Leonor v. Provident Life and Accident Company et al
Filing
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OPINION AND ORDER denying 50 Defendants' Motion for Reconsideration. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LOUIS LEONOR,
Plaintiff/Counter-Defendant,
v.
Case No. 12-15343
PROVIDENT LIFE AND ACCIDENT
COMPANY and
PAUL REVERE LIFE INSURANCE
COMPANY,
Defendants/Counter-Claimants.
/
OPINION AND ORDER
DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION
After Defendants Provident Life and Accident Company (“Provident”) and Paul
Revere Life Insurance Company (“Paul Revere”) ceased paying Plaintiff Louis Leonor
“Total Disability” benefits pursuant to three disability income insurance policies, he filed
suit alleging breach of contract and fraud. On March 20, 2013, the court granted
Defendants’ motion to dismiss Plaintiff’s fraud claim under Federal Rule of Civil
Procedure 12(b)(6). Thereafter, on April 30, 2014, the court denied Defendants’ motion
for summary judgment and granted Plaintiff’s motion for summary judgment.
Defendants now move for reconsideration of that order. Specifically, Defendants take
issue with the court’s legal conclusion that the policy provision “unable to perform the
important duties of [his] occupation,” is ambiguous. For the reasons that follow,
Defendants’ motion for reconsideration will be denied.
I. BACKGROUND
The court and the parties are intimately familiar with the facts of this case,
including the insurance provisions at issue, and thus the complete background will not
be repeated here. However, the court will briefly summarize the relevant portion of its
April 30, 2014 opinion to provide context for Defendants’ present argument.
The court thoroughly analyzed whether Plaintiff is “unable to perform the
important duties of [his] Occupation.” With respect to “Occupation,” the court first
determined that pre-disability, Plaintiff spent roughly two-thirds of his time performing
dental procedures with the remaining third of his time spent managing and overseeing
his dental practices and other businesses. In light of this, the court next analyzed
whether, post-disability, Plaintiff is “unable to perform the important duties of [his]
occupation” and thereby “Totally Disabled.” The court explained the crux of the parties
dispute:
The parties fundamentally agree that general dentistry constituted an
important duty of Plaintiff’s “Occupation.” However, the parties dispute
whether Plaintiff is “Totally Disabled” under the Policy because, despite his
disability he continues to manage and oversee his dental practices and
businesses. Defendants point out that to be “Residually Disabled,” Plaintiff
must be “unable to perform one or more of the important duties of Your
Occupation.” (emphasis added.) Reading the “Residually Disability”
provision together with the “Total Disability” provision, Defendants say,
requires that Plaintiff be unable to perform “all” of the important duties of his
“Occupation” to be “Totally Disabled.” Conversely, Plaintiff stresses that
“‘important duties’ does not mean ‘all’ or ‘each and every’” (Pg. ID # 1354),
and that as Plaintiff can no longer practice general dentistry—what he
deemed as his “Occupation”—he is “Totally Disabled.”
(Dkt. # 48, Pg. ID 1410–11.) The court then detailed the two approaches courts around
the country appear to take when interpreting disability insurance policies with similar,
and in many cases the same, language. Ultimately, the court determined that “Because
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‘unable to perform the important duties of Your Occupation’ could reasonably be
interpreted as inability to perform ‘all’ of the important duties or ‘some’ of the important
duties of one’s ‘occupation,’ the provision is ambiguous.” (Id. at Pg. ID 1414.) Put
differently, Plaintiff’s reading that “the important duties” does not mean “all important
duties” is reasonable. Finally, in accordance with Michigan Law the court construed the
Policy most favorably to the insured to maximize coverage and thus concluded that
Plaintiff is “Totally Disabled.”
II. STANDARD
Pursuant to the local rule, “[t]he court will not grant motions for . . .
reconsideration that merely present the same issues ruled upon by the court, either
expressly or by reasonable implication.” E.D. Mich. LR 7.1(h)(3). A motion for
reconsideration shall be granted only if the movant can (1) “demonstrate a palpable
defect by which the court and the parties . . . have been misled,” and (2) “show that
correcting the defect will result in a different disposition of the case.” Id. “A ‘palpable
defect’ is a defect that is obvious, clear, unmistakable, manifest, or plain.” United States
v. Lockett, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004).
