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Bosetti v. United States Life Ins. Co. in the City of New York

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 9, 2012
B229979 (Cal. Ct. App. Feb. 9, 2012)

Opinion

B229979

02-09-2012

LINDA L. BOSETTI, Plaintiff and Appellant, v. THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Defendant and Respondent.

Law Offices of Tyron Sheppard and Tyron Sheppard for Plaintiff and Appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, Michael K. Brisbin and Shilpa G. Doshi for Defendant and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

(Los Angeles County Super. Ct. No. BC354062)

APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Robert L. Hess, Judge. Judgment is reversed and order is affirmed.

Law Offices of Tyron Sheppard and Tyron Sheppard for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Michael K. Brisbin and Shilpa G. Doshi for Defendant and Respondent.

Plaintiff and appellant Linda Bosetti brought suit against her disability insurer, the United States Life Insurance Company in the City of New York (US Life) for improperly terminating her benefits. After the jury returned a verdict in favor of Bosetti, the trial court granted US Life's motions for judgment notwithstanding the verdict and (should that ruling be reversed on appeal) new trial, on the basis that the evidence does not support the verdict in Bosetti's favor. We conclude that substantial evidence supports the jury's verdict, but substantial evidence also would have supported a verdict in favor of US Life. Thus, in accordance with the applicable standards of review, we reverse the judgment notwithstanding the verdict, but affirm the order granting a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Bosetti was an insured under a US Life policy provided by her employer. When she learned that her position was soon to be eliminated, she became depressed. She was also depressed because she was moving from her own home into a house which she would share; having to sell her possessions and arrange a move was an additional stressor. On January 22, 2003, Bosetti's physician, Dr. Lebron-Caine, suggested that she be placed on temporary disability until her severe depression and anxiety were addressed. Bosetti agreed. As we will discuss at length below, Bosetti was also suffering from physical ailments, including fibromyalgia; the issues of whether and when the physical ailments played a part in Bosetti's disability would become major areas of dispute in this case.

Dr. Sharon Hogan, a defense witness, testified that fibromyalgia consists of arthralgias (joint pains), myalgias (muscle pains) and sometimes fatigue. It is not a progressive condition, although symptoms may wax and wane at times. According to Dr. Lebron-Caine, fibromyalgia patients suffer from various symptoms including diffused body aches, fatigue, depression, athralgias, myalgias, bone pain, and inability to concentrate due to pain. Dr. Lebron-Caine believed fibromyalgia to be a progressive condition in some patients, including Bosetti.

US Life approved Bosetti's claim for disability benefits. Following a 60-day elimination period, Bosetti began receiving benefits on March 24, 2003. However, Bosetti's position had been eliminated, and her employment terminated, on March 3, 2003. As such, her coverage under the US Life policy had terminated on that date.

There are two key policy provisions at issue in this case. The first provided a limitation to two years of benefits for a disability "due to a mental, nervous or emotional disorder." The second provided a limitation to two years of benefits for a disability that prevented the insured from performing the duties of his or her own occupation; benefits could only continue if the insured were prevented from performing any gainful occupation (as defined in the policy). After Bosetti had received two years of benefits, US Life concluded that Bosetti was precluded from receiving additional benefits due to both of these limitations. Bosetti brought suit for breach of contract. The main issues of dispute between the parties were: (1) whether prior to March 3, 2003, when Bosetti ceased to be an insured, her disability was solely mental; and (2) whether after March 26, 2005, when the two-year period expired, Bosetti was disabled from performing any gainful occupation.

The record does not explain the 2 or 3 day disparity, as benefits began on March 24, 2003. It is irrelevant to this appeal.

US Life initially obtained summary judgment on the basis of the limitation for mental disabilities. On appeal, we reversed. (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208 (Bosetti I).) Bosetti had submitted evidence, in opposition to the motion for summary judgment, which suggested that her emotional condition of depression manifested itself in disabling physical symptoms. (Id. at p. 1227.) Similarly, she had submitted evidence which suggested that her emotional disability of depression was the result of her physical condition of chronic pain. (Ibid. ) Thus, the issue before us on appeal was whether the term "mental disorder," which was not further defined in the policy, was ambiguous with respect to the situations of physical symptoms arising from a mental causal event and mental symptoms arising from a physical causal event. We concluded that the term was ambiguous, and that it would have been reasonable for an insured in Bosetti's circumstances to expect that the limitation on coverage would not apply in either situation. (Id. at p. 1233.)

