Blue v. Hartford Life & Accident Insurance

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3554

W ILLIAM M. B LUE,

Plaintiff-Appellant,

v.

H ARTFORD L IFE & A CCIDENT INSURANCE C OMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 10 C 499—Stephen L. Crocker, Magistrate Judge.

A RGUED S EPTEMBER 6, 2012—D ECIDED O CTOBER 18, 2012

Before E ASTERBROOK, Chief Judge, and F LAUM and

W ILLIAMS, Circuit Judges.

F LAUM, Circuit Judge. William Blue’s insurance

company, Hartford Life & Accident (“Hartford”), with-

drew his long-term disability benefits after doctors in-

dicated that his condition had improved such that he

was no longer incapable of occupying “any occupation”

as his policy required. After an unsuccessful appeal,

2 No. 11-3554

Blue filed the instant lawsuit alleging breach of contract

and bad faith denial of benefits. In the course of the suit,

Blue discovered that Hartford had applied the incorrect

standard to his policy determination. Instead of applying

the “any occupation” standard, Hartford should have

applied the more lenient “own occupation” standard.

After an investigation, Hartford agreed that it applied

the incorrect standard, and reinstated Blue’s benefits

with backpay. Hartford then filed a motion for

summary judgment, arguing that Blue’s contract claim

was moot and that it was entitled to summary

judgment on the bad faith claim. On the day his

response was due, Blue’s counsel requested an exten-

sion of time because of medical difficulties. The court

granted that motion. Two days later, when Blue’s

response was again due, he requested a second extension

of time, this time arguing that he was missing necessary

discovery. The district court denied this request, and

ruled on Hartford’s summary judgment motion without

Blue’s response, concluding that Blue’s contract claim

was moot and that Hartford was entitled to summary

judgment on the bad faith claim.

For the reasons set forth below, we affirm.

I. Background

William Blue, a bus driver for the City of Madison,

Wisconsin, was insured under a group long-term and

short-term disability plan issued by Hartford. On Septem-

ber 10, 1998, Blue stopped working because of chronic

headaches, and on September 18, Hartford approved his

No. 11-3554 3

request for short-term disability (“STD”) benefits.

After being diagnosed with sphenopalatine ganglion

neuralgia, a condition that subjects the victim to chronic

“ice cream headaches,” Blue applied for long-term disa-

bility (“LTD”) benefits, which Hartford approved. When

Blue applied for STD and LTD benefits respectively,

the qualifying criterion for the two policies differed. To

qualify for STD benefits, Blue needed to show that he

was unable to perform the duties of his own occupation.

To qualify for LTD benefits, in contrast, he needed to

show that he was prevented from doing “any occupation

or work for which he was or could become qualified

by training, education or experience.” It is more difficult

for a claimant to satisfy the “any occupation” standard.

On February 5, 2002, Hartford amended its LTD-insur-

ance policy with the City, retroactive to February 1,

1993. The amendment changed the LTD policy’s def-

inition of disability from the original “any occupation”

standard, to the more lenient “own occupation” standard.

When Blue applied for LTD benefits on March 29, 2001,

the applicable LTD policy required a claimant to satisfy

the “any occupation” standard. Blue was able to meet

that standard, and he received LTD benefits for seven

years. Each year, Hartford received a physician’s state-

ment reporting on Blue’s condition, and by 2008,

medical records suggested that his condition had

improved significantly enough to allow him to return

to work. Specifically, Blue’s cardiologist reported that

Blue had “improved cranial nerves” and acknowledged

that his condition had improved. In May 2007, Maureen

4 No. 11-3554

Van Dinter, a nurse practitioner and Blue’s primary

medical provider, reported that Blue was “beginning

to notice significant improvement in his headaches”

due to new medication and that she anticipated he

would be able to return to work in six to eight months.

In response to a letter from Hartford in July 2008,

Van Dinter indicated that Blue was capable of

performing full-time light or sedentary work. Hartford’s

inquiry had focused on whether Blue could return to

work at all, rather than whether he was capable of re-

turning to work as a bus driver.

