Allen v. First UNUM Life Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MARCUS ALLEN, M.D.,

Plaintiff,

v. CASE NO. 2:18-cv-69-FtM-99NPM

FIRST UNUM LIFE INSURANCE

COMPANY, PROVIDENT LIFE AND

CASUALTY INSURANCE COMPANY

and UNUM GROUP,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Defendants’ Motion for

Judgment on the Pleadings for Count III Breach of Fiduciary Duty

of the Second Amended Complaint (Doc. #114) filed on December 26,

2019. Plaintiff filed an Opposition to Defendants’ Motion (Doc.

#121) on January 8, 2020. For the reasons set forth below, the

motion is granted.

I.

This case is before the Court on Plaintiff’s seven-count

Second Amended Complaint alleging claims for breach of contract

(Counts I, II), breach of fiduciary duty (Count III), and RICO

violations (Counts IV-VI). (Doc. #87.) The Court previously

granted Defendants’ Motion to Dismiss Counts IV, V, VI (RICO

claims) of Plaintiff’s Second Amended Complaint. (Docs. ##92,

103). Defendants now seek judgment on the pleadings on the breach

of fiduciary duty claim in Count III. Defendants argue that

regardless of whether New York or Florida law applies, the

pleadings establish there was no fiduciary duty owed by any

Defendant to the insured in connection with the insured’s first-

party claim. (Doc. #114, p. 1.) Plaintiff, on the other hand,

contends that both Florida and New York law impose a fiduciary

duty upon all Defendants in a first-party claim where there is a

“special relationship of trust and confidence” with the insured.

Plaintiff asserts that such a relationship is sufficiently alleged

in the Second Amended Complaint and supporting exhibits, and

therefore the motion must be denied. (Doc. #121, p. 2.)

II.

The Federal Rules of Civil Procedure provide that "[a]fter

the pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings." FED. R.

CIV. P. 12(c). “Judgment on the pleadings is proper when there are

no material facts in dispute, and the moving party is entitled to

judgment as a matter of law” based on the substance of the

pleadings and any judicially noticed facts. Palmer & Cay, Inc. v.

Marsh & McLennan Cas., Inc., 404 F.3d 1297, 1303 (11th Cir. 2005).

See also Interline Brands, Inc. v. Chartis Spec. Ins. Co., 749

F.3d 962, 965 (11th Cir. 2014). The Court may consider the

complaint and any exhibits attached thereto, as well as the answer

and any attached exhibits that are undisputedly authentic and

central to the claim. Horsley v. Feldt, 304 F.3d 1125, 1134-35

(11th Cir. 2002); Eisenberg v. City of Miami Beach, 54 F. Supp. 3d

1312, 1319 (S.D. Fla. 2014). All facts alleged in the complaint

are viewed in the light most favorable to the nonmoving party.

Cunningham v. Dist. Attorney’s Office for Escambia Cnty., 592 F.3d

1237, 1255 (11th Cir. 2010). “Legal conclusions without adequate

factual support are entitled to no assumption of truth.” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).1

III.

Plaintiff Marcus Allen (Plaintiff or Dr. Allen) is a former

Diagnostic Radiologist and partner in Prospect Hill Radiology

Group, P.C. located in Syracuse, New York. From 1986 through 1989,

Plaintiff purchased four individual disability insurance policies

(the Individual Policies) from Provident Life & Casualty Insurance

Company (Provident). (Doc. #87, ¶¶ 21-28; Docs. ##87-1, 87-2, 87-

1 The Court strikes Plaintiff’s Declarations (Docs. ##43-1; 74-1),

which were not attached to the Second Amended Complaint or any

other pleading, and declines to convert the motion into a summary

judgment motion. Plaintiff’s arguments based upon the summary

judgment legal standard are therefore misplaced. Frattallone v.

Black Diamond Coating, Inc., No. 8:14-cv-2818-T-33TBM, 2015 U.S.

