work in general cardiology).

Matten has offered evidence, largely uncontradicted, that after his injury he was no longer
able to function in the fast-paced atmosphere of a courtroom. Though SMA is certainly correct
when it notes that most of the work of a trial attorney is spent outside the courtroom, it is
uncontradicted that trying cases in court was an integral aspect of Matten’s pre-injury duties. If
Matten could no longer try cases, he could no longer perform “the occupation in which [he was]
engaged when he became disabled,” and thus under the insurance policies he was totally
disabled, even if he was able to work as an attorney in some other capacity.

Matten argues that SMA has failed to raise a genuine factual dispute regarding whether he
is disabled. SMA points out that the issue of whether a person is disabled within the meaning of
an insurance policy involves questions of fact, but as with any such issue, if the facts are not
genuinely disputed summary judgment is appropriate. Methodist Medical Center of Illinois v.
American Medical Security Inc., 38 F.3d 316, 320 (7th Cir. 1994); Northern Assurance Co. vy.
Summers, 17 F.3d 956, 964 (7th Cir. 1994) (even if issue presents a question of fact, summary
judgment is appropriate if evidence is such that no reasonable difference of opinion could exist).
See also Evanston Insurance Co. y. Stonewall Surplus Lines Insurance Co., 111 F.3d 852, 860
(11th Cir. 1997).

Though the question is a close one, the Court concludes that there is a genuine factual
dispute that precludes entry of summary judgment in Matten’s favor. Among other things, the
opinions of the physicians who said that Matten was unable to perform his duties were based
largely on subjective factors communicated by Matten himself and on tests which had a

significant subjective component. SMA has cobbled together an argument that Matten had a


occupation that was stated in the policy. Winter v. Minnesota Mutual, 199 F.3d 399, 409 (7th
Cir. 1999). In this regard the language of the insurance policies is clear; the focus is on Matten’s
occupation at the time of his disabling injury, not on what the insurance application said. SMA
cites nothing in the policy, and no legal authority, that limits Matten’s “regular occupation” to the
particular occupation listed on his insurance application. SMA certainly could have written the
policy to limit the insured’s occupation to the description in his application, but it did not do so.
And in any event, it is undisputed that in his applications for both policies, Matten made it clear
that he had a trial-oriented practice: his application for the disability income policy described his
duties as “prepar[ing] and try[ing] cases,” and his application for the business overhead policy
identified him as an “attorney-at-law (litigation).”

For these reasons, in evaluating whether Matten was disabled, we must look to his job
responsibilities at the time of his auto accident. It is undisputed that Matten’s duties involved,
among other things, trying cases in court and taking and defending depositions. If the injury
rendered Matten unable to perform these duties, then he was disabled within the meaning of the
insurance policies. See Stender v. Provident Life & Accident Insurance Co., No. 98 C 1056,
2000 WL 875919, at *5 (N.D. Ill. June 29, 2000) (focus is on whether the insured can still
perform the duties that he actually performed before his injury). See also McFarland vy. General
American Life Insurance Co., 149 F.3d 583, 588 (7th Cir. 1998); Lasser v. Reliance Standard
Life Insurance Co., 146 F. Supp. 2d 619, 638 (D.N.J. 2001) (orthopedic surgeon who could no
longer perform surgery was disabled even though he could still perform the duties of an office-
practice physician); Rahman v. Paul Revere Life Insurance Co., 684 F. Supp. 192, 195 (N.D. Ill.

1988) (physician specializing in emergency cardiology was disabled even though he could still



motive, beyond that inherent in any case involving a claim for money damages, to appear more
impaired than he actually was. Though the argument is of dubious merit, the Court cannot rule
out the possibility that a jury might find that Matten was shading things and was not truly unable
to perform his job duties. SMA also cites a written opinion of another physician who concluded
that Matten was not disabled; though it is questionable whether this opinion will be offered in
evidence at trial, for present purposes it suffices to create an issue of fact. Finally, there is a
genuine issue regarding the permanency of Matten’s condition, and thus even were the Court to
conclude that he is disabled now, he would not necessarily be entitled to recover benefits through
age 65 (the date on which the policies provide that benefits are to cease).
Conclusion
For the foregoing reasons, the Court denies plaintiff's motion for summary judgment

[docket item 21-1]. The case remains set for trial on January 6, 2003.

