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-JES-KCD

FIRST UNUM LIFE INSURANCE

COMPANY, PROVIDENT LIFE AND

CASUALTY INSURANCE COMPANY

AND THE UNUM GROUP,

Defendants.

OPINION AND ORDER

This case comes before the Court on defendants First Unum

Life Insurance Company and Unum Group’s Motion for Summary Judgment

with Supporting Memorandum of Law (Doc. #271). Plaintiff filed a

Response in Opposition (Doc. #274), to which defendants filed a

Reply. (Doc. #275.) The Court heard oral arguments on December 7,

2022. For the reasons set forth, the motion is GRANTED.

I.

Dr. Marcus Allen (Plaintiff or Dr. Allen) filed a Second

Amended Complaint (Doc. #87) claiming that defendants First Unum

Life Insurance Company (First Unum), Provident Life and Casualty

Insurance Company (Provident), and Unum Group (Unum Group)

(collectively Defendants) improperly terminated the disability

benefits he was receiving pursuant to four individual “own-

occupation” disability insurance policies (the Individual

Policies) and one hybrid “own-occupation”/”any gainful occupation”

group disability insurance policy (the Amended Group Policy).

Defendants’ response included that Dr. Allen was no longer entitled

to these disability benefits because he was no longer totally

disabled within the meaning of any policy.

The Court determined that Dr. Allen’s state law breach of

contract claim based on his Individual Polices (Count I) was not

preempted by the Employee Retirement Income Security Act of 1974,

29 U.S.C. § 1001 et seq. (ERISA). (Doc. #205, p. 24.) The Court

also determined, however, that ERISA did preempt Dr. Allen’s state

law claim under the Amended Group Policy (Count II). (Id., p. 37.)

The Court severed Dr. Allen’s claims and granted leave for Dr.

Allen to amend his Second Amended Complaint to assert claims

pursuant to ERISA. (Id., pp. 45, 47.)

In March 2022, a jury trial was held regarding Dr. Allen’s

claim for breach of the four Individual Policies (the IP

Litigation). The jury determined that defendants Provident and

Unum Group had proven by a preponderance of the evidence that Dr.

Allen was no longer totally disabled within the meaning of any of

the four Individual Policies as of August 22, 2015. (Doc. #243,

pp. 1-2.) Accordingly, there was no breach of the Individual

Policies by either defendant.

On May 2, 2022, Dr. Allen filed a Fourth Amended Complaint

(FAC) setting forth his claims under the Amended Group Policy

against defendants First Unum and Unum Group (the ERISA

Litigation). (Doc. #250.) Count I of the FAC asserts a claim for

ERISA plan disability benefits (plus interest) pursuant to 29

U.S.C. § 1132(a)(1)(B), alleging that Dr. Allen’s Amended Group

Policy disability benefits had been improperly terminated. (Id.,

¶ 212.) Count II sets forth a claim for attorney’s fees and costs

pursuant to 29 U.S.C. § 1132(g)(1). (Id., ¶¶ 213-215.) Defendants

filed their Answer on June 3, 2022 (Doc. #270), and now move for

summary judgment as to each of the two ERISA claims asserted in

the FAC.

II.

“Summary judgment is appropriate ‘if 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.’” In re NRP Lease

Holdings, LLC, 50 F.4th 979, 982 (11th Cir. 2022)(quoting Fed. R.

Civ. P. 56(a)). “The court must draw all reasonable inferences in

favor of the non-moving party.” Robinson v. Sauls, 46 F.4th 1332,

1340 (11th Cir. 2022).

III.

While the Summary Judgment Motion is a bit vague, Defendants’

Reply makes clear that the Motion is based on issue preclusion

(collateral estoppel) principles. (Doc. #275, p. 2.) Defendants

argue that the ERISA claims are precluded by the jury verdicts in

the IP Litigation, i.e., that the jury’s factual determination

that as of August 22, 2015, Dr. Allen was no longer totally

disabled within the meaning of the Individual Policies precludes

Dr. Allen from asserting ERISA disability benefits claims under

the Amended Group Policy. (Doc. #271.) Defendants argue the jury

determined that at the time benefits were terminated Dr. Allen was

capable of performing the duties of his own occupation, a factual

finding which is binding on this Court and precludes any contrary

judicial determination under the Amended Group Policy. (Id., pp.

4-8.)

