,
Defendant.
_______________________________/
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY
JUDGMENT AND REFERRING CASE FOR A SETTLEMENT CONFERENCE
This matter is before the Court on Defendant’s Motion for Final Summary Judgment
[DE 54].

The Court has carefully considered the Motion, Plaintiff’s Response [DE 56],

Defendant’s Reply [DE 60], the arguments of the parties during the Status Conference held on
May 7, 2019, and the record, and is otherwise fully advised in the premises. For the reasons set
forth below, Defendant’s Motion for Final Summary Judgment [DE 54] is DENIED.
I.
A.

UNDISPUTED FACTS

The Policy

On October 26, 2019, Defendant issued a disability income policy (“the policy”) to
Plaintiff, a licensed dentist. DE 53 at 1; DE 55 at 1; see DE 1-2 at 27-39. The “full benefit” under
the policy is $10,233 per month. DE 53 at 1; DE 55 at 1; DE 1-2 at 29. The “initial period” of the
policy is until October 26, 2015, but not less than 24 months of benefits. DE 1-2 at 29. The policy
provides for disability benefits to be paid for either a total or partial disability. Id. at 31.

The policy provides that, until the end of the initial period, Plaintiff “is totally disabled
when he is unable to perform the principal duties of his occupation.” Id. “Occupation” means
“the occupation of [Plaintiff] at the time he becomes disabled.” Id. The policy does not define
“principal” or “principal duties.” See generally id. at 27-39. The full benefit under the policy is
payable for each month of total disability. Id. at 31.
Under the policy, Plaintiff is partially disabled when he has at least a 20% loss of earned
income and is unable “to perform one or more of the principal duties of his occupation” or “to
spend as much time at his occupation as he did before the disability started.” Id. However, until
the benefit for partial disability has been payable for 6 months, Plaintiff need not have a 20% loss
of earned income if (1) “he is unable to perform one or more principal duties which accounted for
at least 20% of the time he spent at his occupation before the disability started,” or (2) “he has at
least a 20% loss of time spent at his occupation.” Id.
The benefit payable for each month of partial disability, called the “proportionate benefit,”
is “intended to compensate for a loss of earned income caused by [Plaintiff’s] disability.” Id. at
31-32. The proportionate-benefit calculation takes into account the full benefit, Plaintiff’s loss of
earned income, and his base earned income. Id. at 32. However, if Plaintiff has at least an 80%
loss of earned income, the proportionate benefit becomes the full benefit. Id. In addition, for each
of the first 6 months for which the proportionate benefit is payable, Plaintiff may choose to receive
50% of the full benefit, rather than the calculated proportionate benefit. Id.
The policy defines the phrases “earned income,” “base earned income,” and “loss of earned
income” as follows. Earned income is the total “compensation or income earned by [Plaintiff]
from all sources for work performed by him or others under his supervision or direction,” minus

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“normal and customary business expenses.” Id. Base earned income for the first 12 months of a
disability is Plaintiff’s average monthly earned income for either “a 12 consecutive month period
during the 24 month period before the start or disability” or “any two of the five calendar years
before the start of disability,” whichever generates the highest average. Id. Loss of earned income
is Plaintiff’s base earned income, minus his earned income for the month for which a benefit is
claimed. Loss of earned income “must be caused by the disability for which [a] claim is made.”
Id.
Finally as to the policy language, Defendant “may require proof, including income tax
returns, of the amount of [e]arned [i]ncome for periods before and after the start of the disability.”
Id. “Written proof of disability must be given to [Defendant] within 90 days after the end of each
monthly period for which benefits are claimed.” Id. at 34. “If the proof is not given within the
90 days, the claim will not be affected if the proof is given as soon as reasonably possible.” Id.
“In any event, the proof required must be given no later than one year after the end of each monthly
period for which benefits are claimed unless [Plaintiff] was legally incapacitated.” Id.
B.

