Opinion
Civil Action No. 03-10298-GAO.
November 18, 2004
MEMORANDUM AND ORDER
The plaintiff, Jon B. Gillespie, D.C., filed this action for breach of contract and violation of Mass. Gen. Laws ch. 93A seeking damages for unpaid disability benefits he claims he is due under a disability insurance plan underwritten by Allianz Life Insurance Company of North America ("Allianz") and administered by Jardine Group Services Corporation. The defendants jointly moved for summary judgment and oral argument was scheduled for October 25, 2004. The defendants' counsel appeared and was heard at oral argument, but for reasons unknown to the Court, the plaintiff's counsel did not appear, though it appears from the docket that electronic notice of the hearing was sent to the e-mail address of the plaintiff's counsel. For the following reasons, I conclude that the motion for summary judgment ought to be granted.
I. Summary of Facts
From approximately June 1990 through March 15, 1994, Gillespie operated a private chiropractic practice in Cohasset, Massachusetts. Around the time he opened his own practice, Gillespie applied for disability insurance through the American Chiropractic Association. In March 1993, Allianz became the underwriting insurer for the membership disability insurance policy Gillespie had selected. The policy was effective from March 1, 1993 through February 28, 1998. As of March 1, 1998, Allianz no longer underwrote the policy.
Under the terms of the policy, a member was considered totally disabled if he was "completely unable, due to Sickness or Injury or both, to perform the substantial and material duties of (1) his own occupation during the first 24 months of disability; and (2) any gainful occupation for which he is reasonably fitted by education, training, or experience after the first 24 months of disability and that he is not in fact engaged in any occupation for wage or profit, and is under the care of a physician." The policy also provided for the payment of "Residual Disability Benefits" if, after a period of total disability, the same or a related injury continues, the member is unable to perform substantial and material duties of his own occupation, and the member suffers a continuous reduction of his predisability monthly earnings.
Gillespie suffered an injury to his left shoulder on February 16, 1994, which precluded him from practicing chiropractic care. On March 15, 1994, Gillespie closed his chiropractic practice and filed a claim for disability benefits with Allianz. The defendant Jardine Group Services Corporation, the plan administrator, referred all decision-making authority for Gillespie's claim to Allianz. Allianz reviewed the claim and determined that Gillespie was totally disabled because he was unable to perform the material duties of his own occupation. Allianz contends that its determination of total disability was based upon injury to both Gillespie's left and right shoulders, as referenced by his treating physicians. Gillespie admits that he complained of both left and right shoulder pain during the 1990s, but he contends that Allianz based its disability determination exclusively on his left shoulder injury, and it was not until April 1997, when Gillespie filed a separate disability claim for injury to his right shoulder, that Allianz indicated that their initial determination of disability had been based on the combined conditions of his left and right shoulders.
After the first twenty-four months of total disability, Allianz continued to pay Gillespie total disability benefits, but sought opinions from various physicians, chiropractors, and a disability management consultant on whether Gillespie suffered from any medical limitations or restrictions that would impact his ability to be gainfully employed in any occupation for which he is reasonably fitted by education, training, or experience. Based on the information it collected from these sources, Allianz determined that Gillespie no longer qualified as "totally disabled" under the terms of the policy because he was able to participate in "any gainful occupation for which he is reasonably fitted by education, training, or experience." On February 18, 1997, the plan administrator sent written notice to Gillespie informing him of the results of the investigation and advising him that, based on those results, his total disability benefits would be terminated in thirty days. On March 15, 1997, Allianz terminated Gillespie's total disability benefits.
At various times in 1997, 1998 and 1999, Gillespie worked as a security guard, substitute teacher, "Ed. Tech.", and an insurance salesman. He admits that he was not disabled from performing any of these occupations or a wide variety of other unspecified occupations in which he could have participated.
On March 21, 1997, and on three additional occasions in 1998, Allianz sent written correspondence to Gillespie advising him that he might be entitled to collect residual disability benefits under the terms of the policy. In 2000, Gillespie applied for and was awarded residual disability benefits in the amount of $66,686.18. At the same time, he continued to maintain that he was entitled to total disability benefits because of his right shoulder injury. On April 22, 1997, Gillespie notified Allianz in writing that he was "totally disabled due to an unrelated cause" (i.e., his right shoulder injury was "unrelated" to his left shoulder injury). On August 27, 2002, Gillespie underwent arthroscopic surgery on his right shoulder, and between the fall and winter of 2002 he tried, to no avail, to have Allianz reinstate payment of total disability benefits. After recuperating from his surgery, Gillespie began practicing chiropractic services on a limited basis in April 2004.
In paragraph 18 of his First Amended Complaint, Gillespie alleges: "In or around June 2002 [he] developed a disability in his right shoulder, unrelated to his earlier disability in the left shoulder, according to his doctor." (emphasis added). In opposition to the defendants' summary judgment motion, he now claims that the right shoulder injury occurred in the summer of 1996 and worsened in 1997. See Gillespie Aff., ¶ 14. Since the Allianz policy terminated in 1998, a disability that arose in 2002, as alleged in the complaint, would not have been covered by the policy.
