United States District Court, W.D. Tennessee, Western Division
For Carl Slate, individually, Plaintiff, Counter Defendant: Danny R. Ellis, MUELLER LAW OFFICE, Jackson, TN.
For Mass. Mutual Life Insurance Co., formerly listed as Mass. Mutual Finance LLC, Defendant, Counter Claimant: Janine A. McKinnon, PRO HAC VICE, MAYNARD COOPER & GALE, P.C., Birmingham, AL; John David Collins, Jeffrey M. Grantham, Sr., MAYNARD COOPER & GALE, PC, Birmingham, AL.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
S. THOMAS ANDERSON, UNITED STATES DISTRICT JUDGE.
Before the Court is the Defendant's Motion for Summary Judgment, filed July 31, 2014. (ECF No. 40). The Plaintiff filed a Response in Opposition to the Motion on August 28, 2014 (ECF No. 51), to which the Defendant filed a Reply on September 11, 2014. (ECF No. 59). For the reasons set forth below, the Defendant's Motion for Summary Judgment is GRANTED.
The following facts are undisputed for the purposes of this Motion unless otherwise noted. On April 12, 2000, Defendant MassMutual Life Insurance Company (" MassMutual") issued a disability-insurance policy to Plaintiff Carl Slate. (Def.'s Facts ¶ 1, ECF No. 44). MassMutual's eventual termination of payments under the policy is the foundation for this action. In December 2002, Slate underwent surgery to repair a herniated disc at the C6-C7 level of the spine. (Pls.' Facts ¶ 4). Slate described the surgery as " successful" with respect to the herniated disc (Pl.'s Responses to Def.'s Facts ¶ 6, ECF No. 51), but he also experienced 25% loss of rotation in his neck, 40% loss of lateral flexion, and 80% loss when looking upward. (Pl.'s Facts ¶ 2, ECF No. 59). Approximately three weeks after the surgery, Slate returned to his job as a financial systems consultant. (Def.'s Facts ¶ 5). Four years later--in 2006--Slate began a new job working as a Senior Financials Functional Consultant with Newbury Consulting Group (" Newbury"). (Id. ¶ 7). Slate described his job with Newbury as " one hundred percent travel": he traveled out of state each week to the client's project site, worked four 10-hour days sitting at a computer,  and then returned home to his family at the end of the week. (Id. ¶ 8). During these days, Slate could take breaks, get water, stretch, and the like. (Id. ¶ 9). When he ultimately claimed disability with MassMutual 2010, Slate wrote that he had begun experiencing " consistent chronic pain in 2006." (Insured's Statement for Disability Benefits, Ex. 5 to Slate Dep., ECF No. 42-1, PageID 823). Between 2002 and March 2010, Slate's primary care physician, Dr. Cary Finn, examined Slate four times, all during routine physical check-ups. (Def.'s Facts ¶ 14).
On March 8, 2010, Slate filed a claim with MassMutual for total disability benefits because he could " no longer do [his] job." (Id. ¶ 12). On May 4, 2010, Dr. Finn submitted an " Attending Physician's Statement" to MassMutual indicating that Slate was disabled from his job due to " chronic neck pain." (Id. ¶ 13). He also testified that an x-ray showed a loss of lordodic curve. (Pl.'s Add'l Facts ¶ 10). In reviewing Slate's claim, MassMutual conducted two medical reviews and one vocational review, made a field visit to Slate's home, and spoke directly with Dr. Finn. MassMutual conditionally approved the payment of total disability benefits while it continued an evaluation of Slate's medical condition, restrictions, limitations, and occupational duties. (Def.'s Facts ¶ 17). In September 2010, Slate began a new career as a heating, ventilation, and air conditioning (" HVAC") technician, which paid substantially money than his job with Newbury. Slate claims that he made this decision because his primary care doctor and chiropractor told him that he could no longer perform his job at Newbury due to chronic neck pain but that he could perform a more physically active job. (Id. ¶ ¶ 18-19). Since Slate was now working, MassMutual began paying benefits for " partial disability" in accordance with the policy. (Id. ¶ 20).
