Nefsky v. UNUM Life Insurance Company of America
Filing
33
OPINION AND ORDER denying Plaintiff's Motion for Reconsideration and Motion to Alter/Amend Judgment 29 . Signed by Judge William S. Duffey, Jr on 8/28/17. (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 Plaintiff William F. Nefsky’s (“Plaintiff”)
Motion for Reconsideration and Motion to Alter/Amend Judgment [29] (“Motion
for Reconsideration”).
I.
BACKGROUND
A.
The Disability Insurance Policy
On June 9, 1979, Defendant Unum Life Insurance Company of America
(“Defendant”) issued a disability insurance policy (“Policy”) to Plaintiff. ([19.4] at
2). The Policy includes a Lifetime Sickness Benefit Rider (the “Rider”), which
states that, beginning on June 9, 2013, Defendant is required to make payments to
Plaintiff if he is “totally disabled.”1 (Def. Statement of Undisputed Material Facts
[19.1] (“DSMF”) ¶¶ 9-13). The Rider includes a definition of total disability:
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). The Policy does not provide coverage, after June 9, 2013, for any
“residual disability” suffered by Plaintiff. The Policy defines residual disability as
follows:
“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).
1
The total disability must have begun before, and been continuous since,
June 9, 2008. (DSMF ¶¶ 9-13).
2
B.
Plaintiff’s Occupation
In 1974, Plaintiff began working for Precious Metals Exchange, a company
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,
3
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,
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 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).2 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).
2
Hoffland owns On the Road Publishing, a company that appears to offer
similar services to other businesses. (DSMF ¶ 40; [22] at 55).
4
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
severely impaired Plaintiff’s vision in his left eye. (DSMF ¶ 48). Plaintiff can see
colors and shapes with his left eye. (DSMF ¶ 40; [22] at 55). 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
5
time. ([20] at 48).3 In 2007, Plaintiff lost one watch manufacturer’s business
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).4 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
3
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
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).
4
Plaintiff is not able to “exhibit” his products at trade shows. (DSMF
¶¶ 86-87). He did, however, exhibit items at a trade show in 2007, shortly after his
retinal vein occlusion. (DSMF ¶ 87).
6
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
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).5 Plaintiff’s business is
operational today and has continued, uninterrupted, since the reduction of vision in
his left eye. (DSMF ¶¶ 68-69).
5
Plaintiff is able to watch television for up to two hours at a time. ([20] at
43).
7
D.
Plaintiffs’ Claim for Disability Benefits
On August 1, 2013, Plaintiff contacted Defendant and requested disability
benefits under the Rider. (DSMF ¶ 65).6 Plaintiff stated he was “totally disabled”
due to the retinal vein occlusion in his left eye. (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 asserted 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 sought payment of the disability benefits, interest,
penalties, and attorney’s fees.
6
From November 8, 2006, through June 9, 2013, Plaintiff received residual
disability benefits under the Policy. (DSMF ¶¶ 63-64).
8
On June 12, 2015, Defendant removed this action from state court. ([1]).
On March 2, 2016, Defendant filed its Motion for Summary Judgment [19], which
the Court granted on February 15, 2017. (See [27] (the “February 2017 Order”)).
The Court found that Plaintiff was not eligible for payments under the Rider
because he was residually, not totally, disabled.
On March 10, 2017, Plaintiff filed his Motion for Reconsideration,
challenging the Court’s February 2017 Order. Plaintiff claims the Order
erroneously found (1) that “Plaintiff’s reading vision in his left eye is now 20/40 or
20/50” and (2) that “Plaintiff could visually evaluate three dimensional products
for a maximum of two hours a day.” ([29.1] at 2-4). Plaintiff states that “if the
[corrected] ‘facts’ change the court’s opinion, then the grant of defendant’s motion
for summary judgment should be vacated and denied.” ([29.1] at 8).
II.
DISCUSSION
A.
Legal Standard
Motions for reconsideration “should be reserved for extraordinary
circumstances” and are not to “be filed as a matter of routine practice.” LR 7.2(E),
NDGa; Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga.
2001). If a motion for reconsideration is “absolutely necessary,” it must be “filed
9
with the clerk of court within twenty-eight (28) days after entry of the order or
judgment.” LR 7.2(E), NDGa.
Plaintiff here seeks reconsideration under Rule 59(e) of the Federal Rules of
Civil Procedure. ([29.1] at 2); see Region 8 Forest Serv. Timber Purchasers
Council v. Alcock, 993 F.2d 800, 906 n.5 (11th Cir. 1993) (“A motion for
reconsideration made after final judgment falls within the ambit of either
Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b) (motion for relief
from judgment or order).”). “The only grounds for granting a Rule 59 motion are
newly-discovered evidence or manifest errors of law or fact.” Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007); see Hood v. Perdue, 300 F. App’x 699, 700
(11th Cir. 2008); Jersawitz v. People, 71 F. Supp. 2d 1330, 1344 (N.D. Ga. 1999).
An error is “manifest” if it is “clear and obvious.” United States v. Battle,
272 F. Supp. 2d 1354, 1358 (N.D. Ga. 2003); see Benton v. Burke, No. 11-cv-493,
2012 WL 1746122, at *1 (N.D. Ala. May 16, 2012) (“A manifest error of law is
the wholesale disregard, misapplication, or failure to recognize controlling
precedent.”). A court’s conclusions are not manifestly erroneous if they are “at
least arguabl[y]” correct. Battle, 272 F. Supp. 2d at 1358.
