* T he Honor able George Caram Ste eh, United S tates Distric t Court Judg e for the Ea stern District of Michigan, sitting by designation.

NOT RECOM

MENDED F OR FULL-T EXT PUBL ICATION File Name: 04a0026n.06 Filed: October 13, 2004 No. 03-5773 UNITED STATES COURT OF APPEALS FOR THE SI

XTH CIRC UIT
RICHARD D. SPEIGHT, Plaintiff-Appellant , v. MASSACHUSETTS MUT. LIFE INS. CO., Defendant-

Appellee
. ) ) ) ) ) ) ) ) ) OnAppeal fr om t he United S tates Di s trict Court for t

he Middle District of

Tennessee

Before: BOGGS, Chi ef Judge; GU Y, Circuit

Judge; and

STEEH, D istrict Judg e. * PE R CURIAM. In this diversity case under Tennessee law concerning the termination of insurance ben efits, plaintiff Richard D. Spe ight appeals from the d

istrict court ’s judgment for defendant Massach

usetts Mutual Life Insurance Co. (“Mass Mutual”) following a bench trial. Because we hold that the district court did not clearly err in finding that Spe ight no longer ha d a disabl ing mental conditi on, we affir m.

I In1985 and 1986, Richard D. Speight purchased two disability inc ome insur ance policie s from Conne cticut Mutua

l Life Insur

ance Com

pany (“Con

necticut Mut

ual”). Thes e policies bo thNo. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

- 2 - provide for coverag e in the even t of either o f two kinds

o f disabil ity: “Total Disability” and “Residual D isability”. These term s are define d in the polic ies as follo ws: Total Disability. You’re tota lly disabled

if because o f sickness or injury you can’t do the mai

n duties of

your occupa

tion. You m

ust be under

a doctor’s ca

re. Residual Disability. You’re resid ually disabled if

because of sickness or injury: you can do some, but not all, of the main duties of your occupation. OR youcan work at youroccupation no more than 3/4 of the hours you w orked before becoming disabled.
J.A. 266, 273. The on

ly differe nce between

the 1985 and

1986 polici es is that the se cond includ es
anendorsem ent modif

ying the def

inition of r

esidual disa

bility by cha

nging the ra

tio of hour s workable while still disabled from 3/4 to 4/5. At the time he purchased the policies, Speight was a senior partner at a la w firm th at

he cofounded. He was a suc cessful tria l litigator; a

t the time h e won a one m illion dolla

r verdict, it was the largest jury

verdict in N ashville’s h

istory. In ad

dition to his

law practice , Speight se

rved as an adjunct professor a

t Vanderbil

t Law Schoo l. He also w

rote crimin

al-law-insp ired novels . Starting in1983, however, Sp eight emb ezzle d money f rom the fi

rm and fro m a firm

client. His p artners discovered

the embezzlement in December 1987. The following month, t he partners term

inated Speight and reported his embezzlement to the Tenne ssee Bo ard of Professional Responsibility. After his partners had been in contact with the Board but b efore they m ade their formal com

plaint, Speight turned him self

in. The discovery of his embezzlementsent Speigh t into an em

otional cris is. He sought treatment with a psychiatrist, Dr. Vernon Sharp. Dr. Sharp diagnosed Speight as havi ngNo. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

- 3 - a variety of psychological impairments. He further con cluded that Speight could no longer function
as a trial lawy er. To resolve h is disciplin ary issues with the Tenn essee Board of Profes sional Responsibility, Speight pet itioned the T ennessee

Supreme Court to place him on disability inactive st atus. On April 21 , 1988, Co nnecticut Mu tual began p ayments u

nder his disa

bility insur

ance coverage. Speight continue d to see Dr . Sharp an d, after Dr . Sharp’s retireme nt, Dr. Tuc k er; he also filed monthly progress reports with the insurance co mpany. F ollowing a m erger with

Connecticut Mutual in 1996, Mas s Mutual took over Speight’s policy. In 1998, it requested that Speight undergo
anindependent examinati on by two ps ychiatrists, Drs. Bernet and Tram ontana, bot

h of whom

were selected and paid for

by Mass Mutual. On the basis of their conclu sions, Mass

Mutual term

inated Speight’s benefits. S peight responded that, w hile he still b elieved

he was eligi

ble for tota

l disability benefits, the medica

l evaluation s perf

ormed by the doctors s

uggested he

was eligible

for residua

l disability benefits. Following Mass Mutual’s negative responses to his cl aim, Speight filed a complaint with the Ten

nessee Depa

rtment of Comme rce and Insu

rance (“TDI C”) in October 1999. Inresponse to

TDIC’s inq

uiry, Mass Mu

tual investigated the number of hours Speig

ht had work

ed priorto the onset o f his disabi lity. Mass Mu tual never in formed S peight of the results of this investigation. Speight fi led suit agai