In language which guided the trial court on remand, we stated, "If Bosetti's disability was caused solely by depression and her fibromyalgia and other physical problems are neither a cause nor a symptom, the limitation applies. However, if her physical problems contributed to the disability or were a cause or symptom, the limitation does not apply." (Bosetti I, supra, 175 Cal.App.4th at p. 1233.)

On remand, the case proceeded to trial. The jury was properly instructed that, in order to find in favor of Bosetti, Bosetti must establish that she "suffered from physical problems which contributed to her disability based on mental or nervous condition, or were a cause or symptom of that disability before March 3, 2003 . . . . " Additionally, the jury was also instructed that Bosetti must establish that, on or after March 26, 2005, she "continued to suffer from a disability from physical problems which contributed to, or were a cause or a symptom of, a disability which existed on March 3, 2003, and which prevented her from performing the substantial duties of any gainful occupation for which she was qualified by experience, training, or education beginning on March 26, 2005." The parties stipulated that if Bosetti prevailed on the issue of liability, the correct amount of damages would be $150,499.43. The jury returned a verdict in favor of Bosetti in that amount, and judgment was entered in favor of Bosetti in that amount, plus prejudgment interest.

US Life then moved for judgment notwithstanding the verdict and for a new trial. Both motions were based on the theory that Bosetti failed to establish, with substantial evidence, that she had a disability that was not wholly mental prior to March 3, 2003. US Life conceded that there was evidence that Bosetti had physical symptoms prior to March 3, 2003, but argued that there was no evidence that they caused the disability, contributed to the disability, or were symptoms of the disability.

On appeal, US Life argues that its motions were also based on the theory that Bosetti did not submit substantial evidence that she was disabled from any occupation after March 26, 2005. We disagree. While the "Facts" section of each motion stated that Bosetti did not suffer a total disability after that date, the "Argument" section did not.

The trial court agreed with US Life and granted both motions. The court's order sets forth its rationale as follows: "The Court of Appeal's opinion . . . makes it clear that if 'Ms. Bosetti's disability was caused solely by depression and her fibromyalgia and other physical problems are neither a cause nor a symptom [of the depression],' the [limitation] on the disability payment on the policy applies. The testimony at trial relating to the period up to March 3, 2003—the date of discharge—contains insufficient evidence of that causal relationship. On the contrary, Ms. Bosetti had lived with fibromyalgia for many years without any suggestion it was disabling, and without depression. The loss of her employment unequivocally caused the severe depression which was disabling. Plaintiff[']s counsel's apparent suggestion that it is enough if she had both depression and fibromyalgia at the same time omits the causal relationship between the two which the Court of Appeal clearly required. [¶] While the Court sympathizes with Ms. Bosetti's condition, there is insufficie[n]t evidence to sustain the jury's verdict on this point, and the clear weight of the evidence is contrary to her position."

Bosetti's notice of appeal was timely with respect to the order granting a new trial. The judgment notwithstanding the verdict followed the notice of appeal. With respect to the judgment, we treat the notice of appeal as filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(d).)

ISSUES ON APPEAL

We first consider whether substantial evidence supported the verdict in favor of Bosetti. Concluding that it did, we will reverse the judgment notwithstanding the verdict. We next consider whether substantial evidence would have supported a verdict in favor of US Life. Concluding that it would have, we will affirm the order granting a new trial.

DISCUSSION

1. Judgment Notwithstanding the Verdict

" 'The trial court may grant judgment notwithstanding the verdict only if the verdict is not supported by substantial evidence. The court may not weigh evidence, draw inferences contrary to the verdict, or assess the credibility of witnesses. The court must deny the motion if there is any substantial evidence to support the verdict. [Citations.] This court therefore may uphold the order granting judgment notwithstanding the verdict, and affirm the judgment based thereon only if, reviewing all the evidence in the light most favorable to [the prevailing party at trial], resolving all conflicts, and drawing all inferences in [its] favor, and deferring to the implicit credibility determinations of the trier of fact, there was no substantial evidence to support the jury's verdict in [its] favor. "If the evidence is conflicting or if several reasonable inferences may be drawn," the court erred in granting the motion and we must reverse.' [Citation.]" (Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal.App.4th 206, 218.)

a. Evidence that the Depression Caused the Physical Symptoms

Bosetti submitted substantial evidence that, if believed, would support the conclusion that her depression caused the disabling physical symptom of an increase in her fibromyalgia pain. Dr. Lebron-Caine testified that on January 22, 2003, the day she recommended Bosetti be placed on disability, Bosetti's chief complaint was an increase in her bone and body aches. On January 30, 2003, Bosetti filled out an application for long term disability benefits. When asked to describe the first symptoms of her illness, Bosetti wrote: "Paraly[z]ing depression, inability to concentrate, mental confusion, insomnia, pain - headache, pain - increased fibromyalgia pain in muscles in whole body. Poor concentration is affecting my ability to safely drive." (Italics added.)

