Candel v. Unum Life Insurance Company of America

Filing 145

MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 8/24/2015: For the reasons stated below, Unum's motion for summary judgment 99 is granted. Civil case terminated. Mailed notice

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
ANTIMO G. CANDEL,

)
)
Plaintiff,
)
)
v.
)
)
UNUM LIFE INSURANCE COMPANY )
OF AMERICA,
)
)
Defendant.
)

Case No: 1:13-cv-7500

Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, Unum’s motion for summary judgment [99] is granted.
Civil case terminated.

STATEMENT
Antimo Candel (“Candel”) filed suit against Unum Life Insurance Company of America
(“Unum”) on July 11, 2013, claiming breach of contract. Unum removed the case to federal court
on the basis of diversity of the parties on October 18, 2013. (Not. Removal, Dkt. # 1.) Candel
filed an amended complaint on December 20, 2013, alleging a single count of breach of contract
on the ground that Unum failed to pay Candel disability benefits to which he was entitled under
three disability income insurance policies. (Am. Compl., Dkt. # 25.) This matter is before the
Court on Unum’s Motion for Summary Judgment filed February 16, 2015. (Mot. Summ. J., Dkt.
# 99). For the reasons set forth below, the motion for summary judgment is granted.

Facts
Insurance Policies
Unum is a Maine corporation registered with the Illinois Department of Insurance, and
offers various types of insurance policies. (Def.’s Stmt. Facts, Dkt. # 109, ¶ 3.) Candel purchased
three disability income policies (collectively, “the Policies”), two from Unum in 1994 and a third
from non-party Paul Revere Life Insurance Company in 1996. (Answer, Dkt. # 57, ¶¶ 3-4.)
The Policies entitle Candel to benefits upon a showing that he suffers “total disability,”
which is defined in the two Policies sold by Unum as occurring when:
1. injury or sickness restricts your ability to perform the material and substantial duties of
your regular occupation to an extent that prevents you from engaging in your regular
occupation; and
2. you are receiving medical care from someone other than yourself which is appropriate
for the injury or sickness. We will waive this requirement when continued care would be
of no benefit to you.
(Def.’s Exs. 7, 8, Dkt. # 102.) The comparable section in the Paul Revere Policy provides:
“Total Disability” means that because of Injury or Sickness:
a. You are unable to perform the important duties of Your Occupation; and
b. You are receiving Physician’s Care. We will waive this requirement if We receive
written proof acceptable to Us that further Physician’s Care would be of no benefit to
You.…
(Def.’s Ex. 9, Dkt. # 102-9.) Under all three policies, a claimant must send the insurer written
proof of loss within 90 days after the end of each period for which he seeks benefits. (Def.’s
Stmt. Facts, Dkt. # 109, ¶¶ 9, 12.) Both policies, however, also provide that failure to meet the
90-day deadline will not affect the claim if proof of loss is furnished as soon as “reasonably
possible” and within one year of the date it was required. (Id.) This one-year limit applies unless
the claimant is “legally incapacitated” (in the Unum Policies) or “legally unable to notify” the
insurer (in the Paul Revere Policy). (Def.’s Exs. 7-9, Dkt. # 102.) The Policies also contain a
contractual limitations period for legal actions, providing that no legal actions can be initiated on

2

the Policies later than three years from the date that “proof of loss is required.” (Def.’s Stmt.
Facts, Dkt. # 109, ¶¶ 10, 13.)

Candel’s professional activities
Because Candel’s current suit hinges on the claim that he was both disabled and “legally
incapacitated”1 between April 2005 and July 2009 due to depression, obesity, and panic attacks,
it is necessary to review his professional activities in some detail. Candel is a medical pathologist
by trade, and held an active license to practice medicine in Illinois from 1990 to July 31, 2014.
(Id., ¶ 17.) Billing codes reflect that he performed thousands of anatomic pathology procedures
between 2004 and 2010, including 3,837 procedures in 2004, 4,078 in 2005, 5,499 in 2006,
2,366 in 2008, 5,215 in 2009, and 4,101 through the first nine months of 2010. (Def.’s Exs. 2426, Dkt. # 102.) Candel testified that his colleague Dr. Zarif “was the one that managed the case”
in most of the procedures reflected in the records, and that Candel worked under his supervision.
(Pl.’s Ex. 93, Dkt. # 134-9, pp. 151-52.) Dr. Zarif testified that while he reviewed Candel’s work
for typographical errors, he did not manage Candel and would not re-examine specimens to
corroborate Candel’s diagnoses. (Def.’s Ex. 12, Dkt. # 102-12, pp. 40-41.) Candel earned
substantial income from his medical activities, having received somewhere between $219,203.00
and $724,898.00 in every year between 2005 and 2011. (Def.’s Stmt. Facts, Dkt. # 109, ¶ 16.)
Between 2005 and 2007, Candel worked for and held shares in Associated Laboratory
Physicians, S.C., which provided pathology services to Ingalls Memorial Hospital, and
personally performed surgical pathology examinations in that capacity. (Id., ¶¶ 14, 18.) One of

