UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEW YORK LIFE INSURANCE
COMPANY,
Plaintiff-Appellee,

v.

MITCHEL L. HARVEY,                                                  No. 97-2140
Defendant-Appellant,

and

LAWRENCE O. HARRIS,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-96-824-AW)

Argued: May 6, 1998

Decided: June 26, 1998

Before WIDENER and MOTZ, Circuit Judges, and
HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas Fortune Ray, THOMAS FORTUNE RAY, P.C.,
Washington, D.C., for Appellant. Gregory Lee VanGeison, ANDER-
SON, COE & KING, L.L.P., Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In March 1996, New York Life filed an action in the United States
District Court for the District of Maryland requesting a declaratory
judgment concerning its obligation to continue paying benefits to
appellant, Mitchel L. Harvey, under two policies it issued to him. The
first policy was a disability policy, which began paying benefits to
Harvey in 1989, and, in January 1996, was paying Harvey $3,107.50
per month. The second was an income insurance policy, which also
began paying benefits to Harvey in 1989, and was paying appellant
$8,719.20 per month as of January 1996. New York Life paid these
benefits based on Harvey having a "mild" heart attack in 1989 which
he claimed was "disabling."1 New York Life did not seek a return of
all its money, but only a declaration that it was not obligated to con-
tinue paying Harvey since he was no longer disabled.

The total disability policy provided for a monthly benefit, and
defined total disability as follows:

          When a total disability starts, until 5 years after the income
          starting date, total disability means as follows: the Insured
          can do none of the essential acts and duties of his or her job
          and is not working at any other gainful job. After 5 years
          from the income starting date, if a new period of disability
          does not apply, total disability will then mean as follows:
          the Insured can do none of the essential acts and duties for
          the jobs for which he or she is suited.
_________________________________________________________________
1 New York Life contends it paid Harvey more than $850,000 in insur-
ance benefits over the seven-year period during which Harvey reported
he could not work because of the heart attack he suffered in February
1989. Harvey recovered $144,000 from the overhead insurance policy,
$222,889.17 from the disability policy, and $483,579.91 from the income
policy.

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Since it had already paid five years of benefits, New York Life was
administering the policy under the second definition of total disabil-
ity, i.e., that the "Insured can do none of the essential acts and duties
for the jobs for which he or she is suited," when it ceased paying ben-
efits to Harvey in 1996.

The income insurance policy provided that it would pay a benefit
for each calendar month that the insured had a covered income loss
after the end of a waiting period and during the benefit term. The pol-
icy stated that a "covered income loss" existed "for any calendar
month in which the Insured has a loss of income of at least 20%. The
loss must result, directly and apart from anything else, from an injury
or sickness."

Harvey reported that shortly before his heart attack, he earned
almost $300,000 per year as part-owner of a travel agency. On Febru-
ary 7, 1989, when he was thirty-eight years old, Harvey had a mild
heart attack, which Harvey contended made "everything change[ ]."
Harvey was treated by Dr. Francis Chucker and remained under Dr.
Chucker's care through October 1996. Harvey alleges that he contin-
ues to suffer chest pain, but admits that his physicians have not identi-
fied the cause of this pain.

Judge Alexander Williams conducted a bench trial on June 30 and
July 1, 1997, to determine whether Harvey qualified for benefits
under the two insurance policies issued by New York Life. New York
Life called two witnesses on its behalf: Carol McGrath, a vice-
president with New York Life with 27 years of experience in claims,
and Dr. Nicholas Fortuin, a cardiologist and full Professor of Medi-
cine at the Johns Hopkins School of Medicine.

McGrath testified that New York Life began investigating Harvey
after it received suspicious notices in the first few months of 1996 that
indicated Harvey was assigning his monthly benefits. In February
1996, Harvey assigned his benefits three times, thereby creating con-
flicting claims to his benefits. Harvey disclosed to New York Life that
he assigned some of the claims to a loan shark who had loaned Har-
vey $12,000 at the interest rate of $12,000 per month. Harvey claimed
he assigned his benefits to the loan shark out of fear for his and his
family's safety. When a New York Life representative questioned Dr.

