                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                    ___________

                           Nos. 03-3989 and 03-4001
                                 ___________

Timothy Miller and Daniel Miller,      *
                                       *
           Plaintiffs-Appellants,      *
                                       *
     v.                                * Appeals from the United States
                                       * District Court for the
Northwestern Mutual Life Insurance     * District of Minnesota.
Company, being sued as The             *
Northwestern Mutual Life Insurance     *
Company,                               *
                                       *
           Defendant-Appellee.         *
                                  ___________

                            Submitted: October 18, 2004
                               Filed: December 23, 2004
                                ___________

Before COLLOTON, LAY, and BENTON, Circuit Judges.
                           ___________

LAY, Circuit Judge.

      Timothy Miller and Daniel Miller are brothers who operated an architectural
and construction company (Miller Architects & Builders, Inc.) as equal owners.
Daniel served as president and Timothy served as chairperson. Timothy’s principal
duties included (1) creating an agenda for, and presiding over, advisory board
meetings; (2) marketing; and (3) acting as development consultant for new client
accounts.
       On April 27, 1998, Timothy first sought treatment for depression from
Maureen Kelly (Kelly), a psychotherapist. By May 26, 1998, Timothy was
hospitalized at the request of his psychiatrist, Dr. Charles McCafferty (McCafferty).
Timothy was discharged on June 2, 1998. At that time, McCafferty prescribed a
treatment plan for depression. Timothy saw either McCafferty or Kelly eighteen
times in 1998 after being discharged, and he continued treatment in 1999, 2000, 2001,
and 2002. Timothy continues to receive care from McCafferty to this day.

       In November 2000, Timothy submitted a claim to his insurer, Northwestern
Mutual Life Insurance Company (“Northwestern”), for benefits under his Disability
Income Policy. He identified May 26, 1998 (the day he was hospitalized), as his
disability onset date. Shortly thereafter, Daniel agreed to buy Timothy’s share of the
business, and Daniel submitted a claim for benefits under a separate insurance policy
with Northwestern – a Buyout Expense Reimbursement Policy, wherein Daniel was
the owner and Timothy was the insured.

       Both Northwestern policies contained a provision requiring that Timothy be
“totally disabled” in order for the policyholder to recover. The Buyout Expense
Reimbursement Policy stated:

      The Insured is totally disabled when unable to perform the principal
      duties of the regular occupation, and not working in any capacity in the
      Business.

Buyout Expense Reimbursement Policy at 5 (Jt. App. at A-49) (emphasis added). In
contrast, the Disability Income Policy stated:

      Until the end of the Initial Period [of disability], the Insured is totally
      disabled when unable to perform the principal duties of the regular
      occupation. . . . If the insured can perform one or more of the principal
      duties of the regular occupation, the Insured is not totally disabled;
      however, the Insured may qualify as partially disabled.

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Disability Income Policy at 5 (Jt. App. at A-11) (emphasis added). Northwestern
relied on the “total disability” provisions in either contract as grounds to deny
benefits to Timothy (for disability) and Daniel (for buyout expenses).1 However,
Northwestern did find that Timothy was partially disabled and paid him $15,000
under the Disability Income Policy. Mem. and Order of U.S. District Court Judge
Paul Magnuson at 3.

      The Miller brothers brought separate suits against Northwestern for breach of
contract and sought declaratory relief and damages in Minnesota state court.
Northwestern removed the case to federal court. Minnesota state law governs the
dispute.

       The district court granted Northwestern’s motions for summary judgment
against both Plaintiffs. Since the court found Timothy was able to perform at least
one of his principal duties, it held that there was no genuine issue as to whether
Timothy was totally disabled within the meaning of either contract. The district court
emphasized that “[t]his is not a situation where Timothy only performed ‘trivial’ tasks
of the business,” and therefore could still be deemed totally disabled under Minnesota
law. See id. at 8.2

      1
        In addition to “total disability,” both Northwestern contracts required that
Timothy be under the regular care of a licensed physician during disability. The
district court opinion did not discuss this element. Yet, on appeal, the parties dispute
what Dr. McCafferty’s treatment plan for Timothy entailed, whether Timothy
followed this plan, and whether the frequency of his treatment visits rose to the level
of “regular care” required by the contracts. We do not address these arguments since
they were not relevant to the district court’s decision.
      2
       Summary judgment should never be used to denigrate the right of trial by jury.
Summary judgment should be utilized only in the case where no material facts are
genuinely disputed. In the present case, Timothy urges that material facts are
disputed. He claims his work performance constitutes under-performance. To some
extent, this is true. However, the Millers largely misread and stretch Minnesota

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       The Millers appealed, claiming the district court erred in granting summary
judgment on the ground that Timothy was not “totally disabled” within the meaning
of either policy. Their primary argument is that the trial court failed to consider what
it means to meaningfully “perform” a job duty. Although the Millers concede that
Timothy returned or attempted to return to work after being hospitalized, they claim
that evidence showed Timothy was unable to function at the pre-disability level.
They further argue that this minimum showing is sufficient to entitle a claimant to
present that evidence to a fact-finder, who then determines whether that post-
disability level of functioning in fact constitutes “total disability” within the meaning
of Minnesota law.

