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holding "even accepting Plaintiff's allegations that Defendant Goodard, and other Defendants, referred to Plaintiff as a 'Jew Boy' as true, such claims, by themselves, do not rise to a constitutional level"
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This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 8, 1998.
Appeal from the United States District Court for the Northern District of California William H. Orrick, Jr., District Judge, Presiding.
Before BRIGHT, THOMPSON, and FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Plaintiff appellant Alexander Damascus brings this diversity action to recover disability benefits under an accident and sickness policy issued by the appellee Provident Life and Accident Insurance Company ("Provident"). The California Board of Dental Examiners ("Board") revoked Damascus' license to practice dentistry for gross negligence and unprofessional conduct. When Provident denied coverage, Damascus brought suit claiming that his license revocation resulted from mental illness, a sickness covered by his policy. The district court granted summary judgment in favor of Provident and dismissed the case. We conclude that an issue of material fact remains as to whether Damascus' mental illness ultimately led to the revocation of his license, and, therefore, we reverse and remand for further proceedings on the merits of Damascus' claim.
I. FACTS AND PROCEDURAL BACKGROUND
In September 1990, the Board ordered Damascus to undergo psychiatric evaluation based upon two complaint letters from patients, one describing Damascus' bizarre behavior, and on the content of numerous legal documents Damascus filed with the Board. After reviewing conflicting evidence as to Damascus' mental competence, the Board determined that Damascus was suffering from mental illness and placed him on probation for a five-year period commencing July 31, 1991. During this period of probation, Damascus could only practice dentistry under the supervision of another dentist and without compensation. As a further condition of his probation, Damascus had to undergo psychotherapy until the Board determined that treatment proved unnecessary. Although the Board stayed its order pending appeal, the California Court of Appeal affirmed the Board's probation order and vacated the stay.
The legal documents consist of pleadings from several lawsuits filed by Damascus, which included allegations that various dental assistants spied on Damascus on behalf of the Board, and that the federal government had wiretapped his phone, searched his garbage, and routinely followed him.
In its order, the Board stated that "it is clear that [Damascus] does suffer from mental illness which interferes with his judgment."
In May 1994, an unnamed individual filed an accusation of negligence and unprofessional care against Damascus, alleging specifically that Damascus had performed two defective root canal procedures and had failed to inform his patients of the harm resulting from the botched procedures. Responding to this accusation and others, the Board revoked Damascus' dental license effective August 1995. The Board commented that it had not considered its 1991 order in deciding to revoke his license because "the prior matter ... did not involve unprofessional conduct, acts of gross negligence or repeated negligent acts."
The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
The Board also found that Damascus had provided excessive quantities of percodan, an addictive, pain-killing drug, to one of his patients in January 1995.
In a letter dated June 1, 1995, before the Board revoked his license, Damascus contacted Provident requesting benefits under his Accident and Sickness Policy ("Policy"), which Provident had issued to Damascus in 1980. He told Providence that "the State of California has determined that I suffer from a mental disability that prevents me from practicing dentistry." Damascus sent a claim form to Provident, listing the nature of his sickness as "Diagnosis of Paranoid Personality made by Dental Board in 1991." As evidence of his mental disability, Damascus submitted a 1990 report from Gary S. Nye, M.D., an independent, Board-appointed psychiatrist, and a second report from Richard I. Pollack, Ph.D., both attesting to his paranoid personality disorder as of 1990. Damascus subsequently supplemented his claim of loss form, submitting an attending physician's statement signed by John S. McGovern, Ph.D., a Board-approved psychotherapist who had testified on his behalf in 1991, which stated, "My psychological test report did not support a diagnosis of Paranoid Personality Disorder...."
He also referenced an earlier request for benefits, but neither party produced such evidence.
In 1991, Damascus also submitted to the Board a statement from a third doctor, Donald L. Tasto, Ph.D., opining that Damascus did not suffer from mental illness at that time.
