United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale, United States Magistrate Judge.
INTRODUCTION
Plaintiff
Jerrell Berryhill, a truck-driver, suffered a fracture of his
right foot, leaving him unable to continue driving trucks.
Berryhill was insured by Defendant National Union Fire
Insurance Company of Pittsburgh, which provided temporary
disability benefits under a disability policy. When the
temporary disability period expired, National denied
Berryhill total continuous disability benefits, on the
grounds Berryhill could work at another occupation. Berryhill
brought suit against National for breach of contract,
specific performance, and bad faith.
Before
the Court is Berryhill's Motion for Partial Summary
Judgment, filed on March 25, 2016. (Dkt. 17.)[1] Berryhill seeks
summary judgment on the first cause of action in his
complaint - breach of contract - at this time. The Court
conducted a hearing on November 29, 2016. After carefully
considering the parties' arguments and the record before
it, the Court issues this Memorandum Decision and Order
denying Berryhill's motion in part. .
FACTS[2]
Berryhill
worked as a tractor-trailer truck driver for over 28 years.
Prior to that, h was part of a tank crew, as a gunner and a
driver, for five years in the Army. (Dkt. 17-10 at 2.)
Berryhill received his GED in 1986, and later obtained his
Commercial Driver's License, Class A, with all
endorsements, prior to becoming a truck driver. (Dkt. 19-2 at
9.)
Defendant
National Union Fire Insurance Company of Pittsburgh insured
Berryhill under occupational accident insurance policy number
TRK9028670-11. (Answer, ¶ 1.1). Berryhill is
specifically defined as an insured under the occupational
accident policy. (Answer, ¶ 2.4).
On
January 13, 2011, Berryhill slipped while tarping a load and
fell approximately five feet, sustaining a right tibia
fracture and right calcaneus fracture. Berryhill did not
return to work following the accident on January 13, 2011,
and collected temporary total disability (TTD) benefits under
the occupational accident policy from January 27, 2011, until
January 23, 2013. At the time of the accident, Berryhill was
forty-nine years of age.[3]
Berryhill
requested Continuous Total Disability (CTD) benefits after
his TTD benefits were discontinued and submitted a formal
Proof of Loss received by National on November 26, 2014.
National denied Berryhill's request for CTD benefits
under the policy. According to the letter dated April 2,
2014, National denied CTD benefits on the grounds Berryhill
would be able to work on a full time basis, with physical
restrictions, in a sedentary occupation, citing the
Functional Capacity Report in its file. Alternatively,
National relied upon a vocational test evaluation and an
independent medical exam opinion, which recommended Berryhill
undergo retraining for a job in small engine repair, and that
it would be safe for Berryhill to engage in such an
occupation. (Dkt. 17-10 at 13-14.)
According
to National, because Berryhill could work, Berryhill did not
meet the definition of “Continuous Total
Disability” under the policy, which has a vocational
component and a treatment component. The policy states:
“Continuous total disability, Continuously Totally
Disabled means disability that: (1) prevents an Insured
Person from performing the material and substantial duties of
any occupation for which he or she is qualified by reason of
education, training, or experience; and (2) requires that the
Insured Person be under the Continuous Care of a
Physician.” (Dkt. 17-7 at 20.) “Continuous Care
means regular treatment of examination by a Physician in
intervals of no more than 30 days, unless otherwise extended
by approval of the Company.” Id.[4]
Both
parties submitted their experts' opinions in support of
and opposition to the pending motion. National retained Dr.
Spencer Greendyke, an orthopedic surgeon, to conduct an
independent medical evaluation, which he did on September 20,
2011, and again on February 12, 2014. Dr. Greendyke's
examination revealed a severe malunion of a healed right
calcaneus fracture, and anatomic healing of a right tibia
fracture. (Dkt. 19-1 at 11.) The malunion of the calcaneus
fracture caused deformity of Berryhill's right foot with
a widened heel, and subtalar posttraumatic arthritis. (Dkt.
19-1 at 12.)
In Dr.