1

The Paul Revere Policy uses the language “legally unable to notify” rather than “legally incapacitated,” but the
parties make no effort to draw distinctions between these two phrases and the Court accordingly presumes that the
two refer to the same essential standard. References to “legally incapacitated” in this opinion are intended to
encompass both phrases.

3

his partners at Associated Laboratory testified that during his employment, Candel exercised
medical judgment by performing specimen, frozen section, or cytological evaluations,
interpreting lab reports, and creating diagnostic reports. (Id., ¶ 19.) In his deposition, Candel
testified that he “couldn’t get nothing done” during this period and “was barely holding on.”
(Pl.’s Ex. 93, Dkt. # 134-9, pp. 46-47.)
Starting in 2003 and continuing until 2009, Candel was the president of Orizon Pathology
Foundation, a limited liability company which provided pathology services to Holy Cross
Hospital. (Def.’s Stmt. Facts, Dkt. # 109, ¶ 15.) In Candel’s deposition, however, he testified that
he “didn’t do anything” while at Orizon and “it was really just basically appearances.” (Pl.’s Ex.
93, Dkt. # 134-9, p. 119.) In 2008, Candel founded and signed the Articles of Organization for
Community Pathology Associates, P.C., which provided pathology services to Holy Cross
Hospital and in which he remained a partner until November 2011. (Def.’s Stmt. Facts, Dkt. #
109, ¶¶ 15, 24.) He also executed Community Pathology Associates’ Operating Agreement in
early 2009, appointing himself Chief Financial Officer and assigning him a 50% share in the
corporation. (Id., ¶ 25.) As CFO, Candel co-signed all checks written on the corporation’s
account until he left the company in November 2011. (Id., ¶ 26.) In 2009, Candel came up with
the idea to co-found a company called Virtual Pathology because he wanted to learn more about
virtual digitized pathology systems. (Def.’s Ex. 3, Dkt. # 102-3, pp 54-55.) This company had
one large client who did anal Pap smears, and because this type of procedure was relatively
novel, Candel learned about the procedure through medical journals and quickly “became the
anal Pap smear pathologist in this area.” (Id., pp 55-57.)
In 2009 and 2010, Candel performed surgical pathology consultations and tissue
examinations, and prepared reports including his diagnoses. (Def.’s Stmt. Facts, Dkt. # 109, ¶

4

20.) On May 4, 2010, Dr. Zarif – the chairman of Holy Cross’s Pathology Department and one of
Candel’s partners at Community Pathology Associates – signed a certification of Candel’s
competency verifying that Candel “is under no constraint or undue influence” and “is of sound
mind.” (Def.’s Ex. 23, Dkt. # 102-23.) Dr. Zarif testified in his deposition that Candel was of
sound mind as of May 2010, and stated that Candel’s decision-making capabilities never
diminished in 2009 or 2010. (Def.’s Ex. 12, Dkt. # 102-12, pp 50-51, 74.) Candel testified that
during his work with Dr. Zarif at Community Pathology Associates, he “issu[ed] some reports,
but all of them were co-signed by Zarif.” (Pl.’s Ex. 93, Dkt. # 134-9, p. 120.)

Candel’s hospital certifications and credentials
Throughout his claimed disability/incapacitation period of 2005-2009, Candel sought and
secured appointment and specialty privileges at two hospitals. Candel was reappointed to Ingalls
Memorial Hospital on May 1, 2005, and was approved by the hospital for various pathology
privileges and specialties. (Def.’s Stmt. Facts, Dkt. # 109, ¶ 29.) As part of his application to
renew these credentials in December 2006, Candel certified to the hospital that he had no
medical, physical, or emotional condition that would limit his ability to practice medicine.
(Def.’s Ex. 40, Dkt. # 102-40.) An internist submitted two letters to Ingalls in April and October
2007, certifying that he had examined Candel and found that Candel was capable of practicing
medicine. (Def.’s Stmt. Facts, Dkt. # 109, ¶¶ 37, 38.) Candel was reappointed by Ingalls in
November 2007, and again approved for various privileges associated with pathology. (Id., ¶ 39.)
In June 2009, Candel submitted a Privilege Request Form to Ingalls in which he certified that he
was “competent to perform the technical procedures as part of [his] desired clinical privileges.”
(Def.’s Ex. 51, Dkt. # 103-7.)