II. Discussion
The only arguably disputed material issues are (i) whether Allianz's initial total disability determination was based only on the injury to Gillespie's left shoulder or rather on an injury to both his left and right shoulders, and (ii) whether Gillespie suffered an "unrelated," totally disabling right shoulder injury during the summer of 1996. Viewing the record in the light most favorable to the plaintiff, the defendants are entitled to judgment as a matter of law.
A. Gillespie's Left Shoulder Injury
Assuming that Allianz's initial disability determination was based only on Gillespie's left shoulder injury, as he suggests, its termination of Gillespie's total disability benefits in March 1997 was proper because the record shows that he was able to participate in "any gainful occupation for which he [was] reasonably fitted by education, training, or experience after the first 24 months of [total] disability." After Allianz terminated his total disability benefits, Gillespie took jobs as a security guard, substitute teacher, "Ed. Tech.", and insurance salesman for various periods between 1997 and 1999. He admitted at his deposition that from 1997 through 1999 he was not disabled from performing any of the above occupations or a wide variety of other unspecified occupations in which he could have participated. Physicians' reports, a labor market survey, and a transferrable skills analysis confirmed this. Though not in his chosen profession, these jobs were "of a substantial and not merely trifling character." Adamaitis v. Metro. Life Ins. Co, 3 N.E.2d 833, 835-36 (Mass. 1936). Furthermore, the disability policy protected job income, not status. It provided for residual disability benefits after total disability if the insured remained unable to perform his own higher paying occupation but could perform lesser paying work.
B. Gillespie's Right Shoulder Injury
In his First Amended Complaint and during his deposition, Gillespie did not claim a specific, "unrelated," totally disabling right shoulder injury occurring in the summer of 1996, which might serve as the basis for an independent claim for total disability benefits. In fact, he specifically alleged that he developed a right shoulder disability, unrelated to his left shoulder disability, in or around June 2002. First Am. Compl. ¶ 18. It appears that it was not until the defendants filed their summary judgment motion that Gillespie chose to advance a 1996 right shoulder injury as a basis for recovery in this action.See Gillespie Aff. ¶¶ 14-19. A party cannot create a genuine issue of material fact by filing an affidavit that contradicts his earlier deposition testimony without giving a satisfactory explanation for why the testimony has changed. Colantuoni v. Alfred Calcagni Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994). Although Gillespie has not offered any explanation for the apparent inconsistency between the dates of injury in his complaint and deposition, on the one hand, and his affidavit submitted in opposition to summary judgment, on the other, his deposition testimony and his April 22, 1997 letter to Allianz do not clearly and unambiguously eliminate the possibility that he had previously complained in some manner to Allianz of a 1996 disabling right shoulder injury. See Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26-27 (1st Cir. 2002). (It is clear, however, that Gillespie did not submit a claim for benefits under the policy for a 2002 right shoulder injury, and that even if he had, he would not be entitled to benefits because the policy terminated in 1998.)
Even if I accept as true Gillespie's assertion that he suffered a disabling right shoulder injury in 1996, he would not be entitled to recovery because he failed timely to file a claim for benefits under the policy. The policy required Gillespie to file a written notice of his claim to the administrator "within 30 days after commencement of any loss . . . or as soon as reasonably possible." It also required him to furnish written proof of loss to Allianz "within 90 days of the loss." In April 1997, in response to a letter sent by Gillespie referencing his prior complaints of right shoulder pain, Allianz reviewed Gillespie's medical records. Gillespie thereafter sent his April 22, 1997 letter notifying Allianz that he had become "totally disabled due to an unrelated cause," i.e., the injury to his right, as opposed to his left, shoulder. Gillespie's April 1997 correspondence came well after the expiration of the thirty day claim-filing period established under the policy. Nor was it sent "as soon as reasonably possible" after the putative onset of the right shoulder disability in the summer of 1996. Under these circumstances, even if the right shoulder injury was separate and unrelated to the left shoulder injury, the disability claim for that separate claim was considerably tardy under the terms of the policy. In the absence of any reason to excuse the tardiness, none appearing, the purported claim for benefits for the separate right shoulder injury was properly denied.
C. Violation of Massachusetts Unfair Practices Statute
In his complaint, Gillespie does not allege that Allianz failed to conduct a reasonable investigation of his right shoulder disability claim, but rather bases his claim under Mass. Gen. Laws ch. 93A solely on Allianz's alleged failure to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. See Mass. Gen. Laws ch. 176D, § 3(9)(f); First Am. Compl. ¶¶ 24, 30. As Allianz's termination of Gillespie's benefits under the policy was legally correct, and the record shows that liability to pay total disability benefits for a right shoulder injury was not reasonably clear, Allianz is entitled to summary judgment on Gillespie's unfair practices claim, assuming in his favor that such a claim would lie. See Ferrara DiMercurio, Inc. v. St. Paul Mercury Ins. Co., 169 F.3d 43, 56 (1st Cir. 1999); Van Dyke v. St. Paul Fire and Marine Ins. Co., 448 N.E.2d 357, 362 (Mass. 1983).
III. Conclusion
For the foregoing reasons, the defendants' motion for summary judgment (Docket No. 23) is GRANTED.
It is SO ORDERED.