12-4758-cv
Mitchell Frank v. Reassure Life Insurance Company,

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 19th day of December, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            PETER W. HALL,
            DENNY CHIN,
                         Circuit Judges.
_____________________________________
MITCHELL FRANK,

                    Plaintiff-Appellant,

                              v.                                    No. 12-4758-cv

REASSURE LIFE INSURANCE COMPANY,

            Defendant-Appellee.
_____________________________________

FOR PLAINTIFF:                                       MICHAEL S. HILLER, Weiss & Hiller, PC, New
                                                     York, NY.

FOR DEFENDANT:                                       LINDA L. MORKAN (Theodore J. Tucci, Laura
                                                     A. Torchio on the brief), Robinson & Cole LLP,
                                                     Hartford, CT.
       Appeal from an order of the United States District Court for the Southern District of New
York (Katherine B. Forrest, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s November 20, 2012 judgment is
AFFIRMED.

        Plaintiff Mitchell Frank (“Frank”) appeals from the November 20, 2012 judgment of the
District Court granting summary judgment to Reassure Life Insurance Co. (“Reassure”) on Frank’s
breach of contract claim seeking payment of insurance proceeds pursuant to the terms of a disability
insurance policy (the “Policy”) administered by Reassure. Frank argues that the terms of the Policy
require Reassure to pay disability benefits based on the effects of Frank’s affliction with Alzheimer’s
disease for his lifetime. Reassure argues, and the District Court agreed, that Frank suffered only
from Residual Disability during the period in which the Policy was in force and, because the terms
of the Policy state that, in the circumstances here, Residual Disability benefits are payable only until
age sixty-five, Frank was not entitled to further disability benefits after age sixty-five. Frank also
argues that the District erred or “abused its discretion” by denying Frank leave to conduct discovery
because of his failure to move pursuant to Federal Rule of Civil Procedure 56(d), and by granting
summary judgment for Reassure before the parties had any discovery.
                                              BACKGROUND
                                              A.      The Policy
        In 1987, Frank purchased the Policy, 1 which provides for monthly disability insurance
benefits in the event that Frank becomes totally or residually disabled. The first page of the Policy
contains the “Schedule of Benefits,” which is specific to each Insured and, in Frank’s case, provides
for a “Total and Residual Disability Income Policy” payable through April 3, 2009. The stated
“Benefit Period Limit” is “Lifetime” for both accident and sickness. App’x 39. The only exception
to the “Lifetime” benefit period listed on the “Schedule of Benefits” page is that
        if disability begins [after the Insured’s 56th birthday and before his 65th birthday]
        benefits payable after age 65 will be reduced to [a] percentage [as set forth in a
        schedule] of the monthly benefit payable immediately prior to age 65 [except that] if
        disability begins at age 63 or later, benefits will be payable for 2 years before they will
        be reduced.
App’x 39.




1 The Policy was originally purchased from Maccabees Mutual Life Insurance Company and was transferred to Reassure
in 1999.
                                                        2
        Following the “Schedule of Benefits” page are the “General Provisions” of the Policy, which
are standard provisions. The “Definitions” section, located on the first two pages, contains the
following relevant definitions:
         Benefit Period Limit means the longest period of time that benefits will be paid for
         a Total or Residual Disability or combination thereof. The Benefit Period Limits are
         shown on the Schedule Page.
         Total Disability means that due to Accident or Sickness you cannot perform the
         material duties of your regular occupation and are not engaged in your own or
         another occupation. We will pay the Monthly Benefit shown on the Schedule Page
         for as long as you are Totally Disabled . . . but not beyond the applicable Benefit
         Period Limit for Accident or Sickness.
         Residual Disability means that you are engaged in your regular or another
         occupation and your Income is reduced due to Accident or Sickness by at least 20%
         of your Prior Income. We will pay a Residual Disability Monthly Benefit[2] for as
         long as you are Residually Disabled: If Residual Disability begins before your age 65.
         . . but not beyond the applicable Benefit Period Limit. We will not pay Residual
         Disability Benefits beyond your age 65 unless Disability began on or after your 63rd
         birthday and before your 65th birthday. In such a case, we will pay Residual
         Disability Benefits for a maximum of 2 years.3
App’x 40-41.
                                                 B. Frank’s Disability
         Frank first sought treatment for memory loss in 2007 at the age of sixty-two, although his
functional disability from the disease began in approximately 2003. He continued working full-time
until 2008, and worked in some capacity as a Financial Advisor until November 2010. On
September 27, 2010, after the Policy expired in 2009, Frank’s wife, Joy Frank (“Joy”), contacted
Reassure about submitting a claim for disability benefits based on Frank’s diagnosis with
Alzheimer’s. In December 2010 and January 2011, Reassure informed Joy that Frank appeared
eligible for Partial Disability and Residual Disability benefits from the time he was first treated for
his condition in March, 2007 through May 15, 2009, when he turned sixty-five.4 App’x 91, 158.
Reassure based this conclusion on “all of the medical records that [Reassure had requested] from
[Frank’s] medical providers as well as an Attending Physician Statement form.” Id. at 90.




