Chu, DDS v. The Paul Revere Life Insurance Company

Filing 31

ORDER DENYING 26 Motion for Reconsideration. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JACQUELYN K. CHU,
Plaintiff,
v.

Case No. 15-14357

THE PAUL REVERE LIFE
INSURANCE COMPANY,

HON. AVERN COHN

Defendant.
___________________________________/
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION, (Doc. 26)
This is a case concerning a policy of insurance for occupational disability income.
On February 7, 2017, after holding a hearing, the Court entered an order granting
summary judgment in favor of the plaintiff insured. (Doc. 24). The Court concluded:
There is no evidence in the record to support a finding that carpal tunnel
syndrome surgery will enable plaintiff to return to the practice of dentistry
and particularly to perform the important duties associated with that
profession.
(Doc. 24; see also Doc. 29).
On February 21, 2017, defendant insurer filed a “Motion for Reconsideration.”
(Doc. 26). On March 7, 2017, the Court entered an “Order Directing Response” from
the plaintiff. (Doc. 27). Plaintiff has responded and defendant has replied.

Motions for reconsideration are governed by E.D. Mich. LR 7.1(h) which provides
in relevant part:
Generally, and without restricting the court’s discretion, the court will not
grant motions for rehearing or reconsideration that merely present the
same issues ruled upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable defect by
which the court and the parties and other persons entitled to be heard on
the motion have been misled but also show that correcting the defect will
result in a different disposition of the case.
E.D. Mich. LR 7.1(h)(3).
Defendant has not shown any ground for reconsideration. The motion is DENIED.
First, defendant takes issue with the Court’s interpretation of the language of the
“appropriate care” clause in the policy, which reads:
“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.
“Physician’s Care” means the regular and personal care of a Physician
which, under prevailing medical standards is appropriate for the condition
causing the disability.
(Doc. 14-2 at 14). In interpreting that clause, the Court reasoned:
THE COURT: . . . Nowhere did [any medical expert] express the
opinion that that surgery will restore flexibility and dexterity to the hand
meeting the criteria or the standard necessary to practice the art of
dentistry. And the Court will take judicial notice of the fact that in order to
practice that art and restore [plaintiff] to a wage-earning ability in that art
she has to have the same dexterity and flexibility she had before the onset
of the disability, and this record is completely void of anyone testifying
expressing that opinion.
THE COURT: . . . [T]here is no Michigan law precisely on point that
involves Carpal Tunnel Syndrome, and if one looks at the authorities, this
is some distinction, but principally the Court will rely on the discussion . . .
in Couch . . . -- Major Surgery or Procedures, Couch, Section 146.53.

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The Court will take judicial notice of the fact that major surgery
always, always entails a certain risk, particularly because it has to be
performed under anesthesia, and that plaintiff’s declining to submit to such
a basic condition is reasonable under the circumstances. There’s nothing
in the language of the policy that says the treatment must include surgery,
if appropriate.
And there’s one Michigan case that comes closest, and that’s
Morinelli v. Provident, 617 N.W.2d 777, which seems to say receiving care
which is appropriate for the condition causing disability and therefore
anything that is required to restore one from a disabled condition to an
enabled condition must assure that the restoration will be as good as
before the break. . . .
(Doc. 29 at 6). Defendant says this amounted to legal error and offers its own exegesis
of the policy language. However, defendant acknowledges there is no controlling
precedent governing the interpretation of an “appropriate care” clause with respect to
whether an insured must submit to invasive hand surgery. Because this is an unsettled
question of Michigan law, there is no “palpable defect” identified.
Next, defendant says it would have offered the written opinion of an orthopedic
surgeon, Dr. John Groves, with whom it consulted in denying plaintiff’s claim for benefits
had it known the reasoning the Court would use. Defendant acknowledges this opinion
was available but not included when it filed the motion for summary judgment.
The opinion of Groves is not “new” as it was previously available. Moreover, it
does not alter the Court’s conclusion that the surgery will not necessarily restore the
plaintiff’s ability to practice dentistry. The opinion is contingent on a successful surgery
and no complications, adverse events, or recurrence. It is largely comparable to the
opinion of Dr. Sobol, which the Court considered in its decision.

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SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: April 28, 2017
Detroit, Michigan

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