Opinion
14-P-1871
12-09-2015
EARL L. YUNES v. UNUM GROUP & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Dr. Earl L. Yunes, appeals from so much of a judgment as granted summary judgment in favor of the defendants, Unum Group and Paul Revere Life Insurance Company (Paul Revere), upholding their interpretation of Yunes's disability income policy. We affirm.
Specifically, summary judgment was allowed on count two of the plaintiff's complaint (breach of contract) and count four (request for declaratory judgment). Counts one and three of the plaintiff's four-count complaint were dismissed by stipulation of the parties.
Background. The basic facts are not in dispute. On June 12, 1991, Paul Revere issued a disability policy to Yunes, providing a disability benefit in the event that Yunes became disabled due to injury or illness. Under the policy, if Yunes became disabled at age sixty-four but before age sixty-five, he was entitled to a "Total Disability Benefit" of $10,000 per month, subject to cost of living adjustments, for thirty months. Yunes also purchased a "Lifetime Total Disability Benefit Rider." The rider essentially provided that, if Yunes became disabled before age sixty-five, as relevant here, a "Lifetime Total Disability Benefit" would be provided after the expiration of the thirty-month period allowed in the underlying policy, so long as Yunes continued to be disabled. However, unlike the terms of the policy, the rider distinguished, for the purpose of continuing benefits, between disability by reason of injury and by reason of sickness.
The rider provided:
"We will pay this benefit during Your continuous Total Disability . . . . We will pay it while You remain Totally Disabled for as long as You live.
"FOR INJURY
"For Total Disability due to injury, the monthly amount We will pay will be the amount shown on the Policy Schedule. Any Cost of Living benefit rider added to Your Policy shall apply to this amount.
"FOR SICKNESS
"For Total Disability due to Sickness, the monthly amount We will pay will be based on the amount shown on the Policy Schedule. Any Cost of Living benefit rider added to Your Policy shall apply to this amount. The amount shown on the Policy Schedule plus any Cost of Living Increase that applies to this rider shall be multiplied by a factor. The factor to be used will be based on Your age at the start of Total Disability which continues until age 65."
The defendants agreed that Yunes, as of March 30, 2011, was totally disabled due to sickness. Yunes properly submitted a claim under the policy, which Paul Revere approved, and Yunes began receiving (after the "90-day Elimination [or waiting] Period") monthly disability benefit payments of $12,500 (which included cost of living adjustments).
The thirty-month period allowed under the policy expired on December 27, 2013, and, at that time, Yunes's monthly disability benefit payment was $13,500, including a cost of living adjustment. Because the policy period expired at that time and the rider became effective, Paul Revere determined that Yunes's lifetime monthly disability benefit payment thereafter would be $1,350, based on the specific calculation prescribed under the provisions of the rider. See note 3, supra. (Under the rider, for total disability due to sickness, the benefit would be calculated as ten percent of the previously applicable policy benefit together with the cost of living adjustment).
Aggrieved by this decision, Yunes filed suit contending, among other things, breach of contract, and requesting declaratory judgment because, as he interprets the rider, he is entitled to $12,500 per month for the remainder of his disabled life. On summary judgment, Yunes, as noted by the motion judge, argued that there was a "larger amount payable" under the policy because "the Policy Schedule lists the [amount of benefits for] 'Lifetime Total Disability' as $10,000 (which later rose to $12,500) and the 'Maximum Benefit Period' as 'lifetime'"; he also claimed that the letter sent to him by Paul Revere in July, 2003, confirmed his interpretation of the policy.
In July, 2003, in response to Yunes's benefits inquiry, defendant Unum Group (Unum) issued a letter outlining Yunes's then current benefits; the stated current benefit was $12,500 monthly for total disability due to accident or sickness, a ninety-day waiting period for accident and sickness, and $12,500 for lifetime for accident or sickness. The letter also indicated that the quoted benefit "[did] not replace the actual contract issued" by Paul Revere.