A. General Issue Preclusion Principles

“The preclusive effect of a judgment is defined by claim

preclusion and issue preclusion, which are collectively referred

to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892

(2008). “By ‘preclud[ing] parties from contesting matters that

they have had a full and fair opportunity to litigate,’ these two

doctrines protect against ‘the expense and vexation attending

multiple lawsuits, conserv[e] judicial resources, and foste[r]

reliance on judicial action by minimizing the possibility of

inconsistent decisions.’” Id. (quoting Montana v. United States,

440 U.S. 147, 153–154 (1979)).

Issue preclusion, otherwise referred to as collateral

estoppel, “means simply that when an issue of ultimate fact has

once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future

lawsuit.” United States v. Lewis, 40 F.4th 1229, 1237 (11th Cir.

2022) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). Issue

preclusion “bars ‘successive litigation of an issue of fact or law

actually litigated and resolved in a valid court determination

essential to the prior judgment.’” Kordash v. United States, 51

F.4th 1289, 1294 (11th Cir. 2022) (quoting Taylor, 553 U.S. at

892).

Issue preclusion requires that the parties be identical or in

privity with each other. “In order for issue preclusion to apply,

both cases must involve the same parties or their privies.” In re

Hazan, 10 F.4th 1244, 1251 n.5 (11th Cir. 2021). In such a

situation, issue preclusion is applied when four additional

conditions are established:

(1) the issue at stake is identical to the one

involved in the prior litigation; (2) the

issue was actually litigated in the prior

suit; (3) the determination of the issue in

the prior litigation was a critical and

necessary part of the judgment in that action;

and (4) the party against whom the earlier

decision is asserted had a full and fair

opportunity to litigate the issue in the

earlier proceeding.

Kordash, 51 F.4th at 1294 (quoting Miller's Ale House, Inc. v.

Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1318 (11th Cir.

2012)).1

B. Application of Issue Preclusion Principles

(1) Identical Parties or Privies

The threshold requirement2 for issue preclusion is that the

two cases involved the same parties or their privies. Lewis, 40

F.4th at 1238. "A person who was not a named party to [a prior]

action will nonetheless be subject to collateral estoppel arising

from that action if that person was in privity with a party" in

that action. Cook v. State, 921 So. 2d 631, 635 (Fla. 2d DCA 2005).

In general terms, “privity” is a relationship between two parties

who both have a legally recognized, mutual interest in the same

subject matter. Lewis, 40 F.4th at 1238. Privity is a "flexible

legal term" that applies "when a person, although not a party, has

1 Dr. Allen argues that the law as developed by the Second

Circuit Court of Appeals governs this case because the Amended

Group Policy provides that New York substantive law and ERISA are

controlling. The issue preclusion principles developed by the

Second Circuit are not materially different than those articulated

by the Eleventh Circuit. See Cayuga Nation v. Tanner, 684 F.4th

361, 374 (2d Cir. 2021).

2 “If identity or privity of parties cannot be established,

then there is no need to examine the other factors in determining

whether res judicata or collateral estoppel applies.” E.E.O.C. v.

Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004).

his interests adequately represented by someone with the same

interests who is a party." Pemco Aeroplex, Inc., 383 F.3d at 1286.

Dr. Allen argues that the privity requirement is not satisfied

(Doc. #274, pp. 9-10), but the Court finds otherwise. The IP

Litigation involved defendants Provident and Unum Group (Docs.

##235, 236, 243), whereas the ERISA Litigation involves defendants

First Unum and Unum Group. (Doc. #250, p. 1.) Thus, Unum Group

is a party in each litigation, while First Unum was not a named

party in the IP Litigation.

Privity nevertheless has been established as to First Unum.

Dr. Allen stated in the Second Amended Complaint that First Unum,

Provident and Unum Group “currently operate under the alter-ego

‘Unum’ . . ..” (Doc. #87, ¶ 10.) Additionally, the Second Amended

Complaint alleges that “Unum Group operated as a holding and parent

company of First Unum, Paul Revere and Provident, and is

responsible for all claims handling for its subsidiaries including

First Unum, . . . and Provident.” (Id., ¶ 14.) In their Answer

to the Second Amended Complaint, Defendants admitted that “Unum

Group is a holding company for all of its subsidiary companies,

including, but not limited to, Provident Life and First Unum.”

(Doc. #105, ¶ 14.) These are sufficient to establish the privity

required for issue preclusion purposes.

(2) Lack of Judgment

As stated above, issue preclusion ordinarily refers to “an

issue of ultimate fact that has once been determined by a valid

and final judgment.” Lewis, 40 F.4th at 1237. Another threshold-

type issue is the admitted lack of a judgment, final or otherwise,

in this case. Dr. Allen asserts that a jury verdict is

insufficient, and the lack of a judgment is fatal to Defendants’

issue preclusion argument. (Doc. #274, pp. 3, 5.)

