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Slate v. Massachusetts Mutual Life Ins. Co.

United States District Court, W.D. Tennessee, Western Division

February 5, 2015

CARL SLATE, Plaintiff,

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.



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, [1] 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.[2] (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.[3] (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.[4] (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.[5] (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.[6] 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.[7] ( 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.


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." [8] In reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party, [9] and it " may not make credibility determinations or weigh the evidence." [10] 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." [11] It is not sufficient " simply [to] show that there is some metaphysical doubt as to the material facts." [12] 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.[13] 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." [14] In this Circuit, the nonmoving party must " put up or shut up" as to the critical issues of the claim.[15] 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." [16]


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.[17] 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.'" [18] Neither party has discussed whether there is a choice-of-law provision in the insurance contract or where the insurance policy was made and delivered; instead, they have briefed only Tennessee law. Therefore, for the purposes of this Motion, the Court applies Tennessee law.

II. Breach of Contract

A. Interpretation of the Policy

Under Tennessee law, the " interpretation of insurance contracts . . . is governed by the same rules of construction used to interpret other contracts." [19] Courts should give the language of an insurance contract its " usual and ordinary meaning" and should construe the contract in a reasonable manner, looking to the whole of the contract.[20] When the provisions of a contract are clear and unambiguous, " construction of the policy should favor neither party." [21]

To receive benefits under the policy, Slate must suffer either " Total Disability" or " Partial Disability." Since Slate is working at another occupation, he must meet the definition of " Partial Disability." The parties agree that the policy is unambiguous as to this term's definition:[22]

PARTIAL DISABILITY -- The Insured is Partially Disabled if he/she:
o is suffering a current Disability
o is working at his/her Occupation or another occupation;
o has a Loss of Income of at least 20% of Pre-disability Income;
o can show a Demonstrated Relationship between the Loss of Income and the current Disability; and
o is under a Doctor's Care.[23]

The Defendant argues that it is entitled to summary judgment on the breach-of-contract claim because (1) the Plaintiff cannot show that he is suffering from a disability as defined by the policy, (2) he cannot show a demonstrated relationship between his loss of income and his alleged disability, and (3) he cannot show that he is or was under a doctor's care. The Court holds that MassMutual is entitled to summary judgment because there is no genuine dispute as to material facts regarding whether Slate was " under a doctor's care."

B. Doctor's Care and Appropriate Care

Both parties agree that the Plaintiff must prove that he was under a doctor's care as a condition precedent to payment of benefits. Slate's contract defines " doctor's care" as follows: " The Insured is receiving care by a Doctor which, under prevailing medical standards, is appropriate for the condition causing the Disability. We will waive this requirement if We receive written proof acceptable to Us that further Doctor's Care is no longer of benefit to the Insured." [24] " Physician's-care" provisions like the one at issue in this case serve several purposes, and courts have recognized them as unambiguous and enforceable.[25]

The policy required that Slate receive care, which " under prevailing medical standards, is appropriate for the condition causing the Disability." [26] The Sixth Circuit determined that a similar policy calling for " regular attendance of a physician" in order to receive benefits " clearly requires some level of medical treatment in order to continue to receive benefits." [27] In that case, a claimant had no contact with a physician with respect to a back condition for over eleven months and therefore was not under a doctor's care.[28] Here, however, the policy calls for appropriate care, not just regular attendance of a physician. A condition of " 'receiving care by a Physician which is appropriate' impose[s] on the insured a duty to seek and accept appropriate care." [29] The purpose of a physician's-care provision " is to determine that the claimant is actually disabled . . . is not malingering, and to prevent fraudulent claims." [30] By no means do such requirements allow an insurance company to dictate the type of treatment that the claimant should receive from a physician; [31] instead, they require an effort by the claimant to seek appropriate treatment for the condition causing the disability. Normally, after an incident that leaves the insured potentially disabled under his or her policy, an orthopedist, neurologist, psychiatrist, or other doctor would diagnose the condition and prescribe treatment designed to return the insured to his prior lifestyle and work. All the insured must do is seek the appropriate care and begin treatment. This minimal duty, imposed as a condition in a contract, protects an insurance company from a claimant who refuses to see an appropriate doctor in fear that doctor may not give the claimant a diagnosis or prognosis he wanted. When a claimant is not under a doctor's care during his alleged disability, he has not fulfilled the requirements imposed on him by his contract.

