Berryhill v. National Union Fire Insurance Co. of Pittsburgh

          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 ...