Dist. LEXIS 13904, at *4, 6 (M.D. Fla. Feb. 5, 2015) (declining to

convert defendants’ motion for judgment on the pleadings into a

motion for summary judgment, noting "[t]he court has a broad

discretion when deciding whether to treat a motion [for judgment

on the pleadings] as a motion for summary judgment . . ." ). As

stated above, however, the facts alleged in the Second Amended

Complaint are viewed in the light most favorable to Dr. Allen as

the non-moving party.

3, 87-4.) In 2005, Plaintiff became part of a work-related group

disability insurance policy (the Group Policy) issued by First

Unum Life Insurance Company (First Unum). (Id., ¶¶ 36-37; Doc.

#87-5.) All five policies (collectively “the Policies”) provided

“own occupation” disability income insurance coverage during the

relevant time periods.2 Claims made under the Policies were

administered by Unum Group (Doc. #87, ¶ 14), and Plaintiff alleges

in summary fashion that the three defendants are alter egos of

each other. (Id., ¶ 10).

In May 2010, Dr. Allen began suffering changes in his vision

which prevented him from performing the acute visual analysis

required of a diagnostic radiologist. (Doc. #87, ¶¶ 47-49.) Dr.

Allen was examined by three separate physicians and was ultimately

diagnosed with ocular degeneration, posterior vitreous detachment

with retinal tear, and bleeding in his left eye, as well as

significant floaters and visual disturbances in both eyes

detrimentally impacting his visual field. (Id., ¶ 50.) Dr. Allen

resigned from his radiology practice on June 23, 2010, and filed

a claim for disability benefits with Defendants asserting that he

became totally disabled as of May 1, 2010. (Id., ¶¶ 51-55.)

2 The Group Policy was ultimately changed from an “own occupation”

policy to an “any occupation” policy. (Id., ¶ 68.)

Defendants agreed Plaintiff was totally disabled, and paid

Dr. Allen monthly benefits pursuant to the Policies for the next

five years. On August 31, 2015, however, Defendants determined

that Dr. Allen failed to support the continued existence of his

permanent disability with objective medical findings. (Id., ¶¶ 56-

57, 59, 113.) While continuing to pay disability benefits,

Defendants requested Dr. Allen’s medical records as part of

periodic medical reviews, and Dr. Allen was required to apply for

Social Security disability benefits. (Id., ¶¶ 70, 72, 76, 105.)

The Social Security Administration (SSA) determined that Dr. Allen

was incapable of performing the occupation of diagnostic

radiologist since June 2010, but that he could perform other work.

(Doc. #87, ¶¶ 77, 101-102.)

Defendants thereafter required plaintiff to undergo

independent medical examinations (IMEs) with its chosen

physicians. Defendants used the IMEs to find that Dr. Allen was

no longer disabled. (Id., ¶¶ 105 106, 110, 113-114.) Although Dr.

Allen’s field of vision never improved, Defendants determined that

he could return to his own occupation as a Diagnostic Radiologist,

and therefore terminated his benefits under the Policies. (Id., ¶¶

114, 129, 134.)

In Count I, Dr. Allen sues Provident and the Unum Group for

breach of the Individual Policies contracts. (Doc. #87, ¶¶ 198-

218.) In Count II, Dr. Allen sues First Unum and the Unum Group

for breach of the Group Policy contract. (Id., ¶¶ 219-240.)

Neither of these claims are currently before the Court.

In Count III, Dr. Allen alleges that the termination of his

benefits under the Policies constituted a breach of Defendants’

fiduciary duty to him. (Doc. #87, ¶¶ 246-248.) Specifically,

Plaintiff asserts that he had a fiduciary relationship with all

three Defendants, and that this fiduciary relationship required

all Defendants to place Plaintiff’s interests above their own in

handling his claim for benefits under the Policies. (Id., ¶ 244.)

