                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-2005

Stockton v. John Hancock
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3025




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"Stockton v. John Hancock" (2005). 2005 Decisions. Paper 852.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/852


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                                                       NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                           No. 04-3025
                          ____________

        *JACQUELINE SHOEMAKER, in her capacity as
      Executrix of the Estate of Arnold M. Stockton, Deceased,

                                           Appellant
                                 v.

     JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
now known as UNICARE LIFE AND HEALTH INSURANCE COMPANY

             *(Amended per Clerk's Order dated 8/10/04)
                        ____________

          On Appeal from the United States District Court
              for the Western District of Pennsylvania
                      (D.C. No. 01-cv-00300E)
          District Judge: Honorable Maurice B. Cohill, Jr.
                           ____________

            Submitted Under Third Circuit LAR 34.1(a)
                         June 30, 2005

     Before: NYGAARD, SMITH and FISHER, Circuit Judges.

                       (Filed: July 13, 2005)
                           ____________

                    OPINION OF THE COURT
                         ____________
FISHER, Circuit Judge.

       Jacqueline Shoemaker (“Appellant”), Executrix of the Estate of Dr. Arnold M.

Stockton (“Dr. Stockton”),1 appeals from the grant of summary judgment for the

defendant John Hancock Mutual Life Insurance Company (now known as UNICARE

Life and Health Insurance Company, or “UNICARE”) in this action seeking disability

insurance benefits. We will affirm, and focus herein on the rationale for our decision.

                                              I.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of

a district court’s grant of summary judgment and use the same standard as the District

Court below – i.e., summary judgment is proper where no genuine issue of material fact

exists to be resolved at trial, and where, viewing the facts in the light most favorable to

the non-moving party, the moving party is entitled to judgment as a matter of law.

Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004). Pennsylvania law

applies in this diversity action.

       An insured seeking to recover disability benefits under an insurance policy bears

the burden to prove that he was disabled within the meaning of the policy while coverage

was in effect. Catalano v. Prudential Ins. Co. of Am., 28 A.2d 349, 350 (Pa. Super. 1942)

(citing Perlman v. Metropolitan Life Ins. Co., 9 A.2d 432 (Pa. 1939)). When the terms of




       1
        Dr. Stockton was the original plaintiff, but died after summary judgment was
entered. Appellant was thereafter substituted as plaintiff.

                                              2
the policy are clear, a court may not assign a contrary construction to them. Sanders v.

Allegheny Hospital Parkview Div., 833 A.2d 179 (Pa. Super. 2003).

                                            II.

       The record on summary judgment reveals the following. On May 1, 1983, Dr.

Stockton purchased a long-term disability insurance policy from UNICARE through the

American Optometric Association. The policy stated in relevant part:

       ‘totally disabled’ shall mean the inability of a member to perform the
       material and substantial duties pertaining to his or her occupation or
       profession, and that such person is not engaged in any occupation or
       profession for renumeration or profit, except with respect to those persons
       engaged in a Partial Recovery Employment. For duration of any period of
       ‘Total Disability,’ a member must be under the regular care and attendance
       of a doctor other than himself or herself.

Dr. Stockton had been treating with Dr. Lobacz in New York for various ailments since

1977. In a letter dated February 17, 1995, Dr. Lobacz had stated “[i]n my opinion, [Dr.

Stockton] is temporarily incapacitated from full-time employment.” In March 1995, Dr.

Stockton moved to Pennsylvania; before that, he was last seen by Dr. Lobacz on

March 13, 1995.

       On October 29, 1995, Dr. Stockton submitted a claim to UNICARE for disability

benefits. In November 1995, UNICARE sent Dr. Lobacz an “attending physician” form,

which Dr. Lobacz’s office returned, dated January 31, 1996, indicating that Dr. Stockton

suffered from various ailments, and was last examined in March 1995. Dr. Stockton paid

policy premiums through January 31, 1996, while his claim was pending. On February 9,



                                             3
1996, UNICARE denied the claim for insufficient supporting medical evidence. Dr.

Stockton thereafter directed UNICARE through letters dated February 27, 1996 and

February 29, 1996, to cancel his policy. UNICARE did so, effective January 31, 1996.

Many months later, on December 11-12, 1996, Dr. Lobacz treated Dr. Stockton again,

and stated in a letter: “[i]n my opinion, [Dr. Stockton] is unable to perform the material

and substantial duties pertaining to his profession, and that [he] is not engaged in any

profession for renumeration [sic] or profit.” UNICARE, as evidenced by letters in the

record, continued to process the claim after its initial denial.

