Opinion
Case No. C-2-98-699.
February 1, 2006
OPINION AND ORDER
This diversity action concerns whether decedent Richard I. Wing was totally disabled within the meaning of two policies issued by plaintiff Provident Life Accident Insurance Company ("Provident"). Provident moves for partial summary judgment on its own claims, defendant/counter claimant Glada H. McCoy's claims, and the claims of counter claimant Trio Leasing Partnership ("Trio"). Trio moves for summary judgment as to its own claims. For the reasons that follow, the Court grants Provident's summary judgment motions with respect to McCoy's wrongful death claim and her claim for violation of the Ohio Consumer Sales Practices Act, but denies Provident's summary judgment motion in all other respects. The Court denies Trio's motion for summary judgment.
I. Background A. Parties
Plaintiff Provident is a Tennessee corporation. Defendant counter claimant McCoy is an individual citizen of the State of Ohio, and the executor of Wing's estate. Counter claimant Trio is an Ohio general partnership.
B. Facts
Wing, James Haenszel and Gerald Miller each owned one-third of both Trio and a company called Accurate Fabrication ("Accurate"). Miller Dep. at 19, 40. All three men established Accurate Fabrication in 1988. Id. at 6, 40n41. Wing worked for Accurate at the time of his alleged disability. In 1991, the three men formed Trio primarily for tax reasons and for purposes of owning the business buy-out expense policy. Id. at 42-43 Trio owned equipment that it leased to Accurate for use in Accurate's day-to-day business operations. Id. Accurate is a sheet metal company. Id. at 12. About half of its business is the construction and installation of HVAC heating, ventilation and air conditioning systems. Id. Accurate bids on jobs, buys materials, schedules production, creates drawings, and installs systems on-site. Id. Accurate also specializes in one-of-a-kind fabrication products. Id. at 14. Finally, Accurate produces returnable metal shipping containers used in the automotive industry. Id. at 17.
Wing was in charge of estimating and drafting HVAC jobs. Id. at 29. Wing estimated the costs of fabrication and installation of duct work projects based on plans supplied by architects, and created bids and drawings for the projects. Id. at 31n32. Wing performed these services in-house. Id. at 32. After Wing drafted the plans they would go to the shop floor to be manufactured. Id. at 37n38. Haenszel supervised the manufacture and installation of the duct work. Id. at 38. A field supervisor was responsible for the on-site supervision of the duct work installation. Id. Wing performed his drafting and estimating responsibilities in the estimating department, which was on the second floor mezzanine of the building. Id. at 39n40. The shop area was located downstairs. Id. at 25. Miller states that it was a rare occurrence that Wing would be required to go to a job site. Id. at 40. Haenszel stated that while it was not Wing's primary job to oversee the shop floor or the installation, he did have a responsibility to do so as part owner. Haenszel Dep. at 8. Wing described his experience as follows:
At least daily I was down in the plant when they would call and say purchase items had come in, meaning purchase items that we bought. They would call me about a problem with a piece of duct work based on a drawing. I would be down in the shop. There were certain specialty customers. [Haenszel] handled all the specialty with the exception of a few that I handled, and that would entail going to plants, such as Worthington Steel here in Columbus [or in Cincinnati]. There were occasions [sic] job site meetings I would have to attend because I had prepared a change order file that only I could explain.
Wing Dep. at 25. Wing also stated that he could not perform his job duties from home, "because at a moment's notice when I have to go down in the shop and look at something, when we have to get together and make a decision, that's virtually impossible. There is no way that you can ever do that, no way." Id. at 29.
Provident issued Wing an individual disability income policy ("DI"), policy number 06-337-4052311, on June 1, 1991.
Provident issued Trio a business buyout expense disability policy ("BB"), policy number 06-1738-4049982. Under the terms of the BB policy, and pursuant to a Buy-Sell Agreement between Trio and Wing, it was agreed that should Wing ever become totally disabled under the terms of his DI, then Trio would repurchase his company stock at an agreed upon price. If Trio repurchased Wing's company stock, then Provident was to reimburse Trio for either the purchase price of the stock or the aggregate amount of the BB policy, whichever was less.
McCoy asserts that in late 1995 Wing suffered from severe asthma, chronic sinusitis, and vocal chord dysfunction. McCoy alleges that a direct result of these conditions Wing was extremely dyspneic (short of breath or having difficulty breathing). Wing stopped working on November 3, 1995. Wing stated that he "just got to the point where [he] couldn't physically make it any more and couldn't breathe in [his] building. . . . [He] got to the point [where he] couldn't take it any longer. Wing Dep. at 13. Wing acknowledges that there was no medical treatment that triggered his decision to no longer work. Id. at 12.
Wing submitted a claim for disability to Provident under both policies on or around June 12, 1996. Wing identified his disability as asthma, chronic sinusitis, heart disease and vocal chord dysfunction. Wing stated that he was unable to perform the duties of his occupation because he was "severely short of breath while under stress, activity, or inhaling of metal fumes." Wing also stated that he could not perform his job duties because he was allergic to the dust and other materials that were present in Accurate's shop, and he therefore had trouble breathing while in that environment. Wing described how his condition kept him from performing his job duties as follows: "[a]sthma triggers that affect me are emotional stress and excitement, dust, metals, and physical activity. My duties all subject me to these triggers. . . . The asthma has caused me to eliminate all stress and reduce my physical activity." Haenszel described his observations of Wing's condition:
[P]robably six months before he left, I looked him right in the eye and told him he ought to get out of that building.
. . . .
[Because] of the appearance of Dick Wing, looked like it affected him very, very much as far as — there's a lot of welding dust and smoke dust and galvanized burning dust in that building, . . .
And I noticed what it appeared to be doing to him from a visual standpoint. I've seen him down on the floor and work on a computer. When he got up, he was just wringing, I mean literally wringing wet, and this was after 15 minutes. I've seen him climb steps. I've seen him just appear like he was in deep trouble.
Haenszel Dep. at 26-27. Miller observed, "[w]alking up steps, he got out of breath, going up one flight of stairs. I know the last few months or so that he was coming in to work that he had an inhaler that he brought to work, that he had to take some kind of medicine two or three times a day. He took a lot of pills." Miller Dep. at 49. Miller went on to say, "[i]t had gotten to where he was not working 40 hour weeks, sometimes half a day here or there." Id. at 51. "He was breathing heavy a lot of times, break out in sweats [sic]." Id. at 52-53.
