United States District Court, W.D. Kentucky, Louisville Division
JAMES H. POGUE, Plaintiff,
PRINCIPAL LIFE INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
BOOM, DISTRICT JUDGE, UNITED STATES DISTRICT COURT
matter is before the Court on the Plaintiff's Objection
to Magistrate Judge's Opinion and Order [R. 88]; the
Defendant's Motion for Summary Judgment [R. 89]; the
Defendant's Motion to Exclude [R. 90]; the
Plaintiff's Cross-Motion for Summary Judgment [R. 99; R.
101-1]; the Defendant's Motion to Strike the
Plaintiff's Cross-Motion as untimely [R. 107]; multiple
objections filed by the Defendant to portions of the
Plaintiff's summary judgment evidence [R. 110; R. 111; R.
112; R. 113]; the Plaintiff's Motion to Strike or
Disregard Defendant's Untimely Replies [R. 129]; and the
Plaintiff's Motion for Hearing [R. 137]. For the reasons
explained below, the Court will grant the Defendant's
Motion to Strike the Plaintiff's Cross-Motion as untimely
[R. 107], will grant the Defendant's Motion for Summary
Judgment [R. 89], and will deny the remainder of the pending
filings as moot.
the relevant factual background to this case is recounted in
two previous opinions: the Western District of Kentucky's
opinion in Pogue v. Nw. Mut. Life Ins. Co., No.
3:14-CV-00598-CRS, 2018 WL 1189415, at *1 (W.D. Ky. Mar.
7, 2018) (“Pogue I”), and the Sixth Circuit's
subsequent affirmance (JAMES H. POGUE,
Plaintiff-Appellant, v. NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, Defendant-Appellee., No. 18- 5291, 2019 WL
1376032 (6th Cir. Feb. 7, 2019)). Briefly, Plaintiff is a
physician who practiced in Nashville, Tennessee before
ultimately losing his medical license after an investigation
conducted by the Tennessee Board of Medical Examiners. Pogue
I, 2018 WL 1189415 at *1, *4. He subsequently made claims for
benefits under various disability insurance policies,
including three issued by Northwestern Mutual Life Insurance
Company (“NWML”) (the defendant in Pogue I) and
one issued by Principal Life Insurance Company
(“Principal”) (the defendant in this matter). In
his request for disability benefits to NWML, the Plaintiff
claimed “that he suffered from a ‘severe anxiety
disorder' and that ‘on Nov. 9, 2012 [he] had a
total nervous breakdown and could no longer think clearly
enough to practice medicine.' . . . [And] that he
‘chose to surrender [his medical] license due to a
feeling of personal incompetence to handle work
stresses.'” Id. In his request for
disability benefits to Principal, the Plaintiff included some
similar complaints, including “nervous breakdown”
and anxiety. [R. 89-10, Plaintiff's Claim Notice at pp.
2-3, PAGEID#: 886-87] Both insurance companies denied the
claims, and the Plaintiff filed two nearly identical suits in
Jefferson County Circuit Court, claiming breach of contract,
breach of duty of good faith and fair dealing, unfair claims
settlement practices, and claims under Kentucky's
Consumer Protection Act. See [R. 1-2, State Court Record;
R. 1-2, State Court Record, Pogue v. Northwestern Mutual
Life Insurance Company, 3:14-cv-598-CRS-CHL]. Each suit
was then removed to this Court on August 29, 2014. See [R. 1,
Notice of Removal; R. 1, Notice of Removal, Pogue v.
Northwestern Mutual Life Insurance Company,
3:14-cv-598-CRS-CHL] The first suit was resolved with a
grant of summary judgment for the defendant, which the Sixth
Circuit affirmed on appeal. As noted, the present suit is now
before the Court on a variety of motions, including
cross-motions for summary judgment.
judgment is proper where “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When determining a motion for summary
judgment, a court must construe the evidence and draw all
reasonable inferences from the underlying facts in favor of
the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009).
The court may not “weigh the evidence and determine the
truth of the matter” at the summary judgment stage.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 265
(1986). When, as here, the defendant moves for summary
judgment, “[t]he mere existence of a scintilla of
evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Id. at
252. The initial burden of establishing no genuine dispute of
material fact rests with the moving party. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The Court
“need consider only the cited materials, but it may
consider other materials in the record.” Fed.R.Civ.P.
56(c)(3). If the moving party satisfies this burden, the
burden then shifts to the nonmoving party to produce
“specific facts” showing a “genuine
issue” for trial. Id. at 324. Where “a
party fails to properly support an assertion of fact or fails
to properly address another party's assertion of fact,
” the Court may treat that fact as undisputed.
is “material” if the underlying substantive law
identifies the fact as critical. Anderson, 477 U.S. at 248.
