Nefsky v. UNUM Life Insurance Company of America
Filing
27
OPINION AND ORDER granting Defendants Motion for Summary Judgment 19 and dismissing this action. Signed by Judge William S. Duffey, Jr on 2/15/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILLIAM F. NEFSKY,
Plaintiff,
v.
1:15-cv-2119-WSD
UNUM LIFE INSURANCE
COMPANY OF AMERICA,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Unum Life Insurance
Company of America’s (“Defendant”) Motion for Summary Judgment [19].
I.
BACKGROUND
A.
The Disability Insurance Policy
On June 9, 1979, Defendant issued a disability insurance policy (“Policy”) to
Plaintiff William F. Nefsky (“Plaintiff”). ([19.4] at 2). The Policy required
Defendant to make payments to Plaintiff in any month, before June 9, 2013,1 in
which Plaintiff was “totally disabled” or “residually disabled.” (Def. Statement of
1
The Lifetime Sickness Benefit Rider, described later in this Order, provides
for some continuation of coverage after this date.
Undisputed Material Facts [19.1] (“DSMF”) ¶¶ 2, 5).2 The Policy defines “totally
disabled” and “residually disabled” as follows:
“Total disability” and “totally disabled” mean injury or sickness3
restricts the Insured’s ability to perform the material and substantial
duties of his regular occupation to an extent that prevents him from
engaging in his regular occupation.4
“Residual disability” and “residually disabled” mean injury or
sickness does not prevent the Insured from engaging in his regular
occupation, BUT does restrict his ability to perform the material and
substantial duties of his regular occupation: (i) for as long a time as
he customarily performed them before the injury or sickness; or (ii) as
effectively as he customarily performed them before the injury or
sickness.
(DSMF ¶ 5).
The Policy also includes a Lifetime Sickness Benefit Rider (the “Rider”),
which is “subject to the terms and conditions of th[e] rider and the rest of th[e]
policy.” (DSMF ¶¶ 7-8). The Rider provides for continuation of coverage in the
event of a total disability based on certain conditions. The Rider states that,
2
Plaintiff was required to be disabled for thirty or ninety days—known as an
“elimination period”—before Defendant was required to make the monthly
payments described in the Policy. (DSMF ¶ 2; [19.4] at 4-5).
3
“‘Sickness’ means a mental or physical illness or condition which has been
diagnosed or treated.” ([19.4] at 10).
4
“‘Regular occupation’ means the Insured’s occupation at the time [the
Insured first becomes impaired]. If the Insured engages primarily in a
professionally recognized specialty at that time, his occupation is that specialty.”
(DSMF ¶ 5; [19.4] at 10).
2
beginning on June 9, 2013, Defendant is required to make payments to Plaintiff in
any month in which:
1.
the Insured is totally disabled; and
2.
that total disability:
a.
is the result of sickness which began before [June 9, 2008]
and while this rider was in effect; and
b.
his total disability began before [June 9, 2008] and has been
continuous until the month for which this benefit is payable.
(DSMF ¶¶ 9-13).5 The Rider provides that:
When used in this rider only: “Total disability” and “totally disabled”
mean
1.
sickness restricts the Insured’s ability to perform the material and
substantial duties of his regular occupation to an extent that
prevents him from engaging in his regular occupation; and
2.
the Insured is receiving medical care from someone other than
himself which is appropriate for that sickness.
(DSMF ¶ 11).
B.
Plaintiff’s Occupation
In 1974, Plaintiff began working for Precious Metals Exchange, a company
5
The Rider does not include a payment end date. Defendant’s obligation to
make monthly payments under the Rider is not triggered until the expiration of a
thirty- or ninety-day “elimination period.” (DSMF ¶ 11). The exact length of the
elimination period depends on Plaintiff’s coverage group, which is unclear from
the record. (See [19.4] at 4-6).
3
that sold gold and silver coins and bars to investors. (DSMF ¶ 14). In 1978,
Plaintiff bought Precious Metals Exchange and incorporated it as
WFN Enterprises, Inc. (“WFN”). (DSMF ¶ 15). Plaintiff is the president and sole
shareholder of WFN. (DSMF ¶ 16). He exercises “complete control” over WFN
and has done so continuously since 1978. (DSMF ¶ 17).