Wing's initial claim conversation was on August 13, 1996, at which point he also told Provident that he did not anticipate returning to work. Wing's pulmonologist, Michael Corriveau, M.D., signed the attending physician statement submitted in conjunction with Wing's claim.
In a report prepared for this case, Dr. Corriveau describes Wing's condition as follows:
It is my opinion now, as it has been my stated opinion in the past, that Mr. Wing was disabled from his current occupation. It remains my opinion that Mr. Wing was disabled as defined by the Provident Life and Accident Insurance Company. Specifically, it is my opinion that Mr. Wing was not able to obtain the substantial material duties of his occupation. Although Mr. Wing had better and worse days, he had dyspnea on most days. In addition, he had frequent recurring exacerbations of his asthmatic bronchitis as a consequence of sinusitis or bronchitis. He received frequent courses of the steroid, Prednisone, and antibiotics for these exacerbations.
In addition to his asthma, Mr. Wing had been diagnosed as having vocal chord dysfunction and obstructive sleep apnea.
Mr. Wing was receiving care from myself as well as Dr. Wayne Beaver, a cardiologist, for these conditions.
I followed Mr. Wing over a period of six years. Despite multiple attempts to adjust his therapy and multiple diagnostic procedures, Mr. Wing's overall condition showed no evidence of improvement. Therefore, it is my opinion that there was no reasonable expectation that his symptomatology would improve in the future.
Mr. Wing's conditions of asthma and vocal chord dysfunction primarily impaired him with shortness of breath. This was somewhat variable and was clearly worse during periods of exacerbations of his asthma, especially with episodes of sinusitis or bronchitis but even at baseline, Mr. Wing experienced shortness of breath with activities of daily living.
. . . .
It is clear that Mr. Wing's quality of life was impaired by his multiple illnesses. He was often visibly dyspneic on presentation to my office and gave a history of difficulty with shortness of breath on activity essentially every day.
Dr. Corriveau also stated:
there was a point where it seemed [Wing] was having enough difficulty, despite our best efforts, it certainly did not seem to me he was going to be capable of working, at least the job that he was performing. . . . Part of his history that he provided me was of particular difficulty in the workplace due to exposure to scents . . . or stress in the workplace.
Dr. Corriveau Dep. at 24.
Under the terms of the Partnership Agreement, Wing was entitled to one-year of salary continuation after he stopped working. Miller Dep. at 61. Both the DI and BB policies had 365-day elimination periods. Provident did not investigate Wing's claim until about eight months after it had been made. Provident began its preliminary investigation and commenced individual disability payments to Wing after the expiration of his 365-day elimination period. Provident paid monthly disability benefits to Wing under a reservation of rights.
During the course of Wing's claim, he submitted intermittent progress reports to Provident. Since Wing lived in Florida part of the year, he requested a waiver of the attending physician statements at times. Wing stated that due to his medical condition, he needed to reside in warmer weather during the winter. Provident agreed to the waivers. Provident alleges that Wing did not seek medical treatment while in Florida. Wing stated in his deposition that he would get medical treatment before he went to Florida, and then would fly back one or two times for a doctor's appointment. If Wing had an asthma attack in Florida, he used his medications.
Wing described his daily activities on his claim form to Provident as "Reading, T.V. computer (internet) some outside trips for shopping or eating out." Provident received an anonymous letter dated May 6, 1998, which alleged that Wing was very active and not disabled. On May 18, 1998 Provident hired Intelquest to investigate Wing's activity. Intelquest performed video surveillance of Wing from June 22-25, 1998. The video surveillance shows Wing participating in an outdoor trapshooting competition in Vandalia, Ohio. The videotape also depicts Wing smoking cigarettes or in the presence of others who were smoking. Intelequest continued its surveillance of Wing from June 26-28, 1998, during which time Wing continued to shoot and smoke. The daytime high temperatures during the trapshooting competition ranged from eighty-four degrees Fahrenheit to ninety-two degrees Fahrenheit, with generally high humidity.
After viewing the surveillance videotape, Dr. Corriveau stated that if he had known that Wing was trapshooting, and smoking in heat and humidity without respiratory difficulty, he would have been surprised given the degree of disease he felt Wing had. Dr. Corriveau Dep. at 49. Dr. Corriveau added, however, that it was hard to tell from the video whether Wing was having respiratory difficulty while engaging in these activities. He also stated that what he saw "would not necessarily be in conflict with the disease that I felt Mr. Wing [had]. . . . I have other patients that do dumb things, despite terrible disease. And it was hard for me to judge, as I looked at it, fairly, as I looked at the movie, how labored he was or how labored he wasn't." Id. at 51.
Provident asserts that further investigation revealed that Wing's medical records did not support his claimed medical condition. For example, the medical records do not reflect that Wing had a heart attack. Wing testified that he believed he had experienced a mild heart attack and did not intentionally misrepresent facts in his medical records. Wing Dep. at 17. Provident also alleges that Wing intentionally lied regarding his status as a non-smoker. While Wing alleged that he had not smoked for the twelve months prior to applying for the disability insurance in 1991, he also averred that he reported his smoking to his doctors after the application and that he struggled to quit periodically. Wing Dep. at 5.
Provident also alleges that Wing was not totally disabled from working in between his asthma attacks, based on statements by Provident's in-house medical consultant and an independent medical examiner. After reviewing Wing's medical records, Provident's in-house medical consultant, Fred H. O'Connell, M.D., stated: "Wing may be disabled during asthma attacks and in between appears quite fit for his occupation." An independent medical examiner, pulmonologist Robert R. Pickering, M.D., examined Wing on one occasion, and stated that he would place very little limitation on Wing's physical activities.
In July 1998, Provident denied Wing's claim and ceased all payments. Wing and Trio had paid all premiums. Provident then brought the instant action seeking to recover the benefits it paid to Wing.
On January 27, 1999, Wing and Trio entered into a Settlement Agreement, in which Accurate agreed to pay Wing $5,500.00 a month, lease a car for his use, and pay for his health insurance. The Settlement Agreement provided that Trio would intervene in the present case. Id. at 59. The Settlement Agreement also provided that if, and only if, Wing was not determined to be totally disabled, Wing would accept $100,000.00 for his shares, as opposed to the agreed-upon value of the shares, $327,710.00. The Settlement Agreement stated that upon the final resolution of this case, if Trio recovered more than $100,000.00 from Provident, then the purchase price of the Wing's shares would be equal to the amount of the recovery, less offsets for the loans made under the Settlement Agreement.
