Zorn v. Principle Life Insurance Company
Filing
90
ORDER denying 63 Motion for Judgment as a Matter of Law; granting 65 Motion for Summary Judgment. The Court reverses the administrator. Zorn is ordered to submit a brief on the issue of damages within seven days of this Order. Principle Life Insurance Company is ordered to submit its response within seven days of Zorn's filing. Signed by Judge B. Avant Edenfield on 1/12/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JOSEPH CHRIS ZORN,
Plaintiff,
v.
6:09-cv-81
PRINCIPAL LIFE INSURANCE
COMPANY,
Defendant.
ORDER
I. INTRODUCTION
Invoking 29 U.S.C. § 1132(a)(1)(B),
Plaintiff Joseph Chris Zorn (“Zorn”) seeks
judicial review of a disability benefits
termination decision by his disability
insurer, Principal Life Insurance Company
(“PLIC”). See Doc. 1 at 1. This case is
before the Court on Defendant PLIC’s
“Motion for Judgment on the Record,” see
Doc. 63, and Zorn’s “Motion for Summary
Judgment,” see Doc. 65.
The Court resolves both motions in a
Rule 52(a)(1) trial on the papers. See, e.g.,
Miller v. The Hartford Life & Acc. Ins. Co.,
2010 WL 1050006, at *6 (N.D. Ga. Mar. 17,
2010); Bates v. Metro. Life Ins. Co., 2009
WL 2355834, at *1 & n.1 (M.D. Ga. July
29, 2009).
II. FACTS
Effective April 1, 1988, PLIC issued
Group Policy No. GLT 53080 to the
Trustees of PIA Services Group Insurance
Fund, under which long-term disability
insurance was provided to eligible full-time
employees of Members of the National
Association of Professional Insurance
Agents. See Doc. 63-2.
Zorn, as an employee of a member
agency, received coverage under the policy
effective March 1, 1990, with a monthly
benefit of $2000. See Doc. 63-3 at 2457.
Zorn was employed as an insurance agent
and owner of Zorn & Son Insurance Agency
(“Zorn & Son”) at the time. See id. at 2948.
Zorn did not graduate from high school
and worked in the insurance business from
1974 until 1994, when he became disabled.
See Doc. 65-4 at 2, 4 (Zorn Affidavit).
Zorn was also involved in other
businesses. One such business was ZornLand, Inc. (“Zorn Land”), which bought real
estate for investment purposes. See id. at 8.
Another was Payroll and Accident Control
Services, Inc. (“PAC”), which provided
leased employees and other services to
customers. See id. at 8-9.
The underlying policy is governed by the
Employee Retirement Income Security Act
of 1974 (“ERISA”). See Doc 1 at 1. The
insurance policy defines “Disability” as:
An Eligible Person’s inability,
because of sickness or accident, to
perform the material duties of his or
her occupation (while under the care
of a Physician):
a. for the first five years of disability,
at his or her normal job; and
b. following the first five years, at
any job that reasonably fits his or her
background and training.
Doc. 63-2 at 12 (Insurance Policy).
Zorn was diagnosed with interstitial
cystitis in February 1993 and later with
pelvic floor dysfunction. See Doc. 63-3 at
2950, 3315. Dr. Robert J. Evans, an
urologist who specializes in Zorn’s disease
and who has been the primary physician in
treating Zorn’s interstitial cystitis disease
and pelvic floor dysfunction, described
these diseases as follows:
Interstitial cystitis is a complex
condition also known as Painful
Bladder Syndrome or Bladder Pain
Syndrome. It is characterized by
severe, unrelenting pain in the
bladder causing a constant urge to
urinate. It feels like a urinary tract
infection at all times even though the
urine in patients with IC tends to be
uninfected. The root cause of the
condition is a damage [sic] or poorly
functional bladder lining layer. This
layer, known as the
glycosaminoglycan (GAG) layer
serves to protect the bladder tissue
from the toxic effect of urine which
is acidic. It is not clear why the
GAG layer is poorly functional in IC
patients, but the end result of the
bladder being exposed to the acidic
urine is pain, and an overwhelming,
constant need to void. Patients with
this disease like Mr. Zorn often need
narcotics to deal with the pain. As
for the problem with urinary
frequency, many patients have to
spend all day in the bathroom
because they have an urge to go
when there is only a few drops in the
bladder. It is not unusual to see
someone attempt to urinate 60 or
more times in a day. In an attempt to
stop urinating so frequently, patients
like Mr. Zorn will develop a
dysfunctional pelvic floor where they
lose the ability to relax the muscles
used to hold in urine and because of
this external sphincter spasm, they
cannot void normally and have to
insert a catheter to empty the
bladder.
movements. In persons suffering
from interstitial cystitis the pelvic
muscles and sphincters become
constricted and tight, with very high
tension such that the muscles cannot
relax enough to have normal bowel
movements or normal urination.
This tension is called high-tone
pelvic floor dysfunction and causes
pain throughout the entire pelvis due
to muscle spasms.
Doc. 65-2 at 6-7 (Dr. Evans Affidavit).
Zorn submitted a claim for total
disability to PLIC, indicating his date of
disability as August 19, 2004. See Doc. 633 at 321. At the time, Zorn’s duties at Zorn
& Son required that he:
(1) Engage in conversations with
customers, both by phone and in
person at the office, regarding
insurance matters; (2) Engage in
conversations with insurance
company representatives, primarily
by phone, regarding insurance
applications, coverages, claims and
other matters; (3) Completion of
appropriate documentation, such as
policy applications, both for
customers and insurance companies;
(4) Make phone calls on business
customers at their business locations
to consult with regard to insurance
needs and coverages; (5) Supervise
other salesmen/producers, office
secretaries and clerks; and (6)
Review financial documents and
reports, both from insurance
companies and in-house documents.
See Doc. 65-4 at 14 (Zorn affidavit). PLIC
accepted Zorn’s claim on September 18,
1994. See Doc. 63-3 at 2935. The parties
dispute what Zorn told PLIC upon filing his
claim. Zorn informed PLIC that he was a
member of the local board of education and
that he received $200 a month for the
Everyone has a pelvic floor
which consists of the sphincter
muscles that open and close our
urethra and our rectum and allows us
to control urination and bowel
2
position. See Doc. 79-2 at 2. Zorn claims
that he also informed PLIC, by phone, that
he was chairman of his businesses’ boards
of directors and he would be advising those
corporations and reviewing their financial
material as needed, and that he was his
church’s treasurer. See Doc. 65-10 at 12-13.
