# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50884

**Thomas Fedesna,**

Plaintiff

— Appellant **,**

versus

**The Canada Life Assurance Company,**

Defendant

— Appellee

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 1:18

- CV

- 546

Before **Davis, Jones,** and **Elrod,** Circuit Judges

**. Per Curiam**  **:** *
This court has carefully considered the briefs and pertinent portions
of the record in the above

- styled appeal. Having done so, we find no reversible error of law or fact in the comprehensive district court opinion and
therefore **AFFIRM** for the following r easons

.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 27, 2022
Lyle W. Cayce Clerk Case: 21-50884 Document: 00516409252 Page: 1 Date Filed: 07/27/2022No. 21

- 50884

2 Thomas Fedesna, who beg an practice as a chiropractor in the 1970s, bought an individual total disability insurance contract in 1985. In 2011 he fell off a ladder and injured his back, neck, and arms. Fedesna made a claim on his disability insurance contract and Canada Life Assurance (CLA) paid him $4,500 a month for five years. At the five

- year mark, however, the terms of the contract triggered a shift in Fedesna’s coverage, and the $4,500
payments were stopped because Fedesna was not totally disabled under the
terms of the contract.
Here are the relevant terms from the contract: “Total Disability means that you are unable, due to injury or sickness, to engage in your regular occupation. This definition changes after benefits have been payable during any one continuous disability for the longer o f (a) 60 months (b) to your age 55. Total disability will then mean that you are unable, due to injury or sickness, to engage in any gainful occupation. Any gainful occupation means work for which you are reasonably suited by your education, training [,] and experience.”
In other words , Fedesna’s insurance coverage shifted from a policy covering an inability to “engage in [his] regular occupation,” i.e. chiropractic
medicine , to covering an inability “to engage in any gainful occupation.” Fedesna argues that any attempt at distinguishing the initial coverage language from the time

- triggered coverage language is futile, and that in the
time

- triggered language the words “any gainful occupation” refer to whatever gainful occupation Fedesna was capable of obt aining at the time of his disability, not five yea rs post

- injury. He contends his interpretation is
reasonable but also that CLA’s contrary interpretation is also reasonable,
th erefore an ambiguity exists as well as a fact issue over the contract terms ,

a nd a trial is necessary to sort it all out

. See Wells v. Minn. Life Ins. Co. , 885 F.3d 885, 890 (5th Cir. 2018) ( i f, after applying the rules of construction a policy provision is “subject to two or more reasonable interpretations, that Case: 21-50884 Document: 00516409252 Page: 2 Date Filed: 07/27/2022No. 21

- 50884

3 provision is ambiguous ” ). CLA replies that Fedesna’s interpretation is unreasonable, and th e only reasonable interpretation is that “any gainful occupation” means exactly what it says with no requirement to ignore the present circumstances of the insured. T o read the clause as Fedesna does
would , according to CLA , make the clause largely superfluous. “If a policy provision is ambigu ous, the court must adopt the insured's construction of the provision, ‘as long as that construction is not unreasonable, even if the construction urged by the insurer appears more reasonable or a more accurate reflection of the parties’ intent.’ National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. Hudson Energy Co. , 811 S.W. 2d 552, 555 (Tex.1991). If, however, the policy provision is susceptible of only one reasonable interpretation, the court must enforce the provision as written. Id. ” Lubbock Cnty. Hosp. Dist. v. Nat’l Union Fire Ins.

Co. , 143 F.3d 239, 242 (5th Cir. 1998).
The CLA ’s interpretation is correct

. T here is no cabining phrase within the post

- 60

- month

- coverage

- clause that would indicate that “any gainful occupation” means only occup ations Fedesna could undertake prior to his injury. The deletion of the word “regular” and inclusion of the word “any” are dispositive , and Fedesna’s alternative interpretation cannot carry his burden to show ambiguity

. Further, Fedesna’s arguments about how the employment he qualifies for nonetheless does not constitute “any gainful employment” falls short. For example, he argues that he cannot sell medical devices to chiropractors, even though all it requires is a n undergraduate degree and 1

- 2 years of experience. Fedesna h olds a doctorate and has over 30 years of experience. Therefore, because there is only one reasonable interpretatio n of the policy language, under the guiding principle expressed
in Lubbock, the judgment is **AFFIRMED**

. Case: 21-50884 Document: 00516409252 Page: 3 Date Filed: 07/27/2022