Additionally, Bosetti's attending physicians were required to complete US Life's attending physician's statement forms documenting her condition, disability and prognosis. The form has a section entitled "Physical Impairment" and another entitled "Mental/Nervous Impairment." In each section, the physician can check a box between "Class 1" and "Class 5," indicating the level of the impairment. On February 24, 2003, Dr. Lebron-Caine completed an attending physician's statement indicating both a Class 5 mental and a Class 5 physical impairment. A Class 5 physical impairment is defined, on the form, as "Severe limitation of functional capacity, incapable of minimal (Sedentary) activity." In the "Remarks" section for the physical impairment, Dr. Lebron-Caine wrote, "Mental Impairment affects her ability to work. 2ary physical impairment." At trial, Dr. Lebron-Caine was questioned at length regarding this attending physician's statement. She testified that this was "just a general statement that [she was] making about [Ms.] Bosetti's mental capacity and its effect on her body." Taken together with the indication of a Class 5 physical impairment, this testimony would support a jury conclusion that Bosetti's depression had a physically disabling effect.

Dr. Lebron-Caine also testified that she considered both the physical and mental impairments as "contributing to [Bosetti's] disability."

b. Evidence that the Physical Symptoms Caused the Depression

In the alternative, Bosetti submitted substantial evidence that, if believed, would support the conclusion that an increase in fibromyalgia (and other) pain - and not the loss of her job or stress over moving - was the true cause of her disabling depression. Bosetti testified that her pain had been steadily increasing as early as 2000, requiring her to take more and more pain pills. Bosetti's pain included fibromyalgia, as well as localized pain in her lower back and neck. Although it was not diagnosed until after her insurance coverage had terminated, Bosetti was eventually diagnosed by Dr. Natacha Nelson, her chiropractor, with degenerative disk disease, which Bosetti believes was the cause of her localized pain. When Bosetti saw Dr. Lebron-Caine on January 22, 2003, her then-current pain medication was not sufficient. She complained to Dr. Lebron-Caine about the increase in pain, and Dr. Lebron-Caine instead volunteered to Bosetti the idea that she was clearly depressed, with which Bosetti agreed.

It is not entirely clear the extent to which Bosetti relies on Dr. Nelson's testimony. Dr. Nelson's credibility was called into serious dispute when she admitted that, although she signed several attending physician's statements attesting that Bosetti was totally physically disabled, Dr. Nelson had never diagnosed Bosetti as such, and had simply indicated that Bosetti was totally disabled because Bosetti had told her that she was. In her opening brief, Bosetti's argument relies, in part, on Dr. Nelson's testimony. After US Life argued that Dr. Nelson's testimony was simply not credible on the basis of this admission, Bosetti's reply brief states, "Dr. Nelson's testimony is inconsequential." While Dr. Nelson's testimony may be inconsequential, Bosetti appears to rely on her diagnosis. Indeed, there is no real dispute that Bosetti suffered from back problems which ultimately required cervical fusion.

In February, after Bosetti had seen a psychiatrist and psychologist, as recommended for the depression, Bosetti returned to Dr. Lebron-Caine and told her that the pain medication was not working. Some of Bosetti's stress had receded, because she had completed her move into a house, but her physical pain had increased. Indeed, Bosetti testified that she had never before experienced pain of that severity.

Dr. Lebron-Caine testified that fibromyalgia can be a progressive condition, and it was so for Bosetti. In other words, Dr. Lebron-Caine testified that Bosetti's fibromyalgia symptoms did, in fact, increase over time. Bosetti was still seeing a psychiatrist, and taking anti-depressants, at the time of trial, in 2010. A June 2005 report from her psychiatrist indicated "[t]he etiology of her depression appears to be from chronic pain and loss of her ability to engage in her usual activities - work, recreational, and personal. Her depression improves and worsens in accordance with changes in her pain status."