“Claim preclusion applies only when there is a final judgment,

but issue preclusion requires only that the adjudication of an

issue ‘be sufficiently firm to be accorded conclusive effect.’”

Powrzanas v. Jones Util. & Contracting Co., 822 F. App'x 926, 928-

29 (11th Cir. 2020) (quoting Pleming v. Universal-Rundle Corp.,

142 F.3d 1354, 1359 (11th Cir. 1998))3. Thus, “[t]he finality

requirement is less stringent for issue preclusion than for claim

preclusion." Id. (quoting Christo v. Padgett, 223 F.3d 1324, 1339

(11th Cir. 2000)). “When an issue is properly raised, by the

pleadings or otherwise, and is submitted for determination, and is

3 The Second Circuit follows the same principle. U. S. ex

rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1265 (2d Cir. 1975)(“For

purposes of issue preclusion, ‘final judgment' includes any prior

adjudication of an issue in another action between the parties

that is determined to be sufficiently firm to be accorded

conclusive effect.” (punctuation and citations omitted.))

determined, the issue is actually litigated” for purposes of issue

preclusion. Id. (quoting Pleming, 142 F.3d at 1359). Dr. Allen’s

argument that the lack of a judgment is necessarily fatal to the

motion is therefore incorrect.

(3) Identical Issues At Stake

The Court must, however, determine the specific issue that

was determined in the IP Litigation, i.e., the issue that was

raised, submitted and determined by the jury, and then compare

that issue to the issue to be determined in the ERISA Litigation.

“[I]ssue preclusion applies only when ‘the issue at stake is

identical to the one involved in the prior litigation.’" Miller's

Ale House, 702 F.3d at 1318 (citation omitted.) The two cases

must involve identical events or transactions, not simply ones

similar in nature and close in time. In re McWhorter, 887 F.2d

1564, 1567-68 (11th Cir. 1989). A party need identify only one

materially different fact altering the legal issue in the case.

CSX Transp., Inc. v. Bhd. of Maint. of Way Employees, 327 F.3d

1309, 1317-18 (11th Cir. 2003).

(a) IP Litigation Issue

The four Individual Polices were all “own occupation”

disability policies, meaning that Dr. Allen was totally disabled

if he was unable to perform the substantial and material duties of

his occupation as a diagnostic radiologist, even if he was able to

perform substantial and material duties of other gainful

occupations. Dr. Allen’s claim under the Individual Policies

asserted that because of vision problems he was unable to practice

medicine as a diagnostic radiologist as of May 1, 2010. Defendants

initially determined that Dr. Allen was totally disabled and began

paying monthly benefits beginning November 2010 pursuant to the

Individual Policies (and the Amended Group Policy). In September

2015, Defendants notified Dr. Allen by letter that his disability

benefits under the Individual Policies were terminated because he

was no longer disabled. At about the same time, a separate letter

notified Dr. Allen of the termination of his Amended Group Policy

benefits because he was no longer disabled.

The Second Amended Complaint alleged that Defendants breached

the Individual Policies by terminating Dr. Allen’s disability

benefits when he was still totally disabled, i.e., when he was

unable to perform the substantial and material duties of his

occupation as a diagnostic radiologist. This state law claim was

governed by New York substantive law and Florida procedural law.

(Doc. #205, pp. 38-43.) Prior to trial, Defendants conceded that

Dr. Allen “has satisfied his burden of proof as to every element

of the cause of action on which he bears the burden. Defendants

concede that they bear the burden of proof on all remaining issues

and sub-issues which remain to be determined by the jury.” (Doc.

#223, ¶ 7.) The issue decided by the jury, therefore, was whether

Dr. Allen was disabled because he was unable to perform the

substantial and material duties of his occupation as a diagnostic

radiologist as of the date his disability benefits were terminated.

Addressing each of the four Individual Policies separately, the

jury determined that Provident and Unum Group had proven by a

preponderance of the evidence that as of August 22, 2015, Dr. Allen

was no longer totally disabled within the meaning of each of the

four Individual Policies. (Doc. #243, pp. 1-2.) Accordingly, the

jury’s verdicts established that Dr. Allen was not disabled because

he could perform the substantial and material duties of his

occupation as a diagnostic radiologist as of the date his

disability benefits were terminated.

Dr. Allen argues, however, that we cannot really determine

that this is what the jury decided. Dr. Allen asserts that three

of the four Individual Policies defined Total Disability to mean

that Dr. Allen was “not able to perform the substantial and

material duties of your occupation” and that Dr. Allen was “under

the care and attendance of a Physician.” See (Doc. #87-1, p. 7;

#87-2, p. 7; #87-3, p. 7.) The fourth Individual Policy defined

Total Disability to mean that Dr. Allen was “not able to perform

the substantial and material duties of your occupation” and that

Dr. Allen was “receiving care by a Physician which is appropriate

for the condition causing the disability.” (Doc. #87-4, p. 7.)

