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January 23, 1995


The opinion of the court was delivered by: DAVID G. TRAGER


 TRAGER, District Judge:

 Plaintiff, Michael Brumer, purchased disability insurance policies from three different insurers, including the movant National Life of Vermont ("NLV"). The three occupational disability policies purchased from NLV provide for benefits to be paid in the event Brumer should become totally or partially disabled. Total disability is defined in the policies in question as an inability of the insured to engage in his or her "occupation." "Occupation" is defined therein as the actual duties a claimant performed "at the time such disability begins." Pl. 3(g) Stat. at Para 2. Plaintiff, who claims to be totally disabled, filed this action after the defendants denied his claim for benefits under the policies. Defendant NLV has moved for summary judgment.

 Viewing the evidence in a light most favorable to the plaintiff, plaintiff is not entitled to receive the disability payments he claims under the three policies in question. Plaintiff alleges that he is disabled because he is no longer able to perform podiatric surgery. Although there are many factual issues in dispute, for purposes of this motion, there is one fact as to which I find there is no genuine dispute: plaintiff was not performing podiatric surgery for at least thirteen months prior to January 1991, the date he claims as the onset of his disability. Accordingly, he was not disabled within the terms of occupational disability policies which define "occupation" as the pursuit in which a claimant was engaged "at the time [his] disability began.". Consequently, defendant's motion for summary judgment is granted.


 The following facts are not in dispute. Plaintiff was engaged in practicing podiatric medicine from 1975 until 1989. He purchased a long-term disability insurance policy from the defendant in 1976, and two additional policies in 1981 and 1984. Sometime in 1988, plaintiff organized a group of podiatric clinics in which a number of other podiatrists are employed. In time, income from his management of this growing number of clinics came to represent approximately eighty percent of his annual income.

 In 1989, the New York State Board of Regents charged plaintiff with a number of offenses including performance of needless surgery and tests, insurance fraud, and misleading advertising. The charges were ultimately sustained, and he was suspended from the practice of podiatric medicine for a period of eleven months. In the Matter of Lawrence Klein, et al., 167 A.D.2d 625, 562 N.Y.S.2d 856 (App. Div. 1990). During this period of suspension from practice, plaintiff developed a medical condition known as "central serous retinopathy" which produced a blind spot in his left eye. Pl. 3(g) Stat. at Para. 7. Plaintiff claims the condition initially corrected itself, but it reappeared in November 1990, just prior to the time his suspension was lifted on November 25th. (Brumer Dep. at 68.) From that time onward, while plaintiff's visual impairment improved somewhat, it never improved to the point that he could perform podiatric surgery (id. at 68-70). Approximately eight weeks later, on January 26, 1991, plaintiff was diagnosed with micropsia, a condition caused by accumulation of scar tissue that results from a retinal rupture. This condition caused distortion in the vision of his left eye. Id. at 68-76. The parties concede that the visual impairment is permanent.

 After plaintiff's left eye impairment was diagnosed as a permanent disorder, he filed for benefits under the long-term disability insurance policies issued by the defendants on February 24, 1991. His doctor reported on the disability claim form which was filed with NLV that the vision in plaintiff's left eye was 20/50. Plaintiff's doctor went on to state that Brumer is disabled to the extent he "feels he cannot function as a physician" with that degree of impairment. Plaintiff's doctor did not offer his own opinion on the question whether plaintiff's condition is objectively so serious that he is precluded from practicing podiatric surgery, but for the purposes of this motion, we shall assume that he is unable to perform podiatric surgery. To this day, plaintiff continues to devote substantially all of his time to managing his podiatric clinics and maintains that he is unable to resume his practice of podiatric surgery.

