                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


JEANINE CARSON,                          
                  Plaintiff-Appellant,
                  v.                              No. 01-1418
CANADA LIFE ASSURANCE COMPANY,
              Defendant-Appellee.
                                         
JEANINE CARSON,                          
                   Plaintiff-Appellee,
                  v.                              No. 01-1452
CANADA LIFE ASSURANCE COMPANY,
             Defendant-Appellant.
                                         
          Appeals from the United States District Court
           for the District of Maryland, at Greenbelt.
             Deborah K. Chasanow, District Judge;
               Charles B. Day, Magistrate Judge.
                      (CA-99-1079-DKC)

                       Argued: December 4, 2001

                       Decided: January 25, 2002

   Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion. Judge Traxler wrote a
concurring opinion.
2              CARSON v. CANADA LIFE ASSURANCE CO.
                            COUNSEL

ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for Appel-
lant. Cynthia T. Andreason, LEBOEUF, LAMB, GREENE &
MACRAE, L.L.P., Washington, D.C., for Appellee. ON BRIEF: Pat-
rick M. Donahue, THE DONAHUE LAW FIRM, Annapolis, Mary-
land, for Appellant. Katherine S. Kamen, Jonathan M. Wilan,
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P., Washington,
D.C., for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Jeanine Carson commenced this action against Canada Life Assur-
ance Company for wrongfully denying Carson her claim for long-
term disability benefits. A jury awarded Carson $350,000 in compen-
satory damages on her breach-of-good-faith claim and $750,000 in
punitive damages, and the court computed breach-of-contract dam-
ages at $54,536. On Canada Life’s post-verdict motion for judgment
as a matter of law, the district court affirmed the compensatory dam-
age award and vacated the punitive damage award. On the cross-
appeals of the parties, we affirm.

                                  I

   Beginning as an employee in 1995, Carson worked as a senior
accounting technician with the City of San Juan Capistrano, Califor-
nia (the "City"), which provided its employees with long-term disabil-
ity insurance through a policy issued by Canada Life. The policy
provided that employees would receive 67% of their monthly earn-
ings up to $6,000 per month for total disability.
                CARSON v. CANADA LIFE ASSURANCE CO.                   3
   In May 1997, Carson was diagnosed with severe fibromyalgia by
Dr. Mark Jason, a rheumatologist. Fibromyalgia is a complex, chronic
condition that causes widespread pain and profound fatigue, as well
as a variety of other symptoms, including sleep disturbances, stiff-
ness, headaches, cognitive disorders, and depression. The American
College of Rheumatology specifies that fibromyalgia’s diagnosis is
characterized by widespread, musculoskeletal pain for longer than
three months in all four quadrants of the body, by an absence of other
systemic disease that could be the cause of the pain, and by the pres-
ence of 11 of 18 designated "tender points" (points of extreme tender-
ness) at characteristic locations on the body. No cure is available, but
the symptoms can often be mitigated by narcotic medications. The
disease can be permanent and its causes are unknown.

   After Carson was placed on disability by her primary care physi-
cian, Dr. Lisa Majer, Carson tried unsuccessfully to work part time.
In January 1998, Dr. Majer placed Carson on full time disability.

   In February 1998, Carson submitted a claim to Canada Life for
long-term disability benefits. Along with her claim, she provided
Canada Life with a release, allowing Canada Life to obtain her medi-
cal records from Dr. Majer, her primary care physician, and Dr. Jason,
the rheumatologist who first diagnosed and continued treating Car-
son’s fibromyalgia.

   The medical director at Canada Life, Dr. Lund, who was not a
rheumatologist, reviewed the claim, and, without consulting Carson’s
doctors, concluded that Carson "does not meet the criteria for FM
[fibromyalgia] . . . [because] [t]o be approved, medically, for FM, a
client must have 11 out of 18 ‘tender points’ in the body, client has
only a few." Canada Life denied Carson’s claim for benefits on April
14, 1998, stating that her medical record did not "support a diagnosis
of Fibromyalgia" and that her condition did not prevent her from per-
forming her job.

  Carson appealed that determination within Canada Life, and with
her letter of appeal, she included a letter from Dr. Jason, who
explained his diagnosis of Carson’s disability, pointing out that Car-
son showed positive at all 18 tender points for pain and concluding
4              CARSON v. CANADA LIFE ASSURANCE CO.
that "the patient is totally disabled for her own or any other occupa-
tion."