5

In November 2005, Candel applied for credentials to Holy Cross Hospital and certified to
the hospital that he had no medical, physical, or emotional condition that would limit his ability
to practice medicine.2 (Def.’s Ex. 32, Dkt. # 102-32.) In connection with Candel’s 2005
credentialing application, Holy Cross received certifications from various third parties attesting
to Candel’s competency, including: (1) a December 2005 letter from Ingalls Memorial Hospital
stating that it had evaluated Candel and knew of no reason not to recommend him (Def.’s Ex. 34,
Dkt. # 102-34); (2) a December 2005 evaluation by one of Candel’s partners at Associated
Laboratory, rating Candel’s medical abilities highly and stating that he had never observed any
mental health or drug dependencies that could impair Candel’s ability to act as a doctor (Def.’s
Ex. 35, Dkt. # 102-35); and (3) a December 2005 recommendation from another doctor who had
worked with Candel for five years (Def.’s Ex. 36, Dkt. # 102-36). Candel accepted an
appointment to Holy Cross in June 2006. (Def.’s Stmt. Facts, Dkt. # 109, ¶ 35.)
In August 2007, Candel requested several specialty privileges at Holy Cross, and certified
that he was “competent to perform the technical procedures” involved in the privileges. (Def.’s
Ex. 45, Dkt. # 103-1.) Ingalls Memorial Hospital again advised Holy Cross in September 2007
that it had evaluated Candel and found no problems that would prevent it from recommending
him. (Def.’s Ex. 48, Dkt. # 103-4.) Likewise, in June 2009, Candel again submitted a recredentialing form to Holy Cross which stated that he had no impairments that would prevent
him from practicing medicine safely. (Def.’s Ex. 50, Dkt. # 103-6.) In both August 2007 and
August 2009, Dr. Zarif recommended Candel for reappointment and stated that he had no
concerns about Candel’s competence. (Def.’s Stmt. Facts, Dkt. # 109, ¶¶ 43, 49.)

2

He later renewed these representations in a similar re-credentialing form submitted in August 2007. (Def.’s Stmt.
Facts, Dkt. # 109, ¶ 42.)

6

Candel’s personal and legal affairs
On December 6, 2007, Candel’s partners at Associated Laboratory forced him out of the
company. (Def.’s Ex. 3, Dkt. # 102-3, pp. 271-72.) He called his lawyer the next day to discuss
his legal options, and in April 2008 filed suit against his former partners in the Circuit Court of
Cook County for breach of his employment agreement and breach of fiduciary duty. (Def.’s
Stmt. Facts, Dkt. # 109, ¶¶ 53-54.) In the complaint in that suit, Candel took the position that his
partners wrongfully terminated him for cause because none of the bases for cause specified in his
employment agreement – including inability to perform his duties as a result of “incapacity due
to physical or mental illness or otherwise” – existed. (Def.’s Ex. 60, Dkt. # 102-3, pp. 271-72.)
Candel participated in his lawsuit in various ways, including providing several pages of factual
details to his lawyers and reviewing the complaint before filing. (Def.’s Stmt. Facts, Dkt. # 109,
¶ 56.) In the course of litigating the lawsuit, Candel also submitted a sworn affidavit in which he
stated “I am fully competent to testify.” (Def.’s Ex. 62, Dkt. # 103-18.) Candel settled his lawsuit
in 2011 for a series of 18 payments of undisclosed amounts. (Def.’s Stmt. Facts, Dkt. # 109, ¶
58.) In addition to initiating and participating in the lawsuit against his former partners, Candel
also personally prepared his federal and state tax returns for 2007, 2008, and 2009, and checked
himself into – and out of – a drug rehabilitation resort in Mallorca, Spain. (Id., ¶¶ 52, 59.) At no
point during the relevant period was Candel ever adjudicated legally incompetent or had anyone
else appointed to manage his affairs. (Id., ¶ 60.)