Hartford sent Blue a letter on September 24, 2008 noti-

fying him that he was no longer eligible for LTD bene-

fits. The letter quoted the “any occupation” language

from Blue’s original policy. The application of this stan-

dard, however, was a mistake. Hartford should have

applied the more lenient “own occupation” standard

that had become part of the policy pursuant to the

2002 retroactive amendment. Based on various reports

from and conversations with Blue’s doctors, Hartford

denied Blue’s claim for LTD benefits. Blue filed an

appeal with Hartford challenging the decision, but his

appeal was denied. Blue did not challenge the applica-

tion of the “any occupation” standard at that time.

Hartford explains the application of the wrong

standard as an innocent mistake caused by cross-office

inefficiencies. The 2008 letter terminating Blue’s LTD

benefits was issued by Madeline Farrell, who was

located in Hartford’s Georgia office where Blue’s claim

was first evaluated. When Farrell requested a copy of

No. 11-3554 5

the applicable policy for Blue’s claim in 2008, Hartford’s

Minneapolis office provided her with the “any occupa-

tion” policy that was in effect at the time of Hartford’s

initial approval of Blue’s LTD benefits in 2001. The

claim file does not reflect that the Minneapolis office

sent Farrell the 2002 retroactive amendment. Ac-

cordingly, Farrell analyzed the file under the wrong

disability definition.

Following his unsuccessful appeal, Blue retained

counsel and filed suit in Wisconsin state court alleging

(1) breach of contract and (2) bad faith denial of bene-

fits. Hartford timely removed the lawsuit to the dis-

trict court. The parties eventually filed cross-motions

for summary judgment, Hartford on Blue’s bad faith

claim, and Blue on the breach of contract claim. Blue’s

filing of his motion for summary judgment began a

series of missed deadlines by Blue’s counsel. Blue’s

initial motion was due on January 31, 2011, but Blue’s

counsel missed the deadline and asked for an extension

on February 7, 2011. Blue’s counsel cited a long list of

personal hardships that prevented him from filing

on time: the death of a friend, the death of an aunt,

the death of his uncle, and a series of illnesses

(cold, bronchitis, torn retina, recurrence of torn retina,

obstructed vision, food poisoning, fever, and a partially

collapsed lung). He also indicated that his only associate

had left his law firm. The court granted the motion and

gave him until February 8, 2011 to file his motion

for summary judgment. Blue’s counsel missed the new

February 8 deadline, claiming technical problems with

6 No. 11-3554

his office computer. Blue eventually filed his motion for

summary judgment on February 10, 2011 and asserted

for the first time that Hartford applied the incorrect

standard to his claim.

Hartford investigated the allegation that it applied

the wrong standard, and discovered that Blue was cor-

rect. On March 17, 2011, Hartford filed a motion with the

district court acknowledging the mistake. The motion

included an affidavit from Bruce Luddy, Hartford’s

Director of Litigation and Appeals, explaining the cross-

office inefficiencies that led to the application of

the “any occupation” standard rather than the “own

occupation” standard. Hartford admitted liability, rein-

stated Blue’s LTD benefits, and issued Blue a check for

retroactive benefits dating from September 24, 2008,

the date on which Hartford terminated his benefits.

Although Hartford admitted liability for benefits on

Blue’s breach of contract claim, it continued to believe

that summary judgment was appropriate as to Blue’s

bad faith claim, and it proposed a new briefing schedule

to allow additional discovery regarding the application

of the wrong policy standard. Hartford proposed April 18

as its deadline for its opening motion, May 9 for Blue’s

response deadline, and May 19 for Hartford’s reply

deadline. The district court gave Blue until March 25,

2011 to respond to Hartford’s motion for a new

briefing schedule. Blue filed his response one day

late, on March 26, and agreed to the new schedule.

The court set these deadlines on April 4, 2011.

Hartford filed its summary judgment motion on April 18

and included a second affidavit from Luddy. On April 21,

No. 11-3554 7

Blue’s counsel contacted Hartford in an attempt to sched-

ule the deposition of Luddy and others, but Hartford

demanded that notices be issued prior to scheduling.