PLIC denies that Zorn informed it of these
additional circumstances. See Doc. 74 at 14.
Sometime in 2003, Zorn and his wife
Deborah, who also worked at Zorn & Son in
a managerial capacity, had a falling out with
Rhett Zorn. Zorn claims that he ultimately
pushed Rhett out of the business because
“(1) he had ceased trying to work amicably
with my wife, and (2) he was not producing
income for the agency that justified him
staying.” See Doc. 65-4 at 6 (Zorn
Affidavit). Rhett claims that Zorn had
always planned to force Rhett out as soon as
Zorn’s son was ready to start at the agency.
See Doc. 63-3 at 3339, 3828-29.
On April 4, 1995, Zorn submitted an
application to South Carolina for an agent’s
“continuing insurance education
exemption.” See Doc. 69 at 100 (Zorn
Deposition). On August 16, 1995, Zorn
applied for license renewal in Alabama. See
id. Zorn indicated that he renewed his
licenses hoping that he could return to work.
See Doc. 69-1 at 1 (Zorn Deposition). Zorn
stated that he later let his Georgia license go
inactive. See id.
In 2003, Zorn’s Georgia insurance
license expired. See id. at 3506-09.
On February 13, 2003, PLIC received a
call from Carolyn Zorn (“Carolyn”), Zorn’s
sister-in-law and Rhett’s wife. See Doc. 633 at 3690-92. Carolyn reported that Zorn
was working for Zorn & Son both in-office
and at home, but worked primarily from his
home after Carolyn confronted him about
his work activity and his disability claim.
See id. She accused Zorn of “filtering”
money through his wife and attempting to
hide income as “rent expenses.” See id. at
3691.
In 1996, Zorn signed an agreement with
his brother Robert Rhett Zorn (“Rhett”)
making Rhett the owner of half of Zorn &
Son. See Doc. 63-3 at 3639-42. Rhett also
became an employee of the agency. See id.
Rhett had quit his job at Georgia Power’s
Plant Hatch to join Zorn & Son. See Doc.
65-4 at 6 (Zorn Affidavit).
She also indicated that Zorn still owned
and operated Zorn Land. See id. Carolyn
claimed that Zorn bought and sold land and
drove a bulldozer for the company. See id.
In August 1996, Zorn asked AutoOwners Insurance Company to renew his
non-residential agent appointment in South
Carolina. See Doc 69-1 at 1 (Zorn
Deposition).
On March 18, 2003, Carolyn again
contacted PLIC to inform them that Zorn
was working at the insurance office. See id.
at 2789. According to her, Zorn would
come into the life insurance office “after
lunch every day because he does his other
work in the mornings” for Zorn Land. See
In February 1997, Zorn again applied for
renewal of his Alabama license. See Doc.
63-5 at 4.
In 1998, Zorn went on a hunting trip to
South America with his former son-in-law.
Doc. 63-13 at 63 (Zorn Deposition); see also
Doc. 63-3 at 3827-28. The trip itself lasted
a few days. See Doc. 63-13 at 63 (Zorn
Deposition). Due to his condition, Zorn’s
hunting on the trip was limited. See id.
id.
From March 17, 2003, to March 20,
2003, PLIC had surveillance conducted on
Zorn. The investigators discovered that
Zorn spent no more than a few hours at Zorn
& Son’s office over the course of three days.
3
See id. at 3085. Two later investigations
failed to locate Zorn at the office. See Docs.
specialize in Zorn’s disease. See id. at 3430.
Dr. Patterson noticed that Zorn “did not
appear uncomfortable and did not request to
urinate one time” during the one hour and
forty minute examination. Id. at 3433. Dr.
Patterson reported:
66-11; 66-13.
Carolyn contacted PLIC again on March
21, 2003 to inform PLIC that Zorn was
buying Chris’s share of the business and that
Zorn’s son Chris was taking over Rhett’s
duties. See id. at 3568.
Based on face to face time with
Zorn, plus additional time in the
examining room totaling
approximately an hour and 45
minutes, Mr. Zorn remained
comfortable, did not have to urinate,
and interacted at length. Based on
this it would seem feasible to me that
Mr. Zorn could work in a sedentary
setting doing paperwork, talking on
the telephone, etc. This is in effect
what we did for over an hour and a
half at a single stretch and Mr. Zorn
did not appear to have any difficulty
during this time.
On April 29, 2003, in an interview with
PLIC, Zorn stated that, while he was
working with Zorn & Son, he described
himself as “owner/producer/manager” and
focused 100% on sales, while his wife
Debbie ran the office and handled personal
lines. See id. at 3533. Zorn claimed that
due to his disability, he became Chairman of
the Board of directors for the company so
that he might still have a voice in company
activities. See id. According to Zorn, this
activity took an hour a week, and he
received no salary. See id. Zorn also
claimed that he had not sold an insurance
policy in the last ten years and had given up
his insurance license in 1994. See id. Zorn
claimed to have no stock ownership in Zorn
& Son. See id.
Id. at 3431. Dr. Patterson also suggested
that Zorn might not be motivated to
improve, in part because of his enjoyment of
his narcotic regimen. Id. Regarding Zorn’s
other abilities, Dr. Patterson found that:
In the same interview, Zorn claimed that
he participated in no work activity for Zorn
Land, other than “riding &walking around
looking at the [40 head of] cattle” that Zorn
kept at his house for the company. See id.
Zorn purported to have held 50% ownership
of the company at that time, and no other
salary. See id.
I did not assess his ability to stand or
walk, although interstitial cystitis
generally is not affected by body
position. With respect to his ability
to lift and carry, I do not see any
reason for physical limitation. With
respect to his ability to drive, I would
suggest that the only limitation at
this time is his narcotic use.
Finally, Zorn claimed to have no more
involvement with PAC. See id. He also
alleged that he had no more involvement “in
any land development for either business or
residential in the Vidalia area.” See id. at
3537.
Id. Dr. Patterson noted that while Zorn’s
diagnosis of interstitial cystitis was
appropriate considering Zorn’s history, the
diagnosis was “in many ways a diagnosis of
exclusion and based upon history.” Id. at
3430. Dr. Patterson gave four examples of
newer treatments that he thought would be
beneficial for Zorn. See id.
In October 2003, PLIC asked Zorn to
undergo an independent medical
examination by Dr. Lancing Patterson, a
board certified urologist who does not
4
Zorn took issue with some of the factual
assertions in Dr. Patterson’s report. See id.
at 3234-35. Zorn claimed that he went to
the bathroom four times during his visit with
Dr. Patterson, including once by
recommendation of a nurse. See id. at 3235.