The defendants countered that Yunes's total disability benefit for life under the rider properly is calculated under the rider and not under the policy, that is, by taking the benefit amount listed in the policy schedule plus any cost of living increase, which as of December 27, 2013, was $13,500, and multiplying it by one-tenth, entitling Yunes to $1,350 per month. After hearing, the motion judge agreed.
The judge determined that "the Policy Schedule is not what governs Dr. Yunes's benefits after he reaches [sixty-five]. Rather, the Rider dictates how to determine the lifetime benefit Dr. Yunes will receive. Furthermore, under Dr. Yunes's interpretation, regardless of whether his disability was due to sickness or injury, he would still receive the same lifetime benefit amount. Such an interpretation fails to give effect to the Rider's differing treatment of disability due to injury and that due to sickness, or to the different multipliers used depending on the [claimant's] age [at] disability under the sickness provision." The judge also observed that Yunes's reliance on the 2003 letter from Paul Revere was unreasonable because the letter was issued prior to his sixty-fifth birthday; it outlined the benefits current in 2003; and, because the "letter [expressly did] not enlarge or alter the terms of the Policy," it "[did] not affect the interpretation of the Policy." The judge concluded that the benefit owed to Yunes from December 27, 2013, forward was $1,350. Judgment entered for the defendants; Yunes timely appealed.
Discussion. Yunes contends that, because the rider states, "If a larger amount is payable under this Policy for the same period, the larger benefit will be payable in lieu of this benefit," the "larger amount" of $12,500 per month as provided for in the policy itself controls or, alternatively, that the rider is ambiguous and ought to be construed in his favor. We are not persuaded.
Nor are we persuaded by Yunes's further argument that the rider is ambiguous because, despite setting out a schedule of factors, "the Lifetime Rider does not specify what happens after the monthly benefit amount is multiplied by the factor on the schedule."
We review de novo the granting of summary judgment. See American Intl. Ins. Co. v. Robert Seuffer GMBH & Co. KG., 468 Mass. 109, 113 (2014). "Interpretation of an insurance policy is a question of law to be determined by the court." Certain Interested Underwriters at Lloyds, London v. LeMons, 85 Mass. App. Ct. 400, 402 (2014) (quotation omitted). A provision contained in a policy "is ambiguous only if it is susceptible of more than one meaning and if reasonably intelligent persons would differ over the proper meaning." Ibid. "But an ambiguity is not created simply because a controversy exists between the parties, each favoring an interpretation contrary to the other." Ibid.
Looking first to the various schedules included in the policy, Yunes was entitled to receive, as the parties concede, total disability benefits of $12,500, whether from injury or sickness, beginning on June 27, 2011 (at age sixty-four), until the expiration of the thirty-month benefit period defined in schedule II (ultimately, December 27, 2013). The parties agree that as of December 27, 2013, after Yunes had reached age sixty- five, he "[was] only entitled to total disability benefits as specified under the Rider." They also agree that Yunes is totally disabled due to sickness. The dispute arises as to whether there is a "larger amount payable" under the policy from the period running from December 27, 2013, until the time of his death. We agree with the motion judge that there is not.
Because, as the parties agree, the lifetime total disability benefit due to sickness under the rider is the only benefit amount for which Yunes is eligible after December 27, 2013, there is no "larger amount" payable. In light of that, the lifetime total disability benefit listed on the policy schedule, including any cost of living adjustments ($13,500) must then be multiplied by the ten percent factor, entitling Yunes, as the motion judge determined, to a lifetime monthly total disability benefit of $1,350, so long as Yunes remains totally disabled. We also are satisfied that the terms of the policy are clear as to the benefits Yunes is to receive, and that they were calculated properly. See Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442 (2006).
Judgment dated October 17, 2014, affirmed.
By the Court (Green, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 9, 2015.
Under "Factors by age for total Disability due to Sickness," the rider begins with "1.0 for 55 or less" and continues until ".1 for 64." (Emphasis supplied.)
Immediately following the list of factors is this line, "If a larger amount is payable under this Policy for the same period, the larger benefit will be payable in lieu of this benefit."