On Friday April 22, at 5:17p.m., Blue’s counsel e-mailed

Hartford deposition notices for six different Hartford

employees, scheduling them for ten days later. Although

Hartford informed Blue’s counsel that the dates noticed

would not work, Blue’s counsel waited until May 4 to

propose May 19 as a possible deposition date. Blue’s

responsive deadline was May 9.

Blue did not meet his briefing deadline, but on May 9,

Blue’s counsel submitted a letter to the court stating

that the previous evening he was admitted to the emer-

gency room where he underwent surgery on his eye.

He further informed the court that on that very

morning, he “had no choice but to bring a companion

animal into the vet to have her put down as a result of

kidney failure.” Blue’s counsel sought a two-day exten-

sion, to which Hartford agreed, and which the district

court approved. On May 11, Blue’s counsel asked for

another extension, this time blaming Hartford and

its counsel for his inability to obtain discovery he

thought was necessary to respond to the pending sum-

mary judgment motion. The district court denied his

motion for an extension of time on May 19, stating in

part that his latest request was “completely dispropor-

tionate to what the court so far has allowed, coming

much too late in the process with no warning and seeking

too much ‘necessary’ discovery after plaintiff’s responsive

deadline has run.” The district court found that Blue

8 No. 11-3554

failed to show ‘good cause’ for extending the deadline

yet again, and took Hartford’s pending brief under ad-

visement. Blue did not file an opposition brief. The dep-

ositions of Luddy and Christopher Davis, a Hartford

senior appeal specialist, took place on May 19.

Because Blue did not file a response, the district court

treated Hartford’s proposed findings of fact as undis-

puted. The court concluded that Blue had not offered

sufficient evidence to support his bad faith claim and

found that Hartford’s decision to reinstate Blue’s LTD

benefits and to pay Blue retroactive benefits rendered

Blue’s breach of contract claim moot. The district court

granted summary judgment to Hartford.

Following the district court’s entry of judgment in

Hartford’s favor, Blue filed a motion to amend the judg-

ment under Rule 59(e). The district court denied Blue’s

motion, finding that Blue had shown no mistake of law

or fact by the court as required by Rule 59(e). In denying

the motion, the district court noted that Blue had

known about Bruce Luddy since March 17, 2011, and had

ample time to schedule his deposition prior to the sum-

mary judgment response deadline. The court also

rejected Blue’s attempt to revive his breach of contract

claim, stating that the time to make that argument

would have been in response to Hartford’s summary

judgment motion.

Blue appeals the district court’s denial of his second

motion for an extension of time. He also challenges the

district court’s entry of summary judgment in Hartford’s

favor on his bad faith and breach of contract claims.

No. 11-3554 9

II. Discussion

A. Motion for Extension of Time

Blue argues that the district court erred when it denied

his second motion requesting an extension of time to

respond to Hartford’s motion for summary judgment.

We review a district court’s refusal to grant an extension

of time to file responsive pleadings for abuse of discre-

tion. Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co.,

201 F.3d 894, 896-97 (7th Cir. 2000). “[M]atters of trial

management are for the district judge and we intervene

only when it is apparent the judge has acted unreason-

ably.” Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d

1025, 1030 (7th Cir. 1998) (citations omitted).

The Federal Rules provide various procedures for

seeking an extension of time. Rule 6(b) allows a district

court to grant extensions of time prior to the expiration

of a deadline for “good cause.” Fed. R. Civ. P. 6(b).

When the deadline has expired, Rule 6(b)(1)(B) allows a

court to consider a motion for an extension of time

for “excusable neglect.” Rule 16(b)(4) requires a showing

of good cause for modifications to a scheduling order.