Zorn also claimed that he had actually tried
three of the four treatments that Dr.
Patterson suggested. See id.
given the medications he currently
requires.
See id. at 3360. In a later affidavit, Dr.
Connor declared, “[b]ased on my personal
knowledge of Mr. Zorn and his medical
conditions, it is my medical opinion that Mr.
Zorn is totally disabled and unable to
perform the work required of any job of
which I am aware.” See Doc. 65-3 at 4
(Conner Affidavit).
In November 2003, Carolyn sent PLIC
articles from a local newspaper indicating
that Zorn had appeared at meetings of the
Lyons City Council. See id. at 3435, 343944. The paper reported that at one such
meeting, Zorn participated in a lengthy
discussion regarding city development of a
water supply in a subdivision that he was
developing. See id. at 3440. Zorn expressed
a desire to come back to the council as
needed. See id. Zorn met with the council
on numerous occasions afterwards. See id.
at 3441-43. Zorn later acknowledged his
success in obtaining water for his
subdivision. See Doc. 70 at 61-62 (Zorn
Deposition).
A series of emails written by Zorn and
intermittently sent from October 2003 to
November 2003 indicate that Zorn was
involved in Zorn & Son’s and Zorn Land’s
businesses. See Docs. 69-3 at 8-50 (Zorn
Deposition); 69-4 (same); 69-5 at 1-18
(same).
In a January 29, 2004 interview with
one of PLIC’s agents, Zorn admitted to
operating caterpillar heavy equipment “from
time to time . . . for 30 minutes or so but
when he does anything physical like this he
then pays for it with increased pain.” See
Doc. 63-3 at 3344. Zorn also admitted to
having purchased some bulls but said that he
had sold his cattle due to his inability to care
for them. See id. at 3343. Zorn hired
someone to care for the bulls. Id.
On December 2, 2003, Zorn’s attending
physician, Dr. Geoffery Conner, responding
to PLIC’s request to review Dr. Patterson’s
report, stated that:
According to the agent, Zorn excused
himself four times over the course of this
two hour interview “presumably to use the
bathroom.” Id. at 3345. The agent also
noted that Zorn appeared pale and thin, but
alert and very astute as to the workings of
Zorn & Son. Id. Zorn claimed that this was
due to his wife’s and son’s updates
concerning the business. Id.
Based on his history and reports I
have reviewed, [Zorn] has tried a
wide variety of medications to help
control his pelvic pain with his
current regimen being the only thing
that has been successful. I do not
specialize in interstitial cystitis and
there may be other treatment
modalities which would be more
successful. I would support Mr.
Zorn seeing a specialist dealing with
interstitial cystitis to explore these
other treatment options. If however
these fail to control his symptoms it
would be difficult to see him
performing even sedentary work
Rhett and Carolyn met with the same
agent on January 28, 2004. See id. at 3337.
They indicated that Zorn still did all of the
record keeping for the insurance agency and
that he spent many hours at the office in the
last week of December 2003. Id. They also
indicated that Zorn ran PAC. Id. Rhett
5
reported that Zorn still worked primarily
from home. Id. at 3338. Rhett and Carolyn
also stated that Zorn operated caterpillar
heavy machinery. Id. at 3339.
plummeted.”). This was down from Zorn’s
normal average of 54-59 times in one day.
See Doc. 63-3 at 3320, 3325. Dr. Evans also
found that Zorn exhibited signs of “marked
sleep deprivation and mental fatigue.” See
Doc. 65-2 at 20 (Dr. Evans Affidavit).
Dr. Evans first examined Zorn on March
8, 2004. See Doc. 65-2 at 2 (Dr. Evans
Affidavit). On that visit, Zorn complained
of “constipation, penile pain, erection
problems, and urinary urgency and
frequency. . . . difficulty voiding, abdominal
pain, episodes of urinary retention, nausea,
vomiting, and other constitutional
symptoms.” Id. at 3. In order to evaluate
Zorn, Dr. Evans injected a solution directly
into his bladder, which provided Zorn with
“some degree of immediate relief.” See id.
at 4. Dr. Evans confirmed Zorn’s diagnosis
of interstitial cystitis and pelvic floor
dysfunction. See id.
Dr. Evans also
diagnosed Zorn with fibromyalgia. See id.
On April 19, 2004, Dr. Evans reviewed
and completely disagreed with Dr.
Patterson’s evaluation. Id. at 3324. Dr.
Evans wrote:
It has been my experience that when
[Zorn] is in my office, he spends all
of his time on his back, on his side
and is not able to sit up in a normal
fashion. I generally have to perform
by [sic] conversations with him in
this position. It has not been my
experience that he can sit in a chair
and have what I would consider a
normal medical interview.
Dr. Evans taught Zorn selfcatheterization and recommended that Zorn
receive an “InterStim implant,” which “uses
gentle stimulation of the third sacral nerve to
decrease the signals coming from the
bladder and heading to the spine and brain
causing someone to have an urge to void.”
See id. at 4-5.
Under these circumstances, I believe
the assessment provided to you by
Dr. Patterson is unduly optimistic. I
will once again refer you back to the
objective information obtained from
the voiding diary which even with
aggressive therapy including the
Interstim has not decreased his
frequency to any significant degree.
Certainly if his frequency would
drop to 10-12 times a day, he might
be able to work in an office setting
but at this time, he really is chained
to the bathroom. I would consider
him to be totally disabled at this
point.
On either March 23 or April 2, 2004,
Zorn received the InterStim implant, which
improved Zorn’s voiding significantly. See
id. at 5, 27. By April 14, 2004, Dr. Evans
noted that Zorn was voiding “between 27
and 31 times a day.” See id. at 5. But see
Doc. 63-3 at 3329 (noting that, immediately
after implanting first stage InterStim, Zorn’s
“frequency [was] dropping down into the
range of 6-10 a day”); id. at 3335 (“[I]f
[Zorn’s] frequency would drop down to 1012 times a day, he might be able to work in
an office setting but at this time, he really is
chained to the bathroom.”); Doc. 65-2 at 24
(Dr. Evans Affidavit) (“[Zorn] is now
voiding in the range of between 6 and 10
times a day and his nocturia has
Id. at 3325. Dr. Evans concluded that Zorn
was disabled due to his “urinary frequency
and urgency,” “severe and intractable pain,”
impaired cognition caused by the potent
narcotic medication Zorn takes to deal with
his condition, pain while in a sedentary
position, stress, irritable bowel syndrome,
and depression. See Doc. 65-2 at 8-10 (Dr.