Plaintiff asserts that the fiduciary duties included the duty to

ethically handle the claims, which in turn included the duty to

disclose all facts under which benefits could be available and all

facts known to Defendants that would support a finding of benefits

coverage.3 (Id., ¶ 245.)

IV.

A federal court exercising diversity jurisdiction applies the

choice of law rules for the state in which it sits. Manuel v.

Convergys Corp., 430 F.3d 1132, 1139 (11th Cir. 2005) (citing

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct.

1020, 85 L. Ed. 1477 (1941)). Thus, Florida choice of law rules

apply to determine the governing state law for the state law

3 Plaintiff’s Second Amended Complaint does not, however, identify

any facts which should have been disclosed. See (Doc. #87.)

claims, including Count Three. Grupo Televisa, S.A. v. Telemundo

Commc'ns Grp., Inc., 485 F.3d 1233, 1240 (11th Cir. 2007).

Plaintiff and Defendants identify New York and Florida as the

two States whose substantive law may govern, but none of the

parties take a firm position as to which State’s law should be

applied. Rather, the parties assert either that there is a

fiduciary duty established under either Florida and New York law

(Plaintiff’s position), or that a fiduciary duty does not exist

under either New York or Florida law (Defendants’ position).

The Court agrees that the determination of the existence of

a fiduciary duty for purposes of a motion for judgment on the

pleadings will be the same under Florida and New York law.

Therefore, the Court need not at this time determine whether New

York or Florida law governs the state law claims. E.g., United

States v. Cont'l Cas. Co., 512 F.2d 475, 477 (5th Cir. 1975); Bonar

v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1388 (11th Cir.

1988).

V.

Defendants contend that Plaintiff has failed to state a claim

for breach of fiduciary duty because under either Florida or New

York law neither an insurer nor an insurance holding company has

a fiduciary duty to an insured in connection with a first-party

claim. (Doc. #114, p. 6.) Plaintiff responds that while this is

the general rule, the operative pleadings sufficiently allege

facts which establish a “special relationship of trust and

confidence” between Dr. Allen and Defendants, and therefore a

fiduciary duty has been established for purposes of the motion.

(Doc. #121, p. 2.)

In Florida, a cause of action for breach of fiduciary duty

requires “the existence of a fiduciary duty and the breach of that

duty such that it is the proximate cause of the plaintiff’s

damages.” Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002).

Similarly, in New York “‘the elements of a cause of action to

recover damages for breach of fiduciary duty are (1) the existence

of a fiduciary relationship, (2) misconduct by the defendant, and

(3) damages directly caused by the defendants misconduct.’”

Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 2011 NY

Slip Op. 3043, 83 A.D.3d 804, 807, 921 N.Y.S.2d 260 (App. Div. 2nd

Dept.), quoting Rut v. Young Adult Inst., Inc., 2010 NY Slip Op.

4764, 74 A.D.3d 776, 777, 901 N.Y.S.2d 715 (App. Div. 2nd Dept.).

Therefore, the laws of both States require Plaintiff to demonstrate

the existence of a fiduciary duty.

New York law describes a fiduciary relationship as follows:

A fiduciary relationship arises when one is under a duty

to act for or to give advice for the benefit of another

upon matters within the scope of the relation. It is

grounded in a higher level of trust than normally present

in the marketplace between those involved in arm's

length business transactions. A conventional business

relationship, without more, is insufficient to create a

fiduciary relationship. Rather, a plaintiff must make a

showing of “special circumstances” that could have

transformed the parties' business relationship to a

fiduciary one, such as control by one party of the other

for the good of the other. A fiduciary relationship may

exist when one party reposes confidence in another and

reasonably relies on the other's superior expertise or

knowledge, but not in an arm's-length business

transaction involving sophisticated business people.

Saul v. Cahan, 153 A.D.3d 947, 949, 61 N.Y.S.3d 265, 268 (2017)

(citations and internal punctuation omitted.) See also In re

Eurospark Indus., Inc., 288 B.R. 177, 183 (Bankr. E.D.N.Y. 2003)

(concluding that no fiduciary relationship is created in the first-

party insurance context, which simply involves the contractual

obligation to pay claims or benefits).