Dr. Allen asserts that the jury’s verdicts could have been based

on the lack of ongoing medical care or appropriate medical care,

not his ability to perform his occupation as a diagnostic

radiologist. (Doc. #274, pp. 14-16.)

But the record does not support this argument. Dr. Allen’s

benefits were not terminated because of the lack of continuing or

appropriate medical care. Rather, the termination letter stated:

“We have determined that you are not Totally Disabled because your

medical condition would not prevent you from performing your

duties.” (Doc. #148-2, pp. 164, 335.) In opening statement, Dr.

Allen’s attorney discussed the requirements of

continuing/appropriate medical care. (Doc. #253, pp. 43-45.) By

closing argument, Dr. Allen’s attorney stated that “I don’t think

that’s an issue,” referring to those requirements. (Doc. #259, p.

196.) Defendants’ attorney agreed in his closing argument that

these were “not particularly relevant here.” (Doc. #259, p. 169.)

As agreed by the parties, the Court instructed the jury that the

parties agreed “that Dr. Allen performed his obligations under the

terms of the four Individual Policies through August 22, 2015.”

(Doc. #235, p. 6.)

The Court concludes that the issue decided by the jury was

whether Dr. Allen was disabled because he was unable to perform

the substantial and material duties of his occupation as a

diagnostic radiologist as of the date his disability benefits were

terminated. Upon consideration, the jury determined that Dr. Allen

was not disabled because he could perform the substantial and

material duties of his occupation as a diagnostic radiologist as

of the date his disability benefits were terminated.

(b) ERISA Litigation Issue

As noted earlier, the Court must compare the issue determined

in the IP Litigation with the issue to be determined in the ERISA

Litigation. The issue to be determined in the ERISA Litigation

depends largely on the applicable standard of review to be applied.

The parties have fundamental disagreements over the ERISA claim

and they take different paths of legal analysis, but they arrive

at the same standard of review – de novo. After addressing some

of the relevant ERISA principles, the Court will determine the

issue to be resolved in the ERISA claim, and then determine whether

the issue is identical to that resolved in the IP Litigation for

claim preclusion purposes.

Effective November 1, 2012 and thereafter, the Amended Group

Policy defined total disability to be the inability to perform any

gainful occupation based on the insured’s education, training or

experience. (Doc. #87-5, p. 17.) Thus, to be totally disabled

under the Amended Group Policy after November 1, 2012, Dr. Allen

must have been unable to perform any gainful occupation based on

his education, training, or experience. In September 2015,

Defendants terminated Dr. Allen’s Amended Group Policy benefits,

having determined Dr. Allen was no longer totally disabled within

the meaning of the Amended Group Policy, i.e., even if Dr. Allen

could not perform his occupation as a diagnostic radiologist, Dr.

Allen was able to perform substantial and material duties of other

gainful occupations. See (Doc. #148-9, p. 2.)

Dr. Allen’s claim under the Amended Group Policy is brought

pursuant to 29 U.S.C. § 1132(a)(1)(B), which allows an ERISA

participant to bring a civil action in federal court to recover

benefits under the terms of a disability plan. ERISA does not

itself prescribe the standard of review to be used by district

courts to resolve challenges to benefit eligibility

determinations. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). The Supreme Court, however, has recognized that

Firestone set forth four relevant principles regarding the proper

standards of judicial review:

(1) In determining the appropriate standard of

review, a court should be guided by principles

of trust law; in doing so, it should analogize

a plan administrator to the trustee of a

common-law trust; and it should consider a

benefit determination to be a fiduciary act

(i.e., an act in which the administrator owes

a special duty of loyalty to the plan

beneficiaries).

(2) Principles of trust law require courts to

review a denial of plan benefits under a de

novo standard unless the plan provides to the

contrary.

(3) Where the plan provides to the contrary by

granting the administrator or fiduciary

discretionary authority to determine

eligibility for benefits, trust principles

make a deferential standard of review

appropriate.

(4) If a benefit plan gives discretion to an

administrator or fiduciary who is operating

under a conflict of interest, that conflict

must be weighed as a factor in determining

whether there is an abuse of discretion.

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008)(internal

punctuation and citations omitted.) Neither side disagrees with

these principles.

From this point, however, the parties dispute which Circuit’s

law the Court is obligated to follow. Defendants urge the Court

to follow the law as developed by the Eleventh Circuit, which

provides the governing law for the forum court. Dr. Allen asserts

that Second Circuit law is controlling since the Amended Group

Policy provides it is governed by New York law and ERISA. As it

turns out, there is little meaningful difference that impacts this

case.