2 The Residual Disability Monthly Benefit is equal to the Monthly Benefit shown on the Schedule Page multiplied by the
Percentage Loss of Monthly Income. App’x 41.
3 The Policy also provides that the Insured must be under the regular care of a licensed physician in order to be eligible
for benefits under the Policy. App’x 43.
4 Frank cancelled his policy in 2008. However, due to his condition, Reassure reinstated the Policy and agreed to pay
benefits dating back to March 2007. App’x 91.
                                                             3
                                                     DISCUSSION
                                              A. Policy Interpretation
        Frank contends that the District Court failed to interpret the Policy according to its plain
terms, and construing any ambiguities in favor of the Insured as required by New Jersey law.5 He
further argues that even if the Policy, when read as a whole, supports Reassure’s interpretation,
where that interpretation conflicts with the reasonable expectations of the Insured, the Insured’s
reasonable expectations should be honored. Appellant’s Br. at 36.
         Under New Jersey law, a court interpreting an insurance contract must “first examine the
plain language of the policy and, if the terms are clear, they are to be given their plain, ordinary
meaning.” Pizzullo v. N.J. Mfrs. Ins. Co., 952 A.2d 1077, 1088 (N.J. 2008) (internal quotation marks
omitted). Where, however, “there is ambiguity . . . courts interpret the contract to comport with the
reasonable expectations of the insured, even if a close reading of the written text reveals a contrary meaning.”
Id. at 1089 (emphasis supplied); see also Lehrhoff v. Aetna Cas. & Sur. Co., 638 A.2d 889, 893 (N.J.
Super. Ct. App. Div. 1994) (“An important corollary of the reasonable-expectation doctrine . . . is
that reasonable expectations will, in appropriate circumstances, prevail over policy language to the
contrary.”).6
        While “recogniz[ing] the important role that declarations sheets play in informing an insured
about the parameters of insurance coverage,” as “‘the one page most likely to be read and
understood,’” Pizzullo, 952 A.2d at 1090 (quoting Zacarias v. Allstate Ins. Co., 775 A.2d 1262, 1269-70
(N.J. 2001)), the New Jersey Supreme Court has made clear that “an insurance contract is not per se
ambiguous because its declarations sheet, definition section, and exclusion provisions are separately
presented.” Zacarias, 775 A.2d at 1270. The question is whether, based on an “analysis of the
[Schedule of Benefits], as compared to the limits of coverage contained elsewhere in the policy, . . .
the general definition section would ‘unfairly defeat the insured’s reasonable expectations’ of
coverage.” Id. at 1269 (quoting Lehroff, 638 A.2d at 894).
        Frank’s proposed interpretation is entirely reasonable if one stops reading at the Schedule of
Benefits page, but it ceases to be so when read in conjunction with the next two pages, which define
important terms referenced on the Schedule of Benefits page. Here, a policyholder would learn that
Residual Disability Benefits are subject to stricter limitations than those set forth in the Schedule of
Benefits, which establishes the longest period for which benefits will be paid. Zacarias makes clear
that the primacy of the personalized Schedule of Benefits page does not relieve a policyholder of the
obligation to carefully review the general provisions of the Policy. 775 A.2d at 1070. We conclude,
5 Although the parties initially disagreed as to which state’s law governed Frank’s claims, they appear to agree on appeal
that New Jersey law governs.
6 The District Court relied on the rule that “the Court [should] not read an ambiguity into a contract by creating a
conflict between provisions that need not exist” and should “avoid ‘reading the contract in such a way as to make any
words meaningless.’” Special App’x 28-29. The doctrine of “reasonable expectations,” under New Jersey law, however,
recognizes that while a court, or an insurance company may be well-equipped to synthesize different and, on their face,
inconsistent provisions of a contract, a policy holder may be less able to do so. See, e.g., Zacarias, 775 A.2d at 1264, 1268.
                                                              4
therefore, that Frank’s reasonable expectations should have been informed, not only by the Schedule
of Benefits, but also by the General Definitions section on the following two pages. Accordingly,
we affirm the judgment of the District Court insofar as it held that the Policy unambiguously limited
Residual Disability Benefits to those accruing before age sixty-five where the Sickness in question
began prior to age sixty-three.
                                         B.      Discovery
         Frank also contends that the District Court “abused its discretion” by granting summary
judgment for Reassure without affording Frank any discovery. Appellant’s Br. at 41. Because Frank
has identified no discovery which, if obtained, would alter our conclusion that Reassure has fulfilled
its obligations, it was not an “abuse of discretion” not to permit Frank to conduct further discovery.
                                          CONCLUSION
        We have reviewed the record and Frank’s arguments on appeal and find them to be without
merit for the reasons stated above. Accordingly, we AFFIRM the November 20, 2012 judgment of
the District Court.
                                                       FOR THE COURT,
                                                       Catherine O’Hagan Wolfe, Clerk of Court




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