nst Mass Mutu

al in Tennes see state cou rt. He claim

ed that Mas s Mutual had violated the insurance contract by discon tin uing his benefits in 199 9. Speight a lso sought relief unde

r the federa

l ERISA sta

tute and two Ten

nessee cons

umer prote ction laws: the Bad Faith Insurance

statute, Tenn. Code Ann. § 56-7-105, and the Tenn essee Consu

mer Protec tion Act,No. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

1 The district court did not rule on the ERISA claim in its opinion and

appellant do es not raise the claim o n appeal. - 4 - Tenn. Code Ann. § 47-18-101 et seq. Mass Mutual t imely removed t

he case to fe deral court b ased on divers ity and fe deral que stion ju risdict ion becau se of the ER ISA claim. 1 Following a bench trial , the distric t court en tered judgment

for defendants. It hel d that pl ai ntiff was no long er disabled a s of 1999 an d that, in an

y event, his

legal disabi lity (his embezzlement

of funds) had precede d his factua l disability (

his depression). The court furth er held that defendant was not liable under either Tennessee statute
. Speight timely app ea l ed. He argues that the district court’s determination that he was no longer disabled in 1 999 is clearl y erroneous

and that th e district court relied on unintrod

uced deposition testimony to rea ch that conc lusion. He a lso argues that he is entitl ed to relief under Tennessee’s Bad Faith Insurance statute and Tennessee Consumer Protection Act.

II We review the factual determination of the district court und er th e “clearly err oneous” standard. Bank of Lex ington & Tru st Co. v. Vining Spa rks Secs., I nc. , 959 F.2d 6 06, 609 (6th Cir. 1992). Under this standard, we reverse the district cou rt only when

“although t

here is evide

nce to support it, the reviewing court on the entire record is left with the definite an d firm con

viction that
a mistake ha s been comm

itted.” Ibid. ( quoting An dersen v. C ity of Bessem er City , 470 U.S. 564, 573 (1985) (inte

rnal citation s omitted) ).No. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

- 5 - The district cou

rt found th at Speig

ht was no t disabled in

1999 and co

uld return to

work without restriction. Speight argu es on appe al that this finding is clearly erroneous because the district court at times implied that Speight’s return to work was conditional on cert ain restrictions
on his job responsibilities a nd weekly hours. If Sp eight could only return t

o work unde

r th e se limitation s, appellant argues, he would qualify under the residual dis ability provision in his policy. Though the opinion

contains iso lated refere

nces to restr

ictions, the

district cou

rt concluded

th a t Sp eigh tno longer suffered fr om any mental illness

and that any

restrictions

on the term s of his employment were not required by any mental condition. The district cou

rt pri marily b ased this finding on two subsidiary findings. First, any suggestion that Speight could not return to work without restrictions stems fro m the opin

ion of Dr. Bernet, one of the p sychiatri st s hired by Ma ss Mutual to e valuate Spe ight. The di strict court, however, credited

Dr. Bernet’ s clarificat

ion at trial th at while he recomm ended that S peight retur

n to work only w

ith certain re strictions o n his hours and r esponsibilities, those restrictions did not pertain to any men

tal illness or

condition. Dr. Bernet s tated that the sugg ested limi

tations were

only lifestyle suggestion s. Second, the district c ourt furthe r credited th e testim ony of Drs. Bernet and Tramontanaover that of Dr. Tucker, who had been treating Speight. Drs. Bernet and Tramontana both believ ed that Spei ght no longe r suffered from a dis abling me

ntal conditi on while Dr . Tucker disagreed. Not only we re Drs. Bernet and Tram ontana more experienc ed in diagno sing ment al conditions , but Dr. Tucker had a personal relationshi

p with Speig

ht. Appella

nt also argue s that Dr.No. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

2 There is no support for a “treating phys icia n rule” outsi de of the So cial Securit y context, which was the sour

ce of plaint

iff’s cited authorities

at trial; and the leading authority on the question makes any application outside that context dubious. Black & Deck er Disabilit

y Plan v. Nor

d , 538 U.S. 822, 830 n.3 (20 03).

3 Becausewe affirm

the district c ourt’s find

ing that Speight wa s not disabled in 1999, we do not reach the court’s other finding that Speight’s legal disability preceded his factual disability. - 6 - Tucker’s opinion wa s entitled to greater weight under a treat ing physici an rule. 2 We have no reason to believe th at the distric t court was m istaken in re aching any o f these conclusions. Appellant urges us to adopt the definition of residual di sability found in Russell v. Paul Revere Life Ins. Co. , 148 F. Su pp. 2d 392 (D. Del. 200 1). The Russell court defined “residual disability” as “the disab ility remai ning after r

ecovery of

the emplo yee from the c ircumstan ces that rendered him or her d

isabled.” Id. at 404. Wh ile the Russell

court was g

uided by a di ctionary d efinition of residual, see ibid. , we rely on t he definiti on found in