Evans Affidavit).
6
work from home. See Doc. 63-3 at 3812,
3840-41. Rhett also stated that he noticed
Zorn going to the bathroom frequently while
Rhett worked at Zorn & Son, but that he
observed no other physical disabilities. See
id. at 3828.
Since 2004, Dr. Evans has seen Zorn
seven more times, including once to install a
new InterStim implant due to the
malfunction of the first implant. See id. at 7.
On October 1, 2004, PLIC had Zorn’s
medical records reviewed by Dr. Jackie
Stephenson, another independent urologist.
See Doc. 63-3 at 2581. She indicated that
she “would expect Mr. Zorn’s activities to
be as limited as described by Dr. Evans.”
Id. Regarding how she would proceed if
treating an individual in Zorn’s condition,
Dr. Stephenson stated that she “would place
no limitations on a patient with interstitial
cystitis, but rather would allow them to do
whatever they are capable. However, in a
case as severe as Mr. Zorn, I have no
difficulty envisioning Mr. Zorn as being as
limited as described by Dr. Evans.” Id. at
2582. She concluded, “I believe that
narcotics are currently his only source of
relief, and that he is disabled and incapable
of sedentary work.” Id.
Brian Bishop, an employee at Zorn &
Son, stated in his deposition that Zorn would
come to the office three to four times a week
for an hour or more to handle whatever work
needed to be done at the agency. Id. at
3774. Bishop also stated that Zorn would
give advice, interact with customers, and
hold meetings at the office. See id. Bishop
stated that Zorn “was active when it came to
any type of financial aspect of the agency.”
Id. at 3782.
On November 17, 2005, PLIC sent Zorn
a letter indicating that, after undergoing an
investigation of Zorn’s claim and reviewing
information he had previously provided,
Principal was terminating his claim because
he was no longer disabled. Id. at 2062.
Principal cited his activity within his
businesses, his management of the
businesses, and his travel and leisure habits
as evidence of his physical ability. See id. at
2063. PLIC advised Zorn of his right to
submit to an administrative appeal of its
decision. See id. at 2065.
On December 22, 2004, Dr. Evans wrote
to PLIC that “Mr. Zorn is markedly
incapacitated. . . . I believe that he is unable
to sit up on a regular basis, and each and
every time I have seen him since the April
visit he has spent most of time in the
recumbent position.” Id. at 3149. Dr. Evans
also noted that he felt Zorn’s condition was
unlikely to improve. Id.
On March 29, 2006, an investigator with
the Georgia Department of Insurance called
PLIC and informed them that Zorn’s office
had been searched and that computers had
been seized. See id. at 2479. He also stated
that Zorn had become licensed to sell
insurance in Alabama and North Carolina in
1996 and 1997 respectively. Id.
In August 2005, Zorn and Chris met
with the local Chamber of Commerce
regarding decisions that “had cost [their]
business a lot of money.” See Doc. 68-1 at
42 (Chris Deposition). According to Zorn,
he commonly accompanied Chris on client
issues and investigations of agency purchase
opportunities. See Doc. 69-1 at 125 (Zorn
Deposition).
In May 2006, PLIC received a copy of a
video of a meeting at Zorn’s church, at
which Zorn appeared and spoke. See id. at
2368. Zorn appeared before and spoke to
the church for nearly 20 minutes. See id.
(Video).
In his deposition on September 28, 2005,
Rhett again averred that Zorn always
handled major problems and negotiations at
Zorn & Son, but that he did most of his
7
On July 10, 2006, Integrity
Rehabilitation & Testing, Inc. (“Integrity”)
performed an employability analysis on
Zorn. See id. at 2323. The agency’s analyst
found that:
performed for the agency, but stated that he
did not make the payment. See id. at 26-27.
Chris also confirmed that Zorn accompanied
him to other insurance agencies to explore
purchase opportunities. See id. at 29.
According to Chris, Zorn attended these
meetings as an adviser only. See id at 30.
within a reasonable degree of
vocational certainty . . . Mr. Zorn’s
residual functional capacity as
opined by unknown urologist on
October 1, 2004 and Dr. Evans
would preclude him from performing
the essential job functions of any
competitive job in a reliable manner.
A worker who has to go to the
bathroom as much as Mr. Zorn does
would not be able to perform
competitive work and would need an
accommodated job with a
sympathetic employer.
Chris, however, was the chief financial
officer of the insurance company. See id. at
18. He handled the day-to-day operations of
the business with Deborah. See id. at 62.
He also employed a certified public
accountant to advise Zorn & Son. See id.
On January 10, 2007, Zorn gave his
deposition. See id. at 77. Zorn revealed that
he filed a defamation suit against Rhett and
Carolyn. See id. at 83-84. Zorn confirmed
that the agency was paying for his cell
phone. See id. at 90-91. He also confirmed
that his home computer was connected to
the agency’s office, enabling him to do work
from home. See id. at 93-94. Zorn stated
that his limit for car travel would be
approximately seven to eight hours of
driving. See id. at 101. When shown a 2001
check for $25,079.79 that was made out to
him, Zorn said he could not recall where the
check came from. See id. at 189-90. He
described himself as chairman of the board
of Zorn & Son, Zorn Land, and PAC. Id. at
208-09. As chairman of the boards of these
companies, Zorn acted as “a financial
adviser.” Id. at 209.
See id. at 2331. Regarding his education
and experience, the analyst determined that
“Mr. Zorn’s educational level alone would
allow him to qualify only for unskilled jobs.
Mr. Zorn had a skilled and very skilled work
history. He had acquired transferable skills
to work at the sedentary and light exertional
level within the insurance industry.” Id. at
2330. The report concluded that “Mr. Zorn
has and continues to meet the definition of
‘disability’ or ‘disabled’ as defined by
Principal Financial Group.” Id. at 2331.
Zorn began appealing his denial with
PLIC on July 17, 2006. See id. at 2291.
On July 12, 2007, Zorn forwarded a
letter from Dr. Evans, which sought to
explain his earlier statements to PLIC. See
id. at 2067-68. In that letter, he wrote:
Deborah and Chris gave depositions on
December 6, 2006. See id. at 1, 560. At her
deposition, Deborah stated that Zorn acted
merely in an advisory capacity for Zorn &
Son. See id. at 569. She stated that she did
involve Zorn in agency finances. See id. at
570.
I feel that Mr. Zorn is markedly
incapacitated by his interstitial
cystitis. I don’t believe he is able to
travel for long periods of time such
as to our office which is an 8 or 10
hour trip one day without having to
resume a recumbent position to try
Chris stated that Zorn only occasionally
went with him on sales calls. See id. at 15.