   Canada Life then concluded that the diagnosis of fibromyalgia was
"now clear," but it indicated that because the diagnosis does not prove
a disability, Carson should undergo a "functional capacity evalua-
tion." This evaluation demonstrated that Carson could perform only
a limited sedentary job and that she had only a 20-minute tolerance
for sitting. The functional capacity evaluation did not evaluate Car-
son’s mental capacities or ability to concentrate, both of which had
also been adversely affected by her fibromyalgia. Carson’s appeal
was reviewed at Canada Life by Dr. John Wolff, also not a rheuma-
tologist, who agreed that the diagnosis of fibromyalgia was probably
the "best choice" of diagnosis, but he denied the claim for benefits
because, as he concluded, Carson could return to work at "light duty."
At trial he corrected this conclusion, stating that he actually meant
"light work." He said "light duty" was a term of art defined as work
involving lifting a maximum of 20 pounds.

   Because Carson was unable to support herself without disability
benefits, she moved from California to Maryland to live with rela-
tives. After she arrived in Maryland, Canada Life formally denied her
appeal.

   Carson commenced this action against Canada Life, alleging,
among other things, breach of contract and breach of the implied cov-
enant of good faith and fair dealing, and she demanded both compen-
satory and punitive damages.

   The jury returned a special verdict in favor of Carson and awarded
damages on the claim for breach of good faith in the amount of
$300,000 and punitive damages in the amount of $750,000. On the
breach-of-contract claim, the jury found for Carson and the district
court calculated the damages at $54,536 and included that amount in
the judgment. On Canada Life’s motion for judgment as a matter of
law, the district court vacated the punitive damage award but affirmed
the remainder of the judgment. In vacating the punitive damage
award, the court concluded that under California law, which the par-
ties agreed was applicable, Carson had failed to introduce required
evidence of Canada Life’s ability to pay a punitive damage award.
                CARSON v. CANADA LIFE ASSURANCE CO.                     5
  Carson appealed the district court’s decision to strike the punitive
damage award, and Canada Life cross-appealed the denial of its Rule
50 motion on the breach-of-contract and breach-of-good-faith claims.

                                    II

   Addressing first the assignments of error with respect to liability,
we consider Canada Life’s contention that the district court erred in
submitting to the jury the question of what was required under the
policy to establish total disability. While the interpretation of contract
terms is ordinarily a question of law for the court, when a term is
ambiguous, extrinsic evidence of its meaning may be received and its
meaning becomes a question of fact for resolution by the jury. See
Waller v. Truck Ins. Exch., Inc., 44 Cal. Rptr. 2d 370, 378 (Cal.
1995); Regus v. Gladstone Holmes, Inc., 25 Cal. Rptr. 25 (Cal. Dist.
Ct. App. 1962).

   The provision at issue in this case is the policy’s definition of "to-
tally disabled." The policy provides:

     "Totally disabled" means that the person is unable to work
     and fulfills either of the two conditions below:

     Condition 1 — During the elimination period and for the
     next 24 months after the elimination period in a continuous
     period of disability, the person is unable to perform with
     reasonable continuity the substantial and material duties of
     his own occupation in the usual or customary way, or

     Condition 2 — After the elimination period plus the next 24
     months in a continuous period of disability, the person is
     unable to perform with reasonable continuity the substantial
     and material duties of any occupation for which he is quali-
     fied in view of his age, education, training, experience, sta-
     tion in life, and physical and mental capacity.

  Each party advances a plausible interpretation of this provision.
Canada Life contends that in order to be totally disabled under this
provision, the insured must first demonstrate that she is "unable to
6               CARSON v. CANADA LIFE ASSURANCE CO.
work," as required by the introductory clause. It argues that Condi-
tions 1 and 2 that follow are to be read to operate sequentially,
depending on the time frame at issue. During the "elimination period"
(the first 30 days) and the first 24 months thereafter, the insured must
meet the easier standard for disability established by Condition 1.
After the expiration of the elimination period and the first 24 months
referred to in Condition 1, the insured must meet the more difficult
standard of Condition 2 to continue receiving disability benefits.

   On the other hand, Carson argues that the plain policy language
permits her to satisfy either Condition 1 or Condition 2 to be totally
disabled. She agrees that she must establish initially that she is "un-
able to work," as required in the introductory clause. Then, she
argues, she may satisfy either of the two conditions because they are
stated disjunctively, using the word "or" between them. In addition,
the introductory clause specifies that the employee must fulfill "either
of the two conditions below." While Carson’s interpretation persua-
sively fits the plain language of the contractual definition, it does ren-
der Condition 2 superfluous, because Condition 1 would always be
satisfied more easily.

   Faced with this ambiguity, we conclude that the district court cor-
rectly submitted the issue to the jury.

