Berry v. Paul Revere Life Ins. Co.

R. LEE BERRY, M.D. v. THE PAUL REVERE LIFE INSURANCE COMPANY

NO. 2012 CA 0903

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Judgment Rendered: September 16, 2013

NOT DESIGNATED FOR PUBLICATION

On Appeal from the

22nd Judicial District Court

In and for the Parish of St. Tammany

State of Louisiana

Trial Court No. 2006-11442

The Honorable Martin E. Coady, Judge Presiding

L. Kevin Coleman

Mandeville, Louisiana

Attorney for Appellant #1/Appellee,

R. Lee Berry, M.D.

Lauren A. Welch

Thomas Anzelmo

Hilliard F. Kelley, III

Metairie, Louisiana

Attorney for Appellant #2/Appellee,

The Paul Revere Life Insurance

Company

BEFORE: PARRO, MCDONALD, WELCH, HIGGINBOTHAM, AND

DRAKE, JJ.

DRAKE, J.

This is an appeal by both parties, plaintiff, R. Lee Berry, M.D., ("Dr. Berry") and defendant, The Paul Revere Life Insurance Company ("Paul Revere"). Dr. Berry filed suit seeking reinstatement of benefits pursuant to two different disability policies issued by Paul Revere as well as penalties and attorney's fees claiming the insurance company acted arbitrarily and capriciously in terminating his benefits.

FACTS AND PROCEDURAL HISTORY

In the early 1990's Dr. Berry began his residency in Arizona. After completing his residency, he became a board-certified anesthesiologist and practiced from 1995 to November 2002. Dr. Berry worked in Louisiana beginning in late 1996 until he was caught sleeping on the job due to narcotics use in 2001. Dr. Berry left his Louisiana practice and began working contract jobs as an anesthesiologist, first, in November, 2001, at a medical facility in Washington, and then in Montana. Dr. Berry returned to a job in Washington. Although he did not take narcotics for some months after losing his Louisiana job, after a motor vehicle accident while in Montana, he again began using Demerol which he obtained through his employment as an anesthesiologist. On November 12, 2002, while attending a tubal ligation procedure, a patient was without oxygen and sustained severe brain damage leaving her in a permanent vegetative state. Following this incident, an investigation revealed Dr. Berry was diverting narcotics from patients. Following a meeting at the hospital, Dr. Berry entered into a treatment program at Hazelden Springbrook¹ in Portland, Oregon. Dr. Berry was released from Hazelden after the initial phase of treatment in January, 2003. Hazelden released Dr. Berry with orders that he was not to practice anesthesiology for a year and wasthen to be re-evaluated. He returned to Louisiana and signed up with the Physician's Health Program² which directed him to certain health care providers, including Dr. Eileen Correa, a psychologist, and Dr. Howard Wetsman. He stopped seeing Dr. Wetsman in June, 2004, and began seeing Dr. Dean Hickman, a psychiatrist who specializes in addictive disease. He also participated in Alcoholics Anonymous (AA) meetings and a caduceus group, which is an AA meeting for medical professionals. Dr. Berry also saw Dr. Thompson and Dr. Black for an independent medical exam (IME) as directed by the defendant. Dr. Berry has been drug free since November 15, 2002.

As a result of the Washington incident and further investigations, Dr. Berry's medical licenses in Arizona, Washington, and Louisiana were suspended. The Louisiana State Board of Medical Examiners issued an order, rendered in February, 2005, prohibiting Dr. Berry from the practice in the field of anesthesiology.

PROCEDURAL BACKGROUND

In January, 2003, Dr. Berry filed claims for disability benefits pursuant to two separate policies he had through the defendant insurer, Paul Revere. Paul Revere paid Dr. Berry full disability benefits under both policies for approximately two and a half years, from March, 2003, through August, 2005, when it deemed him to be no longer presently disabled under the terms of the policy. At the time that Paul Revere discontinued paying disability benefits, Dr. Berry had been drug free since November 15, 2002, was in continuous rehabilitative treatment, and had no license to practice anesthesiology in the State of Louisiana (his covered occupation).

On April 5, 2006, Dr. Berry filed a petition for damages against Paul Revere, claiming that his addiction to prescription medications rendered him permanently and totally disabled from the practice of anesthesiology, because resuming his practice would require him to handle a great variety of narcotic and other controlled substances, in turn, increasing his risk of relapse. Dr. Berry alleged that Paul Revere was arbitrary and capricious in terminating his benefits, thereby entitling him to recover the full benefits under both policies, as well as statutory penalties, interest, costs, and attorney's fees.

