United States District Court, N.D. Georgia, Atlanta Division
WILLIAM F. NEFSKY, Plaintiff,
UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.
OPINION AND ORDER
WILLIAM S. DLTFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Unum Life Insurance
Company of America's (“Defendant”) Motion for
Summary Judgment .
The Disability Insurance Policy
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,  in which Plaintiff was “totally
disabled” or “residually disabled.” (Def.
Statement of Undisputed Material Facts [19.1]
(“DSMF”) ¶¶ 2, 5). The Policy
defines “totally disabled” and “residually
disabled” as follows:
“Total disability” and “totally
disabled” mean injury or sicknessrestricts 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.
“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.
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
¶¶ 9-13). The Rider provides that:
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
2. the Insured is receiving medical care from someone other
than himself which is appropriate for that sickness.
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 ¶
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;  at 63). Watches constitute
the largest portion of Plaintiff's inventory. (DSMF
¶ 24; see  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  at 2).
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) ...