Candel’s psychiatric history
Candel was treated by Dr. Jaffe, a psychiatrist, between April 2005 and August 2005, and
then again for two days in July 2009. (Def.’s Stmt. Facts, Dkt. # 109, ¶ 62.) Dr. Jaffe testified

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that as of August 15, 2005, Candel was not psychotic, was able to make reasoned decisions,
understood “what was being asked of him” in his life, and had his anxiety and depression under
control. (Def.’s Ex. 73, Dkt. # 103-29, pp. 33-38, 47-48.) When Dr. Jaffe saw Candel for two
sessions in July 2009, he believed that Candel needed psychotherapy and substance abuse
treatment. (Id., pp. 12-13, 46.)
Candel also saw another psychiatrist, Dr. Halper, for two sessions in November 2008.
(Def.’s Stmt. Facts, Dkt. # 109, ¶ 65.) Dr. Halper testified that Candel came to him to consult on
Candel’s obesity. (Def.’s Ex. 72, Dkt. # 103-28, p. 7.) Based on Candel’s fast talking and
“grandiose” boasts about his medical practice, Dr. Halper also suspected that Candel may have
ADHD or bipolar disorder, but “wasn’t certain of the diagnosis” and lacked “hard evidence.”
(Id., pp. 22-24.) After two further visits (one telephonically), Dr. Halper diagnosed Candel with
ADHD but did not diagnose him with bipolar disorder because he “could not elicit symptoms or
signs” of that condition. (Id., pp. 27-28.) Dr. Halper also diagnosed Candel with dysthymic
disorder and a single episode of major depressive disorder in partial remission, based solely on
Candel’s report that he had been “depressed for years.” (Id., pp. 27-32.) Dr. Halper concluded
that Candel had “moderate difficulty” in social or occupational functioning, but noted that the
only evidence of this was “the interpersonal conflict that he described with… Ingalls Hospital
and one or more partners.” (Id., pp. 36-38.) He prescribed psychotherapy for Candel, but Candel
did not follow through on this recommendation. (Id., pp. 14, 40-42.) Candel did not undergo any
form of psychotherapy between August 2005 and July 2009, and did not receive any psychiatric
or mental health care other than his four visits to Dr. Halper and his month-long stay in the
Mallorca rehabilitation resort. (Def.’s Stmt. Facts, Dkt. # 109, ¶ 61.)

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Two forensic psychiatrists examined Candel’s files in connection with this lawsuit. Dr.
Greiner – a forensic psychiatrist retained as an expert by Unum – concluded that based on
Candel’s professional activities and earnings between August 2005 and July 2009, he had the
capability to do work during that period. (Def.’s Ex. 80, Dkt. # 103-36, p. 9.) Dr. Greiner also
concluded that Candel’s ability to apply for hospital privileges and found or manage two
businesses is “grossly inconsistent” with his asserted inability to file a claim for disability
benefits. (Id., pp. 3-4.)
Dr. Lahmeyer – a forensic psychiatrist retained as an expert by Candel – interviewed
Candel, reviewed his files, and issued one assessment report and one rebuttal report responding
to Dr. Greiner’s conclusions.3 (Pl.’s Stmt. Facts, Dkt. # 132, ¶ 3.) Dr. Lahmeyer concluded that
Candel was “mentally and physically impaired” by his depression, substance abuse, obesity,
sleep apnea, and “personality deterioration” prior to April 2005. (Pl.’s Ex. 89, Dkt. # 134-6, pp.
13-14.) Dr. Lahmeyer further concluded that “the nature and severity of [Candel’s] mental
impairments made it impossible for [him] to have insight into his situation. As a result he fought
the concept of impairment and disability and thus was incapable of filing a claim for disability.”
(Id., p. 14.)

Candel’s insurance claims
Candel testified that he filed the claims in this case because he went to an insurance agent
looking to take out a life insurance policy, and the agent asked him “What about disability?”
(Pl.’s Ex. 93, Dkt. # 134-9, p. 288.) On August 5, 2010, Candel submitted a disability claim to
3

Unum objects that Dr. Lahmeyer’s report should be ignored in ruling on the summary judgment motion, because it
was unsigned and was disclosed to Unum on the final day of expert discovery. This challenge appears only in
Unum’s response to Candel’s statement of additional facts, a filing that is properly limited to factual matters and not
a proper forum for legal argument. As Unum has failed to properly challenge Dr. Lahmeyer’s testimony – such as
via a motion to strike or exclude – the Court considers it in ruling on the motion for summary judgment.

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Unum stating that he became disabled starting in 2007. (Def.’s Ex. 4, Dkt. # 102-4.) He
submitted a new form in December 2010 alleging a new onset of disability date of April 16,
2005. (Def.’s Ex. 5, Dkt. # 102-5.) Unum paid Candel disability benefits for the period of April
21, 2005 to August 15, 2005, and also paid benefits for the period of July 1, 2009 to the present.
(Def.’s Stmt. Facts, Dkt. # 109, ¶ 7.) On July 11, 2013, Candel filed this suit against Unum
seeking benefits for the period of August 15, 2005 to July 1, 2009.