the insuranc e contrac t at issu e here. That contra

ct instructs t

he policy holder, “You’re residually disabled if because of s ickness

or injury : you can do some, but not all, of the main duties of your occupa

tion . . . . O R you can w ork at your occupation no more than 3/4 of the hours you w orked before bec oming dis abled.” (em phasis added) In this case, Speight cou ld not qualif

y as residual ly disabled because the district court found that Spe ig ht no longer

suffered f

rom any si ckness. Mor eover, the d

istrict court

found that appellant’s

mental con

dition restri cted neither

the hours th at he worked nor the dutie s he could perfor m. The district cou rt’s findin

g that appell ant was not d isabled in 19 99 was not c learly
erroneous. 3

IIINo. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

- 7 - Speight argues that t

he district co

urt’s relianc e on deposit

ion testimony not ente

red into evidence at trial was h armful er ror meritin

g reversal. W

e disagree. T

his court has

addressed

th e issue of relying on unintroduced deposition testimony in Processteel, Inc. v. Mosley Mach. Co. , 421 F.2d 1074, 1076

(6th Cir. 19 70). Whil e explicitly disapprovi

n g of the use of u

nintroduce d dep o sition testimony , this court u pheld the di strict court’ s decision w hen “[t]h ere was am

ple evidence to support th e District Ju

dge’s find ing . . . .” Ibid . Other circu its have articul ated

the same standard using different terms. See White v. Vath ally , 732 F.2d 1 037, 1041 ( 1st Cir. 1984) (“[W]e look to the eviden

ce actually i

ntroduced a

ttrial to determine whether the district court’s finding is adequately

supported

.”) (e mp hasis added

); Chicago Ridge Theatre Ltd. P’ship v. M & R Amusement Corp. , 855 F.2d 465 (7th Cir . 1988) (“If the district c ourt did in f act rely substan tially on this unintroduc ed

testimony . . . , the plaintiffs were denied due process of law and there must be a new trial or other

proceeding s.”) (emphasis added). Inthis case, th e district cou rt relied on two segment s of deposition testimony not offere d into evidence. These segments of deposition

testimony

were either a

mply supported by other evid

ence properly before the court or were irr elevant to the out come of the case. First, the di strict court u sed unintroduc ed

portions of Dr. Bernet’s deposition to establish that Speight’ s return to work was not limited by his men

tal conditio n. Dr. Bernet testified to the same

effect at tr

ial. The conclus ion that Speight could return to work without restrictions was therefore support ed by other evidence in the record. Second, the district court used the depos ition testimony of Ms. O’D onnell, the

firm administr ator at S peight’ s law firm, to show that Speight did

not work for 60-70 hour s a week, as he later claimed. The num ber of hour s Speight w orked prior t o becomin

g disabled

is only relevantNo. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

- 8 - if the district court ha d found that the number of hours he could work in 1999 was limited to a certain number. I

n that case, S peight coul d qualify a s residually disabled if

he could only work f

ourfifths or three-quarters of the hours that he used to work. Because the district cou rt found th at there
was no restriction on the num ber of hour s Speight co

uld work in

1999, the number of hours Speight used to work and therefore also the inappropriate use of O ’Donnell’s deposition testimony

is irrelevant to the outcome of the case. F or these reas ons, the dis trict court’s use of unin

troduced testimony does not merit reversal
.

IV Finally, Speight cannot recover on his claims under the Bad Faith Insurance statute, Tenn. Code Ann. § 56-7-105, or the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et seq. , because he

has not been

wrongly den ied benefits under his insurance policies. Under the Bad Faith Insura

nce statute, a plaintiff

must prov e that “the re fusal to pay must not h ave been in good faith.” Palmer v. N

ationwide M

ut. Fire Ins. Co. , 723 S.W .2d 124, 12 6 (Tenn. Ct
. App. 1986 ). Inthis case, th e refusal to

pay was bas ed on a theor

y vindicated

at trial and o n appeal. We therefore cannot say

that defend

ant acted in b ad

faith. Similar reasoning bars appellant’s recovery under the T ennessee

Consume

r Protection

Act. To rece ive compe

nsation und

er that statut

e, appellan

t mus t prove “ascertaina

ble loss . . . as a

result of” an improp er act. Tenn . Code Ann . §47-18-10 9(a)(1). Speight complain s on appeal o nly that Mass Mutual neve

r reported to

him or to th e TDIC either that they had investigated the number of hours Speight had previously worked or the resul ts of that investigation. Regar dless of whether that conceal

ment was i

mproper, Speight can

not show lo ssNo. 03-5773

Speight v. Massachusetts Mut. Life Ins. Co.

- 9 - because he cannot show that he de served to collect under the policy. For these reasons, we AFFIRM the judgm ent of the d

istrict court
.