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Chucker, who had signed the forms certifying Harvey's total disabil-
ity, Dr. Chucker stated Harvey had recovered from the 1989 heart
attack, he had not restricted Harvey's activities, and that no physical
condition prevented Harvey from returning to work.

Dr. Fortuin testified that after examining Harvey and reviewing Dr.
Chucker's office chart, Harvey's hospital admission records and
records from Harvey's cardiologists, he concluded that Harvey had
suffered a "very small" heart attack and that Harvey was able to work
in any occupation, including a job that involved emotional stress. Dr.
Fortuin testified that "there is a marked paucity of information" as to
whether stress plays a "role in the progression of arterial disease." Dr.
Fortuin also testified that although Harvey suffered chest pain, none
of the physicians who examined Harvey considered his chest pain to
be caused by heart disease.

Harvey and Dr. Chucker testified on Harvey's behalf. Dr. Chucker
testified that Harvey's 1989 heart attack was minor and that Harvey
had recovered from it within a few months. Dr. Chucker further stated
that Harvey's heart was functioning normally at the time of trial and
that he had told Harvey he could return to work.

Harvey testified that after his heart attack he was unable to manage
his travel business. In his absence, Harvey's partner, Claude Hicks,
slowly destroyed the business allegedly by looting it for himself. Har-
vey eventually filed for bankruptcy, lost his home and was forced to
move. Harvey claimed the physical effects of the heart attack, com-
bined with the inherent stresses of the travel business industry, his
ensuing bankruptcy, and his depression prevented him from working.
Harvey claimed that he had standing doctor's orders to avoid as much
stress as possible and that, because work in the travel industry was
stressful, he was unable to handle such work due to his physical
condition.2 Harvey described his current work as that of a "househus-
band."
_________________________________________________________________
2 Harvey also admitted that in September 1995, while he was receiving
benefits from New York Life, he pled guilty in the Circuit Court for
Arlington County, Virginia to credit card fraud and credit card theft. In
addition, in February 1996 Harvey pled guilty in the District Court of
Maryland for Montgomery County to theft from his son's youth soccer
league.

                     4
The district court concluded that "under the plain and unambiguous
reading of the [disability] policy . . . New York Life has established
by a preponderance of the evidence that Mr. Harvey is not totally dis-
abled." Judge Williams explained:

          In other words, I cannot find that he cannot do any of the
          essential acts and duties of the job for which he is suited
          considering his schooling, training and experience. There's
          just nothing in the record to establish that, no medical testi-
          mony. There's nothing other than Mr. Harvey's self-serving
          subjective statements. He doesn't believe [he can return to
          work] simply because no one has given him a guarantee and
          no one has told him anything and he doesn't want to risk
          injuries on behalf of his family. Well, that's just not enough
          on this record.

(J.A. at 275.)

Furthermore, the district court determined that Harvey no longer
was suffering a "covered income loss" under the income insurance
policy because the evidence reflected that his heart had healed and
was functioning normally, and the policy required that each month's
loss result from an injury or sickness. Accordingly, Judge Williams
ruled that New York Life was not obligated to make additional pay-
ments to Harvey under the disability or the income policy.

The parties agree that this court must review the district court's
findings of fact under the clearly erroneous standard,3 and its conclu-
sions of law de novo.4 The district court properly determined that
_________________________________________________________________
3 See Anderson v. Bessemer City , 470 U.S. 564, 573 (1985) ("If the dis-
trict court's account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently."); United States Fire Ins. Co. v. Allied
Towing Corp., 966 F.2d 820, 824 (4th Cir. 1992) (according "the highest
degree of appellate deference" to district court findings based "upon
assessment[s] of witness credibility").
4 See Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 512 (4th
Cir. 1994) ("[S]ince contract interpretation is a question of law[,] [w]here

