United States Court of Appeals

for 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 reasons.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 27, 2022

Lyle W. Cayce

Clerk

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No. 21-50884

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Thomas Fedesna, who began 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 of 

(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 obtaining at the time of 

his disability, not five years post-injury. He contends his interpretation is 

reasonable but also that CLA’s contrary interpretation is also reasonable, 

therefore an ambiguity exists as well as a fact issue over the contract terms, 

and a trial is necessary to sort it all out. See Wells v. Minn. Life Ins. Co., 

885 F.3d 885, 890 (5th Cir. 2018) (if, after applying the rules of construction 

a policy provision is “subject to two or more reasonable interpretations, that 

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provision is ambiguous”). CLA replies that Fedesna’s interpretation is 

unreasonable, and the only reasonable interpretation is that “any gainful 

occupation” means exactly what it says with no requirement to ignore the 

present circumstances of the insured. To read the clause as Fedesna does

would, according to CLA, make the clause largely superfluous.

“If a policy provision is ambiguous, 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. There is no cabining phrase 

within the post-60-month-coverage-clause that would indicate that “any 

gainful occupation” means only occupations 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 an undergraduate 

degree and 1-2 years of experience. Fedesna holds a doctorate and has over 

30 years of experience. Therefore, because there is only one reasonable 

interpretation 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