Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nefsky v. UNUM Life Insurance Co. of America

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

August 28, 2017

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

          OPINION AND ORDER

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

         This matter is before the Court on Plaintiff William F. Nefsky's (“Plaintiff”) Motion for Reconsideration and Motion to Alter/Amend Judgment [29] (“Motion for Reconsideration”).

         I. BACKGROUND

         A. The Disability Insurance Policy

         On June 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.”[1] (Def. Statement of Undisputed Material Facts [19.1] (“DSMF”) ¶¶ 9-13). The Rider includes a definition of total disability:

         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). The Policy does not provide coverage, after June 9, 2013, for any “residual disability” suffered by Plaintiff. The Policy defines residual disability as follows:

“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).

         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 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.

         In the 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).[2] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.