 The defendant denied plaintiff's claim that he had become totally disabled on the ground that to qualify the claimant would have to be completely unfit to perform his occupation as that term is defined by the policy. "Occupation" is defined in the policies in question to mean the occupation the insured was engaged in "at the time such disability begins." Defendant asserts that at the time plaintiff claims was the onset of his visual impairment, claimant's occupation was not solely that of a surgeon. During the period of plaintiff's suspension from practice, when he experienced the first manifestation of the illness that caused his disability, he had been working exclusively as an administrator, a calling his visual impairment does not now prevent him from performing. It is defendant's position that viewing the facts in a light most favorable to the plaintiff, Brumer had never devoted himself exclusively to performing surgery and, consequently, plaintiff's occupation should be categorized as that of a medical administrator who occasionally performed surgery. Since plaintiff is able to administer his chain of clinics, he is not totally disabled from continuing to perform the occupation in which he was engaged "at the time such disability begins," i.e., that of functioning as a medical administrator and a podiatrist. Plaintiff's response is that his managerial role should be viewed as peripheral to what he claims to be his real occupation.


 Jurisdiction over this action arises under 28 U.S.C. § 1332. As this is a diversity action, the court is bound to apply the substantive law of State of New York. Under New York law, in cases where the terms of the policy are clear and unambiguous, "rules for the construction of contracts of insurance do not differ from those to be applied to the construction of other contracts. When the terms used are clear and unambiguous, they are generally to be taken and understood in their plain, ordinary and proper sense." McGrail v. Equitable Life Assur. Soc'y, 292 N.Y. 419, 55 N.E.2d 483 (N.Y. 1943); Leibowitz v. Mut. of Omaha 71 Misc. 2d 838, 337 N.Y.S.2d 314 (Civ. Ct. 1972). While the word "disability" may have different meanings depending upon the context in which the term is used, the definition set out in the insurance policies in question is clear and unambiguous and, therefore, binding on the parties. Kunstenaar v. Conn. Gen. Life Ins. Co., 902 F.2d 181, 184 (2d Cir. 1990).

 For plaintiff to prevail, he must establish that he has become totally disabled from continuing to perform the occupation in which he was engaged prior to the onset of his visual impairment. While the 1976 and 1981 policies do not explicitly define the precise degree of visual impairment that constitutes a total disability, New York courts have consistently held claimants are totally disabled when they are prevented from performing the material and substantial responsibilities of their jobs. McGrail, 55 N.E.2d at 486-87; Matza v. Empire State Mut. Life Ins. Co., 50 A.D.2d 554, 375 N.Y.S.2d 578 (App. Div. 1975); see also, Franklin Life Ins. Co. v. Burgess, 219 Ark. 834, 245 S.W.2d 210, 214 (Ark. 1952); Pacific Mut. Life Ins. Co. v. McCrary, 161 Tenn. 389, 32 S.W.2d 1052 (Tenn. 1930). See generally, E. L. Kellett, Annotation, Insurance: "Total Disability," 21 A.L.R.3d 1155 (1968). The 1984 policy in issue before the court explicitly incorporates the legal standard exemplified in these cases, for it provides that in order to be considered disabled, a claimant must be unable "to perform the material and substantial duties of the insured's occupation." Def. Exh. A. To defeat defendant's motion for summary judgment, plaintiff must establish that practicing surgery constituted a material and substantial part of his responsibilities at the time he became disabled. Accordingly, plaintiff maintains that prior to the onset of his visual impairment he was "actively engaged in the practice of surgery," a claim that the defendant disputes. Pl. 3(g) Stat. Para 1. But what is not disputed is that while plaintiff may have scheduled patients for surgical procedures during the eight weeks after reinstatement of his medical license, the time during which he claims to have become disabled, he admits he did not actually perform any surgery during that period, and, indeed, also concedes that his eyesight during this entire period was so compromised that he was unable to perform podiatric surgery. Brumer Dep. 72-76.

 The determination whether a particular injury renders a claimant disabled from performing the material and substantial duties of his or her occupation depends on the nature of a claimant's particular occupation. Arthritis will disable a pianist, but perhaps not an opera singer or a museum curator. See Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S.W.2d 310 (Ark. 1930) ("Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged."). When faced with a claimant who had been engaged in diverse activities, a court must first determine whether that claimant was engaged in a single occupation that required the performance of many duties, or whether the claimant was actually engaged in more than one occupation. A claimant who performed ...

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