       During deposition, Dr. Stockton testified as to his own symptoms. Dr. Lobacz

testified that, in his medical opinion based on years of treatment, Dr. Stockton was

disabled as of October 1995. However, on cross-examination, Dr. Lobacz admitted that

he did not know to a reasonable degree of medical certainty what Dr. Stockton’s medical

condition had been in any of the months from September 1995 to January 1996. On this

record, the District Court granted summary judgment for UNICARE, concluding that Dr.

Stockton had failed to submit any expert medical testimony proving total disability

between October 1995 and January 1996.2




       2
        Dr. Stockton also submitted Dr. Turbessi as an expert on total disability. As the
District Court explained, however, Dr. Turbessi’s expert report admitted his inability to
form an opinion within a reasonable degree of medical certainty whether Dr. Stockton
was disabled during the relevant time period. Appellant assigns no error to the District
Court’s conclusion that Dr. Turbessi’s report simply did not support the claim.

                                               4
                                              IV.

       Appellant assigns two errors related to the policy language and overall framework

of the District Court’s analysis. First, she contends the District Court erred in applying a

standard for “permanent” disability instead of for “total” disability. Appellant is correct

that total and permanent disability are two different things under this policy.3 However,

while the District Court cited Catalano which involved a claimant seeking both total and

permanent disability compensation, and used the term “permanently” in its opinion, Mem.

Op. at 4, we are convinced that the District Court understood the type of claim before it

and correctly applied the governing legal standards.

       Second, Appellant argues that, because UNICARE continued to process the

disability claim after its initial denial, the District Court erred in concluding that disability

must be established between October 1995 and January 1996 (i.e., the effective date of

the cancellation). Under the clear and unambiguous language of the policy, coverage

ceased on the last day of the month for which the insured last paid a premium or on the

date which the policy is terminated – here, January 31, 1996. This is the last day for

which a disability claim could be awarded because coverage exists while a policy is in

effect. Notably, however, it is not the last day on which the insured could submit a claim


       3
         See also B LACK’S L AW D ICTIONARY (8th ed. 2004) (defining “permanent
disability” as “a disability that will indefinitely prevent a worker from performing some or
all of the duties that he or she could do before an accident or illness,” and “total
disability” as “[a] worker’s inability to perform employment-related duties because of a
physical or mental impairment.”).

                                                5
or on which UNICARE could process a claim for disability that predates a cancellation.

The District Court merely concluded that Dr. Stockton could not recover for any disability

occurring after January 31, 1996, not that he could not submit a valid claim after that date.

We perceive no error.

       Appellant also argues three points related to application of the summary judgment

standard on this record. First, she contends that, under Cooper v. Metropolitan Life Ins.

Co., 186 A. 125 (Pa.1935), a plaintiff asserting a claim to benefits is competent to testify

as to his own symptoms. This is true, and Dr. Stockton did so testify. However, state law

also requires a plaintiff to provide valid expert medical testimony to prove disability, see

id. at 128, and this is where Dr. Stockton’s claim fails. Dr. Stockton’s testimony alone is

insufficient to avoid summary judgment.

       Second, Appellant contends that, under Federal Rule of Evidence 703, the District

Court erred in concluding that Dr. Lobacz could not render an opinion of total disability

absent a physical examination during the claimed period of disability. The problem here,

however, was not solely that Dr. Lobacz did not physically examine Dr. Stockton in the

relevant time frame, but that he admitted an inability to determine to a reasonable degree

of medical certainty whether Dr. Stockton was totally disabled at that time. See Redland

Soccer Club, Inc. v. Dept. of the Army of the United States, 55 F.3d 204, 208-209 (3d Cir.

1991) (in stating a medical opinion, physician must express the opinion with “a




                                              6
reasonable degree of medical certainty”). This was the basis on which the District Court

rejected Dr. Lobacz’s testimony as competent medical evidence in support of the claim.

       Finally, Appellant argues that summary judgment was improper because it remains

a disputed issue of material fact whether Dr. Stockton was totally disabled during the

relevant time period. This argument depends on a reading of Dr. Lobacz’s testimony that

fails to acknowledge his inability to speak to a reasonable degree of medical certainty on

the ultimate issue. We reject this reading and, thus find no genuine issue of material fact

precluding summary judgment.

       Accordingly, we will affirm the entry of summary judgment in favor of

UNICARE.




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