Provident denied Damascus' claim for benefits, relying on the statement by Dr. McGovern, and two others to the same effect by Dr. Tasto and Donald T. Lunde, M.D., witnesses for Damascus in his 1991 Board hearings. Provident also considered the Board's decision in 1991 to allow Damascus to continue to practice dentistry, albeit under supervision, despite its conclusion that he suffered from mental illness. In addition, Provident considered Damascus' own testimony denying his mental illness in 1991.
In response to Provident's denial of benefits, Damascus filed suit on various grounds in state court. Provident timely removed the case to federal district court. At the close of discovery, Provident moved for summary judgment. The district court granted the motion and denied Damascus' subsequent Fed.R.Civ.P. 60(b) motion for reconsideration. Damascus appeals the adverse rulings in both orders, seeking reinstatement of his suit.
II. DISCUSSION
A. Licence Revocation
On appeal, Damascus argues first that Provident failed to meet its burden of demonstrating that no issue of material fact existed as to whether Damascus' mental illness caused the Board to revoke his license. Provident asserts in response that the evidence submitted on summary judgment established that the Board revoked Damascus' license for gross negligence and unprofessional conduct, not for mental incompetence. Provident also argues that Damascus' inability to practice dentistry stems from his legal disability, the revocation of his license, which does not fall within the scope of coverage under the Policy. A review of the relevant provisions of the Policy provides context for an analysis of the parties' arguments.
The Policy covers any sickness or injury resulting in an inability to perform the insured's job responsibilities. More specifically, the Policy provides coverage for Total Disability "resulting from 1) accidental bodily injuries ... or 2) sickness or disease ...." Thus, the Policy provides benefits for the period of disability "[i]f Injuries or Sickness result in Total Disability." The Policy defines Total Disability as "your inability to perform the duties of your occupation." As we have already noted, Damascus specifically stated in his letter to Provident that he deserved benefits under the Policy because the California Board of Dental Examiners had determined that Damascus suffered from a mental disability that prevented him from practicing dentistry.
The parties do not dispute that the Policy covers total disability resulting from mental illness. Instead, the parties dispute whether Damascus' alleged illness caused the loss of his license and thus his alleged total disability. In support of its position, Provident cites Goomar v. Centennial Life Ins. Co., 76 F.3d 1059 (9th Cir.1996), in which this court upheld the district court's grant of summary judgment in favor of an insurer in a dispute over the payment of disability benefits. The medical board in that case revoked the plaintiff doctor's medical license for molesting four different patients. Despite the doctor's claim of mental illness, the insurer denied disability coverage on the basis of the policy defining disability as a "sickness" or "injury." The Goomar court reasoned in part that Goomar's alleged mental illness was not disabling, as competent record evidence demonstrated that Goomar had continued to practice medicine until the date of his license revocation "with no apparent disabling effects from his illness." Id. at 1062. In addition, the court noted that Dr. Goomar failed to submit competent summary judgment evidence supporting the existence of his mental illness at any relevant time in the case. See Goomar, 76 F.3d at 1063-64.
Like Goomar, Damascus continued to practice dentistry after the Board placed him on probation in 1991 for mental illness. But, unlike the plaintiff in Goomar, Damascus produces competent summary judgment evidence suggesting that his mental illness continued to affect him during the period relevant to the insurance company's disability determination in 1994--1995. In addition, whereas the plaintiff Goomar continued to practice medicine without any demonstrative drop in his performance until the effective date of his license revocation, Damascus' level of competence as early as 1992 was grossly inadequate. Therefore, we conclude that Goomar is inapposite.
The Board revoked Damascus' license effective in August 1995. The conduct precipitating the revocation of his license, wherein he allegedly acted negligently and unprofessionally, occurred during the period from 1992 to 1995.
In support of his claim, Damascus submits an evaluation from Dr. Nye, the only independent doctor appointed by the Board of Dentistry, who opined that Damascus suffered from mental illness in 1990. Provident contends that Dr. Nye's diagnosis, dated as it is from 1990, fails to create a question of material fact as to Damascus' incompetence at the time he submitted his claim. Provident further asserts that the only evidence presented as to Damascus' mental competence during 1994--1995, from Dr. Lunde, indicates that he no longer suffered from mental illness. We disagree.