Summary Judgment Standard
A district court will grant summary judgment if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
determining whether a genuine dispute exists as to any material fact, a court must view all the
evidence and draw all reasonable inferences in favor of the non-moving party. See Weber v.
Univ. Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010). It is not appropriate for the court
to judge the credibility of the witnesses or evaluate the weight of the evidence; the only question
on summary judgment is “whether there is a genuine issue of fact.” Gonzalez v. City of Elgin,
578 F.3d 526, 529 (7th Cir. 2009). Summary judgment is appropriate only if the record, taken as
a whole, establishes that no reasonable jury could find for the non-moving party. See Sarver v.
Experian Info. Solutions, 390 F.3d 969, 970 (7th Cir. 2004).

Discussion
Candel’s amended complaint alleges that Unum breached the Policies by refusing to pay
Candel benefits from the time he became disabled in 2005 to the time Unum began paying out

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benefits in July 2009. (Am. Compl., Dkt. # 25 at 2-3.) Unum moves for summary judgment on
two alternate grounds: (1) that this lawsuit is time-barred by the limitations period contained in
the Policies; and (2) that Candel did not qualify as disabled under the Policies between August
2005 and July 2009 because he was not receiving medical care.4 (Mem. Supp. Summ. J., Dkt. #
100.) Because the limitations period does indeed bar the instant lawsuit, it is not necessary to
reach the question of whether Candel qualified as disabled under the Policies.
All of the Policies are clear that written proof of loss is required within 90 days of the
period for which benefits are sought, meaning that Candel was required to make a claim on the
Policies no later than three months after the onset of his disability. The policies also provide,
however, that failure to meet this 90-day deadline will not automatically result in denial of the
claim as long as (1) the claim was made as soon as reasonably possible, and (2) the claim is
made no later than one year after proof of loss was required, unless the claimant is legally
incapacitated. Legal actions must be brought within three years of the time when proof of loss is
required.
Unum argues that these contractual provisions combine to bar Candel’s breach of
contract claim asserted here. Candel first filed a claim in August 2010 for disability starting in
2005, far beyond both the 90-day and one-year windows in which proof of loss is required.
Moreover, he failed to file the instant case until mid-July of 2013, more than three years after
even the end of the period for which he claims unpaid benefits (July 1, 2009). As such, Candel
can maintain the instant suit if and only if he is somehow excused from complying with the proof
of loss and limitations period provisions of the Policies. Candel argues that he was excused from
complying with these deadlines due to incapacity; he argues that because the Policies’ proof of
4

Unum also argues that Candel cannot enforce the Paul Revere Policy in this suit, as Unum was not a party to that
contract or in privity with a party. (Mem. Supp. Summ. J., Dkt. # 100, at 15.) Because Candel has failed to show
entitlement to benefits under any of the Policies, it is unnecessary to address this argument.

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loss provisions excuse a claimant from complying with the 90-day and one-year deadlines if he
is legally incapacitated, the limitations period on legal actions must similarly be tolled for
incapacity. Unum responds that under the policies, legal incapacity merely prevents late proof of
loss from resulting in automatic denial of claims; it does not change the date when proof of loss
is “required” and thus does not toll the three-year limitations period for bringing legal actions. It
is not necessary to resolve this point of interpretation, however, because Unum is entitled to
summary judgment even under Candel’s preferred interpretation of the Policies. Candel is
judicially estopped from asserting legal incapacity as an excuse for bringing this action outside
the limitations period, and has in any case failed to produce evidence sufficient to create a triable
issue of fact as to whether or not he was legally incapacitated during the relevant period.
As an initial matter, the doctrine of judicial estoppel suggests that Candel should not be
permitted to benefit from arguing that he was incapacitated from 2005 to 2009, in light of his
prior lawsuit against his partners. Judicial estoppel is not a rigidly codified doctrine, but rather “a
matter of equitable judgment and discretion” exercised by courts in order to prevent a litigant
from successfully arguing two inconsistent positions in different legal actions. In re KnightCelotex, LLC, 695 F.3d 714, 721 (7th Cir. 2012). As such, the doctrine is “intended to prevent
the perversion of the judicial process” and is brought to bear when “intentional self-contradiction
is being used as a means of obtaining unfair advantage” by a litigant. Matter of Cassidy, 892
F.2d 637, 641 (7th Cir. 1990) (quoting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir.
1953)); see also Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1428 (7th Cir. 1993) (“By
making [litigants] choose one position irrevocably, the doctrine of judicial estoppel raises the
cost of lying”). In short, application of judicial estoppel “protects the courts from being
manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories.”