Finally, “[w]hen a party thinks it needs additional dis-

covery in order to oppose a motion for summary

judgment in the manner Rule 56(e) requires, Rule 56(f)

of the Federal Rules of Civil Procedure provides a

simple procedure for relief: move for a continuance

and submit an affidavit explaining why the additional

discovery is necessary.” Deere & Co. v. Ohio Gear, 462

F.3d 701, 706 (7th Cir. 2006) (citation omitted). Here, the

district court found that Blue failed to show good cause

10 No. 11-3554

for the extension of time he requested on the date

his response to Hartford’s summary judgment motion

was due.

Blue contends that he should have been granted addi-

tional time to file his response because he lacked

necessary discovery at the time the response was due.

Although Blue now relies on Luddy’s deposition as the

missing piece of discovery, Hartford filed Luddy’s

initial affidavit in March. Moreover, Blue does not articu-

late why not having Luddy’s deposition prevented

him from filing any response at all. Although it may be

true that the missing depositions would have been

helpful to Blue, he does not show good cause as re-

quired by Rule 6(b).

Blue claims that he reached out to Hartford to set

deposition dates for Luddy just days after Hartford filed

its motion for summary judgment as to the bad faith

claims. He alleges that Hartford was uncooperative

and refused to provide dates that Luddy would be avail-

able. Even assuming these claims are true, Blue made

no attempt to involve the court in obtaining Hartford’s

cooperation. On May 4, the parties scheduled Luddy’s

deposition for May 19, ten days after Blue’s deadline

for filing his response. Despite this timing, Blue did not

seek an extension of time from the court. Blue missed

his May 9 deadline, and when he requested an extension

of time, he did not mention that he needed additional

discovery. Instead, his counsel cited a recent surgery

as the reason for his request. The district court granted

a two-day extension. On the second day, Blue requested

No. 11-3554 11

an additional extension and only then cited his need

for discovery.

Rule 6(b)(1) provides a district court with discretion

to grant or deny a request for an extension of time. See

Fed. R. Civ. P. 6(b)(1). In reviewing the district court’s

decision “we look not just at the request itself but

also at what led up to the request.” Spears v. City of India-

napolis, 74 F.3d 153, 157 (7th Cir. 1996). In Spears, this court

upheld the denial of a request for an extension of time to

file a response to a motion for summary judgment twenty-

four hours late. Id. at 157-58. The district court record in

Spears revealed that the case had been plagued with

multiple extensions and a last-minute discovery at-

tempt resembling a “fishing expedition.” Id. at 158.

More importantly, the court recognized that many of

the delays could have been prevented had the parties

involved not waited until the last minute to gather

their materials. Id. at 157. Though sympathetic to the

parties, the court reasoned that district courts have

an interest in keeping litigation moving forward and

that maintaining respect for set deadlines is essential to

achieving that goal. Id. at 157-58; see also Yancick v.

Hanna Steel Corp., 653 F.3d 532, 538-39 (7th Cir. 2011)

(finding no abuse of discretion where a party filed a

motion without exhibits, and the court denied the op-

portunity to file exhibits after the deadline had passed).

Here too, Blue’s counsel had requested several exten-

sions throughout the course of the litigation. Though

presumably the events leading up to each extension

were beyond his control, the inescapable fact is that he

12 No. 11-3554

required extensions because he waited until the last

minute to begin working on his motions. Blue knew

about Luddy on March 17, yet made no attempt to

depose him until late April. Hartford also disclosed

Davis in its initial disclosures. Although the depositions

were scheduled for a date after his responsive pleading

was due, Blue made no attempt to seek relief from

the court. In fact, his initial request for an extension

did not even mention the need for Luddy’s or Davis’s

deposition. Blue argues that Luddy was not initially

disclosed, but he offers no explanation for his delay in

requesting his deposition until late April, nor does he

explain why he did not seek an extension of time on

May 4, when he knew Luddy’s deposition was sched-

uled for May 19, after his responsive deadline would pass.

