Messing v. Provident Life & Ins. Co.

547 F.Supp.3d 701

Mark M. MESSING, Plaintiff,

v.PROVIDENT LIFE AND INSURANCE COMPANY, Defendant.

Case No. 1:20-cv-351

United States District Court, W.D. Michigan, Southern Division.

Signed July 7, 2021

Gerald B. Zelenock, Jr., Jay Zelenock Law Firm PLC, George R. Thompson, Thompson O'Neil PC, Traverse City, MI, for Plaintiff.

Jacob Carlton, James Buster, Neil Joseph Marchand, D. Andrew Portinga, Miller Johnson PLC, Grand Rapids, MI, for Defendant.

OPINION

HALA Y. JARBOU, UNITED STATES DISTRICT JUDGE

This is a dispute about a long-term disability policy held by Plaintiff Mark M. Messing. Messing acquired the policy from Defendant Provident Life and Insurance Company. He has been receiving payments under the policy since 2000. In 2018, Provident determined that Messing was not disabled and refused further coverage. Messing sued, seeking a declaration that he is disabled within the meaning of the policy and thus entitled to payments. Provident counterclaimed to recover previous policy payments, asserting that Messing misrepresented his inability to work as a lawyer. Messing now seeks summary judgment dismissing Provident's counterclaim (ECF No. 44) and judgment on the administrative record (ECF No. 47). The motion for summary judgment will be granted. The motion for judgment on the administrative record will be denied and Provident's decision to terminate benefits will be affirmed.

I. Jurisdiction

Messing asserts that the Court has jurisdiction over this case both because it involves a federal question and because the parties are citizens of different states. (Compl. ¶ 15, ECF No. 1.) The invocation of diversity jurisdiction is unnecessary. Though Messing frames the sole count in this action as a claim for breach of contract, he alleges that Provident's denial of coverage violated section 502(a) of the federal Employee Retirement Income Security Act of 1974 (ERISA).

His claim is not for breach of contract; his claim is to enforce the policy as mandated by ERISA.¹ ERISA permits beneficiaries like Messing to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the term of the plan." 29 U.S.C. § 1132(a)(1)(B) ; see also Aetna Health Inc. v. Davila , 542 U.S. 200, 209, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) ("[A]ny state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy ... [is] pre-empted.").

Federal district courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Thus, the Court has jurisdiction over Messing's claim because it is rooted in ERISA, a federal law. The same is true for Provident's counterclaim, which is also based on ERISA. (Am. Countercl., ECF No. 24.) There is no need for the Court to analyze whether diversity jurisdiction exists in this case. See 29 U.S.C. § 1132(f) ("The district courts of the United States shall have jurisdiction, without respect to the amount in controversy or the citizenship of the parties , to grant the relief provided for in [ section 1132(a) ] in any action." (emphasis added)).

II. Background

A. Facts Relevant to Messing's Claim

In 1985, Messing, an attorney at a law firm, applied for a disability insurance policy. (ECF No. 38-4, PageID.1051.)² The policy would provide payments to Messing if he became totally disabled, i.e. if he could not "perform the substantial and material duties" of any "occupation" in which he was "regularly engaged" at the time of disability. (Policy, ECF No. 38-1, PageID.601.) Coverage did not expire—the policy provided for payments so long as Messing remained permanently disabled. (Id. , PageID.602.) In his application, Messing listed his occupation as "attorney" and his "exact duties" as "practic[ing] law." (ECF No. 38-4, PageID.1051.) Provident issued the policy.

By any measure, Messing had a successful career as an attorney; he made partner and by the mid-1990s was earning almost $175,000 a year. (See ECF No. 38-9, PageID.1688.) But he also suffered from depression. It started out mild in 1994 but worsened over the years. (See id. ) Messing's depression led to a hospitalization in 1997. (Id. ) In 1998, he claimed that his depression prevented him from working as a lawyer and sought compensation under his disability policy. (Id. ) Provident initially accepted Messing's claim but then reversed course and a lawsuit ensued. (See ECF No. 38-15, PageID.2491.) The case settled in 2000 and Provident began making payouts under the policy.

In February 2018, Provident reviewed Messing's file. (ECF No. 38-2, PageID.630.) Provident requested updated medical records from Dr. Laura Franseen, Messing's treating physician. (ECF No. 38-4, PageID.1170.) Dr. Franseen responded in July 2018. (Id. , PageID.1177.) She diagnosed Messing with "Major Depressive Disorder, recurrent, minimal to mild." (Id. ) Messing "discontinued his psychotropic medications in early 2012 and has been stable for the most part since then[.]" (Id. ) Dr. Franseen assigned Messing a Global Assessment of Functioning (GAF) score of 60 to 65³ and noted that he could "tolerate ‘normal stress,’ " but cautioned that Messing's "ability to tolerate intensely or prolonged stressful situations is poor, cognitively, behaviorally, and emotionally[.]" (Id. , PageID.1178.)

