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Deborah A. Bonenfant v. Standard Insurance Company

September 5, 2011

DEBORAH A. BONENFANT, PLAINTIFF,
v.
STANDARD INSURANCE COMPANY, A CORPORATION; AND DOES 1 THROUGH 30, INCLUSIVE, DEFENDANT.



ORDER

This matter comes before the court on defendant Standard Insurance Company's motion for summary judgment on plaintiff Deborah Bonenfant's claim for breach of the duty of good faith and fair dealing. (ECF 23.) The court heard oral argument on the motion on July 13, 2011; Linda Lawson appeared for defendant and Robert Scott appeared for plaintiff. For the following reasons, defendant's motion for partial summary judgment is hereby GRANTED.

I. PROCEDURAL HISTORY AND UNDISPUTED FACTS

Plaintiff filed her complaint in Placer County Superior Court on December 9, 2009 alleging two causes of action: breach of contract and breach of the duty of good faith and fair dealing. (ECF 2-1.) Defendant removed the action to this court on February 11, 2010. (ECF 2.) Defendant filed the present motion for summary judgment on May 6, 2011. (ECF 23.)

Plaintiff filed her opposition on May 25, 2011 (ECF 25) and an amended opposition on June 29, 2011. (ECF 27.)*fn1 Defendant filed its reply on June 30, 2011. (ECF 28.)

Defendant issued plaintiff an individual disability income insurance, policy number C7445470 ("the policy"), which became effective on April 10, 1997. (Def.'s Statement of Undisputed Facts ¶ 1, ECF 23-2 (hereinafter, "ECF 23-2"); Pl.'s Responsive Statement of Undisputed Facts ¶ 1, ECF 25-1 (hereinafter, "ECF 25-1").) The policy defines "Total Disability/Totally Disabled" as the following:

Because of Your Injury or Sickness:

1. You are unable to perform the substantial and material duties of Your Regular Occupation; and

2. You are not engaged in any other gainful occupation; and

3. You are under the regular care of a Physician appropriate for Your Injury or Sickness.

(Not. of Removal, Compl. Ex. 1, ECF 2-1 at 24.) The policy defines "Regular Occupation" as "your occupation at the time Disability begins" "[u]ntil You have received 60 monthly payments for a Continuous Disability" after which time it is "any occupation for which You are reasonably fitted by education, training and experience." (Id.) Plaintiff notified defendant that she was submitting a claim for benefits on April 11, 2007. (ECF 23-2 ¶ 5; ECF 25-1 ¶ 5.)

On her Insured's Statement, plaintiff listed her occupation title as "manager" and listed her job duties as "at computer typing notes from meetings, doing reports"; "business meetings"; "telephone conversations"; and "administrative staff, coach, mentor." (Nickelson Decl., Ex. 3, ECF 23-14.) Plaintiff indicated she became unable to work on February 26, 2007, that her illness was "ruptured cervical disks," and that her symptoms include "neck pain, severe headaches, tingling & numbness in arms & hands." (Id.) She listed her attending physicians as Dr. Ernest Agresti, Dr. Pasquale Montesanto, and Dr. Elvert Nelson. (Id.) Plaintiff also submitted an Attending Physician's Statement ("APS") from Dr. Agresti dated April 20, 2007, which identified plaintiff's primary condition as cervical disc herniation with a secondary diagnosis of cervicalgia and other diagnoses of hypothyroid, hypertension, hyperlipidemia, gastro esophageal reflux spasm, pain, numbness, tingling, weakness and osteoarthritis. (Nickelson Decl., Ex. 4, ECF 23-15.) Dr. Agresti further indicated that plaintiff's functional capacity was severely limited and that she had the following physical limitations, which he anticipated would impair plaintiff until September 10, 2007: standing/sitting/walking; bending/stooping; lifting/carrying; and use of hands. (Id.)

On May 2, 2007, one of defendant's employees spoke with plaintiff, at which time plaintiff indicated that she sat most of the work day. (Nickelson Decl., Ex. 5, ECF 23-16.) Also on May 2, 2007, defendant requested records from Dr. Agresti, Dr. Montesanto and Dr. Nelson (Nickelson Decl., Ex. 6, ECF 23-17)*fn2 and referred plaintiff's claim to a vocational consultant, Don Earwood, to review plaintiff's "regular occupation." (ECF 23-2 ¶ 19; ECF 25-1 ¶ 19.)*fn3 On May 8, 2007, Earwood reviewed plaintiff's Insured's Statement, resume and notes of the May 2, 2007 phone call. (Nickelson Decl., Ex. 7, Earwood Report Mem., ECF 23-18.)

Relying on the U.S. Department of Labor's Dictionary of Occupational Titles, Earwood determined that the "Manager, Office" occupation best described the duties of plaintiff's regular occupation. (Id.) This occupation is described as "sedentary strength, [requiring] the exertion of force 'to 10 lbs. occasionally, or a negligible amount of force frequently to lift, carry, push, pull, or move objects.'" (Id.) Defendant further submitted plaintiff's medical records to Dr. David Waldram, a physician consultant board certified in orthopedic surgery, for review. (ECF 23-2 ¶ 24; ECF 25-1 ¶ 24.) Dr. Waldram found support for limitations and restrictions being placed on plaintiff from February 23, 2007 to August 2007; specifically, that plaintiff should avoid "prolonged sitting, moving neck & can't do repetitive bending or lifting." (Nickelson Decl., Ex. 9, ECF 23-20.)

Defendant approved plaintiff's application for disability benefits on June 12, 2007. (Nickelson Decl., Ex. 10, ECF 23-21.) Defendant continued to receive periodic updates from plaintiff and her doctors. See, e.g., note 2 supra. On July 15, 2008, plaintiff left defendant a voice message stating she had not been receiving State Disability as of February 2008 and that she applied for social security disability and was denied, which decision she appealed, which appeal was denied. (Nickelson Decl., Ex. 20, ECF 23-31.) On November 5, 2008, Dr. Waldram reviewed plaintiff's medical records and indicated that plaintiff "could have returned to sedentary work with no overhead use of either extremity" as of August 2007 through to the date of an April 11, 2008 surgery, and that she could have returned to work after that surgery on June 26, 2008. (Nickelson Decl., Ex. 24, ECF 23-35.) On April 28, 2009, Dr. Waldram again reviewed plaintiff's medical records and indicated that she could have returned to work after her December 31, 2008 surgery, with limitations. (Nickelson Decl., Ex. 30, ECF 23-41.) However, on May 5, 2009, Dr. Waldram indicated that based on records from April 2009 "it was still reasonable at this time that [plaintiff] has not gone back to work" and told defendant to obtain her most recent medical records. (Nickelson Decl., Ex. 31, ECF 23-42.) On May 5, 2009, defendant contacted Dr. Schaefer and asked if plaintiff could go back to work; on May 6, 2009, Dr. Schaefer sent defendant a letter stating that plaintiff could return to work as long as she did not perform overhead work or lift more than ten pounds. (Nickelson Decl., Ex. 32, ECF 23-43.) On May 26, 2009, Dr. Waldram stated he agreed with Dr. Schaefer that plaintiff could return to work restricted to no overhead work or lifting over ten pounds. (Nickelson Decl., Ex. 33, ECF 23-44.) On June 4, 2009, defendant referred plaintiff's file to a vocational consultant, Jan Cottrell, for clarification as to the requirements of plaintiff's regular occupation; Dr. Cottrell concluded that overhead reaching is not required for plaintiff's ...


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