On November 16, 1999, Wing committed suicide. McCoy was appointed as executor of Wing's estate by Franklin County Probate Court on January 5, 2000. Wing left his entire estate to McCoy. McCoy is Wing's ex-girlfriend. McCoy is not a parent, child, surviving spouse nor a statutory next of kin under Ohio law. Wing is survived by two brothers, Roger C. Wing and Robert C. Wing who are other next of kin under Ohio law. Wing's brothers waived notice of the probate of Wing's estate.
C. Claims
Provident seeks declaratory judgment as well as compensatory and punitive damages, asserting that Wing breached the DI policy and fraudulently claimed benefits under the policy. Wing brought claims against Provident for bad faith, breach of contract, negligence, intentional infliction of emotional distress, and violation of the Ohio Consumer Sales Practices Act. Wing sought declaratory judgment as well as compensatory and punitive damages. Trio seeks declaratory judgment that Provident breached the BB policy and compensatory damages in the amount of $350,650 plus pre-judgment interest. After McCoy was substituted for Wing, she filed an amended complaint asserting Wing's original five claims plus a wrongful death claim.
II. Summary Judgment
The standard governing summary judgment is set forth in Fed.R.Civ.P. 56(c), which provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, and must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Id. Stated otherwise, the Court must credit evidence favoring the nonmoving party as well as evidence favorable to the moving party that is uncontroverted or unimpeached, if it comes from disinterested witnesses. Id.
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
Additionally, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586).
Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. at 1479-80. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
III. Discussion A. Total Disability
The central issue raised in the summary judgment motions is whether it can be determined as a matter of law that Wing was or was not totally disabled within the meaning of the policies. Provident argues that as a matter of law Wing was not totally disabled. McCoy contends that genuine issues of material fact preclude summary judgment in Provident's favor on the issue of total disability. Trio asserts that Wing was totally disabled as a matter of law.
The Court will first determine a burden of proof issue with respect to total disability. The Court will then review the definitions of total disability set forth in the policies, and determine whether the ability to work part-time would preclude a finding of total disability. Next, the Court will examine the evidence that Trio maintains establishes Wing's total disability as a matter of law. The Court will then address the evidence that Provident argues proves that Wing was not totally disabled as a matter of law. Lastly, the Court will analyze the evidence under the summary judgment standard.
1. Burden of proof
Provident argues that Trio and McCoy, not Provident, bear the burden of proving that Wing was totally disabled. Trio appears to take the opposite position.
Under Ohio law, an insured bringing a claim against the insurer for breach of a total disability insurance contract bears the burden of proving total disability. See Patterson v. N. Amer. Ins., No. CA 19733, 2000 WL 277909, at * 2-3 (Ohio Ct.App. Ninth Dist. Mar. 15, 2000); see also Walker v. Buck, 86 Ohio App.3d 846 (1993) (it is the insured's burden to establish compliance with any provision of an insurance policy which is precedent to his right to recover. The Court concludes that McCoy and Trio bear the burden of proving that Wing was totally disabled within the meaning of the policies with respect to their claims against Provident.
2. Total disability defined
The ID policy defines "total disability" as follows:
Total disability or totally disabled . . . means that due to Injuries or Sickness:
1. you are not able to perform the substantial and material duties of your occupation; and
2. you are receiving care by a Physician which is appropriate for the condition causing the disability. We will waive this requirement when continued care would be of no benefit to you.
The BB policy likewise defines "total disability" as follows:
Total Disability and totally disabled means [sic] that due to Injuries or Sickness, the Insured:
1. is not able to perform the substantial and material duties of his/her occupation; and
2. is receiving care by a Physician which is appropriate for the condition causing the disability.
Hence, the policies' definitions are virtually identical.
Provident argues that even if Wing had asthma, he was not totally disabled within the meaning of the policies because he was capable of working part time. Provident bases its argument on the report of its independent medical examiner, Dr. Robert R. Pickering, who examined plaintiff once, and indicated that he would "place very little limitation on Mr. Wing's physical activities," and the comment of Dr. O'Connell, who reviewed Wing's medical records, and opined that Wing appeared to be fit to work between asthma attacks. In addition, Wing's treating physician, Dr. Corriveau, indicated that Wing might be able to perform part-time work in the right environment. Corriveau Dep. at 55.
Trio contends that Wing could not have performed the substantial and material duties of his occupation on a part-time basis. In support of this proposition, Trio refers to the affidavit of Wing's former partner at Trio, Gerald Miller. Miller states in part as follows in his affidavit:
11. That is, Richard Wing's "substantial and material duties" at Accurate Fabrication included being in charge of estimating, drafting, and the company's computer system. These vital functions could not be performed on a part-time basis and certainly could not be performed out of Mr. Wing's home.
. . . .
12. To be more specific, if Mr. Wing could only work twenty hours a week out of his home, he would be virtually worthless to the company as a management employee and the company would have received almost no benefit for the salary it was paying him.
Provident does not offer evidence to the contrary, but adheres to its position that if Wing could have worked part time, he could not have been totally disabled. In support of this argument, Provident provides an example of a definition from a residual disability policy, and maintains that neither Trio nor Wing bargained for such coverage. Provident also asserts that for Wing to be deemed disabled, he must have been incapable of performing "each and every one of" the substantial and material duties of his occupation.
The Court rejects Provident's arguments. First, the definition from the residual disability policy sheds no light on the definition of the term "totally disabled" in the policies at issue. It is irrelevant. Provident's attempt to add language to the definition of totally disabled to narrow its scope is similarly unavailing. It is beyond argument that the Court must apply the definition as written in the policies.
The policies provide that "totally disabled" means the insured is unable to perform the substantial and material duties of his occupation. Nothing in the language of this definition necessitates the conclusion that an insured who is capable of working part time is automatically also capable of performing the substantial and material duties of his occupation. Significantly, the definition is tied directly to the insured's occupation. That is, the Court must look at the facts and circumstances of Wing's actual job to determine its substantial and material duties. Here, uncontroverted evidence indicates that the substantial and material duties of Wing's occupation could not have been performed on a part-time basis. For this reason, the Court holds that evidence that Wing may have been capable of part-time work hypothetically is not relevant to whether Wing was totally disabled as defined in the policies.