Reviewers at Provident were unsure whether Dr. Franseen believed that Messing remained unable to practice law due to his depressive disorder. (Id. , PageID.1191.) One reviewer, Dr. Ursprung, concluded that Messing could return to work as an attorney. (ECF No. 38-11, PageID.2022.) Dr. Ursprung asked Dr. Franseen if she concurred, but Dr. Franseen said she had not focused on Messing's ability to work as a lawyer and thus declined to render an opinion. (Id. , PageID.2024.) So Provident hired Dr. Lemmen to conduct an independent medical exam. (ECF No. 38-14, PageID.2441.)

Dr. Lemmen reviewed Messing's medical history and various files relating to his 1998 disability claim application. (ECF No. 38-15, PageID.2484.) He then examined Messing for two-and-a-half hours on October 5, 2018, and produced a report. (Id. , PageID.2484-2485.) As part of the examination, Messing completed the Minnesota Multiphasic Personality Inventory-2-RF test. (Id. , PageID.2492.) "Other than some incidences of unhappiness, he did not endorse items consistent with mild or moderate depression" in the test; "[h]is responses [did] not suggest serious emotional or psychological dysfunction." (Id. , PageID.2493.) Dr. Lemmen diagnosed Messing as having "Major Depressive Disorder in remission." (Id. ) Dr. Lemmen concluded that Messing could work as an attorney and hence was not disabled: "While there is no doubt that he has historically had vulnerability to stress he is doing much better at this point in time. There is no objective evidence that he would not be able to practice as an attorney, should he desire to do so." (Id. , PageID.2494.)

On October 26, 2018, Provident determined that Messing was no longer disabled and thus denied further coverage under the policy. (Id. , PageID.2504.) In April 2019, Messing appealed the denial to Provident's appeals department. (ECF No. 38-17, PageID.2809.) He provided several documents for consideration on appeal: (1) six affidavits, written to support his original claim in 1998, from attorneys expressing their view that Messing could not handle being a lawyer; (2) three affidavits from attorneys, written in 2019, reiterating their view that Messing could not be a lawyer; (3) an affidavit from Messing explaining why his depressive disorder rendered him unable to practice law; (4) an affidavit from an insurance underwriter stating that the lifetime disability coverage offered was one reason Messing bought the policy in question; (5) Dr. Franseen's July 2018 summary; (6) a psychological assessment of Messing from March 2019, performed by Dr. Callaghan, criticizing Dr. Lemmen's finding of no disability; and (7) a "vocational rehabilitation evaluation" of Messing performed by Dr. Ancell in April 2019. (Id. , PageID.2818-2861.) He did not submit any new information or evaluations from Dr. Franseen.

In May, the appeals department upheld the denial. (Id. , PageID.2883.) Messing then brought the present lawsuit.

B. Facts Relevant to Provident Life's Counterclaim

After Messing filed the present lawsuit, Provident did more research. It discovered that Messing did some legal work in thirteen cases between 1999 and 2013, and that he also represented himself in divorce proceedings in 2001. Messing disputes the extent to which he was acting as an attorney, though he filed appearances in several of the cases. Per the terms of his disability policy, Messing submitted many supplemental claim statements over the years. He never disclosed his involvement in any of the thirteen cases between 1999 and 2013.

The supplemental claim statements also reiterated Messing's position that he was unable to perform "substantially all" of the "duties of [his] occupation" as a lawyer. (Claims Statements, ECF No. 24-1, PageID.487, 497.) In his 1998 disability claim, Messing listed his occupational duties as: (1) "telephone contact with clients, opposing attorneys, courts and witnesses"; (2) "travel"; (3) "writing memos, correspondence"; (4) "Research—legal and factual"; (5) "Court Appearances and preparation"; (6) "interviewing clients"; (7) "depositions"; and (8) "writing briefs." (ECF No. 38-14, PageID.2386.) He also filled out an "Attorney Questionnaire" detailing his work as a lawyer. Messing indicated he performed the following work from the tasks listed in the Attorney Questionnaire: (1) travel; (2) court appearances and associated preparation; (3) filing court documents; (4) taking depositions; (5) interviewing clients; (6) legal research; (7) writing briefs; (8) participating in discovery; (9) writing letters...