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Weisberg v. Metropolitan Life Insurance Company of America

United States District Court, N.D. Alabama, Southern Division

October 24, 2017

SCOTT R. WEISBERG, M.D., Plaintiff,



         This case arises out of a dispute between Scott R. Weisberg, M.D., and his disability insurance provider, The Guardian Life Insurance Company of America (“Guardian”), [1] regarding long-term disability insurance benefits. Dr. Weisberg's insurance policy with Guardian provided coverage for total disability and for “residual disability, ” defined by the policy as, at least, a 20% reduction in income caused by injury or illness. Dr. Weisberg alleges that because he presented a valid claim for both total and residual disability benefits, Guardian's refusal to pay breached the parties' contract. Dr. Weisberg further alleges that Guardian acted in bad faith by failing to investigate his disability claim, and by failing to pay the benefits he alleges he is entitled to under the policy.

         The court is now confronted with the parties' cross-motions for summary judgment. Docs. 41; 49. Dr. Weisberg seeks summary judgment only with respect to his breach of contract and bad faith claims pertaining to Guardian's denial of residual disability benefits. Guardian seeks summary judgment on all the bad faith claims Dr. Weisberg asserts. Both parties' motions are now fully briefed, docs. 41; 49; 62; and 65, and ripe for review. Based on careful consideration of the parties' arguments and the record, this court finds that summary judgment in favor of Guardian is due to be granted on all of Dr. Weisberg's bad faith allegations. However, issues of material fact preclude summary judgment on Dr. Weisberg's breach of contract claim related to residual disability. Accordingly, Dr. Weisberg's motion for partial summary judgment, doc. 41, is due to be denied, and Guardian's motion for partial summary judgment, doc. 49, is due to be granted.


         Summary judgment is properly granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255. Indeed, it is explicitly not the role of the court to “weigh conflicting evidence or to make credibility determinations.” Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 742 (11th Cir. 1996); see also Anderson, 477 U.S. at 255 (explaining “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge”). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Nor will “a . . . ‘scintilla of evidence in support of the nonmoving party . . . suffice to overcome a motion for summary judgment.'” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (quoting Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004)).

         The simple fact that both sides have filed a motion for summary judgment does not alter the ordinary standard of review. See Chambers & Co. v. Equitable Life Assurance Soc., 224 F.2d 338, 345 (5th Cir. 1955) (explaining that cross-motions for summary judgment “[do] not warrant the granting of either motion if the record reflects a genuine issue of fact”). Rather, the court will consider each motion separately “‘as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.'” 3D Med. Imaging Sys., LLC v. Visage Imaging, Inc., 228 F.Supp.3d 1331, 1336 (N.D.Ga. 2017) (quoting Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004)). The court notes that although cross-motions “‘may be probative of the non-existence of a factual dispute'” they “‘will not, in themselves, warrant [the granting of] summary judgment.'” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)).

         III. FACTS

         Dr. Weisberg, a board certified family physician and the former owner of Homewood Family Medicine, purchased a long-term disability insurance policy from Guardian. Docs. 41 at 2; 49 at 3. The policy included a rider allowing Dr. Weisberg, at his option, to purchase additional disability insurance. Doc. 49 at 3. Dr. Weisberg exercised that option and subsequently purchased additional coverage from Berkshire, a wholly owned subsidiary of Guardian. Id. The original Guardian policy provided for a total disability benefit of $7, 500 a month, and the Berkshire policy provided an additional total disability benefit of $3, 650 a month. Id. Otherwise, the policy provisions at issue here are substantively identical. Id.; Doc. 41 at 3.

         Under the policies, “total disability means that, because of sickness or injury, you are not able to perform the major duties of your occupation.” Doc. 49 at 3. The policies define occupation as “the regular occupation . . . in which you are engaged at the time you became disabled.” Id. Even if the insured is able to work in some other occupation, the insured is still considered totally disabled if they “are not able to work in [their] own occupation.” Id. at 4. In the event an injury or sickness impacts the insured's ability to work but does not result in total disability, the policies also include “residual disability” coverage. Id. Residual disability means “that you are at work and are not totally disabled under the terms of this policy, but because of sickness or injury your loss of income is at least 20% of your prior income.” Doc. 41 at 3.

         A. The 2013 Disability Claim

         On April 15, 2013, Dr. Weisberg had just completed the Boston Marathon when two bombs exploded nearby. Id. at 2, 4. Dr. Weisberg was not struck by any debris, and he did not seek medical treatment at the scene. Id. at 4; Doc. 49 at 5. Instead, he returned home to Birmingham and resumed work as scheduled two days later. Doc. 41 at 4. That day, or shortly thereafter, Dr. Weisberg began experiencing a sensation of fullness in his ears accompanied by a loss of hearing in his left ear. Id. These symptoms led Dr. Weisberg to visit his family physician, Dr. Raymond Browne, where he reported both the hearing loss and some trouble with maintaining concentration. Id. Dr. Browne advised Dr. Weisberg to see a specialist if he continued to have trouble with his hearing. Doc. 49 at 9. Dr. Weisberg did so in June 2013when he made a series of appointments with Dr. Sheldon Black, an Otolaryngologist (“ENT”), [2] again complaining of hearing loss in his left ear. Id. at 9-10; Doc. 53-17 at 14.

         On September 3, 2013, Guardian received Dr. Weisberg's initial claim for long-term disability benefits based solely on hearing loss. Doc. 53-30 at 2-3, 7. Dr. Weisberg claimed that his hearing loss prevented him from performing auscultation, a medical procedure in which a physician listens to sounds produced by the patient's internal organs, primarily the heart and lungs, in order to make diagnoses. Id. at 6-7; Doc. 53-4 at 34. Because his practice required him to routinely perform this procedure, he asserted his loss of hearing was sufficient to qualify as a disability. Docs. 53-4 at 34-36, 65; 53-30 at 7.

         After filing his disability claim, Dr. Weisberg continued to seek treatment from Dr. Black and also began seeing Dr. Michael McKenna, another ENT. Docs. 53-4 at 44; 49 at 10; 53-21 at 3. By this time, Dr. Weisberg was reporting hearing losses in both ears. See Docs. 53-18 at 2; 53-36 at 2. However, neither Dr. Black nor Dr. McKenna reached a definitive diagnosis of the condition, or even agreed on the extent of Dr. Weisberg's injuries. See Docs. 53-20 at 2; 53-17 at 11; 53-21 at 1-2.[3] Dr. Weisberg ...

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