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Kearney v. Standard Insurance Co.

May 19, 1998

REX T. KEARNEY, JR., PLAINTIFF-APPELLANT,
v.
STANDARD INSURANCE COMPANY, DEFENDANT-APPELLEE. REX T. KEARNEY, JR., PLAINTIFF-APPELLANT,
v.
STANDARD INSURANCE COMPANY, DEFENDANT-APPELLEE.



Before: Joseph T. Sneed, Betty B. Fletcher, and Stephen Reinhardt, Circuit Judges.

The opinion of the court was delivered by: Reinhardt, Circuit Judge:

FOR PUBLICATION

D.C. No. CV-S-95-415-WBS/

JFM

No. 96-16701

D.C. No. CV-S-95-415-WBS/ JFM

ORDER AND AMENDED

Appeals from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Argued and Submitted

August 5, 1997

San Francisco, California

Filed April 21, 1998

Opinion by Judge Reinhardt

SUMMARY

ORDER

The opinion filed on April 21, 1998 is ordered amended as follows: At page 3672 of the slip opinion, the language in*fn3 beginning with the words in line 4 "given that Standard" through the words "We note also" in line 11 is deleted.

Plaintiff-appellant Rex T. Kearney, Jr. is an attorney who was a civil trial partner, and managing partner, at the law firm of Ingoglia, Marskey & Kearney. In 1992, following open heart surgery, he began receiving disability benefits under a Long Term Disability Plan issued by Defendant-Appellee Standard Insurance Company. Within two years of approving such benefits, however, Standard terminated them. Kearney eventually brought suit under the Employment Retirement Income Security Act (ERISA), 29 U.S.C. S 1132(a)(1)(B) (1994), but the district court granted summary judgment in favor of Standard primarily because in its view "the fact that [Kearney] should, like most of us, avoid severe emotional stress or very hard work does not warrant the Conclusion that he cannot practice as a trial attorney." We find both the district court's "diagnosis" and its Conclusion very much open to question. Therefore, we reverse and remand.

BACKGROUND

Because we must review this case de novo,*fn1 we set forth the facts in some detail.

Rex Kearney regularly worked long hours trying civil lawsuits until he encountered health problems. As a trial attorney, a large part of Kearney's success was due to his ability to work very hard while retaining excellent cognitive and verbal skills, often under severe pressure. Indeed, one doctor described him as having a classic "Type A" personality -- a frequently obsessive, compulsive worker. On November 3, 1992, however, Kearney -- who had already suffered a heart attack in 1981 at the age of 43 and undergone angioplasty of the diagonal artery in 1988 -- experienced chest pain and nearly collapsed in court during a trial. Six days later, Kearney underwent five-vessel coronary bypass surgery, mitral valve repair, and a closure of a patent pinhole in his heart muscle.

About a month after the surgery, Dr. Stephen Morrison, a Board Certified cardiologist, examined Kearney and noted that he was experiencing musculoskeletal symptoms which should resolve in the next several weeks. Dr. Morrison added, however:

I am also concerned about his memory and I am [sic] told him that I am impressed that this occurs frequently after bypass surgery, and I am hopeful that this will also significantly improve as it is a very large part of his occupation to have a very adequate and perhaps excellent memory as he is a practicing attorney.

Kearney forwarded this letter and a request for disability benefits to his firm's insurer, Standard Insurance Company ("Standard").

Part 6 of Standard's insurance policy issued to Kearney, the "Long Term Disability Insuring Clause," reads:

Subject to all the terms of the GROUP POLICY, STANDARD will pay the LTD benefit described in Part 8 upon receipt of satisfactory written proof that you have become DISABLED while insured under the GROUP POLICY.

The definition of "disability" is set forth in Part 5 of the policy and reads:

A. DEFINITION OF DISABILITY FOR ATTORNEYS.

You are only required to be DISABLED from your specialty in the practice of law.

You are DISABLED from your own specialty in the practice of law if, as a result of SICKNESS, ACCIDENTAL BODILY ...


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