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Nefsky v. UNUM Life Insurance Company of America

United States District Court, N.D. Georgia, Atlanta Division

February 15, 2017

WILLIAM F. NEFSKY, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.

          OPINION AND ORDER

          WILLIAM S. DLTFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Unum Life Insurance Company of America's (“Defendant”) Motion for Summary Judgment [19].

         I. BACKGROUND

         A. The Disability Insurance Policy

         On June 9, 1979, Defendant issued a disability insurance policy (“Policy”) to Plaintiff William F. Nefsky (“Plaintiff”). ([19.4] at 2). The Policy required Defendant to make payments to Plaintiff in any month, before June 9, 2013, [1] in which Plaintiff was “totally disabled” or “residually disabled.” (Def. Statement of Undisputed Material Facts [19.1] (“DSMF”) ¶¶ 2, 5).[2] The Policy defines “totally disabled” and “residually disabled” as follows:

“Total disability” and “totally disabled” mean injury or sickness[3]restricts the Insured's ability to perform the material and substantial duties of his regular occupation to an extent that prevents him from engaging in his regular occupation.[4]
“Residual disability” and “residually disabled” mean injury or sickness does not prevent the Insured from engaging in his regular occupation, BUT does restrict his ability to perform the material and substantial duties of his regular occupation: (i) for as long a time as he customarily performed them before the injury or sickness; or (ii) as effectively as he customarily performed them before the injury or sickness.

         (DSMF ¶ 5).

         The Policy also includes a Lifetime Sickness Benefit Rider (the “Rider”), which is “subject to the terms and conditions of th[e] rider and the rest of th[e] policy.” (DSMF ¶¶ 7-8). The Rider provides for continuation of coverage in the event of a total disability based on certain conditions. The Rider states that, beginning on June 9, 2013, Defendant is required to make payments to Plaintiff in any month in which:

1. the Insured is totally disabled; and
2. that total disability:
a. is the result of sickness which began before [June 9, 2008] and while this rider was in effect; and
b. his total disability began before [June 9, 2008] and has been continuous until the month for which this benefit is payable.

         (DSMF ¶¶ 9-13).[5] The Rider provides that:

         When used in this rider only: “Total disability” and “totally disabled” mean

1. sickness restricts the Insured's ability to perform the material and substantial duties of his regular occupation to an extent that prevents him from engaging in his regular occupation; and
2. the Insured is receiving medical care from someone other than himself which is appropriate for that sickness.

         (DSMF ¶ 11).

         B. Plaintiff's Occupation

         In 1974, Plaintiff began working for Precious Metals Exchange, a company that sold gold and silver coins and bars to investors. (DSMF ¶ 14). In 1978, Plaintiff bought Precious Metals Exchange and incorporated it as WFN Enterprises, Inc. (“WFN”). (DSMF ¶ 15). Plaintiff is the president and sole shareholder of WFN. (DSMF ¶ 16). He exercises “complete control” over WFN and has done so continuously since 1978. (DSMF ¶ 17).

         In the late 1970s, Plaintiff, through WFN, started buying and selling watches and jewelry. (DSMF ¶ 19). He continues to do so today. Plaintiff also buys and sells china, crystal and silverware. (DSMF ¶¶ 19, 23). Plaintiff often purchases items-especially watches-wholesale from manufacturers. (DSMF ¶ 25). He also purchases items from estates, stores with excess inventory, and stores going out of business. (DSMF ¶ 26; [20] at 63). Watches constitute the largest portion of Plaintiff's inventory. (DSMF ¶ 24; see [20] at 48 (“[P]rimarily, I've worked with watches.”)). Plaintiff has taken courses on grading diamonds and color stones, but he is not a certified gemologist. (DSMF ¶¶ 20-21). He describes himself as a “Business Broker.” (DSMF ¶ 22; see also [23] at 2).

         Plaintiff's inventory is stored in an office space, which he has rented for the last twenty years. (DSMF ¶ 30). The office has a workroom, with good lighting, where Plaintiff processes “small inventory deals.” (DSMF ¶ 31). Plaintiff sells most of his inventory on eBay. (DSMF ¶ 33). He also sells items at trade shows, through his company website, and occasionally over the telephone if he is contacted by a former customer. (DSMF ¶¶ 26, 34-36). His products are not sold in a showroom or store. (DSMF ¶ 32). Plaintiff, using a template, drafts descriptions of the items he sells online. (DSMF ¶ 37). It usually takes him about fifteen (15) ...


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