3. Evidence offered to prove total disability
The evidence supporting McCoy and Trio's assertion that Wing was totally disabled consists primarily of the following: (1) Haenszel and Miller's observations of Wing in the workplace; (2) Wing's testimony describing his condition; and (3) the testimony and reports of Wing's pulmonologist, Dr. Corriveau, who treated Wing over the course of six years.Six months before Wing stopped working, Haenszel told Wing that he should get out of the building. Haenszel described the building where he, Miller and Wing worked as having a lot of welding dust, smoke dust, and galvanized burning dust. Haenszel observed Wing working on a computer on the floor for fifteen minutes, after which Wing got up and was "literally wringing wet." Haenszel said he had seen Wing appear to be "in deep trouble."
Miller observed Wing out of breath after Wing had gone up one flight of stairs. Miller noticed that Wing brought an inhaler and pills with him to work. Miller indicated that Wing was not working forty hour weeks, rather Wing sometimes worked a "half day here of there." Miller saw Wing breathing heavily many times, and also saw Wing break out in sweats.
Provident points out that the fabrication process that produced the dust was on the lower floor of the building, whereas Wing's office was on the second floor. Provident also highlights the fact that neither Haenszel nor Miller specifically testified that they observed Wing having an asthma attack.
Wing stated that he got to the point where he could not breathe in the Accurate building, and that he could not take it any longer. In his application for disability benefits, Wing indicated that he was "severely short of breath while under stress, activity, or inhaling of metal fumes." Wing further said that he could not perform his job duties because "[a]sthma triggers that affect me are emotional stress and excitement, dust, metals, and physical activity. My duties all subject me to these triggers. . . . The asthma has caused me to eliminate all stress and reduce my physical activity."
About one year after he was deposed, and after he viewed the surveillance videotape showing Wing trapshooting and smoking, Dr. Corriveau stated his opinion on Wing's total disability as follows:
It is my opinion now, as it has been my stated opinion in the past, that Mr. Wing was disabled from his current occupation. It remains my opinion that Mr. Wing was disabled as defined by the Provident Life and Accident Insurance Company. Specifically, it is my opinion that Mr. Wing was not able to obtain the substantial material duties of his occupation. Although Mr. Wing had better and worse days, he had dyspnea on most days. In addition, he had frequent recurring exacerbations of his asthmatic bronchitis as a consequence of sinusitis or bronchitis. He received frequent courses of the steroid, Prednisone, and antibiotics for these exacerbations.
In addition to his asthma, Mr. Wing had been diagnosed as having vocal chord dysfunction and obstructive sleep apnea.
Mr. Wing was receiving care from myself as well as Dr. Wayne Beaver, a cardiologist, for these conditions.
I followed Mr. Wing over a period of six years. Despite multiple attempts to adjust his therapy and multiple diagnostic procedures, Mr. Wing's overall condition showed no evidence of improvement. Therefore, it is my opinion that there was no reasonable expectation that his symptomatology would improve in the future.
Mr. Wing's conditions of asthma and vocal chord dysfunction primarily impaired him with shortness of breath. This was somewhat variable and was clearly worse during periods of exacerbations of his asthma, especially with episodes of sinusitis or bronchitis but even at baseline, Mr. Wing experienced shortness of breath with activities of daily living.
. . .
It is clear that Mr. Wing's quality of life was impaired by his multiple illnesses. He was often visibly dyspneic on presentation to my office and gave a history of difficulty with shortness of breath on activity essentially every day.
Dr. Corriveau states in his affidavit that the opinions set forth in his report are true and accurate to a reasonable degree of medical certainty. Dr. Corriveau aff. ¶ 3.
Provident argues that Dr. Corriveau's opinion is flawed because it is based on Wing's inaccurate descriptions of his medical history and activities. Specifically, Dr. Corriveau's initial opinion of total disability took into account Wing's assertion that he had had a heart attack. The medical records, however, indicate that Wing never had a heart attack. Provident also points out that Wing did not divulge his trapshooting and smoking to Dr. Corriveau. Provident goes so far as to suggest that because Dr. Corriveau's opinion is based on inaccurate facts, it lacks reliability and is therefore inadmissible underDaubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993).
The Court finds Provident's arguments unavailing. Dr. Corriveau issued the above-quoted opinion after he became aware that Wing had not had a heart attack, and had engaged in trapshooting and smoking. Dr. Corriveau's report is therefore not based upon inaccurate facts. The Court concludes that Dr. Corriveau's testimony is not barred under Daubert.
Provident further argues that Dr. Corriveau's opinion is inadmissible because it conflicts with his prior deposition testimony. See Dotson v. United States Postal Service, 977 F.2d 916, 978 (6th Cir. 1992). Provident asserts that in his deposition, Dr. Corriveau testified that Wing's activities were in conflict with the degree of impairment he claimed. Provident does not provide a reference to the portion(s) of Dr. Corriveau's deposition upon which it seeks to rely. The Court has reviewed the entire transcript of Dr. Corriveau's deposition, and finds that Dr. Corriveau's deposition testimony does not materially conflict with his above-quoted report. Specifically, Dr. Corriveau testified that Wing's activities were not necessarily in conflict with the disease he felt Wing had. Corriveau Dep. at 51. Furthermore, the bottom-line opinions in both the deposition and later report are substantially the same. To illustrate, the following colloquy took place at Dr. Corriveau's deposition:
Q. Doctor, are you prepared, based upon the contents of your file and the history that's been given to you and the additional history that's been shared with you, are you going to be prepared to testify in this case to a reasonable degree of medical certainty that Mr. Wing is incapable of the sedentary job that he had?
. . .
A. I would have to say that based on the information I have, the history I'm given, knowing he has asthma, knowing he has vocal cord dysfunction, I think I would still have to say that I consider him, his impairment such he could not work full time in the workplace as he had previously.
Dr. Corriveau Dep. at 52-53. In sum, Dr. Corriveau's latest report is not inadmissible on the basis that it conflicts with his prior deposition testimony.
4. Evidence offered to disprove total disability
Provident seeks to establish as a matter of law that McCoy and Wing are unable to demonstrate that Wing was totally disabled, or at least cast doubt on the evidence which Trio and McCoy offer in their attempt to prove that Wing was totally disabled. Provident offers essentially three categories of evidence: (1) the opinions of Dr. Pickering and Dr. O'Connell to the effect that Wing was capable of part-time work between asthma attacks; (2) the surveillance videotape which shows Wing trapshooting and smoking; and (3) evidence that Wing lied about or exaggerated his medical condition and symptoms.
