# Allen v. First UNUM Life Insurance Company

> District Court, M.D. Florida · February 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10112067

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112067. Public record. Not legal advice.