In the late 1970s, Plaintiff, through WFN, started buying and selling watches
and jewelry. (DSMF ¶ 19). He continues to do so today. Plaintiff also buys and
sells china, crystal and silverware. (DSMF ¶¶ 19, 23). Plaintiff often purchases
items—especially watches—wholesale from manufacturers. (DSMF ¶ 25). He
also purchases items from estates, stores with excess inventory, and stores going
out of business. (DSMF ¶ 26; [20] at 63). Watches constitute the largest portion
of Plaintiff’s inventory. (DSMF ¶ 24; see [20] at 48 (“[P]rimarily, I’ve worked
with watches.”)). Plaintiff has taken courses on grading diamonds and color
stones, but he is not a certified gemologist. (DSMF ¶¶ 20-21). He describes
himself as a “Business Broker.” (DSMF ¶ 22; see also [23] at 2).
Plaintiff’s inventory is stored in an office space, which he has rented for the
last twenty years. (DSMF ¶ 30). The office has a workroom, with good lighting,
where Plaintiff processes “small inventory deals.” (DSMF ¶ 31). Plaintiff sells
most of his inventory on eBay. (DSMF ¶ 33). He also sells items at trade shows,
4
through his company website, and occasionally over the telephone if he is
contacted by a former customer. (DSMF ¶¶ 26, 34-36). His products are not sold
in a showroom or store. (DSMF ¶ 32). Plaintiff, using a template, drafts
descriptions of the items he sells online. (DSMF ¶ 37). It usually takes him about
fifteen (15) minutes to draft a description. (DSMF ¶ 38). He composes only one
description for an item he buys in bulk. (DSMF ¶ 39). These descriptions are
posted on eBay and WFN’s website.
In the late 1990s, Plaintiff hired Mike Hoffland (“Hoffland”) to maintain
Plaintiff’s eBay account, to photograph and lists the items to be sold, and to fill any
orders received over the internet. (DSMF ¶¶ 40-43).6 Hoffland retrieves, inspects,
packages and ships WFN items sold online. (DSMF ¶ 44). If Hoffland discovers a
defect in the item, he raises the issue with Plaintiff. (DSMF ¶ 45). Daniel Marino
has handled WFN’s bookkeeping since 1978. (DSMF ¶ 46). He pays WFN’s bills
and maintains records of the company’s purchases and sales. (DSMF ¶ 47).
C.
Plaintiff’s Disability
On November 8, 2006, Plaintiff suffered a retinal vein occlusion. (DSMF
¶ 48). He was fifty-nine (59) years old at the time. (DSMF ¶ 49). The incident
6
Hoffland owns On the Road Publishing, a company that appears to offer
similar services to other businesses. (DSMF ¶ 40; [22] at 55).
5
severely impaired Plaintiff’s vision in his left eye. (DSMF ¶ 48). Plaintiff’s
reading vision in his left eye is now 20/40 or 20/50. ([20] at 40).7 His vision in his
right eye is 20/25 or 20/30, which he considers “pretty good.” ([20] at 40, 50).
The damage to Plaintiff’s left eye causes his right eye to “tire out much faster.”
([20] at 50). This prevents him from “analyz[ing] items for more than short
periods of time” because his vision “blur[s] out in a short period.” (DSMF ¶¶ 50,
71; [20] at 50). It has not resulted in other physical limitations. (DSMF ¶ 51).
Plaintiff is able to drive, hike, bike, swim, jog, and travel for pleasure. (DSMF
¶ 52).
Plaintiff previously was able to visually evaluate “three-dimensional”
products for up to eight hours a day. (DSMF ¶ 72; [20] at 49, 67). With his
diminished eye sight, he can only do this kind of evaluation for a maximum of two
hours a day. (DSMF ¶ 72; [20] at 47, 50). As a result, he sometimes declines
business opportunities that would require him to inspect items for long periods of
time. ([20] at 48).8 In 2007, Plaintiff lost one watch manufacturer’s business
7
Plaintiff can see colors and shapes with his left eye. (See [20] at 40).
Plaintiff pursues these opportunities when he is able to obtain short-term
help from others in the industry. (See, e.g., [20] at 48, 66-67; DSMF ¶ 83).
Plaintiff testified “they have continued to supply me even though I’ve had an issue
[with my vision] because I have been able to delegate some of the work to others.