Dr. Pickering is a pulmonoligist who examined Wing on one occasion, and presented his opinion in two reports to Provident. Provident focuses on several statements in Dr. Pickering's first report. For example, Dr. Pickering said, "I can't help get the impression when speaking with Mr. Wing that his description of his symptoms does not correlate with his current clinical presentation." He further stated:
All of the information I have regarding Mr. Wing at this point is subjective and the only objective data I can obtain is questionable in regards to the validity of his claim. Basically, I tend to question the true severity of his disease. Once again I base this on the discrepancy between his described symptoms and the degree of pathology I am able to define during the office evaluation today.
Dr. Pickering also opined, "[b]ased on the information and data that I have at present, I would place very little limitation on Mr. Wing's physical activities (i.e., near normal PFTs on 12/3/96). These tests would insinuate good asthmatic control and there should be very little clinical debility."
Trio and McCoy emphasize other statements in Dr. Pickering's reports. Dr. Pickering acknowledged that Wing was "exceptionally difficult to evaluate on a one-time visit." He observed, "a review of [Wing's] medical records certainly seems to indicate severe pulmonary pathology with incapacitated asthma and airway obstruction." Dr. Pickering also acknowledged that he was not fully informed about the requirements of Wing's job. Furthermore, Dr. Pickering noted, "[i]t is quite possible that [Wing's] asthma is exquisitely sensitive." Moreover, Dr. Pickering indicated that although the addition of chronic oral steroid might improve Wing's condition, it was "impossible to speculate" whether this would allow Wing to return to his previous employment. In his second report, Dr. Pickering concludes, "Mr. Wing remains a very difficult case to accurately assess and I would have to rely on the experiences of his regular M.D. to clarify the severity of his `attacks' and also help define his respiratory reserve between them."
Trio argues that Dr. Pickering's reports are inadmissible because Dr. Pickering does not state his opinion with a reasonable degree of medical certainty as required by Ohio law. Provident contends that Dr. Pickering's opinions are stated with sufficient certainty.
In a diversity action, state law governs substantive issues and federal law governs procedural issues. Erie R.R. v. Tompkins, 304 U.S. 64 (1938). Rules of evidence are deemed procedural in nature. Legg v. Chopra, 286 F.3d 286, 289 (6th Cir. 2002). Thus, the Federal Rules of Evidence, rather than state evidentiary rules, govern in diversity cases. Id. The admissibility of expert testimony is a matter of federal law.Id. at 290.
Nonetheless, the Federal Rules of Evidence recognize that competency to testify is a substantive issue, and is therefore governed by state law. Fed.R.Evid. 601; Legg, 286 F.3d at 290. Moreover, state law standards of medical certainty, which address competency to testify, are not in direct conflict with the requirements of Fed.R.Evid. 702. Legg, 286 F.3d at 291 (citing Robin Kundis Craig, When Daubert Gets Erie: Medical Certainty and Medical Expert Testimony in Federal Court, 77 Denv. U. L.Rev. 69, 114 (1999)).
Under Ohio law, an expert is competent to testify only if the expert's opinion is held to a reasonable degree of scientific certainty. State v. Benner, 40 Ohio St.3d 301, 313 (1988). "Reasonable certainty" means "probability." Id. This degree of certainty means more likely than not. See Shumaker v. Oliver B. Cannon Sons, Inc., 28 Ohio St.3d 367, 369 (1986). Experts are not required to use the "magic words" "reasonable degree of medical certainty." Mahaffey v. Stenzel, No. 97CA2391, 1999 WL 50299, at * 3 (Ohio App. Fourth Dist. Jan. 25, 1999). Thus, an expert's opinion is admissible if it provides evidence of more than a mere possibility or speculation. Id. These standards apply at the summary judgment phase as well as at trial. See Bookman v. St. Peter's High Sch., No. 97-CA-124, 1998 WL 42923, at * 2 (Ohio App. Fifth Dist. July 6, 1998); Zarlinga v. Lampert, M.D., No. 72294, 1998 WL 83217, at * 3 (Ohio App. Eighth Dist. Feb. 26, 1998); Sweeney v. Deaconess Hosp. of Cleveland, Nos. 64349, 64357, 1993 WL 541589, at * 4 (Ohio App. Eighth Dist. Dec. 30, 1993); see also Fed.R.Civ.P. 56(e) (affidavit must affirmatively show that affiant is competent).
Numerous statements in Dr. Pickering's report are clearly not stated with the requisite degree of certainty. For example, Dr. Pickering's reports raise doubts as to the severity of Wing's asthma. An expression of doubt, without more, cannot be said to be an opinion rising to the level of probability. Dr. Pickering also indicated that it would be "impossible to speculate" whether the addition of a chronic oral steroid would improve Wing's condition to the point that it would allow Wing to return to work at his previous employment. Additionally, in his second and final report, Dr. Pickering expressly defers to Wing's treating physician as to the severity of Wing's asthma attacks and his respiratory reserve between attacks.
Provident maintains that the following statement by Dr. Pickering is expressed with sufficient certainty and is highly probative on the issue of Wing's disability: "Based on the information and data that I have at present, I would place very little limitation on Mr. Wing's physical activities (i.e., near normal PFTs on 12/3/96). These tests would insinuate good asthmatic control and there should be very little clinical debility."
Mindful that "magic words" are not required, the Court nonetheless finds that the above-quoted statement does not bear sufficient indicia of certainty to satisfy the competency requirement under Ohio law. The statement is simply devoid of any language suggesting the degree of certainty with which Dr. Pickering made the statement. Furthermore, viewed in conjunction with Dr. Pickering's other statements, the above-quoted language cannot be considered an expression of a reasonable degree of medical certainty. For these reasons, the Court concludes that Dr. Pickering's reports are inadmissible for the purpose of demonstrating that Wing was not totally disabled.
Dr. O'Connell did not examine Wing, but reviewed Wing's medical records. Dr. O'Connell's report to Provident states, in its entirety, "Wing may be disabled during asthma attacks but, in between, appears quite fit for his occupation." Dr. O'Connell's opinion is not expressed in terms of probability or medical certainty.
Based on the above, the Court holds that Provident has failed to establish the competency of Dr. Pickering and Dr. O'Connell as required by Ohio law. Their reports are therefore inadmissible and cannot be considered for purposes of determining whether Wing was totally disabled. In addition, to the extent the reports of Dr. Pickering and Dr. O'Connell are offered to prove that Wing was capable of part-time employment between asthma attacks, for the reasons discussed in Part IIIA2 above, they are irrelevant to the determination of whether Wing was totally disabled from his former occupation at Accurate.