MATTHEW F. KENNELLY
United States District Judge
Date: November 1, 2002


~ te Order Form (0697)

United States District Court, Northern District of Mlinois

Name of Assigned Judge
or Magistrate Judge

Matthew F. Kennelly

Sitting Judge if Other
than Assigned Judge

CASE NUMBER

01 C7755

DATE

11/1/2002

CASE Matten vs. SMA Life
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
a oa 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) Oo Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) i) Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) O Trial{set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Ci Local Rule 41.1 CIFRCP4i(a)(1) CI FRCP41(a)(2).

(40) a [Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,

the Court denies plaintiff's motion for summary judgment (21-1). The case remains set for trial on 1/6/03.
al) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court, Document
Number

No notices required.

Notices mailed by judge’s staff,

2002
Notified counsel by telephone. NOV Qadeted
vw | Docketing to mail notices.
Mail AO 450 form. send) Md Y
. a Sa Lea tat
Copy to judge/magistrate judge. Lyaga Lasts sh
* NOV 9 4 2002

date mailed notice

courtroom —
OR deputy’s GA te
initials

Date/time:rgceived ih
J central Clérk’s Office



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BYRON MATTEN, )
Plaintiff, }
vs. ) Case No. 01 C 7755
SMA LIFE ASSURANCE CO., }
Defendant. }

pack

MEMORANDUM OPINION AND ORDER ance
nov 0.4 200%

MATTHEW F. KENNELLY, District Judge:

Plaintiff Byron Matten has sued defendant SMA Life Assurance Co. (now called
Allmerica Financial Corp.) to recover on two disability insurance policies. Matten is a 48 year
old licensed attorney who had a trial-oriented practice as the principal of a two-lawyer law firm.
He was involved in a serious automobile accident in September 2000 which resulted in a head
injury and loss of consciousness. Matten did not work for an extended period; in January 2001,
he made claims on both policies — a disability income policy and a business overhead expense
policy. Benefits were initially approved and were paid through early April 2001, when benefits
were terminated for reasons that are unclear from the record. Matten was referred by SMA in
July 2001 for a neuropsychological evaluation by Dr. Jerry Sweet, who concluded that Matten
“would be impaired in performing some of the important duties of a litigating attomey” but could
still do some of the work of an attorney, such as drafting legal documents.

Matten worked only sporadically until February 2002, when he closed his law practice; he

turned over all pending matters to his associate or referred them to other attorneys. He filed this

2



lawsuit in October 2001, asserting a claim for breach of contract (Count 1) and a claim for
vexatious and unreasonable refusal to pay pursuant to 215 ILCS 5/155 (Count 2). Matten has
moved for summary judgment on both claims. The motion is denied due to the existence of a
genuine factual dispute on the issue of Matten’s disability; the Court issues this brief opinion to
resolve certain contested legal issues.

Discussion

Both of Matten’s insurance policies were “own occupation” disability policies, meaning
that they entitled him to benefits if he was “unable to engage in [his] regular occupation” in the
case of the disability income policy, and if he was “unable to perform the substantial and material
duties of [his] regular occupation” in the case of the overhead expense policy. Pitf. Ex. A,
“Regular Occupation Rider”; Pltf. Ex. B, p. 5 (“Definitions”). The term “regular occupation”
was defined in the disability income policy as “your occupation when disability begins,” Pitf. Ex.
A, p. 5 (“Definitions”), and in the overhead expense policy as “the occupation in which you are
engaged when you become disabled.” Pltf. Ex. B, p. 5 (“Definitions”).

The primary dispute concerms whether Matten’s occupation was that of an “attorney” or
that of a “trial attorney.” When Matten first applied for the disability income policy, he listed his
occupation as “trial attorney.” SMA rejected that description and asked Matten to amend the
application to describe as occupation as “attorney at law.” Matten did so. When he applied for
the overhead expense policy, Matten listed his occupation as “attorney at law (litigation).””

But under Illinois law, which the parties agree governs this case, determination of
whether Matten was disabled turns on whether he was able to perform the occupation he was

engaged in at the time the alleged disability commenced — irrespective of the particular