MassMutual continued its review of the claim. On one of Dr. Finn's submissions to MassMutual regarding Slate, Dr. Finn noted that Slate was seeing Dr. Kenneth Clenin, a chiropractor. (Id. ¶ ¶ 21-22). MassMutual then asked Dr. Clenin to complete an Attending Physician's Statement and supply treatment records. (Id. ¶ 22). He complied, stating that Slate was disabled from sedentary-level work but could perform more physically demanding jobs like that of an HVAC technician. (Id.). Dr. Clenin's records show that he treated Slate 46 times over 3 years from 2005 to 2008. (Pls.'s Statement of Add'l Facts ¶ 33, ECF No. 44). Nevertheless, Slate only visited the chiropractor 4 or 5 times from May 18, 2008 to March 15, 2010--the 22 months leading up to Slate's disability claim. (Def.'s Facts ¶ 23). In the records for those visits, Dr. Clenin does not reference an increase in pain or discuss Slate's ability to perform certain types of work. (Id. ¶ 24). Instead, the records describe " adjustment, " " manipulation, " and discussions of Slate's posture. Slate's condition during that time had improved, but his issues had not yet been fully resolved. (Id. ¶ 25). He also saw a massage therapist on certain occasions. Dr. Clenin testified that he never told Slate that he could not perform his job duties at Newbury, but he told Slate that it was " not in his best interest" to continue working. (Pl.'s Responses ¶ 23).
In June 2011, MassMutual exercised its right under the policy to conduct an independent medical examination (" IME") and functional capacity evaluation (" FCE"). (Def.'s Facts ¶ 26). A physician board-certified in physical medicine and rehabilitation reviewed Slate's medical records, conducted a physical exam, and observed a five-hour FCE. The physician opined that there was no objectively identifiable basis for Slate's alleged inability to perform his work at Newbury. A physical therapist conducted the FCE and found the same. (Id. ¶ ¶ 27-34). On December 9, 2011, MassMutual notified Slate that he was no longer eligible for disability benefits under the policy. (Id. ¶ 36). Slate appealed the decision, and MassMutual agreed to continue paying the benefits under a reservation of rights so long as Slate underwent another IME and FCE. Those tests came to similar conclusions about Slate's ability to perform his duties at Newbury. ( See id. ¶ ¶ 37-43). On September 24, 2012, MassMutual made a final determination that Plaintiff was not disabled and terminated his benefits. (Id. ¶ ¶ 46-47). From June 2010 to September 2012, MassMutual paid Slate $232, 497.00 in disability benefits under a full reservation of rights. (Id. ¶ 47). On February 26, 2013, Slate filed his Complaint in this action, alleging breach of contract and a bad-faith failure to pay under Tennessee Code Annotated section 56-7-105. (Pl.'s Compl. 3-4, ECF No. 6). MassMutual now seeks summary judgment on both claims.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that a party is entitled to summary judgment if the moving party " shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."  In reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party,  and it " may not make credibility determinations or weigh the evidence."  When the motion is supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some " specific facts showing that there is a genuine issue for trial."  It is not sufficient " simply [to] show that there is some metaphysical doubt as to the material facts."  These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict. When determining if summary judgment is appropriate, the Court should ask " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."  In this Circuit, the nonmoving party must " put up or shut up" as to the critical issues of the claim. The Court must enter summary judgment " against a party who 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." 
I. Choice of Law
Neither party has discussed which state's law applies. Slate is a Tennessee resident who obtained the disability-insurance policy in 2000; MassMutual is organized under Delaware state laws. A federal court sitting in diversity applies the choice of law rules of the forum state. Under Tennessee law, " absent a valid choice of law provision, the rights and obligations under an insurance policy are governed by the law of the state where the insurance policy was 'made and delivered.'"  Neither party has discussed whether there is a choice-of-law provision in the insurance contract or where the insurance ...