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Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 795 (7th Cir. 2013) (affirming
a district court’s application of judicial estoppel on summary judgment) (internal quotation
omitted). The Supreme Court has noted that judicial estoppel is “not reducible to any general
formulation of principle,” but that certain factors “typically inform the decision whether to apply
the doctrine in a particular case.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal
quotation omitted). These conditions include: (1) that a party’s later position must be clearly
inconsistent with a position it took earlier; (2) that the party asserted the earlier position
successfully in an earlier proceeding; and (3) that the party seeking to assert the inconsistent
position would derive some unfair advantage from doing so. See id. at 750-51.
All of these factors are clearly present in this case. As noted in the fact section above,
Candel explicitly alleged in his earlier lawsuit that he was not under any mental or physical
impairment in 2007 that would render him unable to practice medicine and justify terminating
him for cause. He admits that he not only made this allegation in his complaint, but also swore
under oath in an affidavit that he was competent to testify as of February 23, 2009. That
contention was critical to his claim in his prior lawsuit; if Candel had indeed been suffering from
incapacitating mental health issues in 2007, his partners would have had good cause to force him
out of the partnership. His argument now – that he was laboring under mental issues so severe as
to be not only totally disabling but legally incapacitating – is unquestionably inconsistent with
that earlier position. He also prevailed in his earlier suit, having extracted a settlement from his
former partners that, while undisclosed as to total value, consisted of 18 payments. Obtaining a
settlement in one’s favor qualifies as prevailing on an earlier inconsistent theory for purposes of
judicial estoppel under both federal and Illinois precedent. See Kale v. Obuchowski, 985 F.2d
360, 361-62 (7th Cir. 1993) (“Persons who triumph by inducing their opponents to surrender

13

have ‘prevailed’ as surely as persons who induce the judge to grant summary judgment”); G.M.
Sign, Inc. v. State Farm Fire & Cas. Co., 18 N.E.3d 70, 82 (Ill. App. Ct. 2014) (holding that a
party was barred from arguing a new position after “[h]aving obtained the benefit of its
settlement agreement in the underlying litigation” based on an earlier inconsistent position).
Finally, it is clear that Candel would secure an unfair advantage from advancing the two
inconsistent positions; having won a settlement payout by asserting that he was not incapacitated,
he now seeks an insurance payout to which he would otherwise not be entitled by insisting he
was incapacitated. As the Supreme Court recognized over a century ago, justice requires that
“[w]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining
that position, he may not thereafter, simply because his interests have changed, assume a
contrary position.” Davis v. Wakelee, 156 U.S. 680, 689 (1895).
Judicial estoppel thus precludes Candel from arguing that he was either incapacitated or
disabled during the relevant period, and that being the case his lawsuit is untimely under the
Policies.5 Even if judicial estoppel did not apply, however, Unum would nonetheless be entitled
to summary judgment because the record is clear that Candel was not legally incapacitated
between 2005 and 2009. The parties have offered no authority defining “legal incapacity” under
Illinois law in this context, and the Court through its own efforts has identified none.6
Accordingly, the plain meaning of the language controls, and the most natural reasonable
interpretation is one analogous to Illinois standards for mental incompetence. Other federal
5

Although the issue of judicial estoppel was raised and developed in Unum’s motion for summary judgment,
Candel failed to explain the about-face in litigation posture and in fact fails to mention the issue of estoppel at all in
his response. He has accordingly waived any objection to the application of judicial estoppel to this case. See
Grochocinski, 719 F.3d at 795 n.7 (considering waived any arguments regarding the three judicial estoppel factors,
as litigant failed to raise them).
6
Candel suggests applying the definition of “disabled person” in 755 Ill. Comp. Stat. § 5/11a-2, which is defined
broadly to encompass any person not fully able to manage his person or estate. Incapacity and disability are,
however, distinct concepts. Given that the Policies in question concerned claims for disability, the one-year proof of
loss deadline would be a total nullity if any claimant who qualified as disabled also automatically qualified as
“legally incapacitated” such that the requirement of timely proof of loss was tolled.

