depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any’ which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific
evidence on a particular issue or by pointing out “an absence of evidence to support the
non-moving party’s case.” Celotex, 477 U.S. at 325. Once the movant has met this
burden, the non-moving party cannot simply rest on the allegations in the pleadings,
but “must set forth specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a motion for summary
judgment is not simply a “metaphysical doubt as to the material facts,” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); rather, “fa]
genuine issue exists when the evidence is such that a reasonable jury could find for the
non-movant,” Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). When
reviewing the record we must draw all reasonable inferences in favor of the non-
movant; however, “we are not required to draw every conceivable inference from the
record—only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Lee,
928 F.2d 232, 236 (7th Cir. 1991).

When parties file cross motions for summary judgment, each motion must be

assessed independently, and denial of one does not necessitate the grant of the other.

4.


controls issues of coverage). In the instant case, two issues are unclear from the
evidence advanced by the parties: the time at which Weinberg’s condition arose’ and
his “regular occupation” at that time. Under the controlling case law, this information
is crucial to any determination of total disability and consequent eligibility for benefits.
The evidence in this case supports multiple possible scenarios, each yielding a different
result when Winter is applied. Deciding which result is correct turns on questions such
as the sources of Weinberg’s income and their relative sizes, what occupation or
occupations’ he was performing at the time of his disability, the nature of floor trading

as opposed to home trading, and the credibility of the various doctors who examined

2 In his first claim form, Weinberg did not specify a time when his symptoms
began, instead describing them as “ongoing.” At other times, Weinberg identified
January 1997 as the beginning of his condition. See Pl’s. Stmt. of Mat. Facts, ff 119,
138. However, the submitted documentation does not indicate that Weinberg received
medical attention until September 1997.

3 See, e.g., Klein v. Nat’l Life of Vermont, 7 F. Supp. 2d 223 (E.D.N.Y. 1998).
In Klein, the insured was a podiatrist who worked simultaneously as a podiatric
surgeon and as a manager of several podiatric clinics. Jd. at 224-25. Between his
purchase of the insurance policies at issue and the time of his disability, Klein’s
surgical activities dropped significantly, and his management activities correspondingly
increased. Id. Accordingly, the court decided that Klein’s management activities
constituted an occupation within the terms of his policies, and because his disability
did not prevent him from carrying on those activities, he was not entitled to benefits.
Id. at 229, 231. Contra Bell v. Continental Assurance Co., 260 N.E.2d 114, 115 (ll.
App. 1970) (insured occupied only one occupation prior to disabling injury); Stender
v. Provident Life and Accident Ins. Co., 2000 WL 875919, at *7 (N.D. Ill. June 29,
2000) (same).

-7-


claimed that his condition prevented him from trading on the floor of the CBOT
because it compromised his concentration, ability to focus, and ability to make
decisions. The claim form also stated that Weinberg was still working by trading at
home.

Minnesota Life denied Weinberg’s initial claim for benefits. In July 1998,
Weinberg filed another claim that initiated a string of correspondence between the
parties. Ultimately, in September 1999, Minnesota Life agreed to pay benefits for the
year 1998. However, they denied benefits for any portion of 1997 as well as 1999 and
years subsequent. In 2001, Weinberg filed suit seeking a declaratory judgment that he
is entitled to benefits under the policy and alleging breach of contract by Minnesota
Life.

The parties have now filed cross-motions for summary judgment, each
contending that they are entitled to judgment as a matter of law on both counts of the
complaint.

LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In seeking a grant

of summary judgment the moving party must identify “those portions of ‘the pleadings,

-3-



M. Snower & Co. v. United States, 140 F.2d 367, 369 (7th Cir. 1944), Rather, each
motion evidences only that the movant believes it is entitled to judgment as a matter
of law on the issues within its motion and that trial is the appropriate course of action
ifthe court disagrees with that assessment. Miller v. LeSea Broadcasting, Inc., 87 F.3d
224, 230 (7th Cir. 1996). With these principles in mind, we turn to the parties’
motions.
DISCUSSION

Although several important facts in this case are not in dispute, the parties’
perspectives on Weinberg’s situation differ substantially. In Weinberg’s view, he was
a floor trader when he bought the policy. He continued to earn income (as opposed to
collecting unearned income from such sources as stock dividends and interest) as a
trader solely from floor trading until he sold his seat on the floor in 2001, indicating his
decision to make his departure from the CBOT permanent. Whatever money he made
in the interim was not from trading but from managing long-term investments in

stocks, bonds, and the like.’ He argues that these activities yield unearned income

' A main component of Weinberg’s argument that he has not taken on another
occupation since leaving the trading floor is that he has made money investing his own
funds. However, it is undisputed that during at least a portion of his time at the CBOT,
Weinberg traded as a “local,” using his personal funds. Thus, the source of the money
traded gives little guidance as to the nature of the investment activity.