He also identified a 2002 document as a
check to Zorn for management services
8
and alleviate some of the pain caused
by travel.
disability has severely restricted his
activities in, around, and out of the house.
See id. at 4. According to Deborah, Zorn
has great difficulty sleeping. See id. at 5-6.
Deborah stated that Zorn has not operated
heavy equipment since he has become
disabled, but that she did recall Zorn
occasionally operating a tractor. See id. at 7.
Id. at 2068.
On August 30, 2007, Principal mailed
Zorn a letter indicating that it had completed
a review of Zorn’s termination and upheld
its decision to terminate benefits. See Doc.
66-3 at 2. The review letter indicated that
Zorn had been “observed at his office on
numerous occasions,” that he had
“significant real estate interests,” and that he
had appeared before local zoning boards and
performed “significant and time consuming
work for his church.” Id. at 6. According to
the letter, these observations were enough to
conclude that Zorn was no longer totally
disabled and that he “is able to perform the
material duties of his occupation or any job
that reasonably fits his background and
training.” Id. at 8. PLIC noted that “[m]ost
of Mr. Zorn’s complaints are self-reported.
Ultimately, the activities of Mr. Zorn seem
inconsistent with his alleged limitations.”
Id. at 7.
Gibbs, Zorn’s best friend and pastor,
stated that Zorn had to give up most of his
duties with his church due to his disability.
See Doc. 65-6 at 3 (Gibbs Affidavit). Gibbs
noted that Zorn used to be very physically
active, but that Gibbs never sees Zorn
“doing any physical activity other than
taking a walk and that is not often.” Id. at 5.
Gibbs also claimed that Zorn “is not nearly
as sharp as he used to be.” Id. at 5.
On November 7, 2011, this Court
granted the parties’ motion for permission to
obtain an independent medical evaluation.
See Doc. 85. The parties jointly
recommended Dr. Jeffrey G. Proctor, “an
Atlanta board certified urologist, who holds
himself out as specializing in the treatment
of patients with interstitial cystitis.” Doc. 84
at 1. Dr. Jeffrey G. Proctor reviewed Zorn’s
records and examined Zorn on November
23, 2011. See Doc. 89-1. Zorn reported that
he urinated at least twenty times a day, had
nocturia every fifteen minutes, has severe
urinary urgency, strains to void, and has
severe urinary pain. See id. at 4. Zorn was
laying down for most of his examination
with Dr. Proctor. See id.
Zorn filed this lawsuit on November 10,
2009. See Doc. 1.
On June 10, 2011, Zorn, Deborah, and
Don Gibbs (“Gibbs”) gave a affidavits. See
Docs. 65-4 (Zorn Affidavit); 65-5 (Deborah
Affidavit); 65-6 (Gibbs Affidavit). Zorn
stated that every day he experiences pain,
takes narcotic medication, goes to the
bathroom frequently, appears sick, and
cannot reliable concentrate. See Doc. 65-4
at 15 (Zorn Affidavit).
Dr. Proctor concluded that Zorn has
“very severe interstitial cystitis.” Id. Dr.
Proctor also noted that Zorn is “on narcotic
dependence in order to tolerate his
intractable pain.” Id. Dr. Proctor
recommended a new treatment for Zorn, but
stated that he “would not expect a
miraculous relief of symptoms with [the]
treatment.” Id. Dr. Proctor ended his report
by stating that “[u]nless new treatments
Deborah stated that Zorn’s illness
“started out gradually in the 1980s as
occasional discomfort in his lower abdomen
and progressed to chronic, daily pain which
necessitates narcotic medication every day.”
See Doc. 65-5 at 1 (Deborah Affidavit). She
averred that Zorn does not have the mental
ability to focus on and handle a full-time
job. See id. at 2. She claimed that his
9
become available for interstitial cystitis, I
believe that Mr. Zorn will remain totally
disabled for the foreseeable future. Again, I
do not believe that Mr. Zorn can perform
any of the duties of his employment.” Id.
63 at 2. “ERISA does not provide its own
statute of limitations,” and “[c]ourts either
borrow a closely analogous state limitations
period, or they apply a contractually agreed
upon period, provided it is reasonable.”
Bennett v. Metro. Life Ins. Co., 383 F. App’x
870, 872 (11th Cir. 2010). “[W]here the
parties have contractually agreed upon a
limitations period, borrowing a state’s
statute of limitations is unnecessary.”
Fetterhoff v. Liberty Life Assurance Co., 282
F. App’x 740, 744 (11th Cir. 2008).
On November 14, 2011, this Court
ordered Zorn to submit to an independent
employability analysis concerning his ability
to perform the “material duties” of “any job
that reasonably fits his . . . background and
training.” See Docs. 82; 88. The parties
jointly recommended Kathryn W. Willard
(“Willard”). See Doc. 87.
The insurance policy in this case
provides that “no legal action may be started
later than three years after [Proof of
Disability] is required to be filed.” See Doc.
63-2 at 31 (Insurance Policy). The plan
further requires that such proof be sent to
PLIC “within six months after the Eligible
Person completes a Benefit Waiting Period,”
which according to PLIC was 30 days. Id.
at 30; see also Doc. 63-16 at 22-23.
After reviewing a voluminous collection
of documents submitted by the parties,
Willard determined that Zorn “is unable to
display the physical stamina necessary to
function as an insurance sales agent.” Doc.
89-2 at 22. She opined that:
[f]or vocational purposes [Zorn]
would need a job that would allow
him to change positions at his own
volition and be in charge of his work
hours. . . . While owning Zorn &
Son Agency, Mr. Zorn may have had
the ability to change his positions as
he needed, it is not felt that his
availability to meet with clients on a
sustained and regular basis was
evident . . . .
Zorn alleged a disability date of August
19, 1994 when he submitted his claim to
PLIC. See Doc. 63-3 at 321. According to
the policy, the last day that Zorn could
bring suit was March 18, 1998. PLIC
concedes that beginning the limitations
period at that date would be unreasonable
because Zorn had no reason to file suit. See
Doc. 63-16 at 23.
Id. She determined that Zorn “has the
ability to function in a limited capacity from
mid morning until early evening on a fairly
regular basis. This availability would equal
part-time work if time involvement were the
only consideration.” Id. Willard did state
that Zorn might be able to “continue work as
a business investor and a manager of other
workers.” Id.