14

courts tasked with interpreting the term “legally incapacitated” in the insurance contract context
have reached a similar conclusion, holding that the term should be construed to mean that a
claimant “either had been declared incapacitated by a court of law following a thorough
examination of his or her competence or, at a minimum, had otherwise met the legal standards
for mental incompetence under the relevant state law.” Falco v. UnumProvident Corp., No. 2:04cv-04540, 2007 WL 1014568, at *7 (E.D.N.Y. Mar. 30, 2007).
Under Illinois law, “legal disability” acts to toll the statute of limitations in Illinois
personal injury cases. 735 Ill. Comp. Stat. § 5/13–211. “A person suffers from a ‘legal disability’
where he or she is ‘entirely without understanding or capacity to make or communicate decisions
regarding his [or her] person and totally unable to manage his [or her] estate or financial
affairs.’” Basham v. Hunt, 773 N.E.2d 1213, 1221 (Ill. App. Ct. 2002) (quoting Hochbaum v.
Casiano, 686 N.E.2d 626, 631 (Ill. App. Ct. 1997)) (alterations in original); see also Selvy v.
Beigel, 309 Ill. App. 3d 768, 776, 723 N.E.2d 702, 708-09 (1999) (emphasizing that to qualify as
having a “legal disability” in Illinois, a person must show both inability to manage his own
affairs and lack of understanding or capacity to make or communicate decisions). Candel has
never been adjudicated incompetent or otherwise incapacitated in any context, and there is no
evidence in the record from which a jury could reasonably find that Candel lacked the
understanding or capacity to make or communicate decisions. To the contrary, as the above
exhaustive recital of facts demonstrates, Candel’s activities during the relevant period are utterly
inconsistent with incapacity.
Throughout the period for which he claims incapacity, Candel continuously performed
complex and highly skilled medical procedures. While Candel characterizes Dr. Zarif as the
dominant force at Community Pathology Associates, Dr. Zarif’s deposition testimony established

15

that Candel made his own diagnoses without Zarif’s review. Candel also repeatedly – and
successfully – applied for medical privileges at two hospitals, receiving approval for a wide
variety of specialized procedures. Moreover, Candel founded a niche digital pathology practice,
founded, incorporated, and acted as CFO of his own professional corporation, and acted as
president of another pathology foundation all the way from 2003 to 2009. As CFO of
Community Pathology Associates, he signed all the corporation’s checks and paid himself
substantial sums for his services as an executive. He taught himself a novel, state-of-the-art
pathology technique – anal Pap smears – by reading medical journals, and rose to be “the” local
practitioner of the technique. His income during this period never dipped below $200,000.00
annually, and Candel was of sufficiently sound mind to personally prepare and file his own
income tax returns. This evidence that Candel was able to capably manage his own professional
affairs is strong evidence that he was not legally incapacitated. See Bloom v. Braun, 739 N.E.2d
925, 933 (Ill. App. Ct. 2000) (holding that a party’s employment in various jobs, financial
management of her household, and ability to seek psychiatric help undermined her claim that she
was under a legal disability for purposes of tolling the statute of limitations).
Moreover, contemporaneous assessments of Candel’s competence uniformly found him
to be sane and capable during the relevant period. Both hospitals at which he worked endorsed
his competence to practice medicine, and Dr. Zarif – with whom Candel worked closely for
years – certified that he was of sound mind and under no undue influence. Dr. Jaffe, Candel’s
treating psychiatrist in 2005, opined that Candel’s anxiety and depression were under control and
concluded that he understood his circumstances and was capable of making rational decisions.
Dr. Halper diagnosed Candel with moderate difficulty in social/occupational functioning in

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2008, but testified that his sole basis for this conclusion was Candel’s self-reported personal
conflicts with his partners at Associated Laboratory.
Finally, and most importantly, Candel’s ability to file and win a lawsuit against his
Associated Laboratory partners in 2008 is strong evidence of the capacity to manage his legal
affairs. As discussed above, Candel helped his attorneys draft the fact section of the complaint
and reviewed the complaint before filing. He also affirmatively asserted in that case – both in the
complaint and in an affidavit – that he was not incapacitated in any way while working at
Associated Laboratory, and swore under oath that he was competent to testify. That Candel was
able to protect his contractual rights in the employment setting is strong evidence that he had the
capacity to do the same in the insurance setting. See Hunter v. Massachusetts Mut. Life Ins. Co.,
53 F. Supp. 3d 86, 93 n.4 (D.D.C. 2014) (granting summary judgment in favor of insurer on the
basis that claim was not timely filed, because the claimant was not eligible for equitable tolling
where “[p]articipation in legal ... proceedings in an effort to secure rights or benefits is an
indication of mental capacity.”).
Against this extensive evidence of Candel’s competence between 2005 and 2009, Candel
offers only his own deposition testimony and the opinion of Dr. Lahmeyer as supporting a
different conclusion. Neither of these pieces of evidence, however, suffices to meet Candel’s
burden of producing competent evidence in order to survive summary judgment. Candel’s own
testimony about his competence during the relevant period is at best vague and equivocal, as he
never directly testified that he was incapable of filing an insurance claim or understanding his
own affairs. Instead, he goes on at length about how much stress he was under at the time and
explains his failure to timely file a claim by citing denial, testifying:
I didn’t believe I was disabled. I didn’t believe I was. I’m sorry. I didn’t believe it. I
thought that I was being victimized, and this was a railroad, and this is horrible. And then

