                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3223
                        ___________________________

                                  Curtis L. Cich,

                      lllllllllllllllllllll Plaintiff - Appellant,

                                          v.

   National Life Insurance Company, a Vermont corporation; Penn Mutual Life
                 Insurance Company, a Pennsylvania corporation,

                     lllllllllllllllllllll Defendants - Appellees.
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                           Submitted: October 24, 2013
                              Filed: April 8, 2014
                                ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

     Curtis Cich sued National Life Insurance Company (“National Life”) and Penn
Mutual Life Insurance Company (“Penn Mutual”) after both companies denied his
claims for disability benefits under insurance policies they had issued to him. The
district court1 granted summary judgment for the insurance companies, and we affirm.

                                            I.

       Cich obtained his license as a doctor of chiropractic in Minnesota in January
1987 and established a practice in Maple Grove, Minnesota, shortly thereafter. During
the course of his practice, Cich purchased two disability income policies and three
business overhead expense policies from National Life. He also purchased a disability
income policy from Penn Mutual. The policies provide monthly payments of various
amounts and for various periods of time in the event that the insured suffers a “total
disability.”

       The National Life disability income policies and one of the National Life
business overhead expense policies define “total disability” as follows, with minor,
immaterial deviations: “The Insured shall be deemed totally disabled only if the
Insured . . . is unable to perform the material and substantial duties of the Insured’s
occupation due to . . . accidental injury . . . or . . . sickness.” The other National Life
business overhead expense policies similarly define “total disability” and “totally
disabled” to mean “injury or sickness restricts your ability to perform the material and
substantial duties of your regular occupation to an extent that prevents you from
engaging in your regular occupation.” The Penn Mutual policy states that the insured
will be considered totally disabled only if certain conditions are met, including (1)
“You are unable to do the substantial and material duties of your regular occupation”
and (2) “Your total disability results from sickness or injury.” The policies also
require that to qualify as totally disabled, the insured must be receiving appropriate




      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

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medical care for the condition, with variations not material here regarding what
qualifies as appropriate.2

       Between 1988 and 2006, the Minnesota Board of Chiropractic Examiners
received numerous complaints that Cich misled patients about treatment costs and
insurance coverage. On March 27, 2008, the Board suspended Cich’s chiropractic
license for two years and ordered him to pay a $50,000 fine. The Minnesota courts
upheld the two-year license suspension and reduced the fine to $30,000.

       In April and May 2009, Cich submitted claims to Penn Mutual and National
Life for disability benefits pursuant to his policies. Cich asserted that he was totally
disabled as of February 5, 2009, because an “adjustment disorder with mixed
emotional features” and symptoms including “extreme anxiety and stress” prevented
him from operating his chiropractic practice. Cich reported that he last worked on
March 27, 2008, and did not expect to return to practice.

        Cich’s submissions also reported that he first received treatment for his
disability on February 5, 2009. His treatment provider was Karen Kramer, a licensed
social worker. On six occasions between February and June 2009, Kramer and Cich
engaged in talk therapy sessions and other treatment for Cich’s condition. Kramer
opined that Cich would be able to work, but not at his chiropractic practice because
of its association with his anxiety. Kramer continued to treat Cich approximately once
per month, until she concluded in October 2009 that Cich could continue treatment on
an as-needed basis.




      2
        Excerpts from the disability income policies appear in Cich’s appendix.
Appellant’s App. 132-41, 146-52. Excerpts from the business overhead expense
policies appear in the district court record. R. Doc. 35-1, at 21-22, 24-25; see R. Doc.
34, at 4-8; R. Doc. 51, at 13.

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       After collecting information about Cich’s condition, National Life and Penn
Mutual rejected his claims. Cich sued the insurers in Minnesota state court, and the
insurers removed the case to federal court based on diversity of citizenship. National
Life and Penn Mutual moved for summary judgment, arguing that Cich did not suffer
from a total disability under the policies. The district court agreed and granted
summary judgment for National Life and Penn Mutual on alternative grounds. The
court first concluded that Cich failed to present sufficient evidence that his inability
to work in his occupation was caused by a sickness or injury, as required by the
policies, because his license suspension caused the inability to work. Second, the
court determined that Cich was not disabled by an adjustment disorder as of March
2008 or thereafter, because he was not receiving appropriate medical care for a
sickness as required by the policies.

       Cich moved for partial summary judgment, arguing that he submitted proof of
loss forms in April 2009, and that the policies required National Life and Penn Mutual
to pay him benefits thereafter. Cich argued that because National Life and Penn
Mutual had not received independent medical examinations to dispute Cich’s
disability until late 2011, he was entitled to disability payments for the intervening
months regardless of the results of those examinations. The district court denied
Cich’s motion on the ground that the policies required more than mere submission of
proof of loss forms to entitle him to benefits.