Similarly, Florida law distinguishes between normal business

dealings and fiduciary relationships. “[I]n the usual creditor-

debtor relationship, a fiduciary duty does not arise and

allegations of superior knowledge of a party's financial condition

are generally insufficient to transform the creditor-debtor

relationship into a fiduciary relationship.” Taylor Woodrow Homes

Florida, Inc. v. 4/46-A Corp., 850 So. 2d 536, 540–41 (Fla. 5th

DCA 2003). Florida law describes a fiduciary relationship as one

of “trust and confidence,” that is, “where confidence is reposed

by one party and a trust accepted by the other, or where confidence

has been acquired and abused.” Susan Fixel, Inc. v. Rosenthal &

Rosenthal, Inc., 842 So. 2d 204, 207–08 (Fla. 3d DCA 2003)

(citations omitted.) “Fiduciary relationships may be implied in

law and such relationships are ‘premised upon the specific factual

situation surrounding the transaction and the relationship of the

parties.’” Id.

Florida law requires “special circumstances” to convert a

normal business relationship into a fiduciary relationship. For

example:

A bank and its customers generally deal at arm's-length

as creditor and debtor, and a fiduciary relationship is

not presumed. A fiduciary relationship may arise,

however, under special circumstances where “the bank

knows or has reason to know that the customer is placing

trust and confidence in the bank and is relying on the

bank so to counsel and inform him These special

circumstances include instances where the lender “takes

on extra services for a customer, receives any greater

economic benefit than from a typical transaction, or

exercises extensive control.

While a contractual relationship between the parties is

not required to form a fiduciary relationship, a party

must be “under a duty to act for or to give advice for

the benefit of another upon matters within the scope of

that relation.” Doe v. Evans, 814 So.2d 370, 374

(Fla.2002) (quoting Restatement (Second) of Torts § 874

cmt. a.) (emphasis added).

Bldg. Educ. Corp. v. Ocean Bank, 982 So. 2d 37, 40–41 (Fla. 3d DCA

2008) (citations and internal punctuation omitted). The burden of

proving such a fiduciary relationship is on the party asserting

it. Orlinsky v. Patraka, 971 So. 2d 796, 800 (Fla. 3d DCA 2007).

Thus, while an insurer and an insured do not normally enter

into a fiduciary relationship in connection with a first-party

claim, the relevant law does not preclude such a relationship upon

a showing of appropriate facts. Plaintiff argues that the Second

Amended Complaint alleges facts sufficient to establish “special

circumstances” which give rise to a fiduciary relationship, and

hence a fiduciary duty, as to all three Defendants. Specifically,

Plaintiff relies upon four facts alleged in the Second Amended

Complaint to establish a fiduciary relationship, and thus a

fiduciary duty: (1) representations by First Unum, Provident and

The Unum Group to the public and to Plaintiff; (2) the acceptance

of Plaintiff’s premium payments for disability insurance coverage

for greater than 20 years; (3) Defendants’ responsibility to

administer claims for benefits fairly; and (4) reliance upon

Defendants’ expertise and superior knowledge in the application

for Social Security benefits and the assistance provided in that

process. (Doc. #87, ¶¶ 72, 74, 242.) The Court addresses each in

turn.

(1) Representations by Defendants

The Second Amended Complaint fails to allege any facts showing

Defendants made representations to the public which could create

“special circumstances” with plaintiff above and beyond an arms-

length insurer-insured relationship. Therefore, statements to the

public are not a basis from which a special relationship can be

established.

