Robinson Warncke Recovers $1.7M in Benefits, Overcoming MassMutual Attempt to Dilute “Own Occupation” Disability Coverage for Owner of Commercial Roofing Company

Disability insurance companies routinely find novel ways to make seemingly straightforward cases incredibly complicated and burdensome for the insured.  This is just such a case.

Our client took out four premium “own occupation” disability policies with MassMutual when he was starting and growing his commercial roofing business in the late 80’s and early 90’s. On each application for coverage he listed his insured occupation as “owner/operator of commercial roofing business.” He paid premiums on these policies for nearly thirty years while he continued to grow the business into a multimillion dollar per year concern.

His job routinely required him to climb up and down exterior 40 foot ladders onto and off of roofs. He regularly had to conduct close visual inspections near the edge of roofs with a 40 foot drop. He had to work around roofs with damaged and decaying decking, and to work around skylights and other openings with 30 to 40 drops onto concrete surfaces below.  In his business, even small mistakes could have disastrous consequences. In short, this was dangerous, but profitable work.  Our client was among the best in the business.  It is no exaggeration to say that our client and his company enjoyed a stellar reputation for skill, honesty, and ethics.

In 2017 our client had a stroke in the optic nerve of one eye.  This suddenly left him blind in the eye except for a small sliver of vision near the bridge of his nose.  He lost the ability to judge depths and distances and experienced reduced contrast vision, two abilities that are essential when working at dangerous heights. He also found that his pace and endurance were affected even in his office work, since so much of it involved close visual inspection of photographs and building plans.

This seems like it should be a slam dunk disability claim.  Someone with monocular vision cannot safely work at unprotected heights, and our client was on commercial roofs constantly.  The client was surprised, then, when MassMutual denied his claim largely by using an employee “vocational consultant” to say his occupation at the time of disability was not as the owner of a roofing company, but instead that of a “consultant.” “Consultant” is a traditionally office based job. Simply put, MassMutual intended to ignore the client’s field work at heights as a way to get off the hook for paying benefits.

The case involved a tremendous effort to overcome that conclusion.  The case also raised a theme we see over and over in the disability insurance industry – “no good deed goes unpunished.” Our disabled clients are rarely rewarded by their insurers for their heroism in trying to work through a disability. Instead, insurers use those efforts against them, suggesting that because someone risked life and limb to keep working while disabled, they should just keep doing it. Fortunately, well established disability law takes a different view of that circumstance.

Background – the Client’s “Transition Period” Trying to Sell His Company

Our client’s doctors, upon diagnosing and measuring his vision impairment, told him immediately it was unsafe for him to keep climbing on and off 30 or 40 foot unprotected roofs.  Indeed, that seems to be a common sense notion.  But what was he to do with the business he had spent thirty years building?  What would become of his long standing clients and employees?  It was not in his nature to simply walk away from all his business and his people. So, our client continued running the business to the best of his ability with one good eye, and started trying to sell it.  He was risking life and limb to do it.

The sale process took nearly two years, but he finally found a buyer, with the sale closing in July 2019.  He then stayed on, unpaid, for five months, introducing the new buyer to the customer base and teaching him how the business operated, how to handle roof estimates, and how to insure quality control.  He gradually lessened his time in the field, but his field work continued even after the closing of the sale. He filed his claim after he concluded teaching the new buyer the ropes.

This is where the “no good deed goes unpunished” theme comes in.  Most “own occupation” disability policies define your occupation as whatever you were doing “at the time the disability arises.”  MassMutual labeled his occupation as a “consultant” by focusing on the final few months of his 30+ year career when he was teaching the new owner how to run the business.

Unless the insured is willing to hire an attorney and fight, insurers get away with this conduct all the time. However, disability insurance attorneys know that, by law, policy terms must be interpreted according to the reasonable expectations of the insured. And it is fair to say that no insured would expect his “own occupation coverage” – on which he had been paying for three decades. Our client did not suddenly change careers after he became disabled due to vision problems. He had never applied for, trained for, or been paid as a “consultant” a day in his life. He applied for disability coverage as a roofer, and he paid premiums as a roofer.  This was the only occupation he had ever held. Helping the new owner learn the business was merely the final chapter in a successful career in that single occupation.

Proving MassMutual “Misunderstood” the Client’s Occupational Demands

When the client came to Robinson Warncke, his claim had already been denied, and MassMutual gave him the opportunity to submit additional evidence and request reconsideration.  That is precisely what we did.

We learned that MassMutual’s classification of our client’s occupation as “consultant” rested largely on a single phone conversation between the client and an in-house vocational consultant – basically MassMutual’s employee “expert” in how jobs are performed and classified.  We and the client were highly suspicious of how the vocational consultant had documented the conversation. As portrayed to us, the vocational consultant did not accurately describe our client’s long standing career particularly as it related to the amount of “field work” it entailed, going up and down ladders and spending time on dangerous roofs needing repairs or actively under construction.