The Court will next consider the evidence derived from the surveillance of Wing. Wing was observed participating in an outdoor trapshooting competition from June 22-28, 1998. During this time, Wing was also observed smoking cigarettes and standing or sitting in close proximity to others who were smoking cigarettes or cigars. The Intelquest reports include copies the weather reports from a presumably local newspaper which indicate high temperatures during the week of surveillance ranging from eighty-four degrees Fahrenheit to ninety-two degrees Fahrenheit, with generally high humidity.
Provident has submitted a surveillance videotape showing some of Wing's activities from June 22-25, 1998. The videotape shows Wing standing and shooting a shotgun at clay targets during the competition. The trapshooting activity consisted of Wing standing in place, lifting the shotgun to his shoulder, firing the shotgun, lowering the shotgun from his shoulder, opening the shotgun to eject the spent shells, and then reloading the shotgun in preparation for the next round. Wing was often shown wiping sweat from his face with a cloth during the trapshooting.
Provident avers "[t]he air would cloud with the sulfur and other emissions from the guns." The videotape shows that upon firing, a small amount of smoke issued forth from the muzzles of the shotguns. The smoke appeared to disperse rapidly. No "cloud" of smoke is visible on the videotape. There is also no competent evidence in the record as to whether modern, "smokeless" gunpowder used in shotgun shells emits sulfur fumes when the shotgun is fired.
Throughout the videotape, Wing is standing, sitting or walking a short distance. The videotape depicts Wing smoking cigarettes on several occasions. Wing is also seen in the presence of others who are smoking. Wing was not in obvious distress at any point during the videotaping.
Provident contends that the surveillance evidence shows Wings exerting himself and in the presence of asthma triggers with no apparent adverse reaction. McCoy points out that in response to the videotaped activities, Dr. Corriveau stated, "What I saw would not necessarily be — would not necessarily be in conflict with the disease I felt Mr. Wing has. . . . I have other patients that do dumb things, despite terrible disease. And it was hard for me to judge, as I looked at it, fairly, as I looked at the [surveillance video], how labored he was or how labored he wasn't." Corriveau Dep. at 51. Trio argues that the videotape does no more than depict Wing engaging in relatively sedentary, non-robust activity, and is not conclusive proof that Wing does not have asthma.
Provident also submits evidence purportedly demonstrating that Wing lied about or exaggerated his medical condition and symptoms. Chiefly, Provident notes that although Wing told Dr. Corriveau that he had a heart attack, Wing, in fact, never had a heart attack. Provident also points out that Dr. Corriveau conceded that the objective evidence of Wing's asthma, when compared to his subjective complaints, did not constitute a typical case. Provident further refers to the fact that Dr. Corriveau acknowledged that he could not be medically or scientifically certain as to whether Wing was exaggerating his symptoms. Dr. Corriveau dep. at 82-83.
5. Summary judgment analysis
The Court will proceed to analyze the evidence in accordance with the standard for addressing summary judgment motions. The Court will first address Provident's motion for summary judgment. In doing so, the Court views the evidence in the light most favorable to McCoy and Trio. Viewing the evidence in this manner, the Court finds that Dr. Carriveau's report, together with the testimony of Wing, Haenszel and Miller, give rise to a genuine issue of material fact as to whether Wing was able to perform the substantial and material duties of his occupation. Provident is therefore not entitled to summary judgment in its favor on the basis that Wing was not totally disabled.As for Trio's summary judgment motion, the Court finds that when the evidence is viewed in the light most favorable to Provident, the surveillance evidence and the evidence suggesting that Wing exaggerated his symptoms gives rise to a genuine issue to material fact as to whether Wing's asthma and other conditions rendered him unable to perform the substantial and material duties of his occupation. Consequently, Trio is not entitled to summary judgment in its favor on the basis that Wing was totally disabled.
B. McCoy's bad faith claim
Provident also asserts that regardless of whether Wing was totally disabled, it is entitled to summary judgment in its favor on McCoy's bad faith counter claim because Provident exercised good faith in its decision to terminate Wing's benefits. Specifically, Provident maintains that it reasonably relied on the surveillance of Wing, and the opinions of an independent physician and its own in-house physician in terminating Wing's benefits.Under Ohio law, an insurer has a duty to act in good faith in the settlement of a benefit claim. Thomas v. Allstate Ins. Co., 974 F.2d 706, 711 (6th Cir. 1992) (citing Staff Builders, Inc. v. Armstrong, 37 Ohio St.3d 298, 302-03 (1988)). The test to determine whether an insurance company breached this duty and denied an insurance benefit in bad faith is the "reasonable justification" standard. See Friendly Farms v. Reliance Ins. Co., 79 F.3d 541, 545-46 (6th Cir. 1996); Romstadt v. Allstate Ins. Co., 59 F.3d 608, 611 (6th Cir. 1995); see also Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 554 (1994) (recognizing that the Ohio Supreme Court has consistently applied this reasonable justification standard first announced in Hart v. Republic Mut. Ins. Co., 152 Ohio St. 185 (1949)). The crucial inquiry is whether "the decision to deny benefits was arbitrary or capricious, and there existed a reasonable justification for the denial," not whether the insurance company's decision to deny benefits was correct. Thomas, 974 F.2d at 711.
To prove bad faith, McCoy submits the report of its insurance expert, Dominic LaGravinese. LaGravinese states:
Provident acted unreasonably and breached its duty of good faith and fair dealing owed to Mr. Wing in its handling and investigation of his claims, and in its decision-making conduct on these claims, as follows:
A. Provident failed to approve and pay Mr. Wing's disability benefits claim (to him) and buy-sell benefits claim (to Trio Leasing) once its liability for such became reasonably clear.
B. Provident unreasonably attached a reservation of its rights to its payment of the disability benefits to Mr. Wing under the DI Policy.
C. Provident ignored, disregarded and failed to reasonably evaluate and consider the well-founded opinions of Dr. Corriveau as to Mr. Wing's asthma, the severity of that condition and his impairment and disability from that condition.
D. Provident unreasonably relied on the opinions of the defense medical examiner, Dr. Pickering, who only saw Mr. Wing on one occasion, and whose conclusions and statements do not support a determination that Mr. Wing is capable of performing the material and substantial duties of his regular occupation.