I have been able to delegate a lot of the work to others and keep up with the
8
6
because he told them he could not evaluate 1,600 of their watches. (DSMF ¶73).
Plaintiff continues to attend trade shows where he still engages in the buying and
selling of items. (DSMF ¶¶ 88, 90).9 In 2015, he attended a trade show in Las
Vegas and six or seven trade shows in Atlanta. (DSMF ¶ 89). Plaintiff is unable to
do “complicated,” “task oriented” reading for other than short periods of time.
([20] at 47).
Plaintiff continues to purchase watches at wholesale prices. (DSMF ¶ 74).
Manufacturers often call him and ask him if he is interested in buying excess
inventory. (DSMF ¶ 78). Plaintiff takes fifteen minutes, or less, to decide whether
to make the purchase. (DSMF ¶ 79). Plaintiff considers his finances, whether he
has “staff to do the fulfillment,” and the price at which the items are selling in
secondary markets. (DSMF ¶ 80). He typically buys a limited number of watch
models in large quantities. (DSMF ¶ 77). Plaintiff also “occasionally help[s]
some[one] broker a collection” of watches. (DSMF ¶ 85).
Plaintiff remains a representative for at least two watch manufacturers.
(DSMF ¶ 75). He is the exclusive representative for Reactor watches, and also
quality.” (DSMF ¶ 83). Plaintiff also testified that he “sometimes . . . farm[s]
something out and get[s] a commission on the back end.” ([20] at 58).
9
Plaintiff is not able at trade shows to “exhibit” his products. (DSMF
¶¶ 86-87). He did, however, exhibit items at a trade show in 2007, shortly after his
retinal vein occlusion. (DSMF ¶ 87).
7
sells watches manufactured by Wenger. (DSMF ¶ 76). He continues to advertise
in two trade magazines. (DSMF ¶ 91). He continues to evaluate and purchase
items from estates and jewelry businesses. (DSMF ¶¶ 93, 96). In 2015, he
traveled to jewelry stores in North Carolina and Florida, where he evaluated and
purchased items from both stores. (DSMF ¶ 95). He sometimes has products
“shipped directly from [a jewelry store] and he doesn’t even have to physically
handle it.” (DSMF ¶¶ 92, 94). In 2015, Plaintiff sold approximately 1,500
watches on eBay and listed other items that did not result in a sale. ([22] at 42-43).
Plaintiff has a computer at home, uses an iPhone and an iPad, and has three
computers on his desk at work. (DSMF ¶¶ 53-54).10 Plaintiff’s business is
operational today and has continued, uninterrupted, since the reduction of vision in
his left eye. (DSMF ¶¶ 68-69).
D.
Plaintiffs’ Claims for Disability Benefits
On December 6, 2006, a month after his retinal vein occlusion, Plaintiff
submitted a claim for disability benefits under the Policy. (DSMF ¶ 56). Plaintiff,
at the time, was working ten to twenty hours per week. (DSMF ¶ 57). Before his
vision reduction, he generally worked forty to eighty hours per week. (DSMF
10
Plaintiff is able to watch television for up to two hours at a time. ([20] at
43).
8
¶ 70). Plaintiff claimed he was totally disabled under the Policy. (DSMF ¶ 61).
Defendant determined he was residually disabled. (DSMF ¶ 59). Defendant made
residual disability payments to Plaintiff from approximately November 8, 2006
through June 9, 2013. (DSMF ¶¶ 63-64).
On August 1, 2013, Plaintiff contacted Defendant and requested disability
benefits under the Rider. (DSMF ¶ 65). Plaintiff stated he was “totally disabled”
and had been since June 9, 2008. (DSMF ¶ 65). On October 3, 2013, Defendant
denied Plaintiff’s claim for disability benefits. (DSMF ¶ 66). Defendant
concluded that Plaintiff was residually disabled, not totally disabled, and that he
was thus ineligible for payments under the Rider. (DSMF ¶ 66).
E.
Procedural History
On May 14, 2015, Plaintiff filed his Complaint [1.1] in the State Court of
DeKalb County, Georgia. Plaintiff asserts a claim for breach of contract, arguing
that Defendant refused to pay him disability benefits to which he is entitled under
the Rider. Plaintiff also asserted a claim, under O.C.G.A. § 33-4-6, for penalties
and attorney’s fees on the grounds that Defendant, in bad faith, “refused to pay
[him] within sixty (60) days after [he] made a demand for payment” under the
Rider. (Compl. ¶ 23). Plaintiff seeks payment of the disability benefits, interest,
penalties, and attorney’s fees.