                                   III

   Canada Life next contends that the district court erred in admitting
the testimony of two rheumatologists, Dr. Jason, who first diagnosed
and treated Carson’s fibromyalgia in California, and Dr. Donald
Thomas, who treated Carson after she moved to Maryland. Both doc-
tors expressed their opinions that Carson was "disabled." Canada Life
contends that while the doctors could testify to Carson’s medical sta-
tus, they were not qualified to testify to her disability status. See Dau-
bert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). We do not
believe, however, that the district court abused its discretion in admit-
ting the evidence. See Westberry v. Gislaved Gummi AB, 178 F.3d
257, 261 (4th Cir. 1999).

   While it is true that both doctors testified that Carson was disabled,
they did not purport to give expert opinions on whether the nature of
                CARSON v. CANADA LIFE ASSURANCE CO.                    7
Carson’s work or the policy definition of "disability" rendered her
disabled. Rather, their testimony went to Carson’s general physical
condition, a matter on which both were qualified to testify. Because
they were treating physicians, they were in a position to testify to Car-
son’s physical and mental capacity, which they did. Canada Life was
then free to limit their "disability" interpretation through cross exami-
nation, bringing out the doctors’ acknowledgments that they were not
gauging Carson’s disability against her workplace requirements or the
policy definition. Accordingly, we conclude that the district court did
not abuse its discretion in admitting this testimony.

                                   IV

  Canada Life also contends that the evidence was insufficient to
prove Carson’s total disability status. In reviewing this contention, we
examine the record to determine as a matter of law whether the evi-
dence, viewed in the light most favorable to the non-moving party,
would "permit[ ] a jury reasonably to return" the verdict. Sales v.
Grant, 158 F.3d 768, 775 (4th Cir. 1998).

   As prescribed by Condition 1 of the policy’s definition of "total
disability," Carson had to show that for 25 months (the 30-day "elimi-
nation" period plus 24 months) she was unable to "perform with rea-
sonable continuity the substantial and material duties" of her own
occupation "in the usual and customary way." The relevant time
frame was February 1, 1998, to February 1, 2000, because Carson
was placed on disability by Dr. Majer on January 30, 1998. We
believe that the evidence in support of her disability status was ample.

   First, Carson herself testified that she could not work even part
time because of her severe pain, fatigue, and inability to concentrate
— conditions about which she testified at length. Second, Dr. Jason
testified that Carson complained of "pain all over" as she had a "se-
vere" case of fibromyalgia. He testified that most fibromyalgia
patients do not get better and that Carson was "kind of stuck where
she is," medically. Third, Dr. Thomas testified that Carson had been
disabled due to fibromyalgia for the two years he had treated her.
Finally, the functional capacity evaluation performed at the initiative
of Canada Life demonstrated that Carson had only a 20-minute sitting
tolerance — a tolerance that would make working as a senior
8               CARSON v. CANADA LIFE ASSURANCE CO.
accounting technician, which required sitting for 5 to 6 hours each
day, nearly impossible. The Job Analysis form completed by the City
at Canada Life’s request for Carson’s position confirmed that a senior
accounting technician was required to sit 5 to 6 hours a day.

                                   V

   Finally, Canada Life contends that the evidence was insufficient to
support the jury’s finding that it breached the implied covenant of
good faith and fair dealing. It contends that its decision to deny bene-
fits was protected by the "genuine dispute doctrine" under California
law. See Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir.
2001) (noting that a "court can conclude as a matter of [California]
law that an insurer’s denial of a claim is not unreasonable, so long as
there existed a genuine issue as to the insurer’s liability" (internal
quotation marks and citation omitted)).

   In California, all insurance contracts include an implied covenant
of good faith and fair dealing. Love v. Fire Ins. Exch., 271 Cal. Rptr.
246 (Cal. Ct. App. 1990). Under Love, the primary test for breach of
an implied covenant of good faith and fair dealing "is whether the
insurer withheld payment of an insured’s claim unreasonably and in
bad faith." Id. at 255. Thus, two requirements must be established:
"(1) benefits due under the policy must have been withheld; and (2)
the reason for withholding benefits must have been unreasonable or
without proper cause." Id.

   Not only was there no genuine dispute about Carson’s fibromyalgia
and her disability from it, the jury could have concluded that the with-
holding of benefits was a breach of good faith and fair dealing. When
Carson submitted her claim for disability benefits, Canada Life denied
the claim because she did not have fibromyalgia although it had no
medical basis for reaching that conclusion. After receiving a letter
from Carson’s treating physician, Canada Life reversed itself and
agreed that Carson had fibromyalgia, but then it insisted that she was
not disabled. Again, after the functional capacity evaluation was per-
formed, it became clear that Carson was unable to "perform with rea-
sonable continuity the substantial and material duties" of her own
occupation "in the usual and customary way." Even Canada Life’s
internal documents recognized that Carson could not perform her
                CARSON v. CANADA LIFE ASSURANCE CO.                    9
duties in the usual and customary way, acknowledging that she would
qualify only for "light duty" or "light work." Moreover, the doctors
at Canada Life who were responsible for Canada Life’s decision were
not rheumatologists, and they did not seek the professional advice of
any rheumatologist who had familiarity with fibromyalgia. Finally,
Canada Life never addressed the mental symptoms of fibromyalgia
which rendered Carson even more completely disabled than had been
conceded in Canada Life’s internal conclusions.

