United States District Court, N.D. Alabama, Southern Division
SCOTT R. WEISBERG, M.D., Plaintiff,
GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
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”),
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
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.
STANDARD OF REVIEW
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
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)).
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)).
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.
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.
The 2013 Disability Claim
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”),
again complaining of hearing loss in his left ear.
Id. at 9-10; Doc. 53-17 at 14.
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.
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. Dr. Weisberg ...