PLIC, however, contends that the threeyear limitations period commenced on
November 17, 2005, the date that Zorn first
received notice of discontinuation of his
claim. See id. Thus, according to PLIC,
when Zorn filed this lawsuit on November
10, 2009, he ran afoul of the November 17,
2008 deadline by nearly a year, and his
claim is barred. See id. Zorn argues that the
beginning of the limitations period should be
equitably tolled until Zorn exhausted all
administrative remedies on August 30, 2007,
meaning that his November 10, 2009
III. ANALYSIS
A. Statute of Limitations
PLIC avers that Zorn’s suit is barred by
a contractual statute of limitations. See Doc.
10
complaint did not transgress the August 30,
2011 deadline. See Doc. 75 at 9.
v. Gen. Dynamics Corp., 151 F.3d 396, 400
(5th Cir. 1998) (holding that 29 U.S.C. §
1113 is a statute of repose for breach of
fiduciary duty ERISA claims to which
tolling does not apply).
An ERISA cause of action arises when
an application for benefits is denied. See
Hogan v. Kraft Foods, 969 F.2d 142, 145
(5th Cir. 1992); Gray v. Greyhound Ret. &
Disability Trust, 730 F. Supp. 415, 417
(M.D. Fla. 1990). “It is well-established law
in this Circuit that plaintiffs in ERISA cases
must normally exhaust available
administrative remedies under their ERISAgoverned plans before they may bring suit in
federal court.” Springer v. Wal-Mart
Assocs.’ Grp. Health Plan, 908 F.2d 897,
899 (11th Cir. 1990). Courts measuring
limitations periods from the date that claims
are first denied “must take care to ensure the
limitations period is reasonable and that the
specter of the substantial compression of a
Plaintiff's time to sue does not materialize.”
See Ponstein v. HMO Louisiana Inc., 2009
WL 1309737, at *4 (E.D. La. May 11, 2009)
(concerning limitations period purporting to
arise when disputed care was first rendered).
Zorn exhausted all administrative
remedies on August 30, 2007. See Doc. 663 at 2. The three year contractual limitation
in this case ended on August 30, 2010. Zorn
filed suit on November 10, 2009. Thus, the
contractual limitation does not bar Zorn’s
claim.
B. ERISA claim
1. Standard of Review
This is a close case. “A plaintiff suing
under [ERISA] bears the burden of proving
his entitlement to contractual benefits.”
Horton v. Reliance Standard Life Ins. Co.,
141 F.3d 1038, 1040 (11th Cir. 1998).
Thus, “[t]he plaintiff must prove by a
preponderance of the evidence that he is
entitled to . . . disability benefits within the
terms of the [Plan].” Papczynski v. Conn.
Gen. Life Ins. Co., 730 F. Supp. 410, 413
(M.D. Fla. 1990).
Courts in this Circuit dealing with
contractual limitations periods for §
1132(a)(1)(B) claims have determined that
limitations periods are tolled until the end of
an administrative review process. See Amos
v. Hartford Life & Acc. Ins. Co., 2009 WL
1804989, at *2 (N.D. Ala. June 24, 2009)
(“[T]olling the limitations period, whether
set by contractual provision or a borrowed
state statute of limitations, until a plaintiff
exhausts her administrative remedies best
comports with the statutory language . . . .”);
Fetterhoff v. Liberty Life Assurance Co.,
2007 WL 1589539, at *2 (S.D. Ala. May 31,
2007) (“Such limitations periods are tolled
for the period necessary for the claimant to
exhaust his administrative remedies.”);
Jeffries v. Trs. of Northrop Grumman Sav. &
Inv. Plan, 169 F. Supp. 2d 1380, 1382 (M.D.
Ga. 2001) (“[T]he statute of limitations was
tolled while Plaintiff exhausted his
administrative remedies.”). But cf. Radford
“A denial of benefits under an ERISA
plan must be reviewed de novo ‘unless the
benefit plan gives the administrator or
fiduciary discretionary authority to
determine eligibility for benefits or to
construe the terms of the plan.’” Lee v. Blue
Cross/Blue Shield of Ala., 10 F.3d 1547,
1549 (11th Cir. 1994) (quoting Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989)).
PLIC concedes that the plan contains no
explicit grant of discretionary authority, see
Doc. 63-16 at 24-25, and this Court reviews
PLIC’s denial of benefits de novo to
determine whether Zorn “satisfied the
definition of ‘disability’ under the [PLIC]
plan.” See Ecklund v. Cont’l Cas. Co., 415
F. Supp. 2d 1353, 1369 (N.D. Ala. 2005).
“A decision is ‘wrong’ if, after a review of
11
the decision of the administrator from a de
novo perspective, the court disagrees with
the administrator's decision.” Glazer v.
Reliance Standard Life Ins. Co., 524 F.3d
1241, 1246 (11th Cir. 2008). “In this circuit,
a district court conducting a de novo review
of an Administrator's benefits determination
is not limited to the facts available to the
Administrator at the time of the
determination.” Kirwin v. Marriott Corp.,
10 F.3d 784, 789 (11th Cir. 1994).
Zorn claimed that the following are the
material duties of his work:
(1) Engage in conversations with
customers, both by phone and in
person at the office, regarding
insurance matters; (2) Engage in
conversations with insurance
company representatives, primarily
by phone, regarding insurance
applications, coverages, claims and
other matters; (3) Completion of
appropriate documentation, such as
policy applications, both for
customers and insurance companies;
(4) Make personal calls on business
customers at their business locations
to consult with regard to insurance
needs and coverages; (5) Supervise
other salesmen/producers, office
secretaries and clerks; and (6)
Review financial documents and
reports, both from insurance
companies and in-house documents.
Thus, the inquiry in this case is whether
Zorn has shown by a preponderance of the
evidence that his interstitial cystitis disease
has rendered him unable “to perform the
material duties of his or her occupation
(while under the care of a Physician) . . . at
any job that reasonably fits his . . .
background and training.” See 63-2 at 12
(Insurance Policy). The Court holds that
Zorn has satisfied this burden.
The
insurance
policy
“Disability” or “Disabled” as
defines
See Doc. 65-4 at 14 (Zorn Affidavit).
An Eligible Person’s inability,
because of sickness or accident, to
perform the material duties of his or
her occupation (while under the care
of a Physician):
After a de novo review of the evidence,
the Court disagrees with the administrator
and determines by the preponderance of the
evidence that Zorn is unable to perform
these material duties for more than a few
hours at a time.
a. for the first five years of disability,
at his or her normal job; and
2. Medical Evidence
b. following the first five years, at
any job that reasonably fits his or her
background and training.
The objective medical evidence in this
case conflicts with PLIC’s determination.
