United States Court of Appeals

For the Eighth Circuit

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No. 12-3223

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Curtis L. Cich,

lllllllllllllllllllll Plaintiff - Appellant,

v.

National Life Insurance Company, a Vermont corporation; Penn Mutual Life

Insurance Company, a Pennsylvania corporation,

lllllllllllllllllllll Defendants - Appellees.

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 Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: October 24, 2013

 Filed: April 8, 2014

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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

Curtis Cich sued National Life Insurance Company (“National Life”) and Penn

Mutual Life Insurance Company (“Penn Mutual”) after both companies denied his
claims for disability benefits under insurance policies they had issued to him. The

district court1

 granted summary judgment for the insurance companies, and we affirm.

I.

Cich obtained his license as a doctor of chiropractic in Minnesota in January

1987 and established a practice in Maple Grove, Minnesota, shortly thereafter. During

the course of his practice, Cich purchased two disability income policies and three

business overhead expense policies from National Life. He also purchased a disability

income policy from Penn Mutual. The policies provide monthly payments of various

amounts and for various periods of time in the event that the insured suffers a “total

disability.” 

The National Life disability income policies and one of the National Life

business overhead expense policies define “total disability” as follows, with minor,

immaterial deviations: “The Insured shall be deemed totally disabled only if the

Insured . . . is unable to perform the material and substantial duties of the Insured’s

occupation due to . . . accidental injury . . . or . . . sickness.” The other National Life

business overhead expense policies similarly define “total disability” and “totally

disabled” to mean “injury or sickness restricts your ability to perform the material and

substantial duties of your regular occupation to an extent that prevents you from

engaging in your regular occupation.” The Penn Mutual policy states that the insured

will be considered totally disabled only if certain conditions are met, including (1)

“You are unable to do the substantial and material duties of your regular occupation”

and (2) “Your total disability results from sickness or injury.” The policies also

require that to qualify as totally disabled, the insured must be receiving appropriate

1

The Honorable Donovan W. Frank, United States District Judge for the District

of Minnesota.

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medical care for the condition, with variations not material here regarding what

qualifies as appropriate.2

Between 1988 and 2006, the Minnesota Board of Chiropractic Examiners

received numerous complaints that Cich misled patients about treatment costs and

insurance coverage. On March 27, 2008, the Board suspended Cich’s chiropractic

license for two years and ordered him to pay a $50,000 fine. The Minnesota courts

upheld the two-year license suspension and reduced the fine to $30,000. 

In April and May 2009, Cich submitted claims to Penn Mutual and National

Life for disability benefits pursuant to his policies. Cich asserted that he was totally

disabled as of February 5, 2009, because an “adjustment disorder with mixed

emotional features” and symptoms including “extreme anxiety and stress” prevented

him from operating his chiropractic practice. Cich reported that he last worked on

March 27, 2008, and did not expect to return to practice. 

Cich’s submissions also reported that he first received treatment for his

disability on February 5, 2009. His treatment provider was Karen Kramer, a licensed

social worker. On six occasions between February and June 2009, Kramer and Cich

engaged in talk therapy sessions and other treatment for Cich’s condition. Kramer

opined that Cich would be able to work, but not at his chiropractic practice because

of its association with his anxiety. Kramer continued to treat Cich approximately once

per month, until she concluded in October 2009 that Cich could continue treatment on

an as-needed basis. 

2

Excerpts from the disability income policies appear in Cich’s appendix. 

Appellant’s App. 132-41, 146-52. Excerpts from the business overhead expense

policies appear in the district court record. R. Doc. 35-1, at 21-22, 24-25; see R. Doc.

34, at 4-8; R. Doc. 51, at 13.

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After collecting information about Cich’s condition, National Life and Penn

Mutual rejected his claims. Cich sued the insurers in Minnesota state court, and the

insurers removed the case to federal court based on diversity of citizenship. National

Life and Penn Mutual moved for summary judgment, arguing that Cich did not suffer

from a total disability under the policies. The district court agreed and granted

summary judgment for National Life and Penn Mutual on alternative grounds. The

court first concluded that Cich failed to present sufficient evidence that his inability

to work in his occupation was caused by a sickness or injury, as required by the

policies, because his license suspension caused the inability to work. Second, the

court determined that Cich was not disabled by an adjustment disorder as of March

2008 or thereafter, because he was not receiving appropriate medical care for a

sickness as required by the policies. 

