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Clarke v. Aetna Life Insurance Co.

February 2, 2007



This diversity action is brought by plaintiff, Trevor Charles Clarke ("Clarke"), against defendant, Aetna Life Insurance Company ("Aetna"), challenging Aetna's decision to terminate Clarke's long term disability benefits. Clarke alleges that Aetna's termination breached the insurance contract between Aetna and his employer and seeks damages and declaratory relief. Aetna moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure against Clarke's complaint in its entirety. For the reasons stated below, Aetna's motion [24] is denied.


The following facts are derived from the pleadings, affirmations, declarations, and attachments submitted in connection with the motion. The facts are undisputed except where indicated. Until October 1998, Clarke, a British citizen, was a partner in the law firm of Garretts & Co ("Garretts"), responsible for the firm's pension practice in the United Kingdom. (Compl. ¶¶ 2, 5, 6.) Pursuant to that employment, plaintiff was insured under a policy of long-term disability insurance issued by Aetna to Arthur Andersen Worldwide, with which Garretts is affiliated. (Mahajan Decl. Ex. 1.) In March 1998, Clarke suffered a severe depressive episode in which he experienced paranoid delusions and psychotic symptoms, and which required his hospitalization. (Compl. ¶ 8.) While both parties agree that the episode was induced by stress, the sources of that stress, and their relative importance, are in dispute. Obvious stressors included a pending malpractice suit related to work Clarke had performed, professional pressure, and personal relationship difficulties. (Mahajan Decl. Ex. 24 ¶¶ 38, 40; TCC*fn1 -177; Robertson Tr. 97.) Aetna correctly notes that up to this point, Clarke had worked for twenty years as a solicitor, including three and a half years as head of the pension department at Garretts, without any mental health problems. (Mot. 2.) Plaintiff submitted an application for benefits, and after a one-year waiting period pursuant to the insurance policy, Aetna determined that Clarke qualified for long term disability benefits. (Mahajan Decl. Ex. 5.) The August 3, 1999 letter granting Clarke benefits set the payment levels and stated that the "plan requires that we will periodically re-evaluate your eligibility by requesting updated medical information from your attending physician or an independent physician of our choice." (Id.)

After an absence following the onset of his depressive episode, Clarke returned to Garretts to discuss his future with the firm. A Supplemental Employer's Statement submitted to Aetna noted that prior to his absence, "the performance of the Pensions practice had definitely reached a plateau" and that Clarke's style "is often at conflict with the Andersen's/Garrett's style." (Mahajan Decl. Ex. 26.) At a meeting held on July 30, 1998 between Clarke and Garretts, it was established that Clarke could not return to Garretts in his former capacity, but that he would see a firm-appointed doctor to evaluate whether he might return in a part-time capacity. (Mahajan Decl. Ex. 27.) At several points, the notes from the meeting discuss "encouraging Trevor to retire from Garretts." (Id.) Clarke tendered his notice of resignation in September 1998, which became effective in October. (Mahajan Decl. Ex. 25.) According to Clarke, upon visiting the firm-appointed doctor, he was forced to resign from Garretts or be removed as a partner. (Clarke Dep. 282--83; Mahajan Decl. Ex. 28.)