(i) Eleventh Circuit ERISA Principles

The administrative ERISA benefits decision is subject to de

novo review by a court unless the administrator was given

discretion to determine eligibility or construe the terms of the

plan, in which case a court determines whether the benefits

decision was arbitrary and capricious i.e., whether it lacked a

reasonable basis. Harris v. Lincoln Nat'l Life Ins. Co., 42 F.4th

1292, 1294 (11th Cir. 2022)(citing Firestone Tire & Rubber Co.,

489 U.S. at 115). “The Eleventh Circuit has refined this framework

into a six-part test.” Williamson v. Travelport, LP, 953 F.3d

1278, 1288 (11th Cir. 2020).

(1) Apply the de novo standard to determine

whether the claim administrator's benefits-

denial decision is “wrong” (i.e., the court

disagrees with the administrator's decision);

if it is not, then end the inquiry and affirm

the decision.

(2) If the administrator's decision in fact is

“de novo wrong,” then determine whether he was

vested with discretion in reviewing claims; if

not, end judicial inquiry and reverse the

decision.

(3) If the administrator's decision is “de

novo wrong” and he was vested with discretion

in reviewing claims, then determine whether

“reasonable” grounds supported it (hence,

review his decision under the more deferential

arbitrary and capricious standard).

(4) If no reasonable grounds exist, then end

the inquiry and reverse the administrator's

decision; if reasonable grounds do exist, then

determine if he operated under a conflict of

interest.

(5) If there is no conflict, then end the

inquiry and affirm the decision.

(6) If there is a conflict, the conflict

should merely be a factor for the court to

take into account when determining whether an

administrator's decision was arbitrary and

capricious.

Stewart v. Hartford Life & Accident Ins. Co., 43 F.4th 1251, 1254

(11th Cir. 2022) (quoting Blankenship v. Metro. Life Ins. Co., 644

F.3d 1350, 1355 (11th Cir. 2011)(citations and punctuation

omitted.)).

If the six step analysis results in the application of the de

novo standard, the district court is not limited to the

administrative record, the parties may introduce additional

evidence, and the district court puts “itself in the agency's

place, to make anew the same judgment earlier made by the

agency[.]” Harris, 42 F.4th at 1296 (citation omitted). If the

arbitrary and capricious standard applies because the policy

provided the decisionmaker with discretion, the district court’s

review is limited to the administrative record and the “the

function of the court [in such a case] is to determine whether

there was a reasonable basis for the decision, based upon the facts

as known to the administrator at the time the decision was made.”

Harris, 42 F.4th at 1296.

(ii) Second Circuit ERISA Principles

Although missing the handy six-part test, the law of the

Second Circuit is similar to that of the Eleventh Circuit. “In

the absence of a delegation of discretionary authority, the

determination of the claims administrator is reviewed de novo.”

Mayer v. Ringler Assocs. Inc., 9 F.4th 78, 84 (2d Cir. 2021).

De novo review is the default standard of

review for the denial of ERISA claims “unless

the benefit plan gives the administrator or

fiduciary discretionary authority to

determine eligibility for benefits or to

construe the terms of the plan.” Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115,

109 S. Ct. 948, 103 L.Ed.2d 80 (1989). If the

administrator has discretion, we review its

denial pursuant to an arbitrary and capricious

standard.

Tyll v. Stanley Black & Decker Life Ins. Program, 857 F. App’x

674, 676 (2d Cir. 2021). “[A] plan under which an administrator

both evaluates and pays benefits claims creates the kind of

conflict of interest that courts must take into account and weigh

as a factor in determining whether there was an abuse of

discretion, but does not make de novo review appropriate.”

McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir.

2008) (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008)).

However, “a plan's failure to comply with the Department of Labor's

claims-procedure regulation, 29 C.F.R. § 2560.503–1, will result

in that claim being reviewed de novo in federal court, unless the

plan has otherwise established procedures in full conformity with

the regulation and can show that its failure to comply with the

claims-procedure regulation in the processing of a particular

claim was inadvertent and harmless.” Halo v. Yale Health Plan,

Dir. of Benefits & Records Yale Univ., 819 F.3d 42, 57–58 (2d Cir.

2016). “Finally, when reviewing claim denials, whether under the

arbitrary and capricious or de novo standards of review, district

courts typically limit their review to the administrative record

before the plan at the time it denied the claim.” Halo, 819 F.3d

at 60. A district court has discretion to admit additional

evidence, but that discretion “ought not to be exercised in the

absence of good cause.” Id. Good cause may exist where there was

“[a] demonstrated conflict of interest in the administrative

reviewing body” or where the plan’s failure to comply with the

claims-procedure regulation adversely affected the development of

the administrative record. Id.