Cich moved for partial summary judgment, arguing that he submitted proof of

loss forms in April 2009, and that the policies required National Life and Penn Mutual

to pay him benefits thereafter. Cich argued that because National Life and Penn

Mutual had not received independent medical examinations to dispute Cich’s

disability until late 2011, he was entitled to disability payments for the intervening

months regardless of the results of those examinations. The district court denied

Cich’s motion on the ground that the policies required more than mere submission of

proof of loss forms to entitle him to benefits. 

Summary judgment is appropriate when there is no genuine issue of material

fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We review the

district court’s grant of summary judgment and denial of partial summary judgment

de novo. Myers v. Lutsen Mountains Corp., 587 F.3d 891, 892 (8th Cir. 2009). In this

diversity case, we construe the policies according to Minnesota law. See Orion Fin.

Corp. of S.D. v. Am. Foods Grp., Inc., 281 F.3d 733, 738 (8th Cir. 2002).

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II.

Challenging the district court’s grant of summary judgment for the insurance

companies, Cich argues that even if his chiropractic license had not been suspended,

his adjustment disorder prevented him from performing his occupation since the onset

of the illness. Therefore, he contends, the district court erred by granting summary

judgment for the insurers on the ground that the license suspension, rather than the

adjustment disorder, caused his inability to work. 

According to the policies issued by National Life and Penn Mutual, an insured

is totally disabled if he is unable to perform his “occupation” or “regular occupation”

due to injury or sickness. As of March 2008, Cich was unable to practice chiropractic

because his license was suspended. An incapacity arising from license suspension is

not a “sickness” or an “injury” that qualifies as a total disability under the policies.

Cich appears to contend, however, that there is a genuine issue of material fact

as to whether he was disabled by the adjustment disorder before his license was

suspended, so that he would qualify for benefits based on a disability caused by

“sickness.” That argument fails because Cich did not seek treatment for his

adjustment disorder until February 2009, nearly a year after his license was suspended

in March 2008. The policies require that an insured must be receiving appropriate

medical treatment to qualify as totally disabled.

Once Cich lost his chiropractic license in March 2008, the practice of

chiropractic no longer was an occupation from which he could become disabled by

virtue of sickness in February 2009. The Penn Mutual policy defines the insured’s

“regular occupation” as his “usual work when total disability starts.” The National

Life disability income policies and one business overhead expense policy excerpted

in the record define “occupation” as “the specialized occupation of the Insured at the

time . . . disability begins” or “the occupation of the Insured at the time . . . disability

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begins.” An excerpt in the record from the other two National Life business overhead

expense policies does not define “occupation,” but the ordinary meaning of the term

and its use in the context of the onset of a disability lead us to conclude—absent

contrary evidence from Cich—that it likewise means the insured’s usual work at the

time disability begins. See Webster’s Third New International Dictionary 1560

(1993) (defining “occupation” as “the principal business of one’s life . . . a craft, trade,

profession, or other means of earning a living”). As of February 2009, when Cich

sought treatment for an adjustment disorder, the practice of chiropractic was not his

usual work, because his Minnesota license was suspended, and the potential for

practice in other jurisdictions was speculative. The sickness for which he was treated

in 2009 thus did not disable him from his occupation as a chiropractor. See, e.g.,

Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir.

1997).

Cich contends in the alternative that he is entitled to benefits as of March 27,

2010, the date on which he was eligible to have his license reinstated, because the

adjustment disorder prevented him from returning to the practice of chiropractic. The

insurance policies, however, provide for benefits when an insured is totally disabled. 

An insured is totally disabled when injury or sickness renders him unable to perform

the duties of his occupation. An occupation, under the policies, is the insured’s

regular work or occupation at the time the disability begins. In February 2009, the

date when Cich alleges that his disability began, Cich was not engaged in the practice

of chiropractic. That a sickness or illness might have prevented Cich from

reestablishing a practice of chiropractic in March 2010 does not qualify him for

disability benefits, because the sickness did not render him unable to perform an

“occupation” under the terms of the policies.

Cich also argues that even if the insurers properly denied his claims for

disability benefits, they were obligated to pay benefits immediately when he submitted

proof of loss forms to National Life and Penn Mutual until the insurers obtained

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independent medical examinations to dispute his medical condition. Cich asserts that

his policies with National Life and Penn Mutual entitled the insurers to obtain

independent examinations while his claims were pending or while benefits were being

paid, but did not expressly state that the insurers could withhold payment until an

examination was performed. Whatever the merit of this timing argument in a case

where the insured is totally disabled and thus entitled to benefits at one time or

another, we see no basis under the policies to require the insurance companies to pay

benefits to an insured who is not totally disabled. 

For these reasons, the district court correctly granted summary judgment for

National Life and Penn Mutual and denied Cich’s motion for partial summary

judgment. The judgment of the district court is affirmed.

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