Hecht v. Paul Revere Life Insurance

Opinion

YEGAN, J.

Michael A. Hecht appeals from the grant of a summary judgment in favor of his disability carrier. The trial court, relying on

Erreca v. West. States Life Ins. Co.

(1942) 19 Cal.2d 388 [121 P.2d 689], ruled that there were no triable issues of fact and that appellant was not “totally” disabled. Given the state of the record and appellant’s concessions that certain facts are undisputed, we affirm. Our standard of review is de novo.

(Artiglio

v.

Corning Inc.

(1998) 18 Cal.4th 604, 612 [76 Cal.Rptr.2d 479, 957 P.2d 1313].)

[32]

Appellant was and is the owner/president of a successful retail clothing business with several locations in Southern California. For approximately 20 years, he was a “hands-on” owner who worked full time every day building this business. In 1990, he purchased a disability insurance policy from respondent listing his duties as “buyer/manager/office operations.” The policy defined “total disability” as being “unable to perform the important duties of Your Occupation . . . .” With certain amendments and riders to the policy, he could have received approximately $10,000 per month if he became “totally disabled.”

In October of 2000, appellant was involved in an automobile accident which resulted in his suffering from neck pain, upper back pain, and lower back pain. He took a variety of medicines to ameliorate these symptoms. His physician confirmed that he had lumbar injury which included bulging discs, spinal stenosis and muscle spasms. This hampered his ability to walk, sit, bend, and lift objects.

In connection with his application for disability insurance payments, appellant’s physician declared that he was “partially” disabled. Notwithstanding his pain and physical limitations, he continued to work full time and performed his work the same way he had done prior to the accident, albeit with less gusto and more physical limitations than before the accident. A key employee, bookkeeper Marie Pasión, testified at deposition that appellant, postaccident, performs all of the duties that he was performing before the accident.