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. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff William F.
Nefsky's (“Plaintiff”) Motion for
Reconsideration and Motion to Alter/Amend Judgment 
(“Motion for Reconsideration”).
The Disability Insurance Policy
9, 1979, Defendant Unum Life Insurance Company of America
(“Defendant”) issued a disability insurance
policy (“Policy”) to Plaintiff. ([19.4] at 2).
The Policy includes a Lifetime Sickness Benefit Rider (the
“Rider”), which states that, beginning on June 9,
2013, Defendant is required to make payments to Plaintiff if
he is “totally disabled.” (Def. Statement of
Undisputed Material Facts [19.1] (“DSMF”)
¶¶ 9-13). The Rider includes a definition of total
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.
¶ 11). The Policy does not provide coverage, after June
9, 2013, for any “residual disability” suffered
by Plaintiff. The Policy defines residual disability as
“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).
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 minutes to draft a
description. (DSMF ¶ 38). He composes only one
description for an item he buys in bulk. (DSMF ¶ 39).
These descriptions are posted on eBay and WFN's website.
late 1990s, Plaintiff hired Mike Hoffland
(“Hoffland”) to maintain Plaintiff's eBay
account, to photograph and lists the items to be sold, and to
fill any orders received over the internet. (DSMF
¶¶ 40-43). Hoffland retrieves, inspects, packages and
ships WFN items sold online. (DSMF ¶ 44). If Hoffland
discovers a defect in the item, he raises the issue with
Plaintiff. (DSMF ¶ 45). Daniel Marino has handled
WFN's bookkeeping ...