A reasonable jury could conclude that Bosetti's depression was not caused by a one-time job loss and stress over a then-anticipated move, but by increasing pain. While, as we will discuss below, Dr. Lebron-Caine testified that Bosetti's physical pain was not itself disabling prior to the key date of March 3, 2003, there was substantial evidence that the increasing pain was the cause of the depression, which was disabling.

In short, there was sufficient evidence which, if believed by the jury, would support the conclusion that, prior to March 3, 2003, Bosetti suffered from either: (1) disabling depression which resulted in disabling physical symptoms; or (2) disabling depression which was caused by an increase in physical pain. Either theory would be sufficient to support the jury's verdict. The judgment notwithstanding the verdict therefore must be reversed.

In its respondent's brief, US Life argues that the judgment notwithstanding the verdict can be upheld on the alternative basis that the evidence was insufficient to establish that Bosetti was disabled from any occupation on March 26, 2005. As US Life failed to seek judgment notwithstanding the verdict on this basis, we conclude that the argument is waived. (Steele v. Totah (1986) 180 Cal.App.3d 545, 551-552.) In any event, having reviewed the record in its entirety, including Bosetti's report of her physical condition after performing a functional capacity evaluation, we cannot say as a matter of law that Bosetti was not totally disabled from any occupation on March 26, 2005.
However, reviewing the record on appeal, we were concerned by a potential absence of evidence that Bosetti's total disability on March 26, 2005 was the same disability as that from which she suffered on March 3, 2003. The evidence indicated that although Bosetti was still being treated for depression at the time of trial, the depression was under control and not disabling. Bosetti's psychiatrist indicated that, as of January 26, 2005, Bosetti's disability was not due to psychiatric conditions. Thus, the only evidence on which Bosetti relied to establish a total disability after March 26, 2005 related to a physical disability. While the evidence at trial focused on Bosetti's physical limitations as of March 26, 2005, there was little evidence as to the cause of those limitations, and whether that cause existed and was disabling as of March 3, 2003. We sought additional briefing on whether Bosetti submitted sufficient evidence that any total disability Bosetti may have suffered on March 26, 2005 was a disability that existed before coverage terminated on March 3, 2003. We also sought additional briefing on whether this court could address the issue, in the first instance, on appeal. Both parties agreed that this court could not address the issue on appeal. We therefore decline to do so. We note, however, that this is an issue on which Bosetti must introduce sufficient evidence on retrial.

2. Motion for New Trial

"Code of Civil Procedure section 657 provides: 'A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.' [¶] The considerable deference Code of Civil Procedure section 657 affords the jury when a trial judge is considering a new trial motion is exceeded only by the deference afforded the trial judge when the appellate court reviews an order granting a new trial. Indeed, an order granting a new trial ' "must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court's] theory." ' [Citation, italics added.] In other words, '[t]he determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' [Citation.]" (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 146.) In review of a trial court's order granting a motion for new trial, "[w]e defer to the trial court's resolution of conflicts in the evidence if the decision is supported by substantial evidence and reverse only if there is no reasonable basis for the court's decision or the decision is based on a legal error." (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1122.)

Before we discuss the evidence supporting the trial court's specific conclusions, it is helpful to present an overview of US Life's case. US Life did not dispute that Bosetti suffered from fibromyalgia prior to, simultaneous to, and subsequent to, the diagnosis of depression. US Life argued, however, that the fibromyalgia was wholly independent of the depression, and was not disabling during the policy period. Moreover, US Life did not dispute that, by March 2005, Bosetti was suffering from physical symptoms which, to some degree, imposed limitations on her abilities. Whether these physical symptoms arose as an exacerbation of Bosetti's fibromyalgia, from Bosetti's back problems which ultimately required surgery, or from some independent source, it was US Life's position that none of these conditions were disabling prior to the termination of coverage, and none of these conditions were causally related to the depression which was disabling at that time. In short, US Life took the position that Bosetti's pain was not disabling prior to her diagnosis of depression, was unrelated to her diagnosis of depression, and did not become disabling until after coverage had ceased.

a. Evidence that Increased Fibromyalgia Pain Was Not A Symptom of Bosetti's Depression

The trial court concluded that Bosetti's fibromyalgia pain was not a symptom of her depression. This was supported by substantial evidence. First, we note that while Dr. Lebron-Caine testified that depression is sometimes a symptom of fibromyalgia, there was no medical testimony that depression can cause an increase in fibromyalgia pain.