The Accident and Request for Disability Benefits

Plaintiff suffered an injury to his back when he stepped into a pothole on April 28, 2017.
DE 53 at 2; DE 55 at 2; see DE 1-2 at 40. On June 8, 2017, he submitted a request for disability
benefits under the policy. DE 53 at 3; DE 55 at 2; see DE 1-2 at 40-46. He stated in the request
that his “dental specialty” was “none = general dentistry” and that, before the accident, he spent
35% of his time on “general dentistry,” 30% of his time on crowns and bridges, 25% of his time
on office oral surgery, and 10% of his time on hygiene and new patient exams. DE 1-2 at 43.
Plaintiff asserted that he suffered excruciating and crippling back pain as a result of the accident

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that “substantially [and] painfully prevented [him] from being able to sit through clinical dental
procedures, reach for instruments, bend over to focus [his] loops/range of vision, [and] maneuver
positions for extractions or surgery.” Id. at 40, 43. He admitted that he had “continued to perform
some job duties and/or work in a reduced capacity in [his] occupation” from the date of the accident
to the date of the request for benefits. Id. at 44.
On August 29, 2017, Plaintiff submitted to Defendant a document titled “Joseph J Thomas
D.D.S., PA Procedures By Provider” that listed procedures performed for the period of November
1, 2016, through July 21, 2017. DE 53 at 3; DE 55 at 2; see DE 53-2 at 31-40. Each procedure
on this list has an associated numeric code, which the parties refer to as an American Dental
Association (“ADA”) procedure code. See DE 53 at 3; DE 55 at 2.
On December 8, 2017, Defendant notified Plaintiff that he had been approved for partial
disability benefits for the period of July 27, 2017, through October 27, 2017. DE 53 at 3; DE 55
at 2-3; see DE 53-2 at 41-45. The notice stated that October 27 was “the last day for which
[Defendant had] support for disability at this time.” DE 53-2 at 41. According to Defendant,
Plaintiff was “not eligible for total disability benefits at this time, as he ha[d] continued to work
during the claimed period of disability.” Id. at 43. The notice informed Plaintiff that he would be
paid 50% of the full benefit because “the base earned income ha[d] not been calculated from the
information provided.” Id. The notice further informed Plaintiff that a determination as to whether
a higher benefit was payable would be made when “the additional financial information outlined
below is available,” and listed W-2 forms for the years 2012 to 2016 and confirmation of his
ownership percentage in his dental practice for the years 2014 and 2015. Id. According to the
notice, Defendant had repeatedly requested “tax returns, both business and personal, from 2012

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through 2016,” and, in early November 2017, had received “returns for 2012 and 2013 . . . [that]
did not provide [Defendant] with the employment verification [that Defendant] needed.” Id. at 44.
Defendant stated, however, that it was “able to make reasonable assumptions as to [Plaintiff’s]
level of work activity pre-disability from the ADA codes [he] provided.” Id. Defendant paid
Plaintiff $15,349.50 for the period of July 27, 2017, through October 27, 2017. DE 53 at 4; DE 55
at 3.
On January 9, 2018, Defendant requested from Plaintiff “a statement over his signature
verifying his work activity,” “the W-2 forms associated with all income reported on each of his
personal returns,” and “his business profit and loss statements from July 2017 to the present.”
DE 53-2 at 46-47.
On March 19, 2018, Defendant notified Plaintiff that he had not yet “provided the W-2
forms for Joseph J Thomas DDS PA from 2012 through 2017, which are needed to calculate
[Plaintiff’s] base earned income.” Id. at 48. Defendant further notified Plaintiff that he had not
yet provided “a signed statement . . . verifying his work activity.” Id. Thus, Defendant stated that
a determination could not be made as to whether additional benefits were payable. Id. at 48-49.
On March 26, 2018, Plaintiff sent Defendant an e-mail with the subject line “My Dental
work activity.” 1 DE 55-5 at 1. In the e-mail, Plaintiff stated, “I cannot lean, bend, reach to the
left, twist, stand or sit and hover, cannot focus my magnifying loops to see the focal trough of
treatment field. I cannot Practice Clinical Dentistry.” Id. He also stated that he used a walker,
wore an upper body brace, and “occasionally and intermittently answer[ed] the phones and [did]

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Defendant did not address the March 26 e-mail and did not respond to Plaintiff’s Statement of Fact that he sent the
e-mail attached at DE 55-5 to Defendant on March 26. For the purpose of ruling on the instant Summary Judgment
Motion, the Court accepts as true Plaintiff’s statement that he sent the e-mail on that date. See Fed. R. Civ. P. 56(e)(2).