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-- and then I realized I couldn’t even fight these people…I think I was disabled. I think
I’ve been disabled for some time, and it got to a point that I just couldn’t handle it. I had a
nervous breakdown. I don’t know what it is. It’s very tough for me to accept this. I was
never trained to say, “Oh, yeah, you know, I just can’t do it.”
…
So that is what I think is -- is a problem for me. I don’t know what that is. Do I want to
say I’m disabled? God, it’s terrible to say that. You know, that’s like admitting you can’t
do it.
(Pl.’s Ex. 93, Dkt. # 134-9, pp. 62-63, 79.) Candel has offered no authority to suggest that
psychological avoidance or unwillingness to confront his disability qualifies as legal incapacity,
and indeed such an interpretation would render the contractual limitations period all but
meaningless; anyone who failed to file a timely claim could simply assert that he or she didn’t
want to admit disability in order to escape the plain language of a contractual requirement. While
it may have been difficult for Candel to confront his mental issues and file a claim, such
difficulty does not amount to legal incapacity. See Hall-Moten v. Smith, No. 05 C 5510, 2009
WL 1033361, at *7 (N.D. Ill. Apr. 17, 2009) (“The court understands that it may have been
inconvenient, or even quite difficult, for Hall to file his claims while he battled a variety of
medical problems. However, there is simply no evidence that these problems impacted his ability
to proceed as a legally competent adult.”).
Dr. Lahmeyer also testified that Candel was incapable of filing an insurance claim
between 2005 and 2009. For several reasons, however, Dr. Lahmeyer’s testimony is not
sufficient to meet Candel’s burden of creating a triable issue of fact as to his incapacity. As an
initial matter, “legally incapacitated” within the meaning of the Policies is a legal question; Dr.
Lahmeyer is not qualified to opine on whether a claimant meets that legal standard, and as such
his testimony that Candel was “incapable” of filing a claim is of limited probative value. Dr.
Lahmeyer was also unable to explain how, if Candel was and remains “incapable” of filing a
claim, he managed to do so in 2010. When questioned about this inconsistency, Dr. Lahmeyer

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testified that while Candel could not file a claim on his own, he was capable of doing so (both in
2005 and in 2010) with the assistance of his insurance agent. (See Pl.’s Ex. 87, Dkt. # 134-4, pp.
246-50) (“All I can say is that he was able to file the form under the direction of [the insurance
agent] but he was not able to do it independent of [the agent].”) If Candel was just as capable of
filing a claim in 2005 as he was in 2010, he was not without capacity to make or communicate
decisions and was thus not incapacitated for purposes of excusing compliance with the Policies’
time limits. Moreover, Dr. Lahmeyer made clear that his conclusion regarding Candel’s
incapacity was based solely on Candel’s emotional refusal to confront his failures, as “[h]is
ability to make effective emotional decisions such as recognizing he is suffering a disability and
making a claim for disability insurance coverage is severely compromised.” (Pl.’s Ex. 92, Dkt. #
134-8, p. 2; see also Pl.’s Ex. 89, Dkt. # 134-6. pp 13-14 (concluding that Candel was not
competent because he “fought the concept of impairment and disability and thus was incapable
of filing a claim for disability”).) This is not the appropriate standard for legal incapacity, as
Illinois courts have recognized in rejecting Dr. Lahmeyer’s testimony in prior cases. See, e.g.,
Hochbaum v. Casiano, 686 N.E.2d 626, 631 (Ill. App. Ct. 1997) (holding that “Dr. Lahmeyer’s
conclusion that plaintiff was incompetent was based on his belief that she was unable to make
any decisions concerning legal matters,” and therefore that “Dr. Lahmeyer’s affidavit is
insufficient as a matter of law.”). Dr. Lahmeyer’s opinion that Candel’s emotional refusal to
admit to disability amounts to legal incapacitation is erroneous, and his conclusions are therefore
insufficient to meet Candel’s burden for purposes of surviving summary judgment.
Because Candel has failed to create a triable issue of material fact as to legal incapacity,
the Policies plainly bar the instant legal action and Unum is entitled to summary judgment.

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Conclusion
For the reasons set forth above, Unum’s motion for summary judgment [99] is granted
and Candel’s complaint is dismissed in its entirety with prejudice. Civil case terminated.

SO ORDERED.

ENTERED: August 24, 2015

___________________________________
HON. RONALD A. GUZMÁN
United States District Judge

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