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Goar v. Federated Life Insurance Co.

United States District Court, S.D. Indiana, Indianapolis Division

April 10, 2015

ANDREW W. GOAR, Plaintiff,



Presently pending before the Court in this insurance coverage action are: (1) Defendant Federated Life Insurance Company's ("Federated") Motion for Summary Judgment, [Filing No. 72]; and (2) Plaintiff Andrew Goar's Motion for Partial Summary Judgment, [Filing No. 96].



A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 202 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, " Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

"The existence of cross-motions for summary judgment does not, however, imply that there are no genuine issues of material fact." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, "[p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the nonmovant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial." Id. at 648.



The Court notes at the outset that Mr. Goar has not complied with Local Rule 56-1(b), which provides that a response to a motion for summary judgment "must include a section labeled Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment." While Mr. Goar includes a section titled "Facts Not In Dispute" in support of his cross motion for partial summary judgment, [Filing No. 97 at 8], he does not specifically identify facts that he is disputing in connection with Federated's Motion for Summary Judgment, [ see Filing No. 97 at 29-49]. Instead, Mr. Goar provides his version of events, but without tying it to alleged inaccuracies in Federated's Statement of Material Facts Not in Dispute. This approach does not comply with Local Rule 56-1(b), and has made review of the cross motions unnecessarily cumbersome.[1]

The Court has attempted to sift through Mr. Goar's version of events, determine which facts set forth by Federated he disputes, and construe disputed facts in his favor in connection with Federated's motion when he has provided citations to evidence in the record. But failure to comply with Local Rule 56-1(b) can result in a concession of the movant's version of events. See, e.g., Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (the Seventh Circuit has "repeatedly upheld the strict enforcement of these rules, sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts").

The Court finds the following to be the undisputed facts, supported by proper citation to admissible evidence in the record:

A. Mr. Goar's Health

In August 2005, Mr. Goar was working as a goldsmith, doing repair work, and performing some managerial duties at Smith's Jewelers, a store owned and operated by his family. [Filing No. 97-4 at 48-49.] On August 2, 2005, Mr. Goar went to the Henry County Memorial Hospital Emergency Room complaining of numbness in his left arm and face. [Filing No. 97-3 at 54.] He had experienced those same symptoms three times that past week. [Filing No. 97-3 at 59.] The emergency room physician diagnosed Mr. Goar with paresthesia, and instructed Mr. Goar to follow up with two other physicians. [Filing No. 97-3 at 53-55.]

Mr. Goar saw Dr. Dawn Zapinski on August 11, 2005, complaining of left arm numbness. [Filing No. 97-3 at 59-61.] Dr. Zapinski ordered neurological tests, and saw Mr. Goar again on August 18, 2005. [Filing No. 97-3 at 61-62.] While the results of the EMG of Mr. Goar's left arm were normal, an MRI of his brain showed "a few scattered white matter lesions around the ventricles, which is unusual for his age." [Filing No. 97-3 at 62.] Dr. Zapinski was concerned about demyelinating disease, and told Mr. Goar during an August 18, 2005 visit that she wanted him to undergo a lumbar puncture to hopefully rule out multiple sclerosis. [Filing No. 97-4 at 62-63.] During the August 18, 2005 visit, she explained to Mr. Goar that multiple sclerosis was "at the top of [her] differential" of his possible diagnoses. [Filing No. 81 at 6.]

B. The Federated Application

On August 24, 2005 - just six days after Dr. Zapinski told him she suspected he had multiple sclerosis and ordered diagnostic testing - Mr. Goar completed a Federated Life and Disability Income Application (the "Application"), which was filled out by Richard Lemming, a Federated agent. [Filing No. 97-3 at 89; Filing No. 97-3 at 105-110.] Under the heading "Medical Information" in the Application, Mr. Goar provided the following information:

• Mr. Goar listed his personal physician as "Spiceland Pike Medical Center, " and listed his last visit there as "2004 - cyst on face";
• In a blank for "All Current Medications, " Mr. Goar checked a box marked "NONE";
• Mr. Goar wrote a line to indicate he had no response for a blank for "Other medical providers seen in the past five years (include doctors, chiropractors, and therapists, date last seen and reason)";
• Mr. Goar responded "no" to the question "Within the past 5 years, have you had, been told you had, or received treatment for any of the following conditions:... Brain or Nervous System Disorder; Multiple Sclerosis; Epilepsy or Seizures";
• Mr. Goar responded "no" to the question "Within the past 90 days, have you been admitted to a hospital or other medical facility, been advised to be admitted; had surgery performed or recommended; or been advised to have a diagnostic test other than an HIV test?"; and
• Mr. Goar responded "no" to the question "Within the past 5 years, have you had treatment for... [a] nerve or nervous system disorder."