Thus, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.”
Id. A “genuine” issue exists if
“there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.”
Id. at 249.
Plaintiff's Cross-Motion for Summary Judgment
preliminary matter, the Court will address the
Plaintiff's Cross-Motion for Summary Judgment, contained
within its Response in Opposition to Defendant's Motion
for Summary Judgment. See generally [R. 99; R. 101-1]. The
Defendant has filed a Motion to Strike the Cross-Motion [R.
107], arguing that it is untimely. The parties subsequently
briefed the Motion to Strike. [R. 118; R. 123]
examined the Cross-Motion for Summary Judgment, the Motion to
Strike, and the briefing on the Motion to Strike, the Court
agrees that the Cross-Motion for Summary Judgment was
untimely. The operative scheduling order [R. 75] set a
dispositive motions deadline of January 31, 2018. [R. 75,
Scheduling Order, at p. 1]. Thus, any dispositive motion -
including a Motion for Summary Judgment - filed after that
date is untimely. The Plaintiff's Cross-Motion for
Summary Judgment, contained within its Response to the
Defendant's Motion for Summary Judgment, was filed on
March 2, 2018. It is therefore late, regardless of the fact
that the filing was in response to the Defendant's
motion. The Plaintiff makes much of its argument that the
Cross-Motion was merely another way of styling its request
for relief. See [R. 118, Plaintiff's Response in
Opposition to Defendant's Motion to Strike at p. 3] But
that is not responsive to the Defendant's Motion to
Strike: the very relief the Plaintiff requests (entry of
summary judgment in his favor, as opposed to merely denying
the Defendant's motion and declining to enter summary
judgment in its favor) had to be made by January 31, 2018. It
was not, so it is late. As to the Plaintiff's argument
regarding judicial economy, the Court finds that this
interest is best served by timely filings. Accordingly, to
the extent that the Plaintiff's Response to the
Defendant's Motion for Summary Judgment contains a
request that the Court enter judgment in favor of the
Plaintiff (rather than merely a request that the Court deny
the Defendant's Motion for Summary Judgment and decline
to enter any judgment at all) and arguments in support of
such a request rather than merely in response to the
Defendant's Motion for Summary Judgment, the Court will
grant the Motion to Strike.
Defendant's Motion for Summary Judgment
Breach of Contract Claim
Defendant makes several arguments that the Plaintiff's
breach of contract claim must fail as a matter of law. One of
these is that the insurance policy at issue clearly and
unambiguously excludes coverage in this situation because the
Plaintiff's disabling condition was caused by or
contributed to by the suspension, revocation or surrender of
the Plaintiff's professional license. [R. 89-1,
Defendant's Memorandum of Law in Support of its Motion
for Summary Judgment (“Defendant's Memo”) at
p. 15] The Court agrees. Because this argument is
dispositive, the Court will not reach the parties' other
arguments regarding the Plaintiff's breach of contract
to the manner of construction of insurance policies, Kentucky
law is crystal clear that exclusions are to be narrowly
interpreted and all questions resolved in favor of the
insured. Exceptions and exclusions are to be strictly
construed so as to render the insurance effective. Any doubt
as to the coverage or terms of a policy should be resolved in
favor of the insured. And since the policy is drafted in all
details by the insurance company, it must be held strictly
accountable for the language used.” Eyler v.
Nationwide Mut. Fire Ins. Co.,824 S.W.2d 855, 859-60
(Ky. 1992) (internal citations omitted). However,
“[t]he words employed in insurance policies, if clear
and unambiguous, should be given their plain and ordinary
meaning. The trial court must give effect to what the parties
expressly agreed upon instead of plac[ing] a strained
interpretation thereon contrary to the intent of the parties.
. . . Policies should be interpreted according to the parties
mutual understanding at the time they entered into the
contract and [s]uch mutual intention is to be deduced, if
possible, from the language of the contract alone.”
Nationwide Mut. Ins. Co. v. Nolan,10 S.W.3d 129,
131-32 (Ky. 1999) (internal citations and quotation marks
omitted) (interpreting insurance policy exclusion); see also
Kentucky Ass'n of Ctys. Workers' Comp. Fund v.
Cont'l Cas. Co.,157 F.Supp.3d 678, 682 (E.D. Ky.
2016) (“[d]espite a policy inclination of favoring the
insured, however, [t]he rule of strict construction against
an insurance company certainly does not mean that every doubt
must be resolved against it and does not interfere with the
rule that the policy must receive a reasonable interpretation
consistent with . . . the plain meaning and/or language of
the contract. Insurance policies, like statutes, ...