Berg v. New York Life Insurance

831 F.3d 426, 2016 U.S. App. LEXIS 13656, 2016 WL 4011167
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 27, 2016
DocketNo. 15-1410
StatusPublished
Cited by17 cases

This text of 831 F.3d 426 (Berg v. New York Life Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berg v. New York Life Insurance, 831 F.3d 426, 2016 U.S. App. LEXIS 13656, 2016 WL 4011167 (7th Cir. 2016).

Opinion

WOOD, Chief Judge.

Eric Berg brought this breach of contract action when New York Life, through its administrator Unum, refused to pay him disability benefits. At bottom, this case turns on the meaning of one phrase: “requires and receives regular care by a Physician.” Does the clause contain a temporal element? The insurers say yes, and the district court agreed, granting them summary judgment. But it certainly says -nothing about timing on its face, and we can find no other sign that such a requirement was meant to be engrafted onto the phrase. Applying the basic principle that the language must be construed against [428]*428the insurers, we reverse the judgment of the district court.

I

Born in 1959, Eric Berg was a long-time pit broker at the Chicago Mercantile Exchange. In 1991 and 1994, Berg bought two disability-income insurance policies underwritten by New York Life. In 2005, he started to experience a tremor in his arms and hands. The tremor interfered with his ability to write quickly and legibly, and in September 2007, the tremor forced him to leave his job. In February 2010, a neurologist diagnosed Berg with an “essential tremor,” and Berg applied for total disability benefits.

Although New York Life and Unum approved Berg’s claim on July 2, 2010, they designated his disability onset date as February 3, 2010, rather than September 2007. Then, in April 2012, Unum discontinued Berg’s total-disability benefits. It asserted that he was eligible only for residual-disability benefits because when he applied, his regular occupation was that of an “unemployed person.” Berg sued, seeking benefits dating from September 2007 and a designation of “total disability” for the purpose of future benefits. The district court granted summary judgment to the defendants. Berg appealed.

II

We review the district court’s decision to grant summary judgment de novo, construing the facts in the light most favorable to the non-moving party—here, Berg. See Jaburek v. Foxx, 813 F.3d 626, 630 (7th Cir. 2016). Summary judgment is appropriate only when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Crv. P. 56(a).

A

Before turning to the merits, we address the insurers’ notice defenses, which are dispositive if well taken. Berg does not contest that his Notice of Claim and Proof of Loss submissions were untimely. Country Mut. Ins. Co. v. Livorsi Marine, Inc., 222 Ill.2d 303, 305 IIl.Dec. 533, 856 N.E.2d 338, 343 (2006). He asserts, however, that the insurers waived these defenses.

In their answer to Berg’s first amended complaint, the insurers raised the argument that Berg failed to comply with the policies’ Notice of Claim or Proof of Disability or Loss provisions. They reiterated this point in their response to Berg’s oddly styled “motipn to narrow the issues” under Federal Rule of Civil Procedure 16. This is not a use of Rule 16 that we recognize. Rule 16, entitled “Pretrial Conferences; Scheduling; Management,” guides (not surprisingly) case management — it is not a tool for resolving dispositive motions, whether under Rule 12(b) or Rule 56. Perhaps that is why the district court’s rulings were silent on the insurers’ notice defenses. No matter: at that point, the insurers appear to have abandoned this tack. In their summary judgment motion, the insurers expressly relied upon the district court’s reasoning in its previous opinions, but they did not bring up notice. We agree with Berg, therefore, that the notice defenses are waived. See D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 800 (7th Cir. 2015) (arguments not raised in motion for summary judgment are waived).

B

On to the main event: interpreting the insurance policies. The parties agree that Illinois law governs here. Our primary goal in interpreting an insurance policy “is to give effect to the intent of the parties as expressed in the agreement.” [429]*429DeSaga v. W. Bend Mut. Ins. Co., 391 Ill.App.3d 1062, 331 Ill.Dec. 86, 910 N.E.2d 159, 163 (2009). Where “the terms of an insurance policy are clear and unambiguous, they must be given their plain and ordinary meaning and enforced as written, unless to do so would violate public policy.” Id. If a word is specifically defined in the policy, that meaning controls. Am. Nat. Fire Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 343 Ill.App.3d 93, 277 Ill.Dec. 767, 796 N.E.2d 1133, 1141 (2003). On the other hand, if the policy language is “susceptible to more than one reasonable meaning,” an ambiguity exists and it will be construed against the insurer. Gillen v. State Farm Mut. Auto. Ins. Co., 215 Ill.2d 381, 294 Ill.Dec. 163, 830 N.E.2d 575, 582 (2005).

In determining whether a provision is ambiguous, we read the policy in light of “the insured’s reasonable expectations and the policy’s intended coverage.” Gen. Star Indemn. Co. v. Lake Bluff Sch. Dist. No. 65, 354 Ill.App.3d 118, 289 Ill.Dec. 288, 819 N.E.2d 784, 793 (2004). A court should not “strain to find an ambiguity where none exists.” Founders Ins. Co. v. Munoz, 237 Ill.2d 424, 341 Ill.Dec. 485, 930 N.E.2d 999, 1004 (2010). Neither should it “adopt an interpretation which rests on ‘gossamer distinctions’ that the average person, for whom the policy is written, cannot be expected to understand.” Id. (quoting Canadian Radium & Uranium Corp. v. Indem. Ins. Co. of N. Am., 411 Ill. 325, 104 N.E.2d 250, 255 (1952)). “Any provision in a policy that limits or excludes coverage must be construed liberally in favor of the insured and against the insurer,” DeSaga, 331 Ill.Dec. 86, 910 N.E.2d at 164, and must “be read narrowly and will be applied only where its terms are clear, definite, and specific.” Gillen, 294 Ill.Dec. 163, 830 N.E.2d at 582.

The insurers argue that Berg did not meet the policy’s definition of “total disability” until he saw a physician on February 3, 2010. They point out that under the policies, “Total Disability means that the Insured can not [sic] do the substantial and material 'duties of his or her regular job.” The definition further stipulates that “[t]he cause of the total disability must be an injury or a sickness.” Elsewhere in the policies, “Injury” is defined as “an accidental bodily injury of the Insured.” In the same provision, “Sickness” is defined as “an illness or disease of the Insured.”

The Injury and Sickness provision sets out several requirements.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
831 F.3d 426, 2016 U.S. App. LEXIS 13656, 2016 WL 4011167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berg-v-new-york-life-insurance-ca7-2016.