E. Provident acted unreasonably in the conduct of its surveillance investigation of Mr. Wing, unreasonably invaded his privacy in that investigation, and drew incorrect, misleading and unreasonable conclusions from that investigation.
F. Provident purported to exercise its contractual rights under the policy to have Mr. Wing examined by a second defense medical examiner, Dr. Bernstein, and then unreasonably refused and failed to explain in detail the results of that examination to Mr. Wing and/or his attorneys, and further failed to provide Mr. Wing's attorneys with the opportunity, prior to Provident's claims denial and filing of its declaratory judgment action, to speak with Dr. Bernstein regarding his evaluation and any findings.
G. Provident unreasonably relied on the opinion of its in-house medical consultant, Dr. O'Connell, whose written opinion is inadequate and without sufficient rationale.
H. Provident unreasonably ignored the assessments and conclusions of its own employees and representatives that Mr. Wing was totally disabled under the DI Policy and the Buy-Sell Policy.
I. Provident unreasonably commenced the Wing Declaratory Judgment Action in 1998 despite the fact that Mr. Wing's claims were clearly payable at that time.
J. Provident's claims-handling and investigative conduct was plainly focused on finding a way to deny Mr. Wing's claims, rather than looking for and exploring reasonable ways to pay his claims.
K. Provident unreasonably delayed its investigation, decision and approval of Mr. Wing's DI and Buy-Out claims.
L. Provident unreasonably engaged in selective misuse of information in order to support its denial of Mr. Wing's claim.
M. Provident unreasonably failed to provide Mr. Wing with a clear and detailed written explanation outlining its reasons for not approving his claims, and for its delays in decision-making.
N. Provident unreasonably concluded and asserted that Mr. Wing had committed fraud in his claims for DI and buy-sell benefits, and the facts of these claims do not reasonably support this conclusion.
O. Provident acted unreasonably in ignoring the advice of its in-house attorney concerning Provident's effort to find a basis on which to rescind the DI and Buy-Sell Policies.
P. Provident unreasonably reprimanded its agent, Mr. Offenburg, for filing a complaint regarding Provident's claims-handling conduct with the Ohio Insurance Department, and attempted unreasonably to silence and stop Mr. Offenberg's efforts on behalf of Mr. Wing, who Mr. Offenberg, based on his interaction and knowledge of this individual, had clearly concluded was totally disabled and unable to perform the material and substantial duties of his regular occupation.
In its reply memorandum, Provident argues that Lagravinese's opinion is inadmissible under Fed.R.Civ.P. 702 and Daubert. Essentially, Provident contends that Lagravinese's opinion would not be helpful to the jury in determining the bad faith issue because the jury would be able to understand and determine that issue without the opinion of an expert.
Provident's Daubert argument misses the mark. Regardless of whether Lagravinese's opinion satisfies the requirements ofDaubert, the same facts underlying Lagravinese's opinion could be introduced into evidence through other means. Viewing that evidence in the light most favorable to McCoy, the Court concludes that a rational trier of fact could find that Provident lacked reasonable justification for terminating Wing's benefits. For example, Dr. Pickering's reports, viewed in the light most favorable to McCoy, are inconclusive as to whether Wing was capable of performing the substantial and material duties of his occupation. Similarly, a reasonable jury could view Dr. O'Connell's report as too cursory to reasonably support a conclusion that Wing was not totally disabled. Likewise, given the sedentary nature of Wing's trapshooting activities, a rational jury could find the surveillance evidence so unconvincing with respect to the total disability issue that reliance thereon was bad faith.
Most importantly, the same conclusion could be reached when considering these bases together. That is, a rational jury, looking at all of the evidence underlying Provident's decision to terminate Wing's benefits, could find the evidence, as a whole, so weak that Provident could not have relied on it in good faith. For these reasons, Provident is not entitled to summary judgment in its favor on McCoy's bad faith claim.
In the section of its memorandum in support of summary judgment addressing McCoy's bad faith claim, Provident makes passing reference to McCoy's claims for negligence and intentional infliction of emotional distress. Provident does not cite any authority in connection with its argument that these claims should be dismissed, and does not attempt to develop any real analysis. In these circumstances, the Court declines to grant summary judgment on these claims. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) ("issues averted to in a perfunctory manner, unaccompanied by some effort at developed augmentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving it for the court to . . . put flesh on its bones.").
C. McCoy's Ohio Consumer Sales Practices Act claim
Provident also moves for summary judgment on McCoy's Ohio Consumer Sales Practices Act ("OCSPA") claim. Provident contends that McCoy's OCSPA claim must fail because Provident's conduct constitutes nonfeasance, and is therefore not actionable under the OCSPA. Provident does not cite any Ohio authority for this proposition.Counsel for McCoy have fulfilled their ethical duty to point out to the Court authority contrary to their client's position. Specifically, McCoy draws the Court's attention to Johnson v. Lincoln Nat'l Life Ins. Co., 69 Ohio App.3d 249, 255 (1990). The court in Johnson held that the OCSPA has no application to controversies over insurance policies. Id. The court inJohnson reached its conclusion on the basis that the Ohio Legislature had already created a comprehensive scheme of legislation regulating insurance in Ohio Revised Code Chapter 39.Id. There is no Ohio authority to the contrary.
In determining an issue of state law, this Court is bound by a decision of the state's intermediate appellate court unless convinced that the highest state court would decide the issue differently. Olsen v. McFaul, 843 F.2d 918, 933 (6th Cir. 1988). Although the Johnson decision is not beyond debate, the Court cannot say that it is firmly convinced that the Ohio Supreme Court would decide the question differently. UnderJohnson, Provident is entitled to summary judgment in its favor on McCoy's OCSPA claim.
D. McCoy's Wrongful Death Claim
After McCoy was appointed executor of Wing's estate, she filed an amended complaint with an additional counterclaim for wrongful death under Ohio Revised Code section 2125.02 on behalf of "family members and next of kin who are beneficiaries to this action." Provident moves for summary judgment on the wrongful death claim. The first issue the Court must consider is whether there exists a cause of action for wrongful death for McCoy as "other next of kin." The wrongful death statute provides in relevant part:
[A] civil action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of the decedent.