An April 25, 2003 consultation from a rheumatologist identifies Bosetti's "PROBLEMS" as "(1) Total body pain, probably a soft tissue rheumatism such as fibromyalgia. (2) Depression. Patient feels that the depression is related to the pain, although sometimes depression can cause pain. . . . " The rheumatologist did not testify at trial, and there is no way to determine whether the statement "although sometimes depression can cause pain" was Bosetti's opinion or that of the rheumatologist. Even if it were the opinion of the rheumatologist, the statement is only that depression can cause pain, not that depression can exacerbate the symptoms of fibromyalgia.

Second, there was no medical testimony that the depression did cause an increase in Bosetti's fibromyalgia pain. Dr. Lebron-Caine diagnosed Bosetti with depression on January 22, 2003, and referred Bosetti for psychological and psychiatric treatment. Dr. Lebron-Caine testified that Bosetti's fibromyalgia neither increased nor flared up until April 8, 2003, two-and-one-half months after the depression was diagnosed and treatment started. To the extent Dr. Lebron-Caine gave an opinion as to the cause of the increase in fibromyalgia pain, she simply testified that the condition was progressive in Bosetti's case - not that depression caused its exacerbation.

To the extent Bosetti argues an increase in some other pain as a symptom of depression, we note that Dr. Lebron-Caine testified that Bosetti did not suffer from any disabling physical condition prior to April 8, 2003. Moreover, it appears undisputed that Bosetti's back pain had a physical cause, and was not a symptom of her depression.

To be sure, Dr. Lebron-Caine did testify, as to the February 24, 2003 attending physician's statement, that her identification of a Class 5 physical impairment was "a general statement . . . about [Ms.] Bosetti's mental capacity and its effect on her body." However, Dr. Lebron-Caine's testimony on this point was not unambiguous. Dr. Lebron-Caine also testified that she had not necessarily determined that Bosetti's physical impairments were related to her mental impairments. Dr. Lebron-Caine testified that Bosetti simply had a severe limitation of her functional capacity for two reasons: "Number one, mental impairment which affected her ability to work, and number two, there were some ongoing secondary physical impairments. [¶] I did not specify due to what."

In fact, there is substantial evidence that would support a rejection of Dr. Lebron-Caine's identification of a Class 5 physical impairment as of February 24, 2003 in its entirety. Dr. Lebron-Caine testified that whatever physical ailments Bosetti had at that time were not, in fact, disabling. Thus, a reasonable trier of fact could conclude that the identification of a Class 5 physical impairment, disabling Bosetti from even sedentary activity, was simply erroneous.

Third, US Life introduced evidence that, on March 14, 2003, a claims adjuster spoke with Bosetti regarding her symptoms. At that time, Bosetti identified only mental symptoms, not an increase in her fibromyalgia, or any other, pain.

Taken together, this constitutes substantial evidence that Bosetti's depression did not cause an increase in her fibromyalgia pain.

b. Evidence that an Increase in Fibromyalgia Pain Did Not Cause Bosetti's Depression

The trial court concluded that Bosetti's fibromyalgia pain did not cause her depression. This conclusion is supported by substantial evidence. Preliminarily, we begin with the testimony of Dr. Hogan that fibromyalgia is not a progressive condition. This testimony provides substantial evidence that a steady increase in fibromyalgia pain did not cause Bosetti's depression because the concept of a steady increase in fibromyalgia pain is not supported by medical science. Instead, it supports the conclusion that Bosetti's depression was independent of her fibromyalgia.

Moreover, there is substantial evidence that Bosetti's testimony regarding a steady increase in her fibromyalgia pain dating back to 2000 is simply not credible. Bosetti was first diagnosed with depression on January 22, 2003, after she learned her position was being terminated. However, she had first seen Dr. Lebron-Caine only 20 days before, when she had changed health plans and was considering designating Dr. Lebron-Caine as her new primary care physician. At that time, Bosetti filled out a medical history form. In the "Synopsis" section, Bosetti wrote, "I am currently taking [hormone replacement therapy]. I am being treated for allergies, gastric reflux & fibromyalgia. I would like to check my cholesterol & lose my middle age weight gain. Generally, I think I am reasonably healthy and I don't believe I have any major health problems. I eat a healthy diet & take vitamins." This is simply not the statement of someone suffering from steadily increasing pain, requiring her to take increasing amounts of pain pills. Additionally, when Bosetti filled out her application for long term disability benefits on January 30, 2003, indicating symptoms of paralyzing depression and "increased fibromyalgia pain in muscles in whole body," she indicated that she first noticed the symptoms on January 10, 2003, and answered "no" when asked if she had ever had the same or a similar condition in the past. This is additional evidence that Bosetti had not, in fact, been suffering from increased fibromyalgia pain for several years.