With respect to representations Defendants made to Plaintiff,

the Second Amended Complaint does set forth statements made by

Provident’s agent, David B. Schultz, when the insurance

relationship was initially established. In particular, Dr. Allen

alleges he purchased the Individual Policies, and cancelled

previously purchased individual policies, based on the

representations of Mr. Schultz. Mr. Schultz advised Plaintiff

that Provident’s disability insurance policies were “the

‘Mercedes-Benz’ of disability insurance and the best money could

buy” because benefits would be provided if Dr. Allen became

disabled and could not work as a Diagnostic Radiologist, even if

he could work in another capacity. (Doc. #87, ¶¶ 19-20.) After

these statements, Dr. Allen purchased two Individual Policies in

1986, purchased an additional Individual Policy in 1987, and

purchased another Individual Policy in 1989. (Id., ¶¶ 23-24, 27-

28.)

An insurance agent certainly has some responsibilities to a

potential insured. “An agent is required to use reasonable skill

and diligence, and liability may result from a negligent failure

to obtain coverage which is specifically requested or clearly

warranted by the insured's expressed needs.” Warehouse Foods, Inc.

v. Corporate Risk Mgmt. Servs., Inc., 530 So.2d 422, 423 (Fla. 1st

DCA 1988). “This general duty requires the agent to exercise due

care in correctly advising the insured of the existence and

availability of particular insurance, including the availability

and desirability of obtaining higher limits, depending on the scope

of the agents undertaking.” Adams v. Aetna Cas. & Sur. Co., 574

So.2d 1142, 1155 (Fla. 1st DCA 1991). There is no duty, however,

to ensure that a potential insured is “enrolled in the most

financially appropriate insurance contract for him.” Semerena v.

Dist. Bd. of Trustees of Miami Dade Coll., 282 So. 3d 974, 977

(Fla. 3d DCA 2019).

Here, there is no allegation that the “own occupation”

policies were inappropriate for Dr. Allen, or that such policies

did not provide the coverage requested by plaintiff and represented

by Mr. Schultz. Indeed, the Second Amended Complaint affirmatively

alleges that the Individual Policies provided Dr. Allen with “own

occupation” disability coverage. (Doc. #87, ¶¶ 51, 56, 59, 113.)

Further, Plaintiff’s Second Amended Complaint lacks any facts

demonstrating that “special circumstances” existed which caused

Plaintiff to repose confidence in Mr. Shultz which was accepted by

Mr. Schultz, or that Plaintiff’s confidence had been acquired and

abused by Mr. Schultz. Susan Fixel, Inc., 842 So. 2d at 207–08;

Saul, 153 A.D.3d at 949. The Court finds that the allegations in

the Second Amended Complaint are insufficient to support the

existence of a fiduciary relationship between Plaintiff and

Provident based on the representations of Mr. Schultz.

In addition to Provident, Plaintiff alleges defendants First

Unum and the Unum Group made representations to him that created

a special relationship of trust and confidence amounting to a

fiduciary relationship. (Doc. #87, ¶ 242.) But the Second Amended

Complaint provides no factual allegations to show Dr. Allen

received, reviewed, or relied upon materials or representations

from defendants First Unum or the Unum Group in his decision to

procure disability insurance. See Orlinsky, 971 So. 2d at 800.

The Court finds that the pleadings do not plausibly establish

“special circumstances” which show Dr. Allen and Defendants had a

relationship beyond that of an arm's length business transaction

normally present in the marketplace. Bldg. Educ. Corp., 982 So.

2d at 40-41; Saul, 153 A.D.3d at 949. As such, the Court finds

the representations alleged to have been made by Defendants do not

support the existence of a fiduciary relationship.

(2) Length of Insurance Relationship

Plaintiff asserts that the length of Defendants’ acceptance

of Plaintiff’s premium payments for disability insurance coverage

created a fiduciary relationship. (Doc. #87, ¶ 242; Doc. #121, p.

6.) Specifically, Plaintiff alleges that Unum Group accepted his

premium payments for more than twenty years, and as one who

“manages” another’s money, Unum Group owed a fiduciary duty to

plaintiff Dr. Allen. (Doc. #87, ¶¶ 60, 184, 242.)

