April 11, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:15-cv-03292 -
Charles R. Norgle, Judge.
Bauer, Sykes, and Barrett, Circuit Judges.
Barrett, Circuit Judge.
Fiorentini is the owner and president of Panatech, Inc., a
small technology company. When cancer treatment left him
unable to perform his job, he received total disability
benefits under a policy he held with the Paul Revere Life
Insurance Company. Five years later, after Fiorentini was
back at work and exercising full control of the company, Paul
Revere notified him that he no longer qualified for the
benefits. Fiorentini argued that he still satisfied the
policy's requirements for total disability, because even
though he could perform most of his job duties, he was unable
to do what it takes to generate new business. Paul Revere
rejected that argument, and Fiorentini sued it for breach of
contract. We agree with the district court that Fiorentini
does not qualify for total disability coverage under his
1982, Henry Fiorentini founded Panatech Computer Management,
Inc., a small information-technology company that specializes
in providing customized software to small businesses. In
1998, he was diagnosed with invasive basal cell carcinoma of
the right ear. After minor surgeries failed to remove the
cancer, Fiorentini had his right ear amputated in 2008.
Several more surgeries and radiation followed, leaving him
with permanent hearing loss, fatigue, migraines, dry mouth,
tinnitus (a constant ringing sound), and an inability to
localize sound. To compensate for the amputation, Fiorentini
received a prosthetic ear that is virtually indistinguishable
from his left ear.
the surgery, Fiorentini submitted a claim for "total
disability" benefits under an occupational disability
insurance policy he had purchased from the Paul Revere Life
Insurance Company. The policy defines the key terms for total
disability coverage as follows:
"Total Disability" means that because of Injury or
Sickness … You are unable to perform the important
duties of Your Occupation.
"Your Occupation" means the occupation in which You
are regularly engaged at the time You become Disabled.
listed his occupation as "President & Owner" of
Panatech and said that his occupation entailed four
"important duties": sales (6-8 hours per week),
consulting/meetings (7-10 hours per week), programming (15-25
hours per week), and administrative work (2-3 hours per
week). Concluding that Fiorentini was unable to perform these
duties, Paul Revere approved his claim and began paying total
disability benefits in February 2009.
years later, Paul Revere notified Fiorentini that he no
longer met the total disability requirements of his policy.
He had been cancer-free since 2009 and was working regularly
again. He continued to suffer side effects from the surgery
and worked fewer hours than he had before. Nonetheless, he
was now well enough that he was exercising full control over
it found him ineligible for total disability benefits, Paul
Revere invited Fiorentini to apply for "residual
disability" benefits under his policy. Coverage under
that provision would have required Fiorentini to show that he
was either unable to perform "one or more of the
important duties" of his occupation or could only
perform his important job duties for "80% of the time
normally required to perform them" and that he earned at
least 20% less than he did pre-disability. Fiorentini did not
submit that information; instead, he let his policy lapse and
sued Paul Revere, seeking damages for breach of contract,
statutory penalties ...