Dr. Evans, Zorn’s treating doctor with
regards to his interstitial cystitis and his
pelvic floor dysfunction, has opined, on
numerous occasions, that Zorn is disabled
within the meaning of the policy. See Docs
63-3 at 3325 (“I would consider [Zorn] to be
totally disabled at this point.”); id. at 3149
(“Mr. Zorn is markedly incapacitated. . . . I
believe that he is unable to sit up on a
regular basis, and each and every time I
have seen him since the April visit he has
See id. at 12. The policy does not define
“material duties,” and to the extent that
the term is ambiguous, this Court applies
the principle of contra proferentem and
construes the ambiguity against the
drafter of the document, PLIC. See
Florence Nightingale Nursing Serv., Inc.
v. Blue Cross/Blue Shield of Ala., 41
F.3d 1476, 1481 (11th Cir. 1995);
Freling v. Reliance Standard Life Ins.
Co., 315 F. Supp. 2d 1277, 1287 (2004).
12
spent most of time in the recumbent
position.”). But see id. at 3329 (noting that,
immediately after implanting first stage
Interstim, Zorn’s “frequency [was] dropping
down into the range of 6-10 a day”); id. at
3335 (“[I]f [Zorn’s] frequency would drop
down to 10-12 times a day, he might be able
to work in an office setting but at this time,
he really is chained to the bathroom.”); Doc.
65-2 at 24 (“[Zorn] is now voiding in the
range of between 6 and 10 times a day and
his nocturia has plummeted.”). Dr. Evans
reached this conclusion due to Zorn’s
“urinary frequency and urgency,” “severe
and intractable pain,” distraction caused by
potent narcotic medication, pain while in a
sedentary position, stress, irritable bowel
syndrome, and depression. See Doc. 65-2 at
8-10 (Dr. Evans Affidavit).
The record, however, indicates that
Zorn’s physicians relied on more than his
subjective reports. The fact that Zorn was
willing to undergo surgery and implantation
of the InterStim provides some objective
evidence of Zorn’s condition. Furthermore,
Zorn’s willingness to adopt and use selfcatheterization techniques also confirms the
doctors’ opinions. See Doc. 65-2 at 4.
PLIC relies in part on the independent
analysis of Dr. Patterson, who concluded
that Zorn is not disabled. The Court,
however, finds that his opinion was not
supported by objective evidence sufficient to
surmount the opinions of Zorn’s physicians.
Dr. Patterson only met with Zorn once for
an hour and forty-five minutes. See Doc.
63-3 at 3433. Dr. Patterson is not a
specialist in Zorn’s illnesses. See id. at
3430. Dr. Patterson’s lack of expertise in
interstitial cystitis makes his opinion even
more conspicuous in its solitude as PLIC’s
lone expert support. See Kunin v. Benefit
Trust Life Ins. Co., 910 F.2d 534, 538 (9th
Cir. 1990) (holding in a different ERISA
context that an administrator’s inadequate
investigation and reliance on non-experts in
the field failed to provide a reasonable basis
for the administrator’s determination).
Dr. Conner, Zorn’s regular physician
and the physician who prescribes his
medications, has reached a congruent
conclusion. See Docs. 63-3 at 3360 (“If
however these [other treatment options] fail
to control his symptoms it would be difficult
to see him performing even sedentary work
given the medications he currently
requires.”); 65-3 at 4 (“Mr. Zorn is totally
disabled and unable to perform the work
required of any job of which I am aware.”).
The opinions of Dr. Evans and Dr.
Conner, as Zorn’s treating physicians, are
also more likely to be reliable than that of
Dr. Patterson. See Johnson v. Metro. Life
Ins. Co., 2008 WL 2302693, at *12 (N.D.
Ga. May 30, 2008) (stating that although
treating physicians’ opinions are not per se
entitled to special deference, “common
sense and a stream of legal precedent
suggest . . . factual determinations of a
treating physician are objectively more
reliable” (quoting Burt v. Metro. Life Ins.
Co., 2005 WL 4712457, at *11 (N.D. Ga.
Sept. 16, 2005)).
The Court is aware of the possibility that
Zorn’s physicians are relying and basing
their opinions solely on Zorn’s descriptions
of his symptoms. See, e.g., White v. Life Ins.
Co. of North America, 377 F. App’x 562,
562 (8th Cir. 2010) (citing cases approving
courts’ exercise of no deference towards
medical opinions unsupported by objective
facts); Leipzig v. AIG Life Ins. Co., 362 F.3d
406, 409 (7th Cir. 2004) (“Most of the time,
physicians accept at face value what patients
tell them about their symptoms; but insurers
. . . must consider the possibility that
applicants are exaggerating in an effort to
win benefits (or are sincere hypochondriacs
not at serious medical risk).”).
Furthermore, independent medical
reviews confirm Zorn’s disability.
An
13
independent review performed by Dr.
Stephenson rebutted Dr. Patterson’s
conclusion. See 63-3 at 2582 (“[I]n a case
as severe as Mr. Zorn, I have no difficulty
envisioning Mr. Zorn as being as limited as
described by Dr. Evans.”). She indicated
that she “would expect Mr. Zorn’s activities
to be as limited as described by Dr. Evans.”
Id. at 2581. She concluded that she
“believe[d] that narcotics are currently
[Zorn’s] only source of relief, and that he is
disabled and incapable of sedentary work.”
Id. at 2582.
Zorn in the insurance company’s finances).
Nevertheless, Zorn did this work mostly at
home due to his disability, and in a limited
capacity. See Doc. 63-3 at 3812, 3840
(Rhett averring that Zorn handled major
problems for the agency, but that he did
most of his work for the agency at home).
PLIC’s own surveillance indicates that
Zorn’s activities at the insurance office were
limited. See Docs. 66-10 at 5 (observing
Zorn at insurance office for approximately
two hours on a Monday and four hours on a
Thursday). Zorn visited the insurance office
on only two of nine days PLIC conducted
surveillance on him. See Docs. 66-10; 6611; 66-13. The surveillance also failed to
discover whether Zorn did work at the office
at all. See Docs. 66-10; 66-11; 66-13.
Dr. Proctor, a physician agreed upon by
the parties, concluded that “[u]nless new
treatments become available for interstitial
cystitis, I believe that Mr. Zorn will remain
totally disabled for the foreseeable future.
Again, I do not believe that Mr. Zorn can
perform any of the duties of his
employment.” Doc. 89-1 at 4; see also
Docs. 84; 85.