Dr. Lunde, a witness for Damascus in 1991, commented on Damascus' mental competence based upon an interview in March 1995:
The insurance company relied on the doctors that Damascus originally hired to testify on his behalf before the Dental Board in 1991 when he sought to demonstrate that he was mentally competent. The Board rejected their opinions when it determined that Damascus was not mentally competent in 1991. At the very least, these evaluations should carry less weight than that issued by Dr. Nye, who was commissioned by the Board to conduct an independent evaluation and found Damascus' mental competency lacking.
But Provident argues that Dr. Nye's evaluation sheds no light on Damascus' mental condition at the time he sought disability benefits. We draw on the Diagnostic and Statistical Manual of Mental Disorders (DSM) for guidance in responding to Provident's concern. The DSM, a standard treatise on mental disorders, see Money v. Krall, 128 Cal.App.3d 378, 384 n. 2 (1982), states that personality disorders of the type afflicting Damascus remain stable or unchanging over time. See Diagnostic and Statistical Manual of Mental Disorders, at 629 (4th ed.1994). This suggests that Dr. Nye's diagnosis of mental incompetence in 1991 remained timely and therefore relevant in 1994--1995. This further suggests that Damascus may have suffered from this mental affliction during 1992--1995, the period in which he acted negligently in treating his patients.
Viewing the evidence in the light most favorable to Damascus, as indeed we must, this court concludes that Dr. Nye's opinion raises a question of material fact whether Damascus' mental illness caused his negligent conduct in 1992--1995, which ultimately prompted the Board to revoke his license. Weighing the conflicting evidence, we determine that a reasonable jury could conclude that Damascus' mental illness caused his negligent acts. See United States v. Schmidt, 572 F.2d 206, 208 (9th Cir.1978) (stating the preference for jury consideration of conflicting psychiatric testimony).
B. Timely Proof of Loss
In his Fed.R.Civ.P. 60(b) motion, Damascus argued that the district court erred in concluding that he had filed an untimely proof of loss. Damascus now renews this argument. Damascus asserted in his proof of loss that his injury dated from August 12, 1994. In the record before this court, the first submission from Damascus asserting a claim for benefits bears the date June 1, 1995, more than nine months after Damascus' asserted date of loss.
On appeal, Damascus does not argue that Provident waived the proof of loss requirement pursuant to Cal. Ins.Code § 554. Instead, Damascus contends that his late submission did not prejudice Provident, as the insurer denied his claim on grounds other than the late submission of the proof of loss. See National Am. Ins. Co. of California v. Certain Underwriters at Lloyd's London, 93 F.3d 529, 538 (9th Cir.1996) (holding that no prejudice inures to an underwriter from late submission of a proof of loss where the insurer claims that it is not liable under the policy). California's "notice-prejudice" rule prevents an insurance company from avoiding liability due to an untimely loss claim unless the company proves actual prejudice from the delay. Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal.App.4th 715, 760 (1993);see also Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 881-82 (1978) (en banc). Provident asserts, however, that Damascus' untimely claim hindered its ability to obtain medical evidence regarding Damascus' mental health during 1994--1995. But the record demonstrates that Provident obtained the opinion of Dr. Lunde in 1995. We, therefore, conclude that Provident was not sufficiently prejudiced by this late submission to deny Damascus' claim on this basis.
Cal. Ins.Code § 554 provides in relevant part:
III. CONCLUSION
The district court erred in dismissing Damascus' claims on summary judgment. Questions of material fact remain as to the underlying cause of Damascus' negligent acts leading to the revocation of his license. Accordingly, we REVERSE the district court's decision granting summary judgment and REMAND for consideration of Damascus' claims on the merits. We deny as moot Damascus' separate appeal of the district court's order denying his Fed.R.Civ.P. 60(b) motion.
Oriented. No psychotic thinking. No paranoid delusions or trends. No indications of M-D illness. No sx depression. Above average intelligence. Fund of information consistent with intelligence. Sense of humor intact. No change in condition since previous examine [in 1990].
Delay in the presentation to an insurer of notice or proof of loss is waived, if caused by an act of his, or if he omits to make objection promptly and specifically on that ground.