Bruce Osborne v. Hartford Life and Accident Insurance Company

R. GUY COLE, JR., Circuit Judge,

dissenting.

I respectfully dissent because I believe that the plain language of the disability policy compelled Hartford to consider Osborne’s actual job duties as President of Insurex in its review of his continued entitlement to benefits. In addition, Hartford has failed to provide a reasoned explanation for its reliance on the Dictionary where the record evidence shows, among other things, that Hartford did not dispute the accuracy or reliability of the job description provided by Osborne, and Hartford admits that there is a discrepancy between the significant travel required by Osborne’s actual position and the Dictio*302nary’s classification of his occupation as sedentary.

I. STANDARD OF REVIEW

The majority correctly states that our review of Hartford’s decision to terminate Osborne’s disability benefits is governed by the “arbitrary and capricious” standard. This standard has been described as “the least demanding form of judicial review of administrative action.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 292 (6th Cir.2005). “When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Id. (internal citation omitted). However, as we recently noted in Moon v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir.2005),

merely because our review must be deferential does not mean our review must also be inconsequential. While a benefits plan may vest discretion in the plan administrator, the federal courts do not sit in review of the administrator’s decisions only for the purpose of rubber stamping those decisions ... Indeed, deferential review is not no review, and deference need not be abject.

II. DISCUSSION

Osborne’s disability policy with Hartford provides that he is eligible to receive long-term-disability payments if he is “totally disabled.” Under the policy, “Totally Disabled means you are prevented by Disability from doing all the material and substantial duties of your own occupation on a full time basis.” The question is whether, where the policy does not define “your own occupation,” it was reasonable for Hartford to fix the meaning of Osborne’s “own occupation” by reference to the Dictionary definition for “President, Financial Institution,” to the exclusion of Osborne’s actual job duties.

As an initial matter, the majority cites this Court’s unpublished opinion in Schmidlkofer v. Directory Distrib. Assocs., Inc., 107 Fed.Appx. 631 (6th Cir.2004), in support of its decision that Hartford did not exceed its discretion in relying on the Dictionary. In Schmidlkofer, this Court concluded that it was rational for the defendant insurer to consult the Dictionary to determine the nature of the plaintiffs occupation, rather than look to her specific duties as manifested in her actual job. Id. at 634; but see Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381, 386 (3d Cir.2003), cert. denied, 541 U.S. 1063, 124 S.Ct. 2390, 158 L.Ed.2d 963 (2004) (holding that “[bjoth the purpose of disability insurance and the modifier ‘his/her’ before ‘regular occupation’ make clear that ‘regular occupation’ is the usual work that the insured is actually performing immediately before the onset of disability”). The policy language at issue in Schmidlkofer was “regular occupation,” not “own occupation,” like that here. The majority dismisses this distinction as a “relatively minor difference in language [that] does not warrant a different result.” I respectfully disagree.

Whatever the meaning of “regular” is, it is not synonymous with “own.” Mizzell v. The Paul Revere Life Ins. Co., 118 F.Supp.2d 1016, 1021 (C.D.Cal.2000) (commenting, while comparing a disability policy that spoke in terms of the claimant’s “regular occupation,” with one that spoke in terms of the claimant’s “own occupation,” that “[inf anything, the phrase ‘regular’ seems more general in nature than ‘own’ ”). Used as an adjective, as it is here, “own” means “belonging to oneself or itself’; “used to specify an immediate or direct relationship.” Webster’s Third New International Dictionary 1612 (1986). Construing the policy language according to its “plain meaning in an ordinary and *303popular sense” then, “own occupation” refers to Osbourne’s actual job duties. Williams v. Int’l Paper Co., 227 F.3d 706, 711 (6th Cir.2000). If it was otherwise, if the policy language really meant the generic responsibilities associated with Os-bourne’s occupation, there would have been no reason to include the word “own.” The same meaning could have been accomplished by couching the definition of “total disability” in terms of “your occupation,” rather than “your own occupation.” This Hartford did not do. As a result, it seems to me that we ought not render “own” surplusage by reading it out of the policy language. See Union Inv. Co. v. Fid. & Deposit Co. of Md., 549 F.2d 1107, 1110 (6th Cir.1977) (“A contract will not be construed so as to reject any words as sur-plusage if they reasonably can be given meaning.”); see also Cunningham v. The Paid Revere Life Ins. Co., 235 F.Supp.2d 746, 756 (W.D.Mich.2002) (interpreting “own occupation” in a disability policy as referring to the claimant’s actual job duties rather than the general description contained in the Dictionary); Mizzell, 118 F.Supp.2d at 1021-22 (same).

Second, even assuming that the phrase “own occupation” is susceptible to two meanings, Hartford has failed “to offer a reasoned explanation, based on the evidence,” for relying on the Dictionary. Calvert, 409 F.3d at 292; see also Lasser, 344 F.3d at 386 (stating that the policy administrator’s interpretation of ambiguous language must be reasonable to be entitled to deference).

As part of its initial review of Osborne’s claim for disability benefits, Hartford asked for and received a job description from Osborne. This job description explained that Osborne traveled frequently— approximately two weeks out of every month (curtailed to one week every other month in the year prior to his resignation) — as part of his regular duties. Thus, in 1996 Hartford granted Osborne’s claim for disability benefits on a record that included the job description provided by Osborne. Hartford still had Osborne’s job description in hand in 2000 when it undertook its evaluation of Osborne’s continued entitlement to benefits. Nonetheless, rather than consult Osborne’s job description, Hartford researched the occupations in the Dictionary, determined that Osborne’s job most closely matched that of “President, Financial Institution,” and because the Dictionary classified “President, Financial Institution” as a sedentary position, Hartford terminated Osborne’s benefits on the grounds that he was capable of performing sedentary work.

Hartford does not claim that the job description supplied by Osborne outlining his actual duties was in any way inaccurate or insufficient to enable Hartford to understand the nature of Osborne’s responsibilities and assess whether he could return to work as President of Insurex. Hartford also does not dispute that Osborne was required to travel regularly to fulfill his duties. In fact, Hartford acknowledges the discrepancy between Osborne’s actual travel requirements and the Dictionary’s classification of “President, Financial Institution” as sedentary, but insists, without any explanation, that the Dictionary applies: “Although Mr. Osborne’s specific job in the occupation of a ‘President of a Financial Institution’ may have involved traveling, the occupational requirements per the DOT Code, does not require traveling.” Finally, the record is devoid of any evidence that business travel is not in fact a typical feature of Osborne’s occupation as it is performed by other persons at comparable institutions. See Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 253 (2d Cir.1999) (holding that the institution where the plaintiff was employed had to be considered in defining *304her “regular occupation”); Lasser, 344 F.3d at 387-88 (concluding that survey-evidence of other orthopedic surgeons showed that emergency surgery and being on-call were material aspects of the plaintiffs occupation). On these facts, I cannot conclude that Hartford’s reliance on the Dictionary was reasonable.

Accordingly, I would reverse and remand to the district court for consideration of whether, in light of Osborne’s specific job duties as President of Insurex and the medical evidence in the record, Hartford’s termination of Osborne’s disability benefits was arbitrary and capricious.