(iii) Application of Principles

Although using different analyses, both sides of this case

agree that the Court engages in a de novo review of the denial of

benefits under the Amended Group Policy. Defendants maintain this

is appropriate because the Court must begin (and end) at Step One,

which requires such de novo review. Dr. Allen maintains that de

novo review is the appropriate because it is the default standard

under Second Circuit precedent, and while the Amended Group Policy

grants discretion, the resulting deferential standard is lost

because Defendants committed multiple violations of the claims

processing regulations. For purposes of the summary judgment

motion, the Court credits the allegations in the Fourth Amended

Complaint that there were such violations (Doc. #250, ¶¶ 186-188)

and will follow Second Circuit law which holds that in such a

situation the standard of review becomes de novo. Therefore, for

summary judgment purposes the Court applies a de novo standard of

review.

Under a de novo standard the district court puts itself in

the agency’s place “to make anew the same judgment earlier made by

the agency.” Harris, 42 F.4th at 1296. Thus, the issue is whether

Dr. Allen was no longer totally disabled because he could perform

any gainful occupation within the meaning of the Amended Group

Policy. The jury verdicts in the IP Litigation have answered this

question. Dr. Allen could perform his own occupation as a

diagnostic radiologist, which is certainly among the “any gainful

occupations” under the Amended Group Policy. If the remaining

components of the issue preclusion standard set forth supra (on

pages 4 – 6) are satisfied, the prior determination that Dr. Allen

could perform his occupation as a diagnostic radiologist is binding

on the Court and parties.

Several collateral issues are raised by the parties.

Defendants argue that this ends the issue preclusion issue, and do

not discuss the remaining requirements for issue preclusion.

Rather, Defendants shift to a slightly different line of cases

aimed at preserving the right to a jury trial when legal claims

are joined with equitable claims. Defendants assert: “[W]hen a

party has a right to a jury trial on an issue involved in a legal

claim, the judge is of course bound by the jury’s determination of

that issue as it affects his disposition of an accompanying

equitable claim.” (Doc. #271, pp. 4-5.) Defendants contend that

because the jury in the IP Litigation found that Dr. Allen could

perform his own occupation and was no longer totally disabled

within the meaning of his Individual Policies, it necessarily

follows that Dr. Allen was not unable to perform the duties of any

gainful occupation for which he was qualified, as required under

the Amended Group Policy. (Id., p. 6.) Defendants conclude that

any determination by the Court in the ERISA litigation that Dr.

Allen was incapable of working in any gainful occupation for which

he was qualified in August 2015 “would thus necessarily,

irreconcilably, and impermissibly contradict the jury’s

determination . . . .” (Id., pp. 6-7.)

It is well-established that Dr. Allen is not entitled to a

jury trial under ERISA because such claims are equitable in nature.

See Broaddus v. Fla. Power Corp., 145 F.3d 1283, 1287 n. ** (11th

Cir. 1998); Hunt v. Hawthorne Assoc., Inc., 119 F.3d 888, 907 (11th

Cir.1997); Stewart v. KHD Deutz of Am. Corp., 75 F.3d 1522, 1527

(11th Cir.1996). It is also undisputed that the parties were

entitled to a jury trial on the state law breach of contract claim.

When an action involves both legal and equitable claims that

have common issues of fact, and a jury trial has been properly

demanded with respect to the legal claims, the parties have a right

under the Seventh Amendment to have the legal claims tried to a

jury. Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962); Beacon

Theatres, Inc. v. Westover, 359 U.S. 500 (1959); Ross v. Bernhard,

396 U.S. 531, 538–39 (1970). To safeguard this right, the general

rule is that the jury must decide the legal claims prior to the

court's determination of the equitable claims. Dairy Queen, Inc.,

369 U.S. at 479; Beacon Theatres, Inc. 359 U.S. at 510–11.

Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir.

1995)(“When legal and equitable causes are joined in one action,

the legal issues must be decided first. To the extent that the

elements of the two types of claims mirror one another, the jury's

findings on the legal questions are binding in resolving the

equitable issues.” (citations omitted.)) The reason for this, as

the Second Circuit has stated, is to prevent the court's

determination of a common factual issue from precluding, by

collateral estoppel effect, a contrary determination by the jury.

Wade v. Orange Cnty. Sheriff's Off., 844 F.2d 951, 954 (2d Cir.

