               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

735
CA 11-02383
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


JOHN CHRISTODOULIDES, M.D.,
PLAINTIFF-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

FIRST UNUM LIFE INSURANCE COMPANY,
DEFENDANT-APPELLANT,
AND LIFE INSURANCE COMPANY OF BOSTON AND
NEW YORK, DEFENDANT.
(APPEAL NO. 1.)


PHILLIPS LYTLE LLP, BUFFALO (PAUL K. STECKER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (HUGH C. CARLIN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Joseph
R. Glownia, J.), entered November 17, 2011. The judgment awarded
plaintiff money damages against defendant First Unum Life Insurance
Company.

     It is hereby ORDERED that the judgment so appealed from is
unanimously vacated and the order entered November 1, 2011 is modified
on the law by denying that part of plaintiff’s cross motion against
defendant First Unum Life Insurance Company, and by vacating the
declaration and the award of damages against that defendant, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking, inter alia,
a declaration that he is entitled to lifetime benefits under three
disability insurance policies issued to him by defendants. Defendant
First Unum Life Insurance Company (First Unum) issued one of the
disability insurance policies, and defendant Life Insurance Company of
Boston and New York (BNY) issued the remaining two policies. The
First Unum policy insures against “(1) loss or disability resulting
directly and independently of all other causes from accidental bodily
injury occurring during any term of this policy, being hereinafter
referred to as ‘such injury’ or (2) loss or disability commencing
during any term of this policy, resulting from sickness, hereinafter
referred to as ‘such sickness.’ ” Where the loss or disability
results from an accident, the insured is entitled to lifetime
benefits. Where the loss or disability results from sickness,
however, the maximum benefit period is to age 65.
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                                                         CA 11-02383

     Under the BNY policies, the maximum benefit period similarly
depends upon whether the disability is caused by “injury” or
“sickness.” Where, as here, the insured is between the ages of 63 and
64 at the onset of disability, the maximum benefit period is
“lifetime” for disability caused by injury and 24 months for
disability caused by sickness. The BNY policies define “injury” as
“accidental bodily injury that . . . results directly and
independently of all other causes in loss or disability.” “Sickness”
is defined as “a sickness or disease first diagnosed or treated while
the Policy is in force and resulting in a loss or disability
commencing while the Policy is in force.”

     In September 2006, plaintiff experienced pain in his right
shoulder while lifting five-pound weights in his home as part of his
regular exercise routine. A February 2007 MRI revealed a rotator cuff
tear in plaintiff’s right shoulder. As a result of the pain in his
shoulder, plaintiff was unable to perform his duties as a physician,
and he ceased working as a urologist in June 2007. Thereafter,
plaintiff applied for benefits under the three disability policies
issued by defendants. Defendants determined that plaintiff was
totally disabled and paid him disability benefits under the policies
for a period of 24 months. At that point, defendants ceased paying
benefits on the ground that plaintiff’s disability was the result of
“sickness” as opposed to “injury” within the meaning of the policies.
Defendants moved for summary judgment dismissing the complaint, and
plaintiff cross-moved for summary judgment declaring that he is
entitled to lifetime benefits under the three policies and awarding
him damages in the amount of the benefits allegedly owed under the
policies. Supreme Court denied defendants’ motion, granted
plaintiff’s cross motion, and awarded judgment against First Unum in
the amount of $18,172.50 (appeal No. 1) and against BNY in the amount
of $174,670 (appeal No. 2). In both appeals, defendants contend that
the court erred in denying their motion for summary judgment because
plaintiff’s alleged disability did not result from an “accidental
bodily injury” resulting “directly and independently of all other
causes,” as required by the subject insurance policies.

     Contrary to defendants’ contention, we conclude that plaintiff
established as a matter of law that his shoulder injury constitutes an
“accidental bodily injury” within the meaning of the subject policies.
“As with any contract, unambiguous provisions of an insurance contract
must be given their plain and ordinary meaning . . ., and the
interpretation of such provisions is a question of law for the court”
(White v Continental Cas. Co., 9 NY3d 264, 267; see Vigilant Ins. Co.
v Bear Stearns Cos., Inc., 10 NY3d 170, 177). “Unless otherwise
defined by the policy, words and phrases are to be understood in their
plain, ordinary, and popularly understood sense, rather than in a
forced or technical sense” (Hartford Ins. Co. of Midwest v Halt, 223
AD2d 204, 212, lv denied 89 NY2d 813; see Rocon Mfg. v Ferraro, 199
AD2d 999, 999). Thus, “[t]he meaning of the language used in the
policy must be found in the common sense and common speech of the
average person” (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d
27, 32-33, affd 49 NY2d 924; see Canfield v Peerless Ins. Co., 262
AD2d 934, 934, lv denied 94 NY2d 757). Of course, “[i]f the terms of
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                                                         CA 11-02383

a policy are ambiguous, . . . any ambiguity must be construed in favor
of the insured and against the insurer” (White, 9 NY3d at 267; see
United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232;
Salimbene v Merchants Mut. Ins. Co., 217 AD2d 991, 992).