O.R.C. § 2125.02(A)(1) (Anderson 2005). An action for wrongful death is strictly a creation of statute, subject to the rights and limitations imposed therein. Rubeck v. Huffman, 54 Ohio St. 2d 20, 22 (1978). The personal representative must prove five elements. 1-27 Ohio Probate Practice and Procedure § 27.01 (2005). First, the death of the decedent must be proved. Id. Second, the representative must prove that the action has been commenced within two years of the death of decedent. Id. Third, the representative must prove proximate cause between the defendant's wrongful act, neglect or default and the death of the decedent. Id. Fourth, beneficiaries of a class listed in the statute must be proved to exist. Id. Finally, the representative must prove that the survivors have suffered damages due to the wrongful death. Id.
McCoy is not a surviving spouse, child or parent of Wing. McCoy is Wing's ex-girlfriend, and close friend. To bring an action for wrongful death on her own behalf, McCoy must qualify as "other next of kin." The issue is therefore whether a close friend may be considered "other next of kin" under Ohio law.
Ohio's wrongful death statute does not define "next of kin." Black's Law Dictionary defines "next of kin" as, "[t]he person or persons most closely related to a decedent by blood or affinity." Black's Law Dictionary (8th ed. 2004). Close friends are not considered "other next of kin" under Ohio law. See Buchert v. Newman, 90 Ohio App. 3d 382 (1993). In Buchert, a convent member died in an automobile accident. The executor filed a wrongful death action on behalf of the convent and the natural sisters of the deceased. Relying on Black's Law Dictionary definition, the court in Buchert held that, even under a liberal interpretation, a convent could not be considered "other next of kin." Id. at 491.
McCoy's relationship with Wing is at best analogous to the close relationship between a nun and her convent. McCoy cannot recover under Ohio's wrongful death statute, as a matter of law, because she is not an "other next of kin" within the meaning of the statute.
McCoy also purports to bring her sixth counter claim on behalf of Wing's two surviving brothers, Roger C. Wing and Robert C. Wing. Wing's brothers are not beneficiaries of his estate, and in fact waived notice of the probate proceedings.
Siblings are considered next of kin under Ohio law. Karr v. Sixt, 146 Ohio St. 527 (1946); see also, Shoemaker v. Crawford, 78 Ohio App. 3d 53 (1991) (holding that siblings of decedent may recover for mental anguish). However, "[i]t is necessary to prove that damages allowable by the [statute] have been suffered by one or more of the persons for whom the action is brought as a result of the death of the decedent." 1-27 Ohio Probate Practice and Procedure § 27.04 (2005). "Other next of kin" may recover for: (1) loss of support; (2) loss of services; (3) loss of society; (4) loss of prospective inheritance; and (5) mental anguish. Ohio Rev. Code § 2125.02(B) (2005). While a surviving spouse, children and parents of a decedent are rebuttably presumed to have suffered a loss, "other next of kin" are not. Ohio Rev. Code § 2125.02(A)(1) (2005); see also, Ramage, 64 Ohio St. 3d 97, 105 (1992). Therefore, the burden is on McCoy to offer evidence that Wing's surviving brothers suffered damages allowable under section 2121.02(B) due to the death of Wing.
Although she was provided a full and fair opportunity to submit evidence on this issue, McCoy has not offered any affirmative evidence by way of affidavit or otherwise to suggest that either of Wing's brothers suffered any loss as a result of Wing's death. Failure of other next of kin to present evidence that they suffered actual damage is fatal to a wrongful death claim on summary judgment. Albert v. Anatrace. No L-03-1042, 2003 WL 22417014, at * 3 (Ohio Ct.App. Sixth Dist. Oct. 24, 2003). Even when the record is viewed in the light most favorable to McCoy, the Court finds that McCoy has failed to establish an essential element of a wrongful death claim as a matter of law.
The issue was first presented in Provident's reply memorandum in support of its first motion for summary judgment. Nonetheless, Provident raised the issue anew in its second summary judgment motion, at which time McCoy was afforded the opportunity to submit evidence that Wing's brothers suffered damages allowed by the wrongful death statute.
For the above reasons, Provident is entitled to summary judgment in its favor with respect to McCoy's wrongful death claim.
E. Limitation of Trio's damages
Provident also seeks summary judgment in its favor declaring that Trio's damages are limited to the amount Trio paid Wing to repurchase his stock under the Settlement Agreement. Trio argues that Provident mischaracterizes the Settlement Agreement. Trio maintains that the Settlement Agreement was an interim measure, and that Trio's obligation to Wing is not limited to the $100,000 it loaned Wing.The BB policy provides in part:
We will pay a lump sum benefit to the Loss Payee for Business Buy-Out Expense if: (a) the Insured is an owner of the Business and is engaged in Active Full-Time Work when the Period of Disability starts; and (b) a lump sum becomes payable in accordance with the Buy-Sell Agreement because of the Insured's Total Disability.
The BB policy defines "Business Buy-Out Expense" as "any money paid by or through the Loss Payee to the Insured in performance of the terms of the Buy-Sell Agreement because of Total Disability of the Insured." Provident contends that this term limits any liability it may have under the BB policy to the amount Trio paid Wing under the Settlement Agreement.
Trio explains that the Settlement Agreement was devised, in part, as a way to get money to Wing after Provident terminated his disability benefits. The Settlement Agreement stated that Accurate would provide Wing a leased car, health insurance, and a monthly no-interest loan of $5,500.00. The Settlement Agreement limited these benefits to a total of $100,000.00. The Settlement Agreement further provided:
Notwithstanding the fact that the Wing Shares are valued under the Buy-Sell Agreement at $327,710.00, Wing is willing to accept, and hereby agrees to accept in the event that, and only in the event that, he is not determined to be disabled within the meaning of the Buy-Sell Agreement, an amount not less than $100,000.00 in the aggregate . . . as full payment for the Wing Shares, . . .
The Settlement Agreement additionally states that upon the final resolution of this case, if Trio recovers more than $100,000.00 from Provident, then the purchase price of Wing's shares will be equal to the amount of the recovery, less offsets for the loans made under the Settlement Agreement. In short, Provident's blanket statement that the Settlement Agreement limits Trio's recovery to a maximum of $100,000.00 is incorrect. The Court concludes that Provident is not entitled to summary judgement in its favor limiting Trio's damages to $100,000.
IV. Disposition
Based on the above, the Court GRANTS Provident's motions for summary judgment in part and DENIES them in part. The Court GRANTS Provident's motions to the extent that it dismisses McCoy's claim under the Ohio Consumer Sales Practices Act and her claim for wrongful death. The Court DENIES Provident's motions for summary judgment in all other respects. The Court also DENIES Trio's motion for summary judgment.
IT IS SO ORDERED.