5.


him. It is clear that these questions cannot be answered without further factual
development, rendering this case unsuitable for resolution by means of summary
judgment.
CONCLUSION
Based on the foregoing analysis, the parties’ cross-motions for summary

judgment are denied.

Charles P. Kocoras
Chief Judge
United States District Court

Dated: AUG 2 7 tas


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 01 C 7576 DATE 8/27/2003
CASE Weinberg vs. Minnesota Mutual Life Ins Co.
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly thenature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due
(4) o Ruling/Hearing on set for at
(5) oO Status hearing{held/continued to] [set for/re-set for] on set for at
(6) ia} Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a Trial[set for/re-set for] on at
(8) ao [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (CLocal Rule 41.1 CFRCP41(a)(1)  FRCP41(a)(2).

ao) ff [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: The parties’ cross-

motions (Docs 32-1 & 35-1) for summary judgment are denied. Parties are given to September 25, 2003

to file the Final Pretrial Order.
(il) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail A 0 form
Copy tj abn ue

‘umber of notices

AUG £.8,2003
()

scT

\

date muted notice
courtroom

deputy’s
initials

vii, Dateltimesregeived in ;
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rather than earned income and thus do not constitute an occupation that would affect
his coverage under the policy.

Minnesota Life, on the other hand, contends that Weinberg traded from home
before his disability began. Because he was making a substantial amount of money
from trading activities off the floor of the CBOT before February 1997, they argue, he
voluntarily shifted his primary focus away from floor trading before his disability
allegedly forced him to do so. Accordingly, they believe denial of benefits is
appropriate because Weinberg’s condition does not prevent him from home trading,
the occupation he held at the onset of his disorder, and he is therefore not disabled for
purposes of the policy.

The Seventh Circuit has held that, under Illinois law, issues of coverage under
occupational disability insurance policies, such as whether an insured is totally disabled
from performing his or her occupation, must be examined in the context of the
occupation held by the insured at the time the disability begins, not the occupation held
at the time the coverage began. Winter v. Minnesota Mutual Life Ins. Co., 199 F.3d
399, 410 (7th Cir. 1999); see also Matten v. SMA Life Assurance Co., 2002 WL
31433405 at *2 (N.D. Ill. Nov. 1, 2002); contra Primavera v. Rose & Kiernan Inc., 670
N.Y.S.2d 223 (N.Y. App. Div. 1998) (holding that, under New York law, the

occupation listed in the policy, not the occupation at the time the disability occurs,

-6-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS ©

EASTERN DIVISION
LEE WEINBERG, )
)
Plaintiff, )
)
vs. ) 01 C 7576
) BOs
MINNESOTA MUTUAL LIFE INSURANCE ) “ ETED
COMPANY, a professional corporation, ) AUG 2 8 2003
)
Defendant. )
MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the court on cross-motions for summary judgment.
For the reasons set forth below, both motions are denied.

BACKGROUND

This case involves questions of coverage under an occupational disability
insurance policy. Plaintiff Lee Weinberg (“Weinberg”) began working at the Chicago
Board of Trade (“CBOT”) shortly after graduating from college. He was initially hired
as arunner, and after a time he purchased a seat and began trading on the floor in 1981.
During his time at the CBOT, Weinberg traded both as an employee trader, for

companies, and as a “local” trader, using his own funds.


On June 13, 1985, Defendant Minnesota Mutual Life Insurance Company
(“Minnesota Life”) issued Disability Income Policy No. 1-636-165H to Weinberg. As
used in the policy, “disability” or “disabled” means that “due to sickness or injury, you
are unable to perform the substantial and material duties of your regular occupation.”
The policy defines sickness as a “disease or illness which is treated or diagnosed while
[the] policy is in force,” and regular occupation as “your occupation or profession,
including your professionally recognized specialty.” In order to be considered
disabled, the insured must be under the care of a licensed physician. The policy has
been in force since 1985, and Weinberg has paid all of his premiums.

In 1995, 1996, and 1997, Weinberg’s time on the trading floor totaled 134 days,
99 days, and 2 days, respectively. Weinberg last traded on the floor of the CBOT in
February 1997. He leased his seat to another trader in that same month. He made no
attempt to collect benefits under the policy until July 1997, when he mailed a notice
of claim to Minnesota Life. Despite the policy requirement that the insured be under
the regular care of a physician for the disabling condition to qualify for benefits,
Weinberg did not seek medical attention for his condition until September 1997. Since
that time, Weinberg has been examined by several different doctors and managed his

symptoms with various medications. In October 1997, he filed a claim for benefits,

describing his disability as taking the form of headaches, ulcers, and anxiety. He

2.