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June 3, 1998


The opinion of the court was delivered by: TRAGER


 TRAGER, District Judge:

 Plaintiff, Lawrence Klein, purchased disability insurance policies from three different insurers, National Life of Vermont ("NLV"), Berkshire Life Insurance Co. ("BLI"), and Massachusetts Casualty Insurance Co. ("MCI") (collectively "the companies"). The occupational disability policies purchased from the companies provide for benefits to be paid in the event that Klein should become totally disabled.

 On November 1, 1985, Klein purchased a total disability insurance policy from NLV. See Def. 3(g) Stat., P1. At the time he purchased the NLV insurance policy, Klein described his "current occupation" as that of a "podiatrist," and listed his job duties as "podiatric surgery." Total disability is defined in the NLV policy as an inability of the insured "to perform the material and substantial duties" of his "occupation ... at the time such disability begins." Def. 3(g) Stat., P2. The term "occupation" is undefined in the policy. See Id.

 On or about January 1, 1991, Klein bought a total disability policy from MCI. See Def. 3(g) Stat., P7. At the time he purchased the MCI insurance policy, Klein described his "occupation" as "podiatrist," and stated that his "exact duties" consisted of "podiatric surgery" at which he spent "90%" of his time. Total disability is defined in the MCI policy as the insured's "substantial inability to perform the material duties of your work . . . ." Def. 3(g) Stat., P8. In that policy, "work" is defined as "your regular occupation, trade or profession ... as such exists at the start of any period of disability ...." Id.

 Six months later, on or about July 9, 1991, Klein purchased an additional total disability policy from BLI. See Def. 3(g) Stat., P 4. At the time he purchased the BLI insurance policy, Klein gave his job title as "podiatric surgeon." The only description he gave of his job duties was "podiatric surgery practice management." Total disability is defined in the BLI policy as the inability of the insured "to perform the material and substantial duties of your occupation." Def. 3(g) Stat., P5. As with the NLV policy, "occupation" is undefined in that policy. As with the other two policies, the critical time for determining what is a claimant's occupation is the period "immediately preceding the onset of disability." Id.

 Plaintiff filed this action after all three companies contested his claims for benefits on the grounds that "in addition to his occupation as a podiatrist/podiatric surgeon, Dr. Klein had and still has a separate occupation as an administrator/manager of a number of podiatric clinics." Def. Let. dated 12/17/96 (joined in by all three defendants). Following discovery, defendants moved for summary judgment. Their motion is granted for the following reasons. Klein's "occupation" or "work," which absorbed most of his time and efforts and which he was and is fully able to carry out, was the operation, administration and management of a number of podiatric clinics. At the time Klein became disabled, his podiatric surgery practice consumed, at most, a minor portion of his time and constituted an insubstantial portion of his responsibilities. Moreover, plaintiff was then deriving and continues to derive the overwhelming bulk of his income from his management of six podiatric clinics.



 Klein started working in the field of podiatric medicine in 1975. Beginning in 1981, plaintiff, together with his partner, Michael Brumer, organized a group of podiatric clinics in which a number of other podiatric surgeons were employed. See Klein tr., pp. 11, 19, 22-23, 26, 44. In time, income from this growing number of clinics came to represent the overwhelming source of plaintiff's income. *fn1" Thus, in 1991, while Klein reported wages and salary of $ 54,000, he reported $ 545,400 under miscellaneous income. Moreover, the gross billings attributable to the 291 surgeries and surgically related procedures that Klein performed in 1991 as the primary surgeon amounted to roughly $ 85,000. See Smith Reply Aff., P2. In 1992, Klein reported wages and salary of $ 52,000, while reporting miscellaneous income of $ 791,500. However, the gross billings attributable to the 167 surgeries and surgically related procedures that Klein performed as the primary surgeon in 1992 amounted to roughly $ 55,000. See Id. ; Pl. Let. dated 9/24/97 (confirming accuracy and veracity of Smith reply affidavit). *fn2" Similarly, in 1993, the year when Klein filed for total disability insurance, he claimed salary in the amount of $ 52,000, while he reported $ 656,600 under miscellaneous income. From January to May 1993, the gross billings for the 84 procedures Klein performed as the primary surgeon amounted to $ 14,000. See Smith Sup. Aff., P4; Pl. Let. dated 9/24/97.

 In each of these years, the income listed on line 22 of Klein's 1040 tax returns under "miscellaneous income" was detailed in an attached "schedule" or "statement." These schedules listed Klein's clinics, including those clinics in which Klein did not practice podiatric surgery, as the sources of Klein's miscellaneous income. The overwhelming portion of Klein's miscellaneous income was derived from the clinics at which he did not perform any surgery whatsoever. For instance, in 1992, out of the $ 791,500 listed on Klein's 1040 tax return as miscellaneous income, only $ 302,000 was derived from Fulton Footcare, the clinic at which Klein practiced surgery, while the rest, $ 489,500, was derived from Klein's other clinics.