While Plaintiff accurately states the length of the

relationship, duration alone does not convert a normal arms-length

business relationship into a fiduciary relationship.

Additionally, there are no allegations that Defendants “managed”

plaintiff’s money. Rather, plaintiff simply paid the premiums for

the insurance product. The mere payment of insurance premiums

does not create a fiduciary relationship. “A payment, series of

payments, or a business relationship is not enough to create the

trust and reliance necessary to form a fiduciary duty.” Traditions

Senior Mgmt., Inc. v. United Health Adm'rs, Inc., No. 8:12-cv-

2321-T-30MAP, 2013 U.S. Dist. LEXIS 90627, at *7 (M.D. Fla. June

27, 2013) (holding that a client paying money to a company is

insufficient, by itself, to establish a fiduciary duty, as it is

“no different than an ordinary business transaction and does not

give rise to a heightened expectation of trust without a special

relationship with the parties.”); see, e.g., Abdo v. Sallie Mae,

Inc., No. 3:11-cv-111-J-32-JRK, 2014 U.S. Dist. LEXIS 91731, at *6

n. 3 (M.D. Fla. July 7, 2014) (noting that no fiduciary duty

existed simply because Sallie Mae received student loan payments

from plaintiff); Rabouin v. Metro. Life Ins. Co., 182 Misc. 2d

632, 635, 699 N.Y.S. 2d 655, 657 (Sup. Ct. 1999) (finding no

fiduciary relationship where plaintiff failed to allege facts

“which would suggest that any relationship evolved out of the

ordinary arm's length relationship created by the payment

of premiums to MetLife in return for a policy of insurance.”).

The Court finds the Second Amended Complaint has not alleged

facts that show Unum was “entrusted with the management of [his]

money” beyond that of an ordinary business transaction.

Accordingly, the Court finds Plaintiff’s payment of insurance

premiums for a lengthy period of time does not tend to establish

a fiduciary relationship.

(3) Administrative Responsibilities

Plaintiff argues that Defendants’ obligation to fairly

administer claims for benefits created a fiduciary relationship.

(Doc. #87, ¶ 245; Doc. #121, p. 6.) There is undoubtedly an

obligation to administer insurance claims fairly. See generally

Fla. Stat. § 624.155 (2020); Batas v. Prudential Ins. Co. of Am.,

281 A.D. 2d 260, 274, 72 N.Y.S. 2d 3, 14 (App. Div. 1st Dept.

2001). While a claim of breach of fiduciary duty is possible,

Plaintiff must allege facts which would plausibly establish the

existence of a fiduciary relationship. See Gracey, 837 So. 2d at

353.

Here, Plaintiff has failed to provide sufficient facts in his

Second Amended Complaint to show it is plausible, either under New

York or Florida law, that a fiduciary relationship existed beyond

that of a first-party contractual relationship. Despite

Plaintiff’s belief that Defendants did not fairly administer his

insurance claim, the handling of a claim is a part of an ordinary

arm’s length commercial transaction, unless Plaintiff can show

“some extraordinary circumstance, such as efforts by [the] insurer

to gain the insured’s trust or confidence.” Paraco Gas Corp. v.

Travelers Cas. & Sur. Co. of Am., 51 F. Supp. 3d 379, 399 (S.D.N.Y.

2014); see Hogan v. Provident Life & Accident Ins. Co., 665 F.

Supp. 2d 1272, 1286-87 (M.D. Fla. 2009) (finding that no fiduciary

duty existed between plaintiff and Unum, as an insurance holding

company, even where its employees adjusted, reviewed, evaluated,

handled, approved or denied insurance benefits, and implemented

policies or procedures). The Second Amended Complaint provided

no facts to show Defendants made an effort to gain Plaintiff’s

trust or confidence. Consequently, the Court finds that

Defendants’ administrative responsibilities does not tend to

establish a fiduciary relationship.

