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As Reported In:

As Decision of the Day

WylieLaw Client v. Berkshire Life Insurance Company

Causes of Action

Breach of Contract - GBL§349 Claim - Promissory Estopppel - Own Occupation Disability Insurance


Payment of all past benefits for a total of $108,607.63; Continuous payment of all monthly benefits until 2015 at an annual amount of $65,000 plus a 4% annual increase in benefits



United States District Court, Southern District of New York


Honorable Allen G. Schwartz

Appellate Court

Second Circuit Court of Appeals


After approximately fifteen years of practicing dentistry and employing between three and six other dentists, a dentist suffered the onset of numerous diseases of the muscles in his shoulder, neck and elbow. He became unable to perform his normal duties as a dentist. Thereafter, he made a claim for total disability benefits under three separate insurance companies. Two of the insurance companies conducted an investigation and approved the benefits to be paid. The third company refused to conduct an investigation. Rather, the insurance company claimed that the dentist had two occupations: a dentist and an office administrator. Further, since he could no longer be a dentist, but could continue as an office administrator, he was not deemed to be totally disabled, only partially disabled.

A lawsuit was filed in Federal Court claiming breach of the insurance policy and bad faith by the insurance company. As part of the legal discovery in the bad faith claim, the insurance company was forced to produce 100 randomly selected claim files to be reviewed by WylieLaw. After the legal discovery was finished, both the insurance company and WylieLaw asked the Court to grant summary judgment on their claims.

The Honorable Allen G. Schwartz ruled that the dentist was owed all of the benefits under the policy as he had only one occupation: he was a dentist and his administrative duties were not a separate occupation. The Court also ruled that the dentist had not met the high standard to prove bad faith.

The insurance company did not like the ruling and sought an appeal to the Second Circuit. WylieLaw also appealed the ruling on the bad faith claim. The Second Circuit Court of Appeals heard oral arguments on this and in a written decision affirmed the lower court.

The New York Law Journal reprinted the Court's opinion the following day under the caption "Decision of the Day."


Loss of benefits under an own-occupation disability insurance policy


Plaintiff's Experts:
Robert M. Josephson, CLU, ChFC


The WylieLaw Client won all back benefits owed under the policy, $108,607.83 and he was approved for all future benefits owed under the policy. The policy will be in effect until 2015 and will pay annual benefits starting at $65,000 and increase by 4% each year.