1988). By the same token, when the jury has decided a factual

issue, its determination has the effect of precluding the court

from deciding the same fact issue in a different way. Id. The

Eleventh Circuit agrees:

When legal and equitable actions are tried

together, the right to a jury in the legal

action encompasses the issues common to both.

When a party has the right to a jury trial on

an issue involved in a legal claim, the judge

is of course bound by the jury's determination

of that issue as it affects his disposition of

an accompanying equitable claim.

Lincoln v. Bd. of Regents of Univ. Sys. of Ga., 697 F.2d 928, 934

(11th Cir. 1983).

The principle, however, is not limited to legal and equitable

claims “tried together.” “It is well settled that where claims at

law and in equity are joined and the legal claims are tried

separately by a jury, the jury's verdict operates as a finding of

fact binding on the trial court in its determination of the

equitable claims.” BUC Intern. Corp. v. Int'l Yacht Council Ltd.,

489 F.3d 1129, 1151 (11th Cir. 2007) (quoting Dybczak v. Tuskegee

Inst., 737 F.2d 1524, 1526–27 (11th Cir. 1984)). There must be a

factual overlap between the legal claim and the equitable claim,

and the jury must necessarily have made findings with respect to

the availability of any legal relief which merit deference. Brown

v. Ala. Dep’t of Transp., 597 F.3d 1160, 1184–85 (11th Cir. 2010).

On the other hand, when legal and equitable issues are tried

together and do not overlap, the jury's verdict on any equitable

issues is advisory. Sherman v. Burke Contracting, Inc., 891 F.2d

1527, 1529 n. 4 (11th Cir. 1990); Brown, 597 F.3d at 1185 n.11.

The same principles are followed in the Second Circuit. C &

W Leasing, Inc. v. Orix Credit Alliance, Inc., 957 F.2d 815, 821

(11th Cir. 1992)(“The judge is bound by the jury's determination

of a legal claim as it affects his disposition of an accompanying

equitable claim,” (citing Caputo v. U.S. Lines Co., 311 F.2d 413

(2nd Cir. 1963).) See also LeBlanc-Sternberg v. Fletcher, 67 F.3d

412, 432 (2d Cir. 1995) (“When two claims asserted by the same

plaintiff are tried together and one is to be decided by the jury

and the other by the judge, principles of collateral estoppel

prevent the judge from making findings of fact contrary to those

of the jury.”); Wade, 844 F.2d at 954; Guzman v. Bevona, 90 F.3d

641, 647 (2d Cir. 1996)(“District Court, in trying the equitable

claim, was not free to reject the jury's determination of facts

essential to both the legal and equitable claims.”).

Dr. Allen also complains about the lack of an administrative

record and discovery, arguing that these preclude summary

judgment. But the Court is not called upon to decide the merits

of the ERISA issue, and indeed cannot do so without a full

administrative record. “Just as a plan administrator must have a

complete record before rendering its decision, so too must a

district court have a complete record before conducting its de

novo review under the first step in the Blankenship analysis.”

Williamson v. Travelport, LP, 953 F.3d 1278, 1290 (11th Cir. 2020).

But the whole point of issue preclusion is that the Court does not

(indeed, cannot) decide the issue anew. If the remaining

requirements for issue preclusion are established, that ends the

matter.

Dr. Allen bears the burden of proving he is entitled to the

long-term disability benefits. Glazer v. Reliance Standard Life

Ins. Co., 524 F.3d 1241, 1247 (11th Cir. 2008). The issue to be

decided by the court, after a de novo or arbitrary and capricious

review of either the administrative record or an expanded

administrative record, is whether Dr. Allen was disabled because

he was unable to perform the substantial and material duties of

any gainful occupation based on his education, training or

experience.

(4) Actually Litigated Issue

Issue preclusion only extends to an issue which was actually

litigated in a prior lawsuit. Kordash, 51 F.4th at 1294. “A

matter is actually litigated for purposes of issue preclusion when

it is ‘properly raised, by the pleadings or otherwise, and is

submitted for determination, and is determined.’” Islam v. Sec'y,

Dep't of Homeland Sec., 997 F.3d 1333, 1341 (11th Cir.

2021)(citations omitted.)

Based on the record summarized above, the Court finds that

the issue of whether Dr. Allen was totally disabled within the

meaning of the Individual Policies was actually litigated and

determined at the jury trial. The Court finds that the jury

verdicts that Dr. Allen was not totally disabled because he could

perform his own occupation was “sufficiently firm” to satisfy this

requirement. Powrzanas, 822 F. App'x at 928-29; Regan, 528 F.2d

1262, 1265 (2d Cir. 1975).