                    5
Maryland law governs the resolution of this dispute, which involves
insurance policies issued in Maryland to a Maryland resident. See,
e.g., Schaefer v. Aetna Life & Cas. Co., 910 F. Supp. 1095, 1098 (D.
Md. 1996); American Homeowners Ins. Co. v. Reserve Ins. Co., 264
F. Supp. 632, 633 (D. Md. 1967). Furthermore, this court agrees with
the district court that, under Maryland law, New York Life, as the
insurer, bears the burden of proving by a preponderance of the evi-
dence that Harvey was not entitled to coverage under the policies. See
Maryland Cas. Co. v. Baldwin, 357 F.2d 338, 338 (4th Cir. 1966).

Maryland law provides that in construing insurance contracts,
courts are to interpret words in accordance with their "usual, ordinary,
and accepted meaning" in the absence of evidence that the parties
intended to employ the language in a special sense. Bausch & Lomb
Inc. v. Utica Mut. Ins. Co., 625 A.2d 1021, 1031 (Md. 1993). More-
over, where the terms of a contract are "clear and simple," "nothing
not provided for by its express terms ought to be imported into it by
construction." Mutual Life Ins. Co. v. Murray , 75 A. 348, 350 (Md.
1909).

The terms of the insurance policies at issue in this case were clear
and simple, and the district court accorded those words their ordinary
and usual meaning. Harvey's disability policy unambiguously defined
"total disability" as meaning that "the Insured can do none of the
essential acts and duties for the jobs for which he or she is suited."
Thus, the resolution of Harvey's entitlement to benefits under this
policy hinged not upon any legal interpretation of the contract provi-
sions but instead on the factual issue of whether Harvey's mild heart
attack prevented him from working in any of the jobs for which he
was suited. The district court resolved this factual dispute in favor of
New York Life, after hearing evidence from Dr. Fortuin that Harvey
could have returned to work in any capacity, including as a travel
_________________________________________________________________
a case turns simply upon a reading of the document itself, there is no rea-
son to believe that a district court is in any better position to decide the
issue than is an appellate court. When, however, a ruling depends upon
an evaluation of evidence extrinsic to the contract, the standard of review
is more deferential, and the appellate court reviews only for clear
error.").

                    6
agency owner, and testimony from Harvey's own doctor, Dr.
Chucker, confirming that Harvey was able to return to work. Far from
being "clearly erroneous," the district court's factual findings were the
only reasonable conclusions it could have reached based on the evi-
dence presented at trial.

Likewise, the provisions of the income insurance policy plainly
provided that a "covered income loss" existed for any calendar month
in which Harvey had a loss of income of at least twenty percent and
that "[t]he loss must result, directly and apart from anything else,
from an injury or sickness." Harvey argues that the district court's
interpretation added terms that were not part of the policy language
by requiring that the loss result from a continuing injury.

This court finds that the district court interpreted the income insur-
ance policy in accordance with its precise language. The policy calcu-
lates "covered income loss" by the calendar month. The language
provides that the loss, which is measured monthly, must be caused by
an injury or sickness. Although Harvey indisputably suffered a heart
attack in 1989, the evidence convincingly demonstrates that Harvey
has fully recovered from that event. Because New York Life proved
that Harvey had not suffered from any injury or illness that created
a monthly loss of income after January 1996, he not entitled to addi-
tional benefits under the policy.

The evidence before the district court was sufficient to support
Judge Williams' determination that Harvey was not physically
impaired as a result of his 1989 heart attack, nor had Harvey suffered
any other injury or sickness from February 1996 until the time of trial
that created a monthly loss for which he was entitled to benefits.

This court's thorough consideration of the parties' oral arguments,
combined with our review of the record, briefs and pertinent case law,
persuades us that the rulings of the district court were correct in all
respects. Accordingly, we affirm on the reasoning set forth in the dis-
trict court's opinion.

AFFIRMED

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