 Although Klein stated both in his deposition and in his affidavit in opposition to defendants' summary judgment motion that he spent his time "almost entirely" on surgery and patient care, the evidence is that in 1992 Klein performed only 167 surgical and surgically related procedures as the primary surgeon, while in 1993 from January through May, Klein performed only 84 procedures. *fn3" See Smith Aff., PP2, 3; Pl. Let. dated 9/24/97. In addition, Klein claims to have assisted in 216 surgeries in 1991, 202 surgeries in 1992, and 141 surgeries through May of 1993. *fn4" Smith Aff., PP2, 3. There is, however, no indication in Klein's charts, or anywhere else in the record, that Klein billed any patient for assisting in surgery during the period in question. Moreover, Klein's office did not bill insurance companies for the time he spent assisting other surgeons because most do not pay for assisted surgeries. See Klein tr., pp. 210-11. *fn5"

 Klein concedes that he engaged in podiatric office management activities, such as hiring and firing, dealing occasionally with insurance companies, and maintaining supervision of those offices. See Klein tr., p. 140-41, 152, 163; Klein Aff., P9. Klein estimated that in 1992, 5% of his time was devoted to making personnel decisions. See Klein tr., p. 145. Klein spoke with podiatrists hired as independent contractors at least twice a week regarding business matters. See Klein tr., p. 152. Plaintiff's duties with respect to his clinics also included interviewing podiatrists for positions in the various clinics and involvement in all decisions concerning the hiring and firing of podiatrists. See Klein tr., pp. 135, 140-41. He made decisions regarding the placement of podiatrists within the various clinics, as well as matters involving the nonprofessional personnel. See Klein tr., pp. 147, 141. For instance, doctors at the other clinics needed Klein's authorization to hire office managers. See Klein tr., p. 149.

 Furthermore, the principal decision-maker regarding expenditures at his satellite clinics was Klein, and he, along with his partner Brumer, had final authority on matters concerning insurance, accounting, and the leasing of equipment. See Klein tr., p. 163. Klein was also involved in decisions concerning expenditures at each of the various facilities. See Klein tr., p. 149. He spoke to doctors at other clinics on a regular basis regarding productivity and management of the offices. See Klein tr., p. 152.

 Camille Levin, the office manager of the Brooklyn clinic, reported directly to Klein. Ms. Levin discussed problems directly with Klein, and he would from time to time take charge when a situation became "difficult." See Levin Aff., P4. Prior to his claimed disability, plaintiff admits to having spent at least one hour per day overseeing collections, reviewing computer reports, see Klein tr., p.349, and discussing accounts receivable matters with Ms. Levin. See Id. at 153.


 In August 1993, a medical disorder affecting plaintiff's left hand -- a painful, arthritis-related condition of the thumb -- made it impossible for plaintiff to perform podiatric surgery. In or about August 1993, Klein filed claims for total disability benefits with VLI, BLI and MCI. The companies declined coverage.

 Following the onset of his disability, plaintiff has continued to manage his several clinics and further expanded his business by opening a clinic in the Bronx the year after he stopped performing surgery. See Klein tr., p. 93-94. According to Klein, he has continued to spend at least 10-15 hours per week, and as much as 3-4 hours per day in his downtown Brooklyn clinic. See Klein tr., pp. 155-56. Klein spends his time at the Brooklyn clinic overseeing the collection functions for all of the clinics and is the only person responsible for doing so. See Klein tr., pp. 345-46. In 1994 and 1995, during which time plaintiff could not engage in the practice of podiatric surgery because of his disabled left thumb, he reported incomes of $ 491,578 and $ 600,685, respectively, from his podiatric clinics, or miscellaneous income, as compared with $ 791,500 in 1992 and $ 656,600 in 1993.


 Defendants denied plaintiff's claim that he had become totally disabled on the ground that the policies require that plaintiff be totally disabled from performing his work or occupation "at the time" his claimed disability began. Defendants contend that in addition to Klein's practice of podiatric surgery -- which defendants concede he can no longer perform -- he was engaged in another separate occupation as the owner, operator, manager and administrator of a number of podiatric clinics, and that viewing the facts in a light most favorably to the plaintiff, his continued operation, administration, and management of these clinics after the onset of his alleged disability in August 1993 rendered him, as a matter of law, not totally disabled as defined in the three disability income policies. See Def. Mem. dated 3/13/97, p. 2. Plaintiff's response is ...

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