III. DISCUSSION
In their motion for reconsideration, Defendants argue that the court:
[D]id not address . . . one very specific and outcome-determinative issue that
Defendants raised in the underlying summary judgment motion: That the
definite article “the” preceding the plural noun “important duties” allows one,
and only one, grammatically correct construction of the phrase. (Doc. # 45.)
Under basic rules of grammar when the definite article “the” precedes a plural
noun (i.e., “unable to perform the important duties”), the phrase
unambiguously means the entire group (or “all”) of the things encompassed
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in the plural noun, which in this case means “all of the important duties” of the
insured’s occupation.
(Dkt. # 50, Pg. ID 1434 (emphasis in original).) Although in the introduction of their
motion, quoted above, Defendants state that they had previously raised their argument
in their summary judgment motion, they later concede in a footnote that “Defendants’
argument in Doc. # 45 was in reply to Plaintiff’s argument in response to Defendants’
motion for summary judgment.” (Dkt. # 50, Pg. ID 1437 (emphasis added).) Further,
the court notes that, just at they did in their introduction, throughout their motion for
reconsideration, Defendants repeatedly refer to their summary judgment motion and cite
to “Doc # 45” yet that document is not their motion for summary judgment—it is their
reply. By raising their grammar argument for the first time in their reply, Defendants
forfeited this argument. See Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010) (“We
have consistently held . . . that arguments made . . . for the first time in a reply brief are
waived.”); Automated Solutions Corp. v. Paragon Data Sys., Inc., 13-3025, 2014 WL
2869286, at * 14 (6th Cir. June 25, 2014) (citation omitted) (“Waiver is different than
forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.”).
Regardless, Defendants’ motion for reconsideration lacks merit because the
court already addressed their grammar argument. The local rule is clear: “[t]he court
will not grant motions for . . . reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable implication.” E.D. Mich. LR
7.1(h)(3); see also Fulghen v. Potter, No. 10-11148, 2011 WL 761499, at *1 (E.D. Mich.
Feb. 25, 2011) (“The purpose of a motion for reconsideration is not ‘to give an unhappy
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litigant one additional chance to sway the judge.’” (quoting Pakideh v. Ahadi, 99 F.
Supp. 2d 805, 809 (E.D. Mich. 2000))). Defendants’ argument is exactly the type of
argument that the local rule was designed to prohibit. Defendants openly admit that
they have already presented their argument—their motion for reconsideration is
premised on this fact. Further, in its thirty-two page opinion, the court considered—if
not expressly then at least by reasonable implication—Defendants’ grammar argument.
As stated above, the court acknowledged Defendants’ view that the provision at issue
requires Plaintiff to be unable to perform “all” of the important duties of his “Occupation”
to be “Totally Disabled.” (Dkt. # 48, Pg. ID 1411.) As already stated in its original
opinion, the court simply does not agree; Defendants’ view is reasonable but so is
Plaintiff’s. The court also notes, again, that it is not alone in reaching this conclusion.
For example, in Giddens v. Equitable Life Assur. Soc. of U.S., 445 F.3d 1286, 1298
(11th Cir. 2006), the Eleventh Circuit Court of Appeals concluded that ambiguity existed
in a similar “Total Disability” provision, explaining:
[w]e do not suggest that ‘all’ is an unreasonable interpretation of the policy
language, but we do say that ‘most’ or the ‘majority’ of the substantial and
material duties is also a reasonable interpretation if an insured is unable to
engage in his regular occupation as a result of his inability to perform most
or the majority of those duties.
In interpreting similar policy provisions, the Eighth Circuit Court of Appeals reached the
same result as the Eleventh Circuit: “[t]he policies’ definitions of ‘total disability’ are
susceptible to differing interpretations, because the policies do not speak in terms of
“any,” “all,” “some,” or “the most important part” of [the insured’s] duties.” Dowdle v.
Nat'l Life Ins. Co., 407 F.3d 967, 970 (8th Cir. 2005).
Defendants’ motion for reconsideration will be denied.
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IV. CONCLUSION
IT IS ORDERED that Defendant’s motion for reconsideration (Dkt. # 50) is
DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 1, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 1, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-15343.LEONOR.DenyMReconsider.rljr.wpd
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