The first thing we did was ask MassMutual for a copy of the consultant report and of the recording of the phone conversation, since all disability insurers routinely record all calls.  Despite repeated requests, MassMutual refused to produce any documents or recordings.  There is no specific legal obligation that they do so under Georgia law (at least not until we file a lawsuit) so MassMutual just simply chose to play “hide the ball.”  We considered it troubling, of course, and we would have had plenty to say about that conduct had the matter ever come before a jury.

So, being prevented from knowing whether the phone call was even accurately portrayed, we sought to prove through witness testimony and documents that our client did not have an office job and had not changed careers in his final chapter and after becoming disabled.  We interviewed the client, his wife, at least four of his employees, two of his construction clients, and the buyer of the business.  All testified that field work was integral to his occupation before and after his optic stroke.  In fact, he was still getting onto commercial roofs with only one good eye even after the sale, when he was training the buyer.

We also asked for our client’s work calendar data and had graphical representations made of the amount of field work and roof top visits he performed on a monthly basis.  Lastly, we provided extensive photographs demonstrating the dangerous nature of the field work.  As discussed below, this ended up being a successful effort.

Addressing the Client’s Medical Work Restrictions

One would think it would not be controversial that someone with monocular vision should not be working at heights on unprotected damaged roofs or those under construction.  Not so in the world of disability claims.

Part of the insurer’s claims examination process is to hire paid medical consultants and then rely on their opinions.  Insurance doctors routinely ignore or minimize a client’s work restrictions, and the insurers always accept these opinions even when the treating doctors have provided detailed, well-reasoned support for more serious work restrictions.

In this case, MassMutual described its medical consultant’s alleged opinions in its denial letter. Those opinions turned out to be far more supportive of disability than MassMutual represented to our client.  Again, MassMutual played “hide the ball” with its medical consultant report, refusing multiple, direct requests to give us or the client a copy. Instead, it insisted on giving the report only to two treating doctors for comment, and making us go to those doctors for a copy if we wanted one.  We can assure that NO treating doctor went to medical school to be put in the middle of a disability dispute like this.  In our view, MassMutual was making things needlessly difficult.

Eventually, we got a copy of the insurance medical consultant report.  We learned that MassMutual had emphasized only the parts of his report that tended to minimize their liability, and omitted the parts that were most favorable to the client.  Upon making this discovery it became clear that there was no legitimate dispute as to whether the client could safely perform the field work aspects of his occupation.

However, for the sake of completeness we also arranged a vision therapist assessment. She was able to perform testing (different from what eye doctor’s typically perform) and confirm that the client was not only unsafe at heights, he was also impaired in pace and endurance in his office work.

Because these policies only require a “reduction inability” to work, both types of impairment were probative of a disability within the meaning of these policies.

Bad Faith Demand – MassMutual Pays The Claim Without Having to Resort to Litigation

Armed with all this evidence, Robinson Warncke submitted a demand letter pursuant to Georgia’s Bad Faith Insurance Statute.  This statute allows an insured to demand payment within 60 days of a written demand and notice. In the event the insurer fails or refuses to make payment, the insured may bring a legal action seeking not only benefits due, but also statutory bad faith penalties of 50%, plus all expenses of litigation including his attorneys’ fees.

Robinson Warncke spent several months assisting our client in preparing his evidence. With all of the evidence marshalled, we submitted a Bad Faith Demand pursuant to the statute.  The demand letter ran 31 pages, single spaced.  It analyzed the policy, the evidence, and MassMutual’s claims handling in light of applicable Georgia and national insurance law.  We included more than 125 pages of exhibits.

Within the statutory 60 days MassMutual contacted us to notify us it was reversing its decision and paying benefits retroactive to the date of disability, plus twelve percent statutory interest.  The benefits will likely continue for maximum duration under the policy, to age 65.  The total value of this claim exceeds $1,700,000.00.

Results like these are not a windfall for our clients.  Our client got what he bargained and paid for, and nothing more. This client expected to be working until age 70. He paid premiums to MassMutual for thirty years to protect that income, hoping and expecting he would never get sick enough to make a claim. He did everything in life one is supposed to do before and after his disability arose.

We are very happy to ensure that MassMutual and other insurers deliver on their promise of financial protection in times of poor health. Even after doing this work for decades, we are still sometimes surprised at the lengths to which insurers will go to avoid their contractual obligations. This is difficult, but rewarding work. Here, the recovered payments will make a substantial difference in the lives of our client and his family for years to come.