[Filing No. 73 at 20.]

Mr. Goar signed the Application to indicate that he understood and agreed, among other things, that:

• "I represent that the statements and answers given in this application are true, complete, and correctly recorded"; and
• "I will inform [Federated] of any changes in the proposed insured's health, mental or physical condition, or of any changes to any answers on this application, prior to or upon delivery of this policy."

[Filing No. 73 at 22.]

A Federated representative interviewed Mr. Goar on August 30, 2005 as part of the underwriting process. [Filing No. 42-2 at 2.] When the Federated representative asked Mr. Goar "Have you seen any other doctors, chiropractors, specialist[s] or therapists in the last 5 years including any medication, treatment or therapy?, " Mr. Goar provided information which the Federated representative noted was "greater than 4 weeks ago, ER visit, Henry County Memorial Hospital, New Castle, IN., for pain in left arm, thinking heart related. MRI was done, it was not heart or stroke related, but cause was undetermined. He was told to come back if persists. He has not had any further problems." [Filing No. 42-2 at 2.] Mr. Goar did not disclose his treatment with Dr. Zapinski to the Federated underwriter during the August 30, 2005 interview. [Filing No. 42-2 at 2.]

C. Mr. Goar's Diagnostic Tests and Further Appointments With Dr. Zapinski

Mr. Goar underwent the lumbar puncture that Dr. Zapinski had ordered, and met with Dr. Zapinski on September 23, 2005 to discuss the results. [Filing No. 81 at 7-8; Filing No. 81 at 16-17.] During that office visit, Dr. Zapinski discussed with Mr. Goar her belief that he had multiple sclerosis and treatment for the disease. [Filing No. 97-3 at 65 (Dr. Zapinski noting that "I had a long discussion with [Mr. Goar], his wife and his father today about multiple sclerosis, its prognosis and treatment.... I also gave him some information on multiple sclerosis including pamphlets and numbers of the MS Society"); Filing No. 81 at 7.] Dr. Zapinski's notes for Mr. Goar's September 23, 2015 visit summarize her impressions: "Intermittent left upper extremity numbness and tingling; MRI of the brain on August 13th does show scattered white matter lesions around the ventricles as well as a lesion at C2 on the cervical spine MRS. Coupled with the CSF results, this is most likely multiple sclerosis." [Filing No. 97-3 at 318-19.] At the September 23, 2005 visit, Dr. Zapinski also gave Mr. Goar a kit for two multiple sclerosis medications - Copaxone and Betaseron. [Filing No. 81 at 7-8.] The kit contained general information about multiple sclerosis and specific information about the medications. [Filing No. 81 at 8.]

D. The Policy and Acknowledgement

Federated issued a disability policy to Mr. Goar, effective October 4, 2005 (the "Policy"). [Filing No. 73 at 4-16.] The Policy covers "Total Disability, " which is defined as follows:

Total Disability

You'll be considered totally disabled if because of sickness or injury:
a. you are under the regular and personal care of a physician; and
b. you are unable to perform the substantial and material duties of your regular occupation; and
c. you are not engaged in any other occupation for wage or profit; and
d. you are unable, after the first 3 years of your total disability, to work in any occupation for which you are suited through education, training or experience.

[Filing No. 73 at 8.]

The Policy also provides, in relevant part:

Notice of Disability
Written notice of your disability must be sent to our Home Office or to our representative. Send it within 60 days after the start of disability or as soon as reasonably possible, in any event, the required notice must be given no later than one year from the date of disability unless you were not then competent to make the claim. There is no required form, but notice must include your name and should include the policy number.

[Filing No. 73 at 10.]

Contesting Your ...

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