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Ashby v. Underwriters at Lloyd's

March 6, 2008

ANDREW ASHBY, PLAINTIFF,
v.
UNDERWRITERS AT LLOYD'S, LONDON, DEFENDANT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 14)

This action arises out of Andrew Ashby's ("plaintiff") disputed claim for disability benefits pursuant to a Professional Athlete's Insurance Policy ("Policy") issued by Underwriters at Lloyd's, London ("defendant"). Defendant has moved for summary judgment, arguing that plaintiff did not suffer a "permanent, total disablement" within the meaning of the Policy and/or that plaintiff's lawsuit is time-barred by the Policy's limitations provision. (Doc. No. 14.) For the reasons stated below, the Court denies the motion.

BACKGROUND

A. Facts

1. Relevant Policy Provisions

Defendant issued the Policy to plaintiff effective February 26, 2003 to February 26, 2004. (Answer ¶ 7.) The Policy lists plaintiff's occupation as "professional baseball player--pitcher" and provides coverage for "Permanent Total Disablement Accident or Sickness." (Policy Declaration Page.) The Policy defines "permanent total disablement" as "the Assured's complete and total physical inability to engage in his occupation . . . for 12 continuous months. Provided that at the end of such 12 months, the Assured is adjudged . . . to be completely unable ever again to engage in such stated occupation." (Id. "Definition".) The Policy provides coverage against any bodily injury caused by an accident occurring during the certificate period . . . which shall solely and independently of any other cause within 12 months from the date of such accident . . . results in the commencement of the Permanent total disablement, as herein defined, of the Assured and thereby prevents him from continuing his occupation as stated in the declaration page. (Id. "Loss of Services Insurance".)

The Policy further explains that "[a]ny claim . . . shall be subject to the approval of two independent medical referees, one to be appointed by the Assured and one by the Underwriters." (Id. Part I--Agreements ¶ 1.) If those two referees do not agree, the Policy provides for the American Medical Association to appoint a third referee, whose decision "shall be final and binding upon all parties." (Id.) The Policy states additional preconditions for the payment of claims:

No benefit will be payable under this certificate unless the Assured shall be continuously and Permanently totally disabled as the result of such bodily injury or sickness for a period of 12 months during which the Assured is prevented from continuing his occupation . . . at any time during such period and unless at the expiration of such 12 months period the Assured is deemed in the opinion of the aforesaid referees, to be completely unable to engage in such occupation without hope of improvement. (Id. ¶ 2.)

In addition, the Policy provides:

[n]o action at law or equity shall be brought to recover under this certificate prior to the expiration of 12 months from the commencement of the Permanent and total disablement. . . . No such action shall be brought after the expiration of three years from the commencement of such Permanent and total disablement. (Id. Part IV--Conditions ¶ 8.) International Risk Management Group ("IRMG") managed claims for Underwriters. (Gleason Decla. ¶ 1.)

2. Plaintiff's Claim

Plaintiff began his career as a professional baseball pitcher in 1992. (Ashby Decla. ¶ 9.) In April 2004, plaintiff, through his agent Mark Gilliam Enterprises, submitted a completed "Disability Claim Form." (Gleason Decla., Exhibit B, at 1.) The Disability Claim Form represented that plaintiff became totally disabled in September 2003 and had undergone "Tommy John" surgery*fn1 in October 2003. (Id., Exhibit B, at 2.) IRMG reviewed medical records and reports from plaintiff's treating physicians, including a Scripps Clinic Annual Examination ("SCAE") from February 24, 2005. (Id. ¶ 9.) The SCAE report includes the following notation: "elb well healed/ no pain w/ valg stress/ <5% flex="">*fn2 (Id., Exhibit C, at 9.) The examining physician checked the "No restrictions" box under the "Participation" heading. (Id., Exhibit C, at 10.)

Defendant denied plaintiff's claim and never paid Policy benefits. ...


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