Blender v. AXA Equitable Life Ins. Co., CASE NO. 12-80649-CIV-MARRA

STEVEN BLENDER, Plaintiff, v. AXA EQUITABLE LIFE INSURANCE COMPANY, Defendant.

CASE NO. 12-80649-CIV-MARRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Dated: December 9, 2013

OMNIBUS OPINION AND ORDER

This cause comes before the Court upon Defendant's Motion for Summary Judgment (DE 18), and Plaintiff's Motion to Consider his response to Defendant's Motion for Summary Judgment as Plaintiff's Cross Motion for Summary Judgment (DE 28). The Motions are briefed and ripe for review. The Court has considered the parties' arguments and is otherwise advised in the premises.

I. Background

This is an action for a breach of contract and bad faith failure to pay benefits. Compl. (DE 1-2). Plaintiff initiated this case in the state court, and Defendant removed it on the basis of diversity jurisdiction. (DE 1). The bad faith claim has been abated pending resolution of the breach of contract count. (DE 11).

Plaintiff Steven Blender ("Dr. Blender" or "Plaintiff") was a dermatologist. (DE 18-1, -2). In 1981, Dr. Blender obtained two disability insurance policies from Defendant AXA Equitable: policy number M 81 701 710 was for $1,750 in monthly income for total disability, and policy number MN 81 710 253 was for $6,700 in monthly income for total disability ("Policies"). Id. The terms of the Policies are the same in all other relevant respects. Id. The Policies provided lifetimebenefits for total disability commencing before age 50 resulting from sickness, and benefits to age 65 for disability resulting from sickness commencing at age 50 or later. Policies, p. 3 (DE 18-1, -2).

Under the Policies,

Total disability means the complete inability of the Insured, because of injury or sickness, to engage in the Insured's regular occupation, except that after twenty-four months of continuous total disability, total disability shall then mean the complete inability of the Insured to engage in any occupation for which the Insured is reasonably fitted by education, training, or experience, provided, however, that total disability will not be considered to exist for any period during which the Insured is not under the regular care and attendance of a physician, except in cases of presumptive total disability.

PRESUMPTIVE TOTAL DISABILITY. Presumptive total disability means the entire and irrecoverable loss occurring while this policy is in force of 1) the sight of both eyes, or of 2) the use of both hands or both feet, or of 3) the use of one hand and one foot.

Id., p. 2 (DE 18-1, -2) (emphasis supplied).

Dr. Blender does not allege that he suffered from presumptive total disability. Pl.'s Resp. to Def.'s Req. for Admis., ¶ 4 (DE 18-3).

Further, the Policies provide:

NOTICE OF CLAIM. Written notice of claim must be given to The Equitable within thirty days after the occurrence or commencement of any loss covered by this policy, or as soon thereafter as is reasonably possible. Subject to the qualifications set forth below, if the Insured suffers total disability for which benefits may be payable for at least two years, the Insured shall, at least once in every six months after having given notice of claim, give to The Equitable notice of continuance of said disability, except in the event of legal incapacity. The period of six months following any filing of proof by the Insured or any payment by The Equitable on account of such claim or any denial of liability in whole or in part by The Equitable shall be excluded in applying this provision. Delay in the giving of such notice shall not impair the Insured's right to any benefits which would otherwise have accrued during the period of six months preceding the date on which such notice is actually given.

. . .

PROOF OF LOSS. Written proof of loss must be furnished to The Equitable at itsHome Office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss, within ninety days after termination of the period for which The Equitable is liable and, in case of claim for any other loss, within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required.

Id., p. 6 (DE 18-1, -2) (emphasis supplied).

Dr. Blender has never been declared legally incompetent. Blender Dep., p. 19 (DE 18-5). The parties are in agreement that during the relevant time period, the requirement to provide forms proving continuance of disability (herein "Continuance of Disability forms") was relaxed, and Plaintiff was only required to comply with this provision annually. Id., pp. 25-26.

The Policies were guaranteed renewable to age 65, see Policies, p. 1 (DE 18-1, -2), and contained the following provision:

WAIVER OF PREMIUM. If total disability of the Insured occurs while this policy is in force and continues for ninety days, The Equitable will refund any premiums which became due and were paid during that total disability and will waive all premiums coming due during the period that total disability continues, even if total disability continues beyond the maximum benefit period for total disability shown on page three. The premium to be waived will be the premium according to the mode of payment in effect when total disability began. The policy will continue in force until but not including the premium due date immediately following the end of total disability. If total disability ends before age 65, the Insured will have the right to resume payment of premiums at the same rate that would have been payable if no disability had occurred.

Id., p. 5 (emphasis supplied).