Zorn’s other activities outside of the
office indicate only intermittent involvement
in work activity. See, e.g., Doc. 63-3 at 15,
29-30 (Chris indicating that Zorn would
accompany him on sales calls, but only in an
advisory capacity); id. at 2368 (video of
Zorn speaking to the congregation of his
church for approximately twenty minutes);
id. at 3435, 3439-44 (reporting Zorn’s
attendance at city council meetings).
Thus, the majority of the medical
evidence in this case supports Zorn’s claim.
3. Zorn’s Day-to-Day Activities
The evidence in this case regarding
Zorn’s activities indicates that, while Zorn
did perform work for Zorn & Son, Zorn
Land, and PAC, he did so in a limited
capacity, and his condition prevented him
from performing the material duties of both
his previous job and “at any job that
reasonably fits his . . . background and
training.”
The fact that Zorn renewed state
licenses and appointments is not proof of his
ability to perform the material duties of his
job. See, e.g., Docs. 69-1 at 1 (1996 renewal
of non-residential agent appointment in
South Carolina); 63-5 at 4 (1997 renewal of
Alabama license). Although working in a
professional field is certainly one reason for
obtaining a license, Zorn offered another
possibility: he may have sought a license in
hopes of recovery and one day returning to
his insurance business as a full-time
employee. See Doc. 69-1 at 1. The Court
ultimately finds Zorn’s act of applying for a
license does not imply that he had the
physical ability to perform the material
duties of his position.
The Court concludes that Zorn was still
involved in the financial aspects of his
businesses. See Doc. 63-3 at 3774, 3782
(Brian Bishop stating Zorn would come to
the office three to four times a week for an
hour or more to handle whatever work
needed to be done at the agency, and that
Zorn “was active when it came to any type
of financial aspect of the agency”); id. at
570 (Deborah stating that she did involve
14
Conflicting affidavits and accounts
obfuscate the state of Zorn’s physical
capabilities. On the one hand, the affidavits
of Zorn, Deborah, and Gibbs indicate that
Zorn is in great physical pain and rarely gets
out of his home. See Docs. 65-4; 65-5; 65-6.
The Court recognizes that these witnesses
have a motive to give testimony beneficial
to Zorn, and considers their affidavits
appropriately.
of evidence showing that Zorn was working
persistently and full-time and because of
their motive to give hurtful testimony, the
Court chooses not to credit Rhett and
Carolyn’s testimony over the weight of the
evidence in this case.
4. Employability Analysis
Lastly, two employability analyses also
support, albeit marginally, Zorn’s claim.
Integrity determined that “within a
reasonable degree of vocational certainty . . .
Mr. Zorn’s residual functional capacity as
opined by unknown urologist on October 1,
2004 and Dr. Evans would preclude him
from performing the essential job functions
of any competitive job in a reliable manner.”
See Doc. 63-3 at 2331. This evidence
confirms that Zorn is incapable of
performing the material duties “at any job
that reasonably fits his . . . background and
training.”
On the other hand, the strongest
evidence that Zorn worked more than
sparingly at any of his businesses comes
from Rhett and Carolyn. See Doc. 63-3 at
3690-92 (Carolyn reporting that Zorn was
working for Zorn & Son both in-office and
at home, but primarily from his home after
Carolyn confronted him about his work
activity and his disability claim); id. at 3691
(Carolyn reporting that Zorn still owned and
operated Zorn Land); id. at 2789 (Carolyn
informing PLIC that Zorn was working at
the insurance office “after lunch every day,
because he does his other work in the
mornings”); id. at 3337 (Rhett and Carolyn
indicating that Zorn still did all of the record
keeping for the insurance agency and that he
spent many hours at the office in the last
week of December 2003); id. at 3338 (Rhett
and Carolyn indicating that Zorn ran PAC);
id. at 3339 (Rhett and Carolyn stating that
Zorn operated heavy machinery).
Willard, an employability analyst
recommended to the Court by both parties,
determined that Zorn “is unable to display
the physical stamina necessary to function as
an insurance sales agent” on account of his
need for flexible hours, his inability to
maintain a physical position for long
durations, and his inability to meet with
clients “on a sustained and regular basis.”
Doc. 89-2 at 22; see also Docs. 82; 87; 88.
Although Willard did state that Zorn might
be able to continue work “as a business
investor and a manager of other workers,”
Willard did not opine in detail concerning
Zorn’s ability to perform the material
functions of such positions in light of his
ailments. See Doc. 89-2 at 22-23.
This evidence, however, is best seen in
the light of the dispute between Zorn and
Rhett. See, e.g., id. at 3457 (Carolyn stating
that Zorn is thought of as a “crook” in the
community who sues everybody). Zorn’s
decision to force Rhett out of Zorn & Son
created bad blood between Zorn, Rhett, and
Carolyn. See Docs. 65-4 at 6 (giving Zorn’s
reasons for forcing out Rhett); 63-3 at 3339,
3828-29 (Rhett explaining that Zorn had
always wanted Chris to take Rhett’s
position). Thus, Rhett and Carolyn could
conceivably desire to hurt Zorn’s financial
interests as a result. Because of the scarcity
PLIC contends that the Court should not
consider this evidence because “it in essence
invades the province of the Court and seeks
to instruct the Court as to how to decide the
case.” See Doc. 74 at 6. But “testimony in
the form of an opinion or inference
otherwise admissible is not objectionable
15
because it embraces an ultimate issue to be
decided by the trier of fact.” F ED. R. EVID.
704(a). This testimony is no different from
that of the medical experts in this case.
Accordingly, the Court considers the
two employability analyses to support
Zorn’s claim.
After considering the medical evidence,
the testimony concerning Zorn’s day-to-day
activities, and the occupational analyses, the
Court finds by a preponderance of the
evidence that Zorn was disabled within the
meaning of the policy. Accordingly, the
Court disagrees with and REVERSES the
administrator’s decision.
IV. CONCLUSION
PLIC’s “Motion for Judgment on the
Record,” see Doc. 63, is DENIED.
Zorn’s “Motion for Summary
Judgment,” see Doc. 65, is GRANTED.
The Court reverses the administrator.
ZORN IS ORDERED TO SUBMIT A
BRIEF ON THE ISSUE OF DAMAGES
WITHIN SEVEN (7) DAYS OF THIS
ORDER. PLIC IS ORDERED TO
SUBMIT ITS RESPONSE WITHIN
SEVEN (7) DAYS OF ZORN’S FILING.
The Court will not accept any replies.
This 12th day of January 2012.
,/
1^
4
a_
AVANT 13 DENFIELO, JUDGI
UNiTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
16
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