Although the gravamen of Hartford’s summary judg-

ment motion focused on its lack of bad faith in

applying the incorrect policy standard, it also discussed

the evidence it relied on in determining that Blue’s

LTD benefits should be discontinued under the “any

occupation” standard. Blue relies on a lack of dis-

covery regarding the “wrong policy” theory, but his

complaint asserted bad faith in Hartford’s application of

the (incorrect) “any occupation” standard. He offers

no explanation for why he was unable to file a re-

sponsive motion addressing his arguments relating to

bad faith in the application of the “any occupation”

standard, even if he was unable to fully address the

bad faith claim based on the use of the incorrect policy.

Although Blue relies on Deere to show that the district

court abused its discretion, that case is inapposite. See

No. 11-3554 13

Deere, 462 F.3d at 705-07. In Deere, the plaintiff did not

file a Rule 56(f) motion when it was clear that the par-

ties’ expert witness deposition dispute would not

be resolved prior to the expiration of its deadline to

respond to the pending motion for summary judgment.

Id. at 706. When the plaintiff did not file a timely

response, the court invoked a local rule (C.D. Ill. R.

7.1(D)(2)), which provides that a failure to respond to a

motion for summary judgment within the requisite

time period will be deemed an admission of the motion.

Id. at 705. In reviewing the district court’s decision, we

found that the court abused its discretion in applying

the local rule because of the unique case history at play.

Id. at 706-07. Initially, the district court had agreed that

the disputed expert witness discovery was necessary

to the plaintiff’s response to the motion for summary

judgment. Id. at 707. Then, the defendants filed a motion

to enlarge the previously extended time to take the

expert’s deposition, and the district court did not

decide that motion in a timely fashion. Id. More impor-

tantly, there were several relevant, pending motions

that the court left unaddressed. Id. “[T]he court pro-

ceeded to invoke the local rule, treat the facts as ad-

mitted, and enter summary judgment—even though the

stack of undecided procedural motions included ones

targeting the disputed expert discovery that the court

had previously determined was a predicate” to the plain-

tiff’s response to the motion for summary judgment. Id.

We determined that the history of the motion practice,

much of which was unresolved, rendered the district

court’s grant of summary judgment on the basis of pro-

14 No. 11-3554

cedural default an abuse of discretion. Id. In this case,

however, the district court was timely in its rulings,

and there were no material motions pending when it

granted summary judgment. Moreover, the magistrate

judge was very involved with the parties and keenly

aware of the procedural history before him. Thus,

viewing the record as a whole, there is no evidence to

suggest that the district court abused its discretion in

denying Blue’s motion for an extension of his response

deadline.

B. Summary Judgment

Having concluded that the district court did not err

in denying Blue’s motion, we must now review the

court’s grant of summary judgment for Hartford as to

Blue’s bad faith claim. We review the district court’s

grant of summary judgment de novo. Raymond v.

Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). The

district court must “grant summary judgment 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.” Fed. R. Civ. P. 56(a). The court

construes all facts and draws all reasonable inferences

in the light most favorable to the non-moving party.

Omnicare, Inc. v. UnitedHealth Group, Inc., 629 F.3d 697,

705 (7th Cir. 2011). Blue advances two theories re-

garding his bad faith claim. First, he argues that

Hartford revoked his LTD benefits under the “any oc-

cupation” standard (leaving aside the fact that it was

the wrong standard) in bad faith. Next, he argues that

Hartford applied the incorrect standard in bad faith.

No. 11-3554 15

Under Wisconsin law, to prove a bad faith denial of

benefits claim, a plaintiff must show: (1) “the absence of

a reasonable basis for denying benefits of the pol-

icy,” and (2) “the defendant’s knowledge or reckless

disregard of the lack of a reasonable basis for denying

the claim.” Anderson v. Cont’l Ins. Co., 271 N.W.2d 368,

376 (Wis. 1978). The second part of the bad faith test

is subjective and calls for an examination of whether

the insurer knew or should have known that it had no

reasonable basis to deny the claim. Brethorst v. Allstate

Prop. & Cas. Ins. Co., 798 N.W.2d 467, 475 (Wis. 2011).