“[T]he moving party must set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.” Burger King
10
Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002).
“[W]hen evaluating a motion to reconsider, a court should proceed cautiously,
realizing that in the interests of finality and conservation of scarce judicial
resources, reconsideration of a previous order is an extraordinary remedy to be
employed sparingly.” United States v. Barnes, No. 3:08-cv-966-J, 2012 WL
3194419, at *3 (M.D. Fla. June 5, 2012). Whether to grant a motion for
reconsideration is “committed to the sound discretion of the district judge.”
Townsend v. Gray, 505 Fed. App’x 916, 917 (11th Cir. 2013) (per curiam).
B.
Analysis
Plaintiff claims that the Court’s February 2017 Order contains two facts that
are incorrect: (1) that “Plaintiff’s reading vision in his left eye is now 20/40 or
20/50,” and (2) that “Plaintiff could visually evaluate three dimensional products
for a maximum of two hours a day.” ([29.1] at 2-4). The Court’s first conclusion
does not constitute a manifest error of fact. Plaintiff, at his deposition, was asked
whether he had “lost all vision in the left eye.” ([20] at 40). He responded, “I
have—I’ve lost all reading vision. I have about 20—what did he tell me?—I think
it’s around 20/400 or 20/800. It’s—I think reading vision is about 20/40 or 20/50.”
([20] at 40). Plaintiff now claims he meant that “when both eyes are open his
reading vision is about 20/40 or 20/50.” ([29.1] at 3 (emphasis added)).
11
As Plaintiff acknowledges, his deposition testimony does not clearly convey the
meaning he apparently intended. ([29.1] at 3). Plaintiff, in response to a question
about vision in his left eye, stated that his “reading vision is about 20/40 or 20/50.”
Based on this testimony, the Court did not commit “manifest error” in concluding
that “Plaintiff’s reading vision in his left eye is now 20/40 or 20/50.” (February
2017 Order at 6); see Bedtow Grp. II, LLC v. Ungerleider, 684 F. App’x 839, 843
(11th Cir. 2017) (“A Rule 59(e) motion for reconsideration may be granted based
only on newly-discovered evidence or to correct manifest errors of law or fact.”);
Am. Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th
Cir. 1985) (denying a motion for reconsideration because “any error that may have
been committed is not the sort of clear and obvious error which the interests of
justice demand that we correct”).
The Court’s second factual conclusion—that “Plaintiff could visually
evaluate three dimensional products for a maximum of two hours a day”—also
does not constitute manifest error. Plaintiff claims this conclusion is incorrect
because, on some days, Plaintiff is unable to examine items for two hours at a time.
([29.1] at 4). The Court’s conclusion is consistent with this factual assertion. The
Court found that Plaintiff could “do [three-dimensional] evaluation for a maximum
of two hours a day.” (February 2017 Order at 6 (emphasis added)). Nothing in
12
this statement suggests that Plaintiff could examine items for two hours every day.
Plaintiff has not shown that the Court’s February 2017 Order contains manifest
errors of fact.
Even assuming the Court’s two factual conclusions were manifestly
erroneous, they do not warrant relief from the February 2017 Order because
Defendant still is entitled to summary judgment. The Court’s decision to grant
Defendant’s summary judgment motion was not based on the reading vision in
Plaintiff’s left eye or on the conclusion that Plaintiff could examine threedimensional items for two hours every day. The Court awarded summary
judgment to Defendant because Plaintiff is residually, not totally, disabled:
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, from engaging in other material tasks not dependent on
intense focus of the eyes,7 or from otherwise running his
business. . . . Plaintiff is residually disabled only.
(February 2017 Order at 18-19).
7
These tasks include negotiating transactions, traveling for work, weighing
the merits of a business proposal, networking (at trade shows, for example),
managing his staff, and outsourcing or delegating work to others in the industry.
13
Plaintiff’s business involves buying and selling watches, jewelry and other
related items. The undisputed evidence is that Plaintiff continues to engage in his
business today and does so substantially. He buys and sells 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 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. (DSMF ¶ 57).
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.” (DSMF ¶ 5). It does not, however, “prevent[] him from engaging in his
regular occupation.” (DSMF ¶ 5). He continues to operate WFN and engage in his
occupation. Plaintiff is not totally disabled, he is not eligible for payments under
14
the Rider, and the Court’s February 2017 Order correctly awarded summary
judgment to Defendant. Cf. Fountain v. Unum Life Ins. Co. of Am., 677 S.E.2d
334, 337 (Ga. Ct. App. 2009) (“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 v. Guardian Life Ins. Co., 287 S.E.2d 324,
324 (Ga. Ct. App. 1981) (“[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.”). Plaintiff has not established
“extraordinary circumstances” warranting relief under Rule 59(e), and his Motion
for Reconsideration is denied. Adler, 202 F.R.D. at 675.8
8
To the extent Plaintiff seeks relief on the basis of cases previously addressed
by the Court in its February 2017 Order, Plaintiff has not shown that
reconsideration is warranted under Rule 59(e). See Michael Linet, Inc. v. Vill. of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005) (“[A party] cannot use a
Rule 59(e) motion to relitigate old matters, raise argument or present evidence that
could have been raised prior to the entry of judgment.”).
15
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration
and Motion to Alter/Amend Judgment [29] is DENIED.
SO ORDERED this 28th day of August, 2017.
16
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