In May 2007, Dr. Berry filed a Motion for Summary Judgment, or alternatively, for Partial Summary Judgment, declaring he was totally disabled from his occupation under the terms of both disability policies for the remainder of his life. He sought judgment ordering the payment of benefits from September 1, 2005, (the date benefits were terminated) through the date of the judgment. The trial court denied Dr. Berry's motion. Paul Revere subsequently filed its own motion for summary judgment asserting that there were no genuine issues of material fact and that Dr. Berry's risk of relapse did not constitute a present total disability as defined and provided for in the policies at issue. Paul Revere claimed that Dr. Berry was not entitled to benefits and sought dismissal of the claims with prejudice. The trial court granted Paul Revere's motion for summary judgment and dismissed Dr. Berry's claims. Dr. Berry appealed and this court reversed the trial court reinstating the claims of Dr. Berry and affirmed the trial court's denying of Dr. Berry's motion for summary judgment. See Berry v. Paul Revere Life Ins. Co., 08-0945 (La. App. 1 Cir. 9/14/09), 21 So. 3d 385, 392, writs denied, 09-2220, 09-2241 (La. 12/18/09), 23 So. 3d 942 and 945 (hereinafter referred to as Berry I). The matter was remanded to the trial court.

A jury trial was held on August 29 through September 1, 2011. Following the jury verdict, the trial court signed a judgment which stated that judgment wasrendered "in favor of plaintiff, R. Lee Berry, M.D., and against the defendant, The Paul Revere Life Insurance Company, finding that the plaintiff is totally disabled under the terms of the two policies in question...." The judgment further awarded Dr. Berry previously stipulated damages of benefits from August 31, 2005 through September 1, 2011 in the amount of Three Hundred Forty-Seven Thousand Five Hundred Twenty-Four and 56/100 Dollars ($347,524.56), together with legal interest on each payment from date due until paid, and for all costs of these proceedings. The judgment also sets forth that the "obligations and benefits in the future are to be in accordance with the terms and conditions of the policies." Finally, the judgment recognizes that Dr. Berry's claims for penalties and attorney's fees under LSA-R.S. 22:1821 were denied.³

Following the signing of the judgment, Paul Revere filed a Motion Notwithstanding the Verdict which the trial court denied. Both Dr. Berry and Paul Revere appeal the judgment.

ASSIGNMENTS OF ERROR

Both parties assigned numerous errors which are summarized as follows: Dr. Berry claims:

(1) The trial court erred in not allowing the jury to award future damages;

(2) The jury erred in failing to find bad faith;

(3) The trial court erred in allowing defendant to present alternative forms of medical treatment without first having to prove that the care afforded by plaintiff's chosen physicians was not within prevailing medical standards;

(4) The trial court erred in excluding evidence of numerous reported incidences of defendant's bad faith;

(5) The trial court erred in failing to rule there was no further need for "physician's care" and instruct the jury as to plaintiff's Suggested Jury Charge No. 2.

Paul Revere claims:

(1) The jury verdict is tainted by error because the jury instructions and verdict form failed to fairly and reasonably denote the issues and proved correct principles of law which is reversible error due to the confusion of the jury;

(2) The evidence of plaintiff's inability to perform his duties of his occupation due to legal disability preceded any alleged factual disability he claims to have;

(3) Plaintiff failed to meet his burden of proof to establish his entitlement to benefits since there is no evidence in the record which the jury could base a reasonable conclusion that Dr. Berry is currently receiving appropriate care for the condition causing his disability.

STANDARD OF REVIEW

Both policies issued to Dr. Berry contain insuring language which is essentially identical. One of the policies provides for a maximum benefit period until age 65. The second policy provides for a lifetime maximum benefit period. Each policy defines a "Total Disability" as meaning:

[B]ecause of Injury or Sickness:

a. You are unable to perform the important duties of Your Occupation; and

b. You are receiving Physician's Care. We will waive this requirement if We receive written proof acceptable to Us that further Physician's Care would be of no benefit to You.

Paul Revere seeks to reverse the jury verdict that Dr. Berry is totally disabled as defined by the policy. In order to reverse a fact finder's determination of fact, an appellate court must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. Denton v. Vidrine, 06-0141 (La. App. 1 Cir. 12/28/06), 951 So. 2d 274, 287, writ denied, 07-0172 (La. 5/18/07), 957 So. 2d 985; Stobart v. State through Dept. of Transp. and Development, 617 So. 2d 880, 882 (La. 1993). Based on our exhaustive review of the record before us, and mindful of the great deference we must afford the trier of fact, we find no manifest error in the jury'sfinding that Dr. Berry is totally disabled...