Although Wisconsin courts have not explicitly

addressed whether an honest mistake can be considered

reckless disregard, the court in Anderson explained that

“bad faith is the absence of honest, intelligent action

or consideration based upon a knowledge of the facts

and circumstances upon which a decision in respect to

liability is predicated.” Anderson, 271 N.W.2d at 377.

1. Denial of benefits under the “any occupation”

standard

Hartford demonstrated a reasonable basis for denying

Blue benefits under the “any occupation” standard, and

Blue did not present any evidence in the district court

to the contrary. Although the district court did not ex-

plicitly conclude that Hartford would have had a rea-

sonable basis to deny Blue’s benefits under the “any

occupation” standard, its opinion implies that one

would have existed had the “any occupation” standard

been the correct standard for Hartford to apply.

16 No. 11-3554

Hartford’s decision to withhold benefits was based on

a report from Blue’s primary care provider, Maureen

Van Dinter, who believed that Blue was capable of full-

time light or sedentary work. After Hartford received

that report, it completed an employability analysis and

identified a number of occupations Blue could perform.

Hartford also relied on Blue’s cardiologist, Dr. Edwin

Ferguson, who reported that Blue had “improved cranial

nerves” and indicated that Blue’s overall condition had

improved. After Blue appealed Hartford’s decision to dis-

continue his LTD benefits, Hartford consulted with

Dr. Robert Marks, who reported that Blue’s medical

records showed no abnormal neurological findings or

any neurological deficit and that Blue was not physically

precluded from performing light-demand work.

Blue contends that the facts show that Hartford’s deci-

sion to deny his benefits under the incorrect “any oc-

cupation” policy was arbitrary and capricious. Although

Blue presents the testimony of Mary Torkkola, a

Hartford employability analyst, to support his conten-

tion, we need not consider this testimony because it

was not before the district court. See Hernandez v. HCH

Miller Park Joint Venture, 418 F.3d 732, 736 (7th Cir. 2005)

(“[T]his court may only consider evidence properly

presented to the district court . . . .”). Similarly, Blue’s

citations to the Luddy and Davis depositions are im-

proper. Blue also attempts to discredit Van Dinter,

citing sections of her affidavit that seem to contradict the

testimony cited by Hartford in support of its motion,

but Van Dinter’s affidavit was not before the district

court. Although Blue filed the Van Dinter affidavit with

No. 11-3554 17

his February 2011 motion for summary judgment, the

court deemed that motion moot and never admitted those

facts. Again, Blue could have made each of these argu-

ments in a responsive pleading, but he did not file one and

we cannot consider these arguments in the first instance.

2. Application of the incorrect standard

Next, we turn to Blue’s second theory of liability on his

bad faith claim, which is that Hartford applied the incor-

rect standard in bad faith. With regard to Hartford’s

application of the incorrect LTD standard, the district

court concluded that a reasonable jury could determine

that Hartford did not exercise ordinary care and rea-

sonable diligence when it failed to uncover the amend-

ment to the policy. But the court also determined that

Hartford did not know of or recklessly disregard its

lack of a reasonable basis in denying the claim.

Even if an insurance company has no reasonable basis

for denying benefits, a claimant must also show that the

insurer knew of, or recklessly disregarded, the lack of a

reasonable basis for the denial in order to establish bad

faith on the part of the insurer. Brown v. Labor & Indus.

Review Comm’n, 671 N.W.2d 279, 288 (Wis. 2003). Here,

nothing in the record before the district court showed

or could have prompted a reasonable inference that

Hartford knew about, or recklessly disregarded, evidence

that it was applying the wrong standard to Blue’s claim.

When Hartford made Blue’s original LTD benefits deter-

mination in 2001, the “any occupation” standard had

been in effect. Hartford did not adopt the “own occupa-

18 No. 11-3554

tion” standard for the purpose of LTD benefits until

2002, at which point it made that standard retroactive

to 1993. When the Hartford employee reviewing Blue’s

claim in Georgia requested the relevant documents

from the Minneapolis office, she received a policy listing

the old “any occupation” standard that was in effect at

the time of Hartford’s initial approval of Blue’s LTD

benefits in 2001. There is no evidence that the claim

reviewer knew or suspected that the policy was

incorrect or incomplete or that the Minneapolis office’s

failure to send the correct documents was intentional

or reckless. There is no issue of material fact that the

application of the “any occupation” standard was

nothing more than an honest mistake.

