James J. White, Jr., M.D. v. Continental Casualty Company, Life Insurance Company of Boston & New York

The principal issue presented in this appeal is whether
the definition of "total disability" in a disability income
policy is ambiguous and, if not, whether plaintiff satisfies the
requirements of that definition. We conclude that the definition
is not ambiguous and plaintiff failed to establish his
entitlement to benefits under the policy as a matter of law.

In 1992, plaintiff James J. White, Jr., a physician who
specialized in orthopedic spinal surgery, purchased a disability
income policy from First UNUM Life Insurance Company. In 1996,
the policy was transferred to defendant Continental Casualty
Company (CNA), and again, in 2001, to defendant Life Insurance
Company of Boston & New York (LICOBNY). Prior to the 2001
transfer, the policy provided that plaintiff would be considered
totally disabled if he was "unable to perform the substantial and
material duties of [his] Occupation due to an Injury or
Sickness." After the policy transfer, the definition of total
disability was changed by adding a second provision which
required that plaintiff not be able to "[perform] the duties of
any gainful occupation for which [he is] reasonably fitted by
education, training, or experience." Plaintiff does not dispute
that he was notified of the change in the language of the policy.
In December 2001, plaintiff informed defendant LICOBNY
(defendant)1 that he was unable to pursue his occupation as an
orthopedic surgeon due to a hip condition and sought disability
benefits under the policy. After defendant denied the claim,
plaintiff commenced this breach of contract action. Supreme
Court granted defendant's motion for summary judgment dismissing
the complaint and the Appellate Division, with two Justices
dissenting, affirmed, holding that plaintiff failed, as a matter
of law, to meet the policy definition of total disability.
Plaintiff appealed to this Court as of right, based on the twojustice
dissent on a question of law, arguing that the definition
of total disability, particularly the definition's second
provision, is ambiguous and renders coverage illusory. Plaintiff
argues that, absent the second provision, he satisfied the
definition of total disability as a matter of law. In the
alternative, plaintiff contends that a triable question of fact
exists on this issue. We conclude that these arguments lack
merit and therefore affirm the order of the Appellate Division.

As with any contract, unambiguous provisions of an
insurance contract must be given their plain and ordinary meaning
(see Teichman v Community Hosp., 87 NY2d 514, 520 [1996]), and
the interpretation of such provisions is a question of law for
the court (see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007];
Chimart Assoc. v Paul, 66 NY2d 570, 572-573 [1986]). It is well
settled that "[a] contract is unambiguous if the language it uses
has 'a definite and precise meaning, unattended by danger of
misconception in the purport of the [agreement] itself, and
concerning which there is no reasonable basis for a difference of
opinion'" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]
[brackets in original], quoting Breed v Insurance Co. of N. Am.,
46 NY2d 351, 355 [1978], rearg denied 46 NY2d 940 [1979]).

"Thus, if the agreement on its face is reasonably susceptible of
only one meaning, a court is not free to alter the contract to
reflect its personal notions of fairness and equity" (Greenfield,
98 NY2d at 569-570 [internal citations omitted]). If the terms
of a policy are ambiguous, however, any ambiguity must be
construed in favor of the insured and against the insurer (see
United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232
[1986]).

Here, in order to receive disability income benefits
under the policy, plaintiff is required to establish that he is
"unable to perform the substantial and material duties" of an
orthopedic surgeon and not be "performing the duties of any
gainful occupation for which [he is] reasonably fitted by
education, training, or experience." Contrary to plaintiff's
assertion, this definition is "reasonably susceptible of only one
meaning," and thus, is clear and unambiguous (Greenfield, 98 NY2d
at 570; see Michelson v Massachusetts Casualty Ins. Co., 102 AD2d
1003, 1004 [3d Dept 1984] [holding that similar policy language
defining total disability was "clear and unambiguous"]).

In addition, although the question of whether a
policyholder's condition falls within the policy's definition of
total disability is typically one for a jury (see McGrail v
Equitable Life Assur. Socy., 292 NY 419, 425 [1944]), here,
plaintiff failed to present any evidence demonstrating the
existence of a triable issue of fact concerning whether he is
totally disabled under the policy. Clearly, plaintiff satisfied
the first provision of the definition inasmuch as he stopped
performing orthopedic surgeries due to medical problems prior to
filing a claim under the policy. However, as to the second
provision, the evidence in the record demonstrates that plaintiff
renders second medical opinions on spinal surgery, performs
independent medical examinations and serves as an expert medical
witness. Therefore, the courts below correctly determined that,
as a matter of law, plaintiff is "performing the duties of [a]
gainful occupation for which [he is] reasonably fitted by [his]
education, training, or experience," and thus, he is not totally
disabled within the meaning of the policy.
Plaintiff's remaining contentions lack merit.

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http://www.courts.state.ny.us/ctapps/decisions/nov07/152opn07.pdf