Clarke sought help shortly after his depressive episode. He first went to see Dr. Smith, a psychiatrist at Kidderminster General Hospital, from April to July 1998. On June 18, Smith wrote "I think it would be premature to rush back into a return to work at this stage as on current evidence he clearly would not manage it." (TCC-105.) After his final meeting with Clarke in July, Smith wrote that "[w]hilst these conditions are currently impairing [Clarke's] ability to work I believe them to be fully remedial so that [he] should regain his former mental health and be in a position to return to work." (Mahajan Decl. Ex. 22) Clarke was then transferred to the care of Dr. Khan, at the same hospital, and from July 1998 until March 1999, Clarke had over ten appointments. (Mahajan Decl. Ex. 4.) On August 28, 1998, Khan wrote that "I would anticipate that [Clarke] will be able to return to work, eventually fulltime. . . . My view of the timescale likely for full recovery would be in the order of two or three months maximum. It is quite possible that recovery may complete before then. Mr. Clarke may well be able to work normally in a matter of weeks, however whilest he is showing good improvement, it is not possible to be definite at this time." (Mahajan Decl. Ex. 21.) The notes from the last meeting of March 10, 1999 stated that Clarke "is now substantially recovered from his depression," and that he had temporarily chosen not to take his medication (Lithium and anti-depressants), although at the doctor's suggestion he was considering whether to restart the medication. (Mahajan Decl. Ex. 30.) After this meeting, Clarke wrote a letter to a colleague at Garretts inquiring about the firm's permanent health insurance policy (not through Aetna) for which Garretts had stated he was ineligible. (Mahajan Decl. Ex. 28.) In that letter, Clarke noted that Khan had told him that pressure and stress could trigger a relapse and "although I am now mentally capable of returning to a [sic] my old job . . . I should consider the wisdom of so doing." (Id.) In an Attending Physician's Statement submitted to Aetna on April 23, 1999, Khan noted under the "mental/nervous impairment" section that "patient currently still improving-not fully recovered." (Mahajan Decl. Ex. 20.) Under "limitations," Khan wrote that Clarke was under "no psychiatric restriction but advised to avoid stress." (Id.)

Thereafter, Khan left to go to another hospital, and Clarke began to see Dr. Robertson, the senior psychiatrist at Kidderminster, seeing him once in June 1999 and once in February 2000. (Mahajan Decl. Ex. 4.) In a fax to Aetna immediately following the June appointment, Robertson responded to an inquiry about whether Clarke had reached maximum improvement or when he might by stating he was "[n]ot entirely well. Possibly another 6 months. Still improving." (Mahajan Decl. Ex. 32.) He went on to state that Clarke could presently practice his profession "on a part time basis," that he was taking Lithium and anti-depressants with out-patient support and monitoring, and that he should be able to return to work full-time in six months. (Id.) Several days later, Robertson sent a letter to Clarke's family doctor about Clarke's condition, conveying that "[h]e was alert, composed, euthymic and entirely in touch with reality." (Mahajan Decl. Ex. 34.) He also noted that Clarke had encountered problems going off his medication in the Spring, and had "wisely" decided to return to taking them. (Id.) As noted, in August 1999, Aetna determined that Clarke was entitled to long term disability payments under the policy, and began making payments.

Several months later, on October 7, 1999, Robertson wrote a letter to Aetna "confirm[ing] the advice given by Dr. Khan that [Clarke] should in the future avoid the high levels of stress to which [he was] exposed while a partner in the law firm Garretts . . . . Ignoring this advice will increase the risk of a relapse into severe clinical depression."*fn2

(Mahajan Decl. Ex. 31.)

He continued, "I regard the advice given above as affecting the rest of your working life up to retirement. For purposes of your insurance arrangements with Aetna I confirm that in my view you are therefore permanently disabled from returning to your Garretts job or one like it. . . . [O]nce you have had one bout of severe clinical depression there is always a risk of relapse." (Id.) Finally, with regard to his understanding that Aetna would require a medical certificate every three months, Robertson stated that "my advice will be the same each time I am asked to provide a certificate: in these circumstances you may care to ask Aetna if they still require certificates so regularly." (Id.) Clarke faxed Robertson's letter to Aetna on October 18, 1999, and inquired whether, pursuant to the paragraph concerning medical certificates, Aetna "still wish[ed Clarke] to submit medical certificates (i.e. Mental Health Provider Statements) every three months." (TCC-48--53 ¶ 7.) Clarke received no response. At this point, Clarke had begun to work part-time as a consultant for the law firm of Martineau Johnson, working two days per week. (TCC-87; Mahajan Decl. Ex. 29.) The firm noted that while Clarke was a "meticulous and clever lawyer," he "never was interested in taking on a fill work commitment," but did not elaborate. (Mahajan Decl. Ex. 29.) Robertson approved of this temporary work as the "stress and work load is much reduced compared with Garretts." (Mahajan Decl. Ex. 31.)