Again, Blue attempts to bring in evidence that was not

before the district court to discredit the court’s grant

of summary judgment. This is improper. See Hernandez,

418 F.3d at 736. On the record before the district court,

there was no evidence to suggest that Hartford’s

mistake was intentional or that it knew about, or

recklessly disregarded, evidence of its mistake. The

district court properly granted Hartford’s motion for

summary judgment on Blue’s claim of bad faith.

3. Breach of contract claim

Finally, Blue argues that he should have been able to

pursue $6,000 in consequential damages in relation to his

breach of contract claim. The district court dismissed

this claim as moot because Hartford reinstated his

benefits and provided back payments. Blue offers no

support for his argument.

No. 11-3554 19

As an initial matter, this argument is waived. Blue

did not assert these damages in March 2011 when

Hartford reinstated his benefits, and he did not respond

to Hartford’s motion for summary judgment, which

clearly states that in its view, Blue’s contract claims are

moot. See Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d

1195, 1197 (7th Cir. 1999) (“We have long refused to

consider arguments that were not presented to the district

court in response to summary judgment motions.” (cita-

tions omitted)). Moreover, during Blue’s deposition on

March 24, 2011, his counsel objected to a line of

questioning relating to a breach of contract claim, stating

that the only issue remaining in the case was whether

Hartford acted in bad faith.

Generally, a plaintiff may recover consequential

damages when such damages “are the natural and proba-

ble consequences of the breach and were within [the]

contemplation of the parties when the contract was

made.” Gen. Star Indem. Co. v. Bankr. Estate of Lake Geneva

Sugar Shack, Inc., 572 N.W.2d 881, 889 (Wis. Ct. App. 1997).

Blue offers no argument as to what consequential

damages arose from Hartford’s termination of his LTD

benefits, and he has not shown that any damages were

contemplated by the parties. This court has held that a

benefit claim becomes moot when it is paid in full and

a plaintiff is granted all the relief he seeks. Pakovich v.

Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011). In

Pakovich, we stated that the plaintiff’s claim was

rendered moot when “the Plan paid Pakovich the

benefits she requested in her complaint, including the

amount she was owed at the time and the proper

20 No. 11-3554

amount going forward. Since Pakovich had received

everything she requested in her benefit claim, that claim

became moot . . . .” Id. Here too, Blue received all the

benefits that he sought under the policy. Although

Blue seeks consequential damages incurred as a result

of his lack of income, he cites no authority to show that

he is entitled to seek consequential damages even

though he did not dispute the mootness of the contract

claim.

4. Dismissal of Blue’s 59(e) motion

Blue does not actually argue that his Rule 59(e) motion

was improperly denied, but suggestions of this argu-

ment are peppered throughout his brief. Regardless, this

claim is meritless. We review a district court’s denial of

a motion to amend judgment under Rule 59(e) for abuse

of discretion. Bordelon v. Chi. Sch. Reform Bd. of Trs.,

233 F.3d 524, 529 (7th Cir. 2000).

To prevail on a Rule 59(e) motion to amend judgment,

a party must “clearly establish” (1) that the court com-

mitted a manifest error of law or fact, or (2) that

newly discovered evidence precluded entry of judgment.

Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.

2006). Here, Blue argued that he should have been

allowed to seek discovery and that the district court

should not have granted the motion for summary judg-

ment without giving him an opportunity to be heard.

This does not amount to a manifest error of law or fact,

and the district court acted within its discretion in

denying Blue’s Rule 59(e) motion.

No. 11-3554 21

III. Conclusion

For the foregoing reasons, we A FFIRM the district

court’s denial of Blue’s motion for an extension of time

and A FFIRM the district court’s grant of summary

judgment in Hartford’s favor on Blue’s breach of

contract and bad faith claims.

10-18-12