9
On June 12, 2015, Defendant removed this action from state court. ([1]).
On March 2, 2016, Defendant filed its Motion for Summary Judgment, seeking
summary judgment on Plaintiff’s claims. Defendant argues that Plaintiff is not
entitled to disability benefits because he is not “totally disabled” under the Rider.
On March 21, 2016, Plaintiff filed his Brief in Opposition to Defendant’s Motion
for Summary Judgment [23], arguing that he is “totally disabled” and thus is
entitled to payments under the Rider.
II.
LEGAL STANDARD FOR SUMMARY JUDGMENT
“Summary judgment is appropriate where the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Ahmed v. Air France-KLM, 165 F. Supp. 3d 1302, 1309 (N.D. Ga.
2016); see Fed. R. Civ. P. 56. “An issue of fact is material if it ‘might affect the
outcome of the suit under the governing law.’” W. Grp. Nurseries, Inc. v. Ergas,
167 F.3d 1354, 1360 (11th Cir. 1999) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “An issue of fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Id. at 1361
(quoting Anderson, 477 U.S. at 248).
10
The party seeking summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying [materials]
which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The movant[] can meet this
burden by presenting evidence showing there is no dispute of material fact, or by
showing that the nonmoving party has failed to present evidence in support of
some element of its case on which it bears the ultimate burden of proof.”
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281-82 (11th Cir. 1999).
The moving party need not “support its motion with affidavits or other similar
materials negating the opponent’s claim.” Celotex, 477 U.S. at 323. Once the
moving party has met its initial burden, the nonmoving party must demonstrate that
summary judgment is inappropriate by designating specific facts showing a
genuine issue for trial. Graham, 193 F.3d at 1282. The nonmoving party “need
not present evidence in a form necessary for admission at trial; however, he may
not merely rest on his pleadings.” Id. “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48.
11
“If the evidence presented by the non-moving party is merely colorable, or is
not significantly probative, summary judgment may be granted.” Apcoa,
Inc. v. Fid. Nat. Bank, 906 F.2d 610, 611 (11th Cir. 1990) (internal quotation
marks omitted) (quoting Anderson, 477 U.S. at 250). The party opposing
summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal
quotation marks omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986)); cf. Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1275 (11th Cir. 2002) (a party is entitled to summary judgment if
“the facts and inferences point overwhelmingly in favor of the moving party, such
that reasonable people could not arrive at a contrary verdict” (quoting
Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997) (internal
quotation marks omitted))).
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott, 550 U.S. at 380. “When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury
12
could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Id. “[C]redibility determinations, the
weighing of evidence, and the drawing of inferences from the facts are the function
of the jury.” Graham, 193 F.3d at 1282. “The nonmovant need not be given the
benefit of every inference but only of every reasonable inference.” Id.
Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be “no genuine issue as to
any material fact,” since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.
Celotex, 477 U.S. at 322-23; see Freeman v. JPMorgan Chase Bank N.A.,
-- Fed. App’x --, 2017 WL 128002, at *4 (11th Cir. Jan. 13, 2017) (same);
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1247 (11th Cir. 1999) (“If the
non-movant in a summary judgment action fails to adduce evidence which would
be sufficient, when viewed in a light most favorable to the non-movant, to support
a jury finding for the non-movant, summary judgment may be granted.”).
13
III.
DISCUSSION
A.
Insurance Contracts under Georgia Law11
“Insurance in Georgia is a matter of contract and the parties to the contract
of insurance are bound by its plain and unambiguous terms.” Hurst v. Grange Mut.
Cas. Co., 470 S.E.2d 659, 663 (Ga. 1996); see Yeomans & Assoc. Agency,
Inc. v. Bowen Tree Surgeons, Inc., 618 S.E.2d 673, 677 (Ga. Ct. App. 2005)
(“[A]n insurance policy is simply a contract, the provisions of which should be
construed as any other type of contract.”).
“Where the terms and conditions of an insurance contract are clear and
unambiguous, they must be given their literal meaning.” Adams v. Atlanta Cas.
