The opinion of the court was delivered by: MILLER
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Plaintiff, Dr. Jack Dym, has sued his disability insurance carrier, Provident Life and Accident Insurance Company ("Provident"), alleging insurance bad faith as well as claims for fraud and intentional infliction of emotional distress. Provident has filed a counterclaim in which it seeks a declaration that plaintiff is not entitled to total disability benefits because he is not totally disabled under the terms of his policies. Provident has filed a motion for summary judgment. For the reasons set forth below, Provident's motion will be granted.
Plaintiff is a board certified gynecologist. Effective October 1, 1997, Provident issued plaintiff a disability income insurance policy. Effective January 1, 1988, Provident issued plaintiff a second disability income insurance policy. The policies provide in relevant part:
Total Disability or totally disabled means that due to Injuries or Sickness:
1. you are not able to perform the substantial and material duties of your occupation; and
2. you are receiving care by a Physician which is appropriate for the condition causing the disability.
your occupation means the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled. If your occupation is limited to a recognized specialty within the scope of your degree and license, we will deem your specialty to be your occupation.
Prior to an automobile accident on January 13, 1996, plaintiff's professional time was divided between a private practice and employment with Planned Parenthood. In his private practice, plaintiff practiced as a gynecological surgeon. Dym Depo. p. 21, l. 23. Plaintiff performed general gynecological surgery. Dym Depo. p. 22, ll. 2-3. Specifically, plaintiff performed hysterectomies, vaginal repairs, tubal ligations, infertility surgery, D&Cs, and diagnostic laparoscopies as well as surgeries on patients with ectopic pregnancies. Dym Depo. p. 22, ll. 7-12. Plaintiff also removed ovaries, performed colposcopies and provided services involving birth control and menopause. Dym Depo. p. 22, ll. 10-12. Plaintiff describes his private practice before the accident as "a totally unlimited gynecological practice." Dym Depo. p. 22, ll. Plaintiff's duties with Planned Parenthood primarily involved providing first trimester pregnancy terminations. Dym Depo. p.25, ll. 19-21.
In a questionnaire filled out after his accident, plaintiff stated that the important duties that he engaged in on a full-time basis prior to the accident were (1) being on call for emergencies, including major surgery; (2) performing scheduled major surgeries; (3) office work, including pelvic exams and minor surgery; and (4) consultations regarding female medical problems. Defendant's Exhibit 6. Plaintiff admits that two months after his accident he began performing minor surgery on a part-time basis. Defendant's Exhibit 6. See also Dym Depo. p. 23, ll. 7-9. This "minor surgery" involved performing D&C's, which plaintiff explained in his deposition is a pregnancy termination procedure. Defendant's Exhibit 6; Dym Depo. p. 102, ll. 1-5. Plaintiff currently works four days a week for Family Planning Associates, where he primarily performs first trimester pregnancy terminations, which plaintiff admits is minor surgery. Dym Depo. p. 84, ll. 20-25.
Provident seeks summary judgment on the issue of the interpretation of the "total disability" provision of plaintiff's policies. As noted above, the policies define "totally disabled" as "not able to perform the substantial and material duties of your occupation." Provident contends that as a matter of law this provision should be interpreted as requiring that an insured be precluded from performing all of the substantial and material duties of his or her occupation. Provident argues that because plaintiff is able to perform one of the substantial and material duties of his occupation - performing minor surgery - he is not totally disabled, and Provident cannot be held liable for breach of contract arising out of its failure to pay him disability benefits.
Under California law, an insured claiming benefits has the burden of proving that he or she is entitled to coverage under the policy. See Royal Globe Ins. Co. v. Whitaker, 181 Cal. App. 3d 532, 537, 226 Cal. Rptr. 435, 437 (1986). Interpretation of an insurance policy is a matter of law. Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 18, 44 Cal. Rptr. 2d 370, 377, 900 P.2d 619 (1995). When interpreting an insurance contract, courts are to "look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it." Id. A court must consider both the language in the contract as a whole and the circumstances of the case, because a policy provision "cannot be found to be ambiguous in the abstract." Id. at 18, 44 Cal. Rptr. at 378. A policy provision will be considered ambiguous when it is capable of two or more reasonable constructions. Id. at 18, 44 Cal. Rptr. at 378. Only if a policy provision is ambiguous should a court consider an ...