       The Millers also claim the phrase “total disability” is inherently ambiguous
under Minnesota law according to Weum v. Mutual Benefit Health & Accident Ass’n,
54 N.W. 2d 20 (Minn. 1952). They urge this court to adopt the definition of “total
disability” used in the Weum decision, to-wit: that a person is totally disabled for
insurance purposes if she or he is “unable to perform the substantial and material
acts necessary to the successful prosecution of his occupation or employment in the
customary and usual way.” Id. at 26 (emphasis added). Had the district court applied
the Weum standard, the Millers argue, a genuine issue would have existed as to
whether Timothy’s reduced capacity to work was equivalent to “total disability.”

      We disagree with these arguments. First, neither the Weum case nor the plain
language of the contract at issue here reveal an ambiguity. The contract in Weum,
which was issued by Mutual Benefit Health & Accident Association (MBHA),
required that the insured be “wholly and continuously” disabled before disability
benefits could be triggered. Id. at 22. Because a literal interpretation of that contract
language was deemed to require “complete helplessness,” id. at 29, the Weum court
reasoned that “[s]ome limitation upon the literal terms is obviously necessary in order


precedent. See infra at 4-5 (discussing Minnesota law).

                                          -4-
to give a realistic meaning to the words and give to the insured some measure of the
protection which he bargained and paid for.” Id. Since no realistic limitations
appeared on the face of this contract language, the Weum court declared the contract
“ambiguous,” 54 N.W.2d at 29, and affirmed the district court’s jury instruction. The
jury instruction defined disability as a state where one is “unable to perform the
substantial and material acts necessary to the successful prosecution of [an]
occupation or employment in the customary and usual way.” Id. at 26.

        In light of this summary, it is evident that Weum provides little aid to the
Millers. The original contract language in Weum was materially different from
language used in Northwestern’s contracts. MBHA’s contract required the insured
to be “wholly and continuously disabled” before benefits would issue; here, the
insured need only be unable to perform “the principal duties of the regular
occupation.” It cannot be reasonably argued that these two contract provisions are
equivalent. The language used in the Northwestern contracts is actually more similar
to the limiting construction that the Weum court imposed upon MBHA’s contract than
it is to the plain meaning of MBHA’s contract. Thus, we reject the Millers’
contention that a literal interpretation of the Northwestern contract language requires
utter helplessness, as did MBHA’s original contract language.

        Other Minnesota cases cited by the Millers in support of their proposition that
the Northwestern contracts require “utter helplessness” likewise involved materially
different contract language. See Laidlaw v. Commercial Ins. Co. of Newark, 255
N.W. 2d 807, 811-12 (Minn. 1977) (involving interpretation of the phrase “period for
which the (Company) is liable” and holding that an insured’s income is not relevant
to a finding of total disability); Blazek v. North Am. Life & Cas. Co., 87 N.W. 2d 36,
40 (Minn. 1957) (contract requiring an insured to be “totally and continuously
disable[d]” and unable to perform “every duty pertaining to his occupation” before
disability benefits could issue). Only Dowdle v. Nat’l Life Ins. Co., 2003 U.S. Dist.
LEXIS 15093 (D. Minn. 2003), defined total disability as a condition wherein an

                                         -5-
insured is “unable to perform the material and substantial duties of an occupation.”
However, the original contract language provided that definition. 2003 U.S. Dist.
LEXIS 15093 at *3.

       In light of the fact that the Northwestern contracts do not require utter
helplessness, neither Minnesota law nor the Millers explain why this court should
impose a construction on the contract language. Rather, the plain language of the
contracts supports the district court’s ruling that Timothy must be unable to perform
all principal duties of his regular occupation in order to qualify as “totally disabled.”
See McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586, 588 (8th Cir. 2002). The
Millers reject McOsker on the grounds that it is a federal case that failed to apply
Minnesota law in any substantive manner. This is not determinative. The facts and
contract language at issue in McOsker were very similar to those involved here, and
the court’s analysis and reasoning were sound. As such, McOsker is persuasive
authority.

      Comparing the facts to the plain language of the contract, it appears that
Timothy was not “totally disabled.” He was able to perform at least one of the
principal duties of his regular occupation after the onset of his depression. For
instance, it is undisputed that Timothy was at times able to draft agendas for, and
preside over, board meetings for the company. Additionally, there were times where
Timothy was able to engage in sales efforts by meeting with clients, issuing
marketing letters or special appearances, and making telephone contacts. While it is
indisputable that Timothy’s level of sales productivity dropped substantially and
board meetings were held on an infrequent basis, it still cannot be said that he was
unable to perform at least one of the principal duties of his regular occupation.

       Our opinion today does not stand for the proposition that clinical depression,
as opposed to a physical injury or ailment, is an inappropriate basis upon which to
allege total disability. However, the evidence in this case does not show that Timothy

                                          -6-
has reached such a point. Timothy clearly suffers from depression and experienced
a severe suicidal episode, from which he has not fully recovered. It seems as though
the post-hospitalization period has been characterized by moments of improvement
– during which Timothy attempted to return to work and did in fact perform some of
his principal duties – and moments of reversion, during which he fled from his
responsibilities and avoided any pressures whatsoever, as his brief alleges. We
acknowledge that Timothy’s decision-making may not yet be fully within his control,
that his volatile state makes him an unreliable co-owner and poor employee, and that
the purchase of Timothy’s share in the business was probably necessary to protect the
business. Still, we cannot say on the facts presented that Timothy’s condition during
the post-hospitalization period was so severe as to constitute a state of “total
disability” within the meaning of the Northwestern contract language.

      For these reasons, the judgment of the district court is AFFIRMED.
                      ______________________________




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