     The subject insurance policies do not define the terms “accident”
or “accidental.” “When interpreting the multifaceted term accident in
an insurance policy, we must construe the word accident as would the
ordinary [person] on the street or ordinary person when he [or she]
purchases and pays for insurance . . . The term is not given a narrow,
technical definition by the law. It is construed, rather, in
accordance with its understanding by the average [person] . . . who,
of course, relates it to the factual context in which it is used”
(Michaels v City of Buffalo, 85 NY2d 754, 757 [internal quotation
marks and emphasis omitted]; see Arthur A. Johnson Corp. v Indemnity
Ins. Co. of N. Am., 7 NY2d 222, 227). Black’s Law Dictionary defines
“accident” as, inter alia, “[a]n unintended and unforeseen injurious
occurrence” (id. at 16 [9th ed 2009]). In New York, unlike other
jurisdictions, there is no distinction made between “accidental means
and accidental results” (Burr v Commercial Travelers Mut. Acc. Assn.
of Am., 295 NY 294, 302; see Miller v Continental Ins. Co., 40 NY2d
675, 678). Thus, the term “accident” in an insurance policy may
“pertain not only to an unintentional or unexpected event which, if it
occurs, will foreseeably bring on [injury], but [may pertain] equally
to an intentional or expected event which unintentionally or
unexpectedly has that result” (Miller, 40 NY2d at 678; see Salimbene,
217 AD2d at 993-994).

     Here, there is no question that, although plaintiff was
intentionally engaged in the exercise of lifting weights at the time
of his injury, the resulting rotator cuff tear was unintended,
unexpected, and unforeseen (see Black’s Law Dictionary, accident;
Miller, 40 NY2d at 677-678; see also Lachter v Insurance Co. of N.
Am., 145 AD2d 540, 541). Defendants, however, contend that
plaintiff’s rotator cuff tear does not qualify as an accidental bodily
injury because it occurred during the course of his “ordinary physical
activity,” i.e., his usual workout routine. We reject that
contention. Defendants rely on Valente v Equitable Life Assur. Socy.
of U. S. (120 AD2d 934, 935, lv denied 68 NY2d 608), in which this
Court concluded that a heart attack suffered as a consequence of
ordinary physical exertion does not constitute an accident within the
meaning of the accidental death provision of an insurance policy on
the life of the plaintiff’s decedent. That reliance is misplaced,
however. The decedent, a 41-year-old man with no history of heart
disease, had a heart attack and died shortly after lifting and moving
large cartons of coffee as part of his routine duties at the
supermarket where he worked (id. at 934). The insurance policy in
Valente, unlike in this case, specifically excluded coverage for
“[l]osses resulting from, or caused directly or indirectly” by a
“bodily . . . infirmity” (id. at 935). Although this Court noted that
“the sudden heart attack suffered by plaintiff’s decedent was neither
expected nor foreseen by him,” we reasoned that “the problem with that
definition of accidental death is that it would include, contrary to
                                 -4-                           735
                                                         CA 11-02383

the clear intent of the policy, any sudden death resulting from
natural causes” (id. [emphasis added]).

     We agree with defendants, however, that the court erred in
granting plaintiff’s cross motion for summary judgment because there
is an issue of fact whether plaintiff’s disability resulted from the
September 2006 accident, “directly and independently of all other
causes” (see Arbour v Commercial Life Ins. Co., 240 AD2d 1001, 1001-
1003; see generally Lachter, 145 AD2d at 541). Defendants submitted,
inter alia, plaintiff’s deposition testimony in which he testified
that he first experienced pain in his right shoulder in 2001,
approximately five years before the subject accident. An X ray report
of plaintiff’s right shoulder from April 2001 found “[i]nferior
spurring from the acromion,” and an April 2001 MRI report noted a
“[s]mall 5 or 6 mm anterior rotator cuff tear” in the same shoulder.
The February 2007 MRI of plaintiff’s right shoulder revealed a
“[r]ight side supraspinatus tendon rotator cuff insertion tear about
1.5 cm gap present,” and the report states that “[t]his is a changing
pattern of progression compared to the 2001 baseline exam.”
Defendants also submitted a March 2007 report from an orthopedic
surgeon who noted that plaintiff reported a “similar episode back in
2001,” and that the 2001 MRI “revealed a partial-thickness tear of the
rotator cuff.” The orthopedic surgeon concluded that the April 2001
MRI films of plaintiff’s right shoulder showed “some evidence of
rotator cuff tendinosis.” In addition, defendants submitted a 2007
BNY claim form, in which plaintiff described the onset of his symptoms
as “years ago.” Defendants further submitted the affirmation of
another orthopedic surgeon who, upon reviewing plaintiff’s medical
records, opined that the rotator cuff tear diagnosed in 2007 “was the
result of normal and expected progression of the smaller tear with
which he was diagnosed in 2001, as a result [of] an ongoing
degenerative process in the right shoulder.” That orthopedic surgeon
further opined that plaintiff’s September 2006 onset of shoulder pain
was “not associated with any specific acute new trauma or injury,” but
rather was caused by his “underlying degenerative condition of his
right shoulder.”

     Defendants also submitted, however, plaintiff’s deposition
testimony to the effect that his 2001 right shoulder pain was gone in
about 10 days or two weeks, that the pain was “not significant,” and
that it did not interfere with his ability to practice medicine.
Plaintiff further testified that he experienced “[n]o symptoms”
between 2001 and September 2006. The statement of the attending
physician accompanying plaintiff’s 2007 claim for benefits from BNY
indicates that plaintiff’s symptoms first occurred in September 2006,
and that plaintiff had never had the same or similar condition.
Finally, in opposition to defendants’ motion and in support of his
cross motion, plaintiff submitted an affidavit in which he averred
that his 2001 shoulder episode resolved in 10 to 14 days, that he did
not lose any time from work as a result of that episode, and that he
had “no further discomfort or limitation with [his] right shoulder
until September, 2006.”

     We therefore vacate the judgment in each appeal and modify the
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                                                         CA 11-02383

single order underlying the judgments by denying plaintiff’s cross
motion for summary judgment, and by vacating the declarations and the
award of damages against each defendant.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