Co., 509 S.E.2d 66, 68 (Ga. App. Ct. 1998); see Donaldson v. Pilot Life Ins. Co.,
341 S.E.2d 279, 280 (Ga. Ct. App. 1986) (“Where the language fixing the extent of
coverage is unambiguous, . . . and but one reasonable construction is possible, this
court must enforce the contract as written.”). If the terms of the policy are
ambiguous, “the statutory rules of contract construction will be applied,”
Pomerance v. Berkshire Life Ins. Co. of Am., 654 S.E.2d 638, 640 (Ga. Ct. App.
2007), and the ambiguities will “be strictly construed against the insurer as the
11
“In diversity cases, the Court is bound by the applicable state law governing
the contract, in this case Georgia law.” Giddens v. Equitable Life Assur. Soc. of
U.S., 445 F.3d 1286, 1297 (11th Cir. 2006).
14
drafter of the document,” Federated Mut. Ins. Co. v. Ownbey Enterprises, Inc.,
627 S.E.2d 917, 921 (Ga. App. Ct. 2006); see Giddens, 445 F.3d at 1297 (“[W]hen
a policy is ambiguous, or is capable of two reasonable interpretations, it is
construed in the light most favorable to the insured and against the insurer.”).
“[A] word or a phrase is ambiguous when it is of uncertain meaning and may be
fairly understood in more ways than one.” Ownbey Enterprises, 627 S.E.2d at 921
(citation and internal quotation marks omitted).
“[W]here an insurance contract contains unambiguous terms excluding
coverage,” however, “no construction is required, and the plain meaning of the
terms must be given full effect without straining to extend coverage where none
was contracted or intended.” State Farm Fire & Cas. Co. v. Bauman, 723 S.E.2d 1,
3 (Ga. Ct. App. 2012). “[A]n insurance company is free to fix the terms of its
policies as it sees fit, so long as such terms are not contrary to law.”
Henning v. Cont’l Cas. Co., 254 F.3d 1291, 1295 (11th Cir. 2001) (internal
quotation marks omitted) (quoting Cont’l Cas. Co. v. H.S.I. Fin. Servs., Inc., 466
S.E.2d 4, 6 (Ga. 1996)).
“[T]he interpretation of an insurance policy, including the determination and
resolution of ambiguities, is a question of law for the court to decide.” Giddens,
15
445 F.3d at 1297 (citing O.C.G.A. § 13-2-1); see Pomerance, 654 S.E.2d at 640
(“The proper construction of a contract is a question of law for a court to decide.”).
B.
Plaintiff’s Claim for Breach of Contract
The Rider requires Defendant to make payments to Plaintiff only if Plaintiff
is “totally disabled.” (DSMF ¶ 11). The question in this case is whether Plaintiff
is totally disabled.
The Rider states that “totally disabled” means “sickness restricts the
Insured’s ability to perform the material and substantial duties of his regular
occupation to an extent that prevents him from engaging in his regular
occupation.” (DSMF ¶ 11).12 The Georgia Court of Appeals has defined the
“material and substantial duties of [an insured’s] occupation” as “most or a vast
majority of the material duties” of the occupation. Pomerance, 654 S.E.2d at 639,
642; see also Giddens, 445 F.3d at 1298. To be totally disabled under the Rider in
this case, Plaintiff’s eye condition must restrict his ability to perform most or a vast
majority of the material duties of his occupation “to an extent that prevents him
from engaging in his regular occupation.”
12
The Insured also must be “receiving medical care from someone other than
himself which is appropriate for that sickness.” (DSMF ¶ 11). Defendant does not
dispute that Plaintiff is receiving medical care for the impairment in his left eye.
16
Plaintiff’s business involves buying and selling watches, jewelry and other
related items. The undisputed evidence is that Plaintiff continues to engage in that
business today and does so substantially. He continues to buy and sell items at
trade shows, over the telephone, and over the internet. He actively seeks new
business by advertising in two trade magazines. He is the exclusive representative
for one watch manufacturer and represents still another. He continues to purchase
watches at wholesale, and “occasionally help[s] some[one] broker a collection” of
used watches. He evaluates and purchases items from estates and jewelry stores.