To the extent Bosetti argues that her depression was caused by her back and neck pain, unrelated to fibromyalgia, there is evidence that this pain simply did not exist at the time of Bosetti's diagnosis of depression, and therefore could not have caused it. Bosetti did not identify neck and back pain in her synopsis of her health on January 2, 2003, nor did she check the box for "Back pain - recurrent" at that time. Although she identified headaches and fibromyalgia pain in her January 30, 2003 application for disability benefits, she did not identify back or neck pain.

Finally, we note that treatment notes from the first two sessions with Bosetti's psychologist make no mention of increased physical pain. Instead, the notes indicate Bosetti's concerns relating to her job and then-upcoming move. The notes from the first session indicate, "Client moderately-severely depressed subsequent to being laid off of job."

This evidence, taken together, constitutes substantial evidence that Bosetti's depression was caused by her job loss, and was not caused by any increase in fibromyalgia pain.

c. No Mistake of Law Regarding Simultaneous Causes Contributing to the Disability

On appeal, Bosetti does not challenge the evidence supporting the trial court's grant of a new trial. Instead, she argues that the trial court made a legal error in its understanding of the case, requiring reversal of the order granting a new trial.

Bosetti argues only that the motion for judgment notwithstanding the verdict should not have been granted. She then states that since the trial court concluded that the medical testimony was largely uncontroverted, "there is no need for a new trial on uncontroverted evidence."

Bosetti argues that the trial court required her to establish that her fibromyalgia pains were either a symptom or a cause of her depression, without considering a third possibility: that the pains independently contributed to the disability. Our opinion in Bosetti I did provide for that possibility, stating, "if [Bosetti's] physical problems contributed to the disability or were a cause or symptom, the limitation does not apply." (Bosetti I, supra, 175 Cal.App.4th at p. 1233, italics added.) In other words, if Bosetti's physical problems contributed to the disability, Bosetti need not establish a causal relationship between the depression and the physical problems. However, we also stated, "If Bosetti's disability was caused solely by depression and her fibromyalgia and other physical problems are neither a cause nor a symptom, the limitation applies." (Ibid., italics added.) That is to say, if the disability was solely caused by the depression—a factual scenario which precludes the possibility that the physical problems contributed to it—a causal relationship between the depression and the physical problems must be established in order for Bosetti to recover.

Bosetti argues that the trial court erred because the court required a causal relationship without considering the possibility that the physical problems independently contributed to her disability. This is incorrect; the trial court concluded that "Bosetti had lived with fibromyalgia for many years without any suggestion it was disabling. . . . The loss of her employment unequivocally caused the severe depression which was disabling." Thus, the trial court concluded that the employment-related depression was the sole cause of the disability, and the fibromyalgia was not. Therefore, the only way Bosetti could recover would be to establish that the fibromyalgia was causally related to the disabling depression. The trial court concluded that she failed to do so, and that conclusion was supported by substantial evidence.

To the extent Bosetti argues that the fibromyalgia pain she suffered during the policy period contributed to her disability, there is substantial evidence to the contrary, on which the trial court apparently relied. Bosetti had been diagnosed with fibromyalgia years prior to the facts giving rise to this case, and she never contended that the fibromyalgia impacted her ability to work, nor did she seek to be placed on disability because of it. If the fibromyalgia pain was not disabling prior to Bosetti's depression, as substantial evidence indicated, it could not have "contributed" to the disability caused by depression merely because it continued. The pain would have had to have increased, in direct contrast to Dr. Lebron-Caine's testimony that Bosetti's fibromyalgia was not exacerbated or flaring up until April 2003, after the policy had terminated.
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There was therefore no error in the grant of a new trial.

DISPOSITION

The judgment notwithstanding the verdict is reversed. The order granting a new trial is affirmed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J. WE CONCUR:

KLEIN, P. J.

KITCHING, J.


Summaries of

Bosetti v. United States Life Ins. Co. in the City of New York

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 9, 2012
B229979 (Cal. Ct. App. Feb. 9, 2012)
Case details for

Bosetti v. United States Life Ins. Co. in the City of New York

Case Details

Full title:LINDA L. BOSETTI, Plaintiff and Appellant, v. THE UNITED STATES LIFE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Feb 9, 2012

Citations

B229979 (Cal. Ct. App. Feb. 9, 2012)