(4) Defendants’ Expertise and Special Knowledge

Finally, Plaintiff states that during the administration of

his claim, he relied upon Defendants’ expertise and placed his

trust and confidence in Defendants, which they accepted, when Unum

directed Plaintiff to apply for Social Security Administration

benefits using the assistance of GENEX, Unum’s subsidiary. (Doc.

#87, ¶¶ 72, 74; Doc. #121, p. 6.) The Court finds that Plaintiff’s

application and claims process for Social Security disability

benefits did not provide “special circumstances” which would

indicate something more than a mere arm’s length association

between an insurer and insured. Bldg. Educ. Corp., 982 So. 2d at

40-41; Saul, 153 A.D.3d at 949.

Both Florida and New York courts recognize that a fiduciary

relationship may arise, even from a first-party insurance

contract, when “one party’s superior position or superior access

to confidential information is so great as virtually to require

the other party to repose trust and confidence in the first party.”

Paraco Gas Corp. v. Travelers Cas. & Sur. Co. of Am., 51 F. Supp.

3d 379, 398 (S.D.N.Y. 2014) (quoting Turner v. Temptu Inc., 11-

CV-4411, 2013 U.S. Dist. LEXIS 114298, at *8 (S.D.N.Y. Aug. 13,

2013)); see Asokan v. Am. Gen. Life Ins. Co., 302 F. Supp. 3d 1303

(M.D. Fla. 2017) (recognizing that determination of whether a

fiduciary relationship may exist depends on the extent of an

insurance company’s involvement in client’s decision to purchase

insurance, and whether the insurance company held itself out as

having expertise in the field, and the insurer relied upon that

expertise). Here, Plaintiff’s Individual Policies contain no

provisions related to Social Security Administration disability

benefits. (Docs. ##87-1; 87-2; 87-3; 87-4.) On the other hand, his

Group Policy provides that “Unum can provide expert advice

regarding your claim and assist you with your [Social Security]

application or appeal.” (Doc. #87-5, p. 29.) In particular, the

Group Policy states that when seeking Social Security disability

benefits, Unum would help find appropriate legal representation,

obtain medical and vocational evidence, and reimburse pre-approved

case management expenses. (Id., pp. 29-30.) If Social Security

disability benefits are awarded, Plaintiff was required to allow

Defendants to recoup benefits paid to Dr. Allen, thus reducing

Unum’s liability on that claim. (Doc. #87, ¶ 73; Doc. #87-5, p.

20.)

These provisions are insufficient to support a fiduciary

duty. At most, these options by the Unum Group relate only to

social security benefits, which would inure to the Unum Group’s

benefit. They do not relate to the appropriateness of the “own

occupation” Policies, or purport to offer special expertise as to

such policies. It would require “a more direct or affirmative

effort by [Unum] to gain [P]laintiff’s trust and confidence, for

example[,] the sales efforts by a salesman or the actions of a

representative,” which is not alleged here. Paraco Gas Corp., 51

F. Supp. 3d at 398 (citing Batas, 281 A.D. 2d at 264); see Taylor

Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541 (Fla.

Dist. Ct. App. 2003) (“[I]n the usual creditor-debtor

relationship, a fiduciary duty does not arise and allegations of

superior knowledge of a party's financial condition are generally

insufficient to transform the creditor-debtor relationship into a

fiduciary relationship.”).

The Court concludes that the Second Amended Complaint does

not provided sufficient facts to plausibly show the existence of

a fiduciary relationship between Dr. Allen and any of the

Defendants. Accordingly, Count III does not set forth a claim for

breach of fiduciary duty under either New York or Florida law.

ORDERED:

Defendants’ Motion for Judgment on the Pleadings as to Count

III Breach of Fiduciary Duty (Doc. #114) is GRANTED. Judgment is

entered in favor of Defendants and against Plaintiff as to Count

III of the Second Amended Complaint.

DONE AND ORDERED at Fort Myers, Florida, this 22nd day of

October 2020.

4 — Ap f

VAM Z~ DH

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record

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