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some oral or emergency exams, for a couple hours between laying down in the vacant patient
treatment rooms, to rest [his] aching and stiff back.” Id.
Plaintiff would later testify at deposition that, after the accident, he continued to take
radiographs, perform examinations and oral cancer screenings, and give oral hygiene instructions.
DE 53-1 at 40, 80, 104, 108. He stated, however, that he “cannot practice clinical dentistry”
because he “cannot lean, bend, reach to the left, twist and stand, sit, hover, cannot focus with [his]
magnifying loops to see through the focal trough.” Id. at 155; see also id. at 355.
II.

PROCEDURAL HISTORY

Plaintiff filed this action in the Nineteenth Judicial Circuit in and for Indian River County,
Florida on March 28, 2018, raising a breach-of-contract claim and miscellaneous claims for bad
faith in the resolution of his request for disability benefits. DE 1-2 at 2-26. Plaintiff alleged that
he was totally disabled as a result of the accident and that Defendant had breached the policy by
failing to pay him the full benefit. Id. at 5, 9-11. Plaintiff alternatively alleged that, if he was
partially disabled, Defendant had breached the policy in determining the amount of benefit
payments. Id. at 8-10. Regardless of whether Plaintiff was deemed totally or partially disabled,
he alleged that Defendant had breached the policy by discontinuing benefit payments after three
months. Id. at 5, 11-12.
Defendant removed the case to this Court in May 2018 under this Court’s diversity
jurisdiction. DE 1. This Court dismissed without prejudice Plaintiff’s bad-faith claims as
premature.

DE 22.

Defendant now moves for final summary judgment on Plaintiff’s

breach-of-contract claim. DE 54.

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III.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). If the movant meets this burden, the burden shifts to the non-moving party
to come forward with specific facts showing that there is a genuine issue for trial. Shaw v. City of
Selma, 884 F.3d 1093, 1098 (11th Cir. 2018).
“A factual dispute is ‘material’ if it would affect the outcome of the suit under the
governing law, and ‘genuine’ if a reasonable trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008).
When deciding a summary judgment motion, a court views the evidence in the light most favorable
to the non-moving party and draws all reasonable inferences in that party’s favor. Furcron v. Mail
Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). The court does not weigh conflicting
evidence or make credibility determinations. Id.
IV.

ANALYSIS

The Court turns first to Defendant’s arguments regarding whether Plaintiff suffered a total
disability. Defendant argues that Plaintiff was not totally disabled because he continued “to
perform some of his job duties and continued to work in a reduced capacity in his occupation” as
a “general dentist.” DE 54 at 3; DE 60 at 1. Defendant points to Plaintiff’s deposition testimony
that he was able to complete duties such as performing examinations and oral cancer screenings,
taking radiographs, and giving oral hygiene instructions. DE 54 at 3, 5; DE 60 at 1, 4. Defendant
asserts that these activities are “at least some of the principal duties of [Plaintiff’s] occupation,”

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and that Plaintiff cannot “credibly argue that these duties are not ‘principal’ ones for a general
dentist.” DE 54 at 5; DE 60 at 1, 4.
The Court notes again that the policy does not define “principal” or “principal duties,” and
Defendant points to no authority to provide a definition of that word or phrase. A common
definition of the word “principal” is first or highest in rank or importance. See The American
Heritage Dictionary of the English Language (5th ed. 2011) (defining “principal” as “[f]irst or
highest in rank or importance” and as synonymous with “chief”).
According to Plaintiff’s June 2017 request for disability payments, before the accident, he
spent 35% of his time on “general dentistry,” 30% of his time on crowns and bridges, 25% of his
time on office oral surgery, and 10% of his time on hygiene and new patient exams. DE 1-2 at 43.
It is unclear from the record precisely what duties fall into the category of “general dentistry” or
what duties are considered principal ones of a “general dentist.” Evidence before the Court
indicates that, after the accident, Plaintiff could no longer perform dental procedures or surgeries
because he was unable to bend, lean, reach for instruments, or sit for extended periods of time.
See id. at 40, 43; DE 53-1 at 155; DE 55-5 at 1. Viewing the evidence in the light most favorable
to Plaintiff, the Court cannot conclude that any of the duties that Plaintiff continued to perform
after the accident were “the principal duties of his occupation.” The Court can conclude only that
Plaintiff was able to continue at least 10% of his pre-accident duties, consisting of hygiene and
new patient exams.
Defendant compares this case to Socas v. Nw. Mut. Life Ins. Co., a case in which a Court
in this District concluded that a dentist was not totally disabled because there was “too much
continuity between [her] work before and after [her] automobile accident to make a finding of