The insured had to be regularly and gainfully employed in his occupation on a full-time basis at the age of 65 to renew the Policies thereafter. Id., Endorsement, sec. B(1).

Plaintiff became disabled in 1992. Blender Aff., ¶ 4 (DE 24-1). Specifically, Dr. Blender"has not worked since April 1992 due to reports of depression, anxiety, delusions and narcissism." Fleming Report, Def.'s Ex. 4 (DE 18-4). Dr. Blender was born on August 5, 1942, turned 50 on August 5, 1992, and turned 65 on August 5, 2007. See Pl.'s Resp. to Def.'s Req. for Admis., ¶ 18 (DE 18-3).

Plaintiff received benefits for total disability under the Policies from 1992 through May of 2008. Blender Aff., ¶ 5 (DE 24-1). There is no disagreement that Plaintiff submitted his Continuance of Disability forms regularly at least through May of 2005. (DE 18-10). Dr. Blender contends that he sent the form in 2007, see Blender Aff., ¶ 12 (DE 24-1), but Defendant disputes this because no copies were discovered. Dr. Blender alleges that he suffered an exacerbation of his disease between December, 2007 and December, 2008, see Blender Aff., ¶ 7 (DE 24-1), and admits that he did not submit Continuance of Disability forms in 2008 and 2009, see Blender Dep., p. 38 (DE 18-5).

Plaintiff saw Dr. Agresti, a psychiatrist, from 1998 until February of 2008. Agresti Aff., ¶ 2 (DE 24-2). Dr. Agresti states that during this entire period, Dr. Blender was "totally and permanently disabled from practicing medicine." Id., ¶ 3. Further, in February of 2008, Dr. Agresti discharged Plaintiff as a patient because he was certain that "Dr. Blender could not be rehabilitated to return to practice," and because "any further psychiatric treatment of him would be futile." Id., ¶ 4.

After February of 2008, Dr. Blender saw the following physicians:

• Dr. Wingkun, neurologist, on 12/22/09; 12/28/09; and 1/4/10;

• Dr. Kaye, endocrinologist, on 8/25/10; 8/30/10; 9/2/10; 9/17/10; 11/8/10; 11/17/10; 2/10/11; 3/10/11; 3/17/11; and 4/29/11;

• Dr. Miller, cardiologist, at the Cleveland Clinic, on 9/9/10; 1/27/12; 2/29/12; 3/8/12; 3/28/12; 6/27/12; 9/9/12; and 12/18/12;• Dr. Streichenwein, psychiatrist, on 11/29/09;

• Dr. Ray, cardiologist, on 2/9/09;

• Dr. Virshup, rheumatologist, on 12/29/09;

• Dr. Daubert, ophtalmologist, on 12/11/08; 12/29/08; and 1/9/09.

Blender Aff., ¶ 14 (DE 24-1).

On August 31, 2010, Dr. Blender began seeing Dr. Appleton, a psychiatrist. Appleton Dep., p. 7 (DE 18-7). On September 27, 2010, Dr. Appleton provided Defendant's claims processor his report, in which he specified that Dr. Blender was "still, in [Dr. Appleton's] opinion, totally disabled from any occupation from the psychiatric point of view." Psychiatric Report, Pl.'s Ex. 4 (DE 24-4). Among other diagnoses, Dr. Appleton defined Plaintiff's condition as a "Major Depressive Disorder, Recurrent Type, Severe Severity, Panic Disorder with Agoraphobia, R/O Post Traumatic Stress Disorder, R/O Generalized Anxiety Disorder." Id. Currently, Plaintiff sees Dr. Appleton every six months. Blender Dep., p. 97 (DE 18-5).

In this action Plaintiff is seeking benefits from May, 2008 forward, and contends that he is entitled to lifetime payments. Compl. (DE 1-2). Defendant's position is that Dr. Blender was not entitled to benefits under the Policies after he turned 65. Defendant contends that Dr. Blender violated the terms of the Policies when he failed to provide the Continuance of Disability forms from 2005 until 2010, and failed to remain under "the regular care and attendance of a physician" from 2007 or 2008 until 2010. As a result, according to the Defendant, Plaintiff ceased to be disabled under the Policies, the Policies terminated and could not be renewed because Plaintiff was not employed in his occupation when he turned 65. However, Defendant stresses that, even though the Continuance of Disability forms stopped in 2005, Defendant continued to attempt to locate and contact Plaintiff through at least September 12, 2008 when Defendant finally closed Plaintiff's claim.Def.'s Ex. 14-16 (DE 18-14 - 16).

On October 11, 2013, Plaintiff filed his Motion to Consider Plaintiff's Response to Defendant's Motion...