   In short, the jury could conclude that Canada Life had no reason-
able basis to withhold benefits. Every piece of medical evidence indi-
cated that Carson had fibromyalgia and that she was unable to
perform her customary duties for the City. When viewing this evi-
dence in a light most favorable to Carson, we conclude that it was suf-
ficient to support the jury’s verdict.

                                   VI

   On her cross-appeal, Carson contends that the district court erred
in vacating the $750,000-punitive damage award.

   Under California law, while punitive damages are statutorily per-
mitted for certain tort cases, see Cal. Civ. Code § 3294(a), the plain-
tiff bears the burden, as a condition to being awarded punitive
damages, of introducing evidence of the defendant’s ability to pay
punitive damages. See Adams v. Murakami, 284 Cal. Rptr. 318, 327
(Cal. 1991) (in bank). This requirement is based on the public policy
insuring that punitive damages do not financially destroy a defendant.
Id. at 327-28.

   Carson acknowledges the California requirement to introduce such
evidence, and she acknowledges that she did not do so. She argues,
however, that she requested the financial information about Canada
Life’s ability to pay during discovery, and Canada Life refused to pro-
duce the information. Yet, she acknowledges that she did not object
to Canada Life’s answer or file a motion to compel. This sequence
does not justify Carson’s failure to meet her burden of proof.

   Carson also argues that she was somehow relieved of her burden
of proof by the district court’s failure to instruct the jury that Carson
10              CARSON v. CANADA LIFE ASSURANCE CO.
needed to prove Canada Life’s ability to pay. Even though the failure
to include such a jury instruction may have been legal error, the ille-
gal failure to give an instruction does not relieve Carson of the burden
of introducing evidence sufficient to prove her claim.

  Quite simply, Carson was required under California law to intro-
duce evidence of Canada Life’s ability to pay, and she failed to do so.
Accordingly, the district court was correct in vacating the award.

  For the reasons given above, we affirm the judgment of the district
court.

                                                            AFFIRMED

TRAXLER, Circuit Judge, concurring:

   I concur in Parts I-V of the opinion. I concur also with my col-
leagues in the result of Part VI, but I would affirm the district court’s
decision to strike the award of punitive damages on a different basis.
In my view, the record contains insufficient evidence to support an
award of punitive damages. Carson did not present sufficient evidence
from which a reasonable jury could conclude, by clear and convincing
evidence, that Canada Life’s conduct was "oppressive", a prerequisite
under California law to the recovery of punitive damages in this case.
See Cal. Civ. Code § 3294(a) (reserving punitive damages for conduct
involving "oppression, fraud, or malice").

   I hesitate to affirm the reasoning of the district court that Carson
fails on her punitive damages claim because she did not introduce evi-
dence of Canada Life’s financial position. Only Canada Life is in a
position to summarize its financial condition, yet it rebuffed Carson’s
attempts at discovery on this issue. After Carson rested her case, and
again at the close of all the evidence, Canada Life moved for judg-
ment as a matter of law on punitive damages, but not on the grounds
that Carson failed to introduce evidence of its financial condition.
Canada Life submitted jointly with Carson a proposed jury instruction
on punitive damages that did not include Canada Life’s financial con-
dition as a consideration for the jury. Even after the jury rendered its
substantial punitive damages verdict, Canada Life did not raise this
                CARSON v. CANADA LIFE ASSURANCE CO.                     11
failure of proof in its post-trial motion under Rule 50(b). Accordingly,
Canada Life’s financial condition was never an issue at trial. Yet,
when the district court struck Carson’s substantial award, it did so on
the basis that Carson failed to introduce such evidence, even though
the jury instruction was lacking and Canada Life did not raise this
issue at trial or after trial. In view of these facts, it seems that Carson
was sandbagged into the reasonable belief that Canada Life, a large
insurance company, had declined to make its ability to afford a puni-
tive damages award an issue in this case. If the record otherwise sup-
ported an award of punitive damages, my inclination would be to
return the case for a new trial on punitive damages. Since that is not
the case, however, I readily concur in the majority opinion.