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‘total disability.’” See 829 F. Supp. 2d 1262, 1271 (S.D. Fla. 2011). In Socas, the dentist’s
pre-accident duties were of two types: general dentistry and “specialized, more complex dental
procedures” such as oral surgery, surgical and non-surgical periodontics, and surgical and
non-surgical endodontics. Id. at 1268, 1271. After the accident, she continued to practice general,
non-surgical dentistry and performed some crown and bridge work, oral surgery, periodontics, and
endodontics. Id. at 1268, 1271. Thus, the Court concluded that she was able to perform “most or
the majority of” her pre-accident duties. Id. at 1270-71. The Court also noted that she had testified
at deposition that she was only “partially disabled from being a general dentist” and that “the only
duties that she [could] no longer perform involve[d] surgical procedures which require[d] that she
spend extended periods in a hunched-over posture.” Id. at 1271-72.
The facts in Socas—a case in which the dentist could perform most of her pre-accident
duties, albeit on a limited basis—are factually distinguishable from the evidence presented here.
The evidence indicates that Plaintiff could not perform office oral surgery, crowns, or bridges,
which collectively accounted for 55% of his pre-accident work time. Additionally, it is unclear
how much of the 35% of pre-accident time that he spent on “general dentistry” was attributable to
the procedures that he maintained he could not perform after the accident. Again, the Court can
conclude from this record only that he was able to continue the hygiene and exam duties that
accounted for at least 10% of his pre-accident time.
To the extent that Defendant relies on the procedures listed by ADA codes on the document
titled “Joseph J Thomas D.D.S., PA Procedures By Provider” to establish Plaintiff’s pre- or
post-accident duties, the Court notes that the document lists procedures provided at Plaintiff’s
dental practice, and not necessarily procedures that Plaintiff himself provided. See DE 53-2 at

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31-40. Plaintiff testified that dentists who were volunteers or independent contractors assisted at
his dental practice at various times. See, e.g., DE 53-1 at 25-27, 30, 35-39, 48-52. The Court
cannot determine which procedures were provided by these other dentists.
If Plaintiff was totally disabled, a genuine issue of material fact also exists as to the duration
of that total disability. The record reflects that, in response to Defendant’s requests for an update
as to his work activity, Plaintiff sent the March 26, 2018 e-mail stating that he occasionally could
answer the phones and perform some exams, but that he remained unable to “lean, bend, reach to
the left, twist, stand or sit and hover.” See DE 53-2 at 48; DE 55-5 at 1. Thus, there is evidence
to indicate that, up to the time that Plaintiff filed this lawsuit, he continued to suffer the same work
restrictions that he had identified in his June 2017 request for disability benefits.
Finally, to the extent that it may be argued that the March 26 e-mail was not timely proof
for a claim of total disability for as far back as late-October 2017, the Court notes the policy
language that, if proof of disability is not given within 90 days after the end of each monthly period
for which benefits are claimed, “the claim will not be affected if the proof is given as soon as
reasonably possible.” See DE 1-2 at 34. The parties have not briefed, and the Court will not
speculate, as to whether Plaintiff’s purported proof of continuing total disability was “given as
soon as reasonably possible.”
Viewing the evidence in the light most favorable to Plaintiff, the Court concludes that there
are genuine issues of material fact as to whether Plaintiff suffered a total disability as a result of
the accident and as to the duration of any total disability. Thus, final summary judgment is
improper.

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The parties have made alternative arguments as to whether, if Plaintiff was partially
disabled, Defendant paid the appropriate proportionate benefit for the appropriate duration of time.
However, Defendant has not sought partial summary judgment, and final summary judgment is
denied for the reasons stated above. See DE 54 at 14 (requesting that the Court grant final summary
judgment for Defendant). Consequently, the Court need not reach the alternative arguments
regarding partial disability.
V.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Final Summary Judgment [DE 54] is
DENIED.
This matter is referred to Magistrate Judge William Matthewman for a Settlement
Conference to take place on Monday, June 3, 2019. The parties will receive further information
concerning the Settlement Conference from Judge Matthewman by separate Order.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 30th day of May,
2019.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record

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