In 2015, he attended seven or eight trade shows, sold approximately 1,500 watches
on eBay, and traveled to jewelry stores in North Carolina and Florida where he
evaluated and purchased items from both stores. He is able to purchase items in
bulk, from stores with which he is familiar, without “physically handl[ing]” the
items at issue. ([21] at 44). He continued to work ten or twenty hours per week
after his retinal vein occlusion. Cf. Socas v. Nw. Mut. Life Ins. Co., 829 F. Supp.
2d 1262, 1269, 1271 (S.D. Fla. 2011) (“Dr. Socas was a general dentist both before
and after the automobile accident. After the accident, she was able to perform
some, but not all of her previous duties as a general dentist. . . . Dr. Socas’
undisputed ability to continue performing general dentistry after her automobile
accident means that she was not totally disabled.”); see also Fountain v. Unum Life
17
Ins. Co. of Am., 677 S.E.2d 334, 337 (Ga. Ct. App. 2009); Girardeau v. Guardian
Life Ins. Co., 287 S.E.2d 324, 324 (Ga. Ct. App. 1981).
Plaintiff’s only eye-related limitation is that he cannot “analyz[e] items for
more than short periods of time” because his vision “blur[s] out.” This means he is
unable to do certain eye-intensive tasks, such as product inspection, for as long as
he could before damaging his left eye. It does not, however, prevent him from
meaningfully engaging in those tasks,13 from engaging in other material tasks not
dependent on intense focus of the eyes,14 or from otherwise running his business.
The Rider defines “residually disabled” under the Rider:
“Residual disability” and “residually disabled” mean injury or
sickness does not prevent the Insured from engaging in his regular
occupation, BUT does restrict his ability to perform the material and
substantial duties of his regular occupation: (i) for as long a time as
he customarily performed them before the injury or sickness; or (ii) as
effectively as he customarily performed them before the injury or
sickness.
(DSMF ¶ 5).
13
For example, Plaintiff could previously evaluate “three-dimensional”
products for up to eight hours a day. He can now do so for a maximum of two
hours a day. He also continues to draft descriptions for the products he sells
online.
14
These tasks include negotiating transactions, traveling for work, weighing
the merits of a business proposal, networking (at trade shows, for example), and
managing his staff.
18
Plaintiff is residually disabled only. Plaintiff’s eye condition restricts his
ability to perform certain tasks “for as long [or as effectively] as he customarily
performed them before [his] injury or sickness.” It does not, however, “prevent[]
him from engaging in his regular occupation.” He continues to operate WFN and
engage in his occupation. Considering the facts in the light most favorable to
Plaintiff, the Court finds that, given the terms of the Rider, no reasonable jury
could find in favor of Plaintiff in this action. Plaintiff is not totally disabled, he is
not eligible for payments under the Rider, and Defendant thus is entitled to
summary judgment on Plaintiff’s breach of contract claim. Cf. Fountain, 677
S.E.2d at 337 (“Total disability exists when one is wholly disabled from pursuing
the usual and customary duties of his employment on which he must depend for a
living. Total disability is the antithesis of partial disability. One is the opposite of
the other.”); Girardeau, 287 S.E.2d at 324 (“[T]he insurer is not liable as for a total
disability when the accident or disease has merely prevented the insured from
doing as much in a day’s work as before. Such lessened earning capacity may be a
case of partial disability, but not a case of total disability.”).
C.
Plaintiff’s Claim for Statutory Penalties and Attorney’s Fees
Plaintiff asserts a claim, under O.C.G.A. § 33-4-6, for penalties and
attorney’s fees on the grounds that Defendant, in bad faith, “refused to pay [him]
19
within sixty (60) days after [he] made a demand for payment” under the Rider.
(Compl. ¶ 23). Penalties and attorney’s fees are available under section 33-4-6
only “[i]n the event of a loss which is covered by a policy of insurance.” O.C.G.A.
§ 33-4-6(a). Plaintiff has not established any loss covered by the Policy and is not
entitled to statutory penalties or attorney’s fees. See Orr v. Dairyland Ins. Co.,
899, 273 S.E.2d 630, 631 (Ga. Ct. App. 1980) (“In the absence of basic liability by
[the insurer], there likewise could have been no liability for statutory penalties or
attorney fees.”); ([23] at 18). Defendant is entitled to summary judgment on
Plaintiff’s section 33-4-6 claim.
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment [19] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED.
SO ORDERED this 15th day of February, 2017.
20
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