On a form submitted to MassMutual, Slate listed March 4, 2010, as the date on which he became unable to work.[32] He wrote that his symptoms first appeared, however, as " consistent chronic pain in 2006." [33] When asked to provide the information of his " treating physicians, " Slate listed Dr. Clarence Watridge, who performed Slate's surgery to repair a herniated disc in 2002 and discharged him soon thereafter, and Dr. Finn, Slate's primary care physician whom he saw four times over eight years for routine physicals. Slate also makes no argument that he was somehow " under the care" of Dr. Finn for the chronic neck pain that allegedly keeps him from doing his job. Dr. Finn testified that Slate was not under his care for pain management, and Slate did not dispute this fact.[34] Furthermore, Dr. Finn explained that during the four visits in eight years, he conducted " routine physicals, and during the physicals, we have done such things as range of motion and that sort of thing, not what I would say a neurologist or a neurosurgeon would do, which is more extensive." [35] No reasonable juror could find that this is " appropriate treatment" for a condition generating a level of pain that keeps Slate from sitting for multiple hours. Thus, the only doctor upon which Slate relies to satisfy the doctor's care provision is Dr. Kenneth Clenin, D.C.[36]

There is no mention of Dr. Clenin as a treating " physician" on Slate's original statement for disability benefits. Slate later stated that, " at the end of 2009 or the beginning of 2010 during an office visit, " Dr. Clenin told him that he could no longer do his job[37] The Defendant asserts that Slate has not been under any doctor's care for his disability, as is required by the policy. Slate agrees that the doctor's-care provision is enforceable and that " the applicable standard within this Circuit is whether the insured sought appropriate treatment from a doctor, " [38] but he argues that he was under his chiropractor Dr. Clenin's care and received appropriate treatment from Dr. Clenin. Slate's interpretation of " appropriate care, " however, would permit an insured--one claiming a life-altering disability--to collect benefits even where the only health professional that treated him was a chiropractor for a total of 4 visits in 22 months. Such an interpretation is not reasonable.

At some point--although the date is uncertain--Dr. Clenin might have told the Plaintiff that he could no longer do his job, but this fact is not clearly reflected in Dr. Clenin's records. Slate has never seen a specialist for treatment or even diagnosis, nor has he made an attempt to see a physician who could address his neck condition. Instead, in the 22 months prior to claiming a disability, Slate saw a chiropractor for " readjustment" and " manipulation" on 4 occasions, received some massage therapy, and took ibuprofen. Dr. Clenin's medical records show little discussion of Slate's inability to do his job, and Slate's condition was at least partially improving during the time leading up to his claim for disability.[39] The Court does not hold that a minimum number of doctor's visits is required to meet the contract's requirement of being " under a doctor's care." Nevertheless, to retain any meaning at all, the provision must require that Slate seek more appropriate care than what he sought for a physical malady that allegedly causes an inability to sit at a desk for multiple hours, even with accommodations. The Plaintiff has also presented no evidence that he saw anyone other than a chiropractor and a massage therapist after he made his disability claim. Slate has never been " under a doctor's care" for his condition.

In a typical case, an accident occurs or an illness is discovered on a particular date, and the insured incurs a disability under an insurance policy. In that case, the insured is likely already under a doctor's care and will remain under a doctor's care until he or she regains the ability to work. It is during this period of appropriate treatment that the insurance company pays benefits for a partially or totally disabled insured. In cases like these, the dispute is normally over whether the insured has continued to receive a doctor's care throughout his period of disability. In Slate's case, on the other hand, he has not provided evidence sufficient that a reasonable juror could find that he was under a doctor's care at any point during the time of his alleged disability, a period which is unclear. Thus, although he assigns March 4, 2010, as the date on which he became disabled, he was not under the care of a doctor before, during, or after this date. Instead, he sought sporadic adjustments from a chiropractor without ever consulting a doctor suited to address or even diagnose his physical condition. As a matter of law, this cannot qualify as a reasonable interpretation or fulfillment of the condition that Slate be " under a doctor's care" and receive appropriate care for the condition allegedly causing Slate's disability. The Defendant's Motion for Summary Judgment as to the Plaintiff's breach-of-contract claim is GRANTED.

II. Bad-Faith Claim

The Defendant also seeks summary judgment on the Plaintiff's claim for bad-faith failure to pay under Tennessee Code Annotated section 56-7-105. Under the statute, the Plaintiff must prove that

(1) the insurance policy in question is due and payable, (2) a formal demand for the payment was made, (3) the insured waited at least 60 days after making the formal demand before filing suit, unless the insured refused to pay prior to the 60 days, and (4) the refusal to pay was not in good faith.[40]

After holding that Slate was not " under a doctor's care" at any point during the period of alleged disability, it follows that the insurance policy in question is not " due and payable" under the statute. Therefore, the Defendant's Motion for Summary Judgment as to the Plaintiff's bad-faith claim is GRANTED.


Slate did not fulfill a condition of his disability-insurance contract. A reasonable juror could not find that Slate was ever " receiving care by a Doctor which, under prevailing medical standards, is appropriate for the condition causing the Disability." [41] In light of this holding, the Plaintiff's bad-faith claim also fails as a matter of law. The Defendant's Motion for Summary Judgment is GRANTED, and the Plaintiff's claims are dismissed.


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