Greendyke's opinion, Berryhill is capable of performing
sedentary work with no more than intermittent standing and
walking. (Dkt. 19-1 at 2; Dkt. 19-1 at 25.) Dr. Greendyke
recommended Berryhill undergo a functional capacity
evaluation. Additionally, Dr. Greendyke indicated no
“further formal medical intervention and/or medications
are felt to be beneficial in the treatment of”
Berryhill's injury. (Dkt. 19-1 at 13.) Based upon his
assessment, Dr. Greendyke in his affidavit concluded
Berryhill's condition “does not require regular
treatment and examination by a physician in intervals of no
more than 30 days.” (Dkt. 19-1 at 2; Dkt. 19-1 at 25.)
Thereafter,
OSC Vocational Systems, Inc., evaluated Berryhill at
National's request. (Dkt. 19-2 at 1.) Leesa Sjolin of OSC
performed a vocational assessment on February 7, 2014.
According to her report, Berryhill would be able to work on a
full time basis with limitations in standing, walking and
carrying, and therefore recommended he work in primarily
sedentary occupations. (Dkt. 19-2 at 12.) However, the report
indicated also that future employment would require remedial
education in basic English, math, and computer skills, and
clerical or office work would be difficult because Berryhill
is missing the tip of his index and middle finger on his left
hand, making keyboarding a challenge. (Dkt. 19-2 at 13.)
The
report indicated Berryhill identified a retraining program at
North Idaho College, over one hour away from his home in
Silverton, Idaho, for a certificate program in small engine
repair. (Dkt. 19-2 at 13.) Ms. Sjolin was of the opinion that
retraining in small engine repair is “most likely the
most feasible outcome…. He also currently owns his own
24x24' shop, as well as pneumatic lifts and tools and
equipment that would allow him to be successfully
self-employed in the future….” (Dkt. 19-2 at
13.) In Ms. Sjolin's opinion, Berryhill would be able to
work in the profession of small engine repair following
additional training. (Dkt. 19-2 at 23.) The report indicated
also that Berryhill was “not comfortable with his
monthly doctor visits, which currently are required but which
are not yielding any new information, and he feels that they
have become a waste of money.” (Dkt. 19-2 at 13.)
Upon
review of OSC's report, Dr. Greendyke updated his IME on
February 12, 2014. (Dkt. 19-1 at 16.) Based upon his review,
Dr. Greendyke was of the opinion Berryhill could return to
sedentary work with minimal standing and walking, and also
that it would be medically safe for Berryhill to engage in an
occupation as a small engine mechanic. (Dkt. 19-1 at 23.)
Berryhill's
retained expert, Fred Cutler, M.Ed., prepared a report dated
May 1, 2014, and in his opinion, Berryhill has no
transferable skills to sedentary work nor is there any
unskilled work that Berryhill is otherwise capable of
performing competitively. It is Mr. Cutler's opinion that
Berryhill is not employable, and the goal of obtaining
certification in small engine repair is not an appropriate
training goal based upon the nature of Berryhill's
injury, and the lack of knowledge of the industry. (Dkt. 17-9
at 2.)
To
obtain a certification in small engine repair, Berryhill
would require one to two years of training, and remediation
in other skills, such as English, computer skills, and math.
Mr. Cutler's opinion is that Berryhill's physical
limitations, which include the foot injury as well as missing
digits on his left hand, would preclude him from completing
the training program and becoming competitive with necessary
office skills, such as keyboarding. (Dkt. 17-10 at 4.)
Finally,
Berryhill indicates in his affidavit that he has
“remained under the continuous care of my family
physician from the date my TTD benefits were terminated until
the present in compliance with the terms of the occupational
accident policy.” (Dkt. 17-2 at 2.)
DISPOSITION
1.
Arguments of the Parties
Regarding
the vocational requirement in the disability policy,
Berryhill argues the terms are not ambiguous, and disputes
National's interpretation. Berryhill contends
National's interpretation of the definition of
“Continuous Total Disability” allows benefits to
be discontinued because Berryhill could return to employment
as a small engine mechanic with additional training.
Berryhill argues, however, that the clause is written in the
present tense, and requires a finding that Berryhill is
presently qualified for a different occupation, without
additional training, to discontinue benefits. In response,
National asserts Berryhill currently is qualified to engage
in a sedentary occupation, and relies on the report of Ms.
Sjolin, who identified minimum wage sedentary jobs available
in Post Falls, Idaho. National argues alternatively that
Berryhill, with assistance, would be able to pursue small
engine repair as an occupation. Berryhill, in ...