       Summary judgment is appropriate when there is no genuine issue of material
fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We review the
district court’s grant of summary judgment and denial of partial summary judgment
de novo. Myers v. Lutsen Mountains Corp., 587 F.3d 891, 892 (8th Cir. 2009). In this
diversity case, we construe the policies according to Minnesota law. See Orion Fin.
Corp. of S.D. v. Am. Foods Grp., Inc., 281 F.3d 733, 738 (8th Cir. 2002).



                                          -4-
                                            II.

       Challenging the district court’s grant of summary judgment for the insurance
companies, Cich argues that even if his chiropractic license had not been suspended,
his adjustment disorder prevented him from performing his occupation since the onset
of the illness. Therefore, he contends, the district court erred by granting summary
judgment for the insurers on the ground that the license suspension, rather than the
adjustment disorder, caused his inability to work.

        According to the policies issued by National Life and Penn Mutual, an insured
is totally disabled if he is unable to perform his “occupation” or “regular occupation”
due to injury or sickness. As of March 2008, Cich was unable to practice chiropractic
because his license was suspended. An incapacity arising from license suspension is
not a “sickness” or an “injury” that qualifies as a total disability under the policies.

      Cich appears to contend, however, that there is a genuine issue of material fact
as to whether he was disabled by the adjustment disorder before his license was
suspended, so that he would qualify for benefits based on a disability caused by
“sickness.” That argument fails because Cich did not seek treatment for his
adjustment disorder until February 2009, nearly a year after his license was suspended
in March 2008. The policies require that an insured must be receiving appropriate
medical treatment to qualify as totally disabled.

       Once Cich lost his chiropractic license in March 2008, the practice of
chiropractic no longer was an occupation from which he could become disabled by
virtue of sickness in February 2009. The Penn Mutual policy defines the insured’s
“regular occupation” as his “usual work when total disability starts.” The National
Life disability income policies and one business overhead expense policy excerpted
in the record define “occupation” as “the specialized occupation of the Insured at the
time . . . disability begins” or “the occupation of the Insured at the time . . . disability

                                            -5-
begins.” An excerpt in the record from the other two National Life business overhead
expense policies does not define “occupation,” but the ordinary meaning of the term
and its use in the context of the onset of a disability lead us to conclude—absent
contrary evidence from Cich—that it likewise means the insured’s usual work at the
time disability begins. See Webster’s Third New International Dictionary 1560
(1993) (defining “occupation” as “the principal business of one’s life . . . a craft, trade,
profession, or other means of earning a living”). As of February 2009, when Cich
sought treatment for an adjustment disorder, the practice of chiropractic was not his
usual work, because his Minnesota license was suspended, and the potential for
practice in other jurisdictions was speculative. The sickness for which he was treated
in 2009 thus did not disable him from his occupation as a chiropractor. See, e.g.,
Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir.
1997).

       Cich contends in the alternative that he is entitled to benefits as of March 27,
2010, the date on which he was eligible to have his license reinstated, because the
adjustment disorder prevented him from returning to the practice of chiropractic. The
insurance policies, however, provide for benefits when an insured is totally disabled.
An insured is totally disabled when injury or sickness renders him unable to perform
the duties of his occupation. An occupation, under the policies, is the insured’s
regular work or occupation at the time the disability begins. In February 2009, the
date when Cich alleges that his disability began, Cich was not engaged in the practice
of chiropractic. That a sickness or illness might have prevented Cich from
reestablishing a practice of chiropractic in March 2010 does not qualify him for
disability benefits, because the sickness did not render him unable to perform an
“occupation” under the terms of the policies.

       Cich also argues that even if the insurers properly denied his claims for
disability benefits, they were obligated to pay benefits immediately when he submitted
proof of loss forms to National Life and Penn Mutual until the insurers obtained

                                            -6-
independent medical examinations to dispute his medical condition. Cich asserts that
his policies with National Life and Penn Mutual entitled the insurers to obtain
independent examinations while his claims were pending or while benefits were being
paid, but did not expressly state that the insurers could withhold payment until an
examination was performed. Whatever the merit of this timing argument in a case
where the insured is totally disabled and thus entitled to benefits at one time or
another, we see no basis under the policies to require the insurance companies to pay
benefits to an insured who is not totally disabled.

      For these reasons, the district court correctly granted summary judgment for
National Life and Penn Mutual and denied Cich’s motion for partial summary
judgment. The judgment of the district court is affirmed.
                      ______________________________




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