Because Robertson was retiring, he discharged Clarke to Dr. Hyde, his family doctor, "with the suggestion that you refer him back to the appropriate Sector psychiatrist in due course." (Mahajan Decl. Ex. 35.) In a letter to Hyde following Robertson's final meeting in February 2000, Robertson referred to a "number of current stresses," including Clarke's part-time work at Martineau Johnson, but stated that Clarke had "wisely taken a precaution of arranging a couple of months off work." (Id.) Robertson found Clarke's mood at the final meeting to be "satisfactory" and stated that "he shows no clinical features of depression." (Id.) Clarke was still on Lithium and anti-depressants at the meeting, but Robertson suggested that in a few months "we might then be able to get him off the anti-depressant and maintain him on the Lithium alone or even nothing." (Id.)

In October 2000, Robert Seccombe, the case manager for Clarke's long-term disability claim, began an investigation. Seccombe sent an interviewer to Clarke's home in the United Kingdom to acquire information about his employment with and earnings from Martineau Johnson, and from what providers and facilities he had obtained treatment from October 1, 1999 to that date. (Mahajan Decl. Ex. 6.) In the report from that interview held on December 12, 2000, the investigator described Clarke's recent activities, including legal disputes with Martineau Johnson and concerning a real estate transaction, and his future plan to train as a ski instructor and eventually combine continuing legal education with ski instruction in the Alps. (Mahajan Decl. Ex. 8.) Clarke explained that he was seeing Robertson as needed and that after accidentally forgetting his Lithium tablets at home on a February 2000 trip and suffering no ill-effects, he had decided not to return to taking them. (Id.) At the meeting and subsequently thereafter, Clarke refused to sign an authorization form allowing Aetna to request information directly from Martineau Johnson and his doctors.

As of the December 2000 meeting, Clarke had not seen Robertson for almost ten months. However, he had been to Dr. Hyde, his family doctor, in March, May, and October of 2000. (TCC-9.) Neither party presents evidence as to the March meeting. The notes from the May meeting suggest that although Clarke's mental health was discussed, he told the doctor that he "feels absolutely fine," that he had been off his medication for several months, and that he "no longer wants to be partner in firm." (Mahajan Decl. Ex. 36 at 12.) The October meeting appears to have been for an influenza vaccination. (Id.) Clarke had one more appointment with Hyde in March 2001 prior to his benefits being terminated, where he obtained a referral to an orthopedist for a fracture of his left arm sustained while training to become a ski instructor. (Id. at 11--12.) Of course, at any of these meetings, mental health may have been discussed, but simply not have appeared in the medical records.

After the December 2000 interview, Clarke sent a follow-up letter to Aetna. (TCC-32--34.) In that letter, he explained that he had not signed the authorization form because it was worded too broadly and would allow Aetna to approach Martineau Johnson, his client, about his mental health. He also included information concerning his payments from Martineau Johnson and future prospects and enclosed a report prepared by his accountant. This apparently satisfied Aetna, who did not contact Clarke from December 2000 until October 8, 2001. On that date, Seccombe sent an e-mail requesting additional information in order to evaluate Clarke's disability claim. (TCC-68.) Attached were a letter, a mental health provider's statement to be completed by his treating physician, and an authorization form. The letter sought information on all the providers and facilities where Clarke had received treatment from January 1, 2001 until that date, including complete medical records if Clarke chose not to sign the attached authorization form. (Mahajan Decl. Ex. 12.) The letter also sought an update on Clarke's financial ventures, including with Martineau Johnson and ski instruction.

Clarke responded the next day, October 9, 2001, describing his reasons for not signing the authorization form, his efforts to supplement his income, including a ...

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