(5) Issue Critical and Necessary

Issue preclusion also requires that “the determination of the

issue in the prior litigation was a critical and necessary part of

the judgment in that action.” Kordash, 51 F.4th at 1294. An issue

is critical and necessary if it was integral to the jury’s

determination. Lary v. Ansari, 817 F.2d 1521, 1524 (11th Cir.

1987). The issue of whether Dr. Allen was or was not totally

disabled within the meaning of the Individual Policies was a

critical and necessary part of the jury verdict. Indeed, that

issue was the only issue considered by the jury. This requirement

of issue preclusion has therefore been satisfied.

(6) Full and Fair Opportunity To Litigate

Issue preclusion can apply only “if the party against whom

the issue was decided had a full and fair opportunity to litigate

the issue in the earlier proceeding." Pemco Aeroplex, Inc., 383

F.3d at 1285 (quoting In re Southeast Banking Corp., 69 F.3d 1539,

1552 (11th Cir. 1995)). Dr. Allen asserts that if the Court

applies the jury’s finding from the IP Litigation to his ERISA

claim it would be akin to an advisory jury under Rule 39(c), and

it would offend his due process rights as he would not be afforded

a full and fair opportunity to litigate the issue underlying his

claim. (Doc. #274, pp. 7-9.) The Court does not agree.

The IP Litigation provided Dr. Allen a full opportunity to

litigate the issue of whether he was disabled because he was unable

to perform the substantial and material duties of his occupation

as a diagnostic radiologist as of the date his disability benefits

were terminated. Dr. Allen completed discovery, with no discovery

disputes at the time of the jury trial. There was also a plethora

of medical and other records, including what Defendants asserted

to be the administrative record. (Doc. #223, p. 2, Defendants’

Exhibits ##12-13, 15, 17-19, 21, 23-24, 26-28, 36, 38-40, 42-49,

56, 58-60, 64-66.)

In addition, any characterization of the jury being

“advisory” is incorrect. The jury decided Plaintiff’s legal

(breach of contract) claims in the IP Litigation, and in reaching

a verdict, the jury’s findings operate as finding of facts that

are binding on this Court in its determination of Plaintiff’s

equitable claim under ERISA. See BUC Intern. Corp., 489 F.3d at

1151. There is also no obligation, as Plaintiff suggests, to

inform Plaintiff of possible outcomes of the jury trial that could

have rendered his ERISA claim “moot.” Issue preclusion principles

have been well-established before the trial. Accordingly, the

Court finds that Plaintiff was provided due process to fully

litigate the issue of totally disability in the IP Litigation.

In sum, Defendants have proven that issue preclusion applies

in this case, and they are entitled to summary judgment as to Count

I of the FAC. Defendants have established that the parties in the

IP Litigation and ERISA Litigation are identical or were privies;

that the issue in the IP Litigation was actually litigated; that

the IP Litigation and the ERISA Litigation involve identical

issues; that issue in the IP Litigation was a critical and

necessary part of the judgment; and that Dr. Allen had a full and

fair opportunity to litigate the pertinent issue in the IP

Litigation.

C. Count II: Request for Attorney Fees and Costs

In Count II of the FAC Dr. Allen seeks recovery of attorney

fees and costs pursuant to 29 U.S.C. § 1132(g)(1). While this

does not require Dr. Allen to have been a “prevailing party” to be

eligible for an attorney's fees award under § 1132(g)(1), Hardt v.

Reliance Standard Life Ins. Co., 560 U.S. 242, 252 (2010), he must

have achieved some degree of success on the merits in order for

the Court to exercise its discretion and award attorney fees and

costs. Id. at 252. Here, Dr. Allen has not achieved any degree

of success on the merits of his ERISA claim, and is therefore not

eligible for an award of attorney fees and costs.

Accordingly, it is now

ORDERED:

1. Defendants’ Motion for Summary Judgment on Counts I and II

of the Fourth Amended Complaint (Doc. #271) is GRANTED.

2. The Clerk of the Court shall enter judgment as follows:

(a) In favor of defendants Provident Life and Casualty

Insurance Company and Unum Group as to Count I of the

Second Amended Complaint (Doc. #87) pursuant to the

Verdict (Doc. #243) of the jury, and plaintiff shall

take nothing.

(b) In favor of defendants First Unum Life Insurance

Company and Unum Group as to Count II of the Fourth

Amended Complaint (Doc. #250) pursuant to this Opinion

and Order, and plaintiff shall take nothing.

3. The Clerk shall also terminate any pending deadlines and

close the file.

DONE and ORDERED at Fort Myers, Florida, this 6th day of

February, 2023.

—_— □ 2, _ f

AA) = Pe

JGHE E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record