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Gaby Kafie v. Northwestern Mutual Life Insurance Company

December 2, 2011


The opinion of the court was delivered by: Cecilia M. Altonaga United States District Judge


THIS CAUSE is before the Court upon Defendant, Northwestern Mutual Life Insurance Company's ("Northwestern['s]") Motion for Final Summary Judgment and to Strike Portions of Plaintiff's Amended Complaint ("Motion") [ECF No. 65], filed on October 11, 2011. Plaintiff, Gaby Kafie ("Kafie"), filed a Complaint on April 8, 2011, containing two statutory bad-faith claims based on alleged violations of Florida Statute section 624.155 ("section 624.155"). (See Compl. [ECF No. 1]). Northwestern filed a motion to dismiss on May 26, 2011 for failure to state a claim ("First Motion to Dismiss") [ECF No. 10], which the Court granted on July 18, 2011. (See July 18, 2011 Order [ECF No. 23]). The Court granted Kafie leave to amend. (See id.).

Kafie filed his Amended Complaint on July 27, 2011, alleging one statutory bad-faith claim based on alleged violations of section 624.155. (See Am. Compl. [ECF No. 24]). Northwestern filed a second motion to dismiss the Amended Complaint for failure to state a claim on August 11, 2011 ("Second Motion to Dismiss") [ECF No. 27]. The Court granted the Second Motion to Dismiss in part and denied it in part, declining to dismiss Kafie's bad-faith claim in its entirety, but dismissing the portion of Kafie's claim relating to alleged material misrepresentations and requesting punitive damages. (See Sept. 27, 2011 Order [ECF No. 51]). Kafie filed a motion for reconsideration of the Court's Order with respect to his claim for punitive damages on October 19, 2011 [ECF No. 67], which the Court granted on November 29, 2011. (See [ECF No. 83]).

Northwestern now brings this Motion for Summary Judgment asking the Court to dismiss Kafie's bad-faith claim and to strike certain allegations from the Amended Complaint as immaterial. (See Mot. 2--3). Kafie filed a Response in Opposition to the Motion ("Response") [ECF No. 71] on November 4, 2011, and Northwestern filed its Reply ("Reply") [ECF No. 75] on November 14, 2011. The Court has carefully considered the parties' written submissions, the record, and the applicable law.


Northwestern issued Kafie a disability income insurance policy ("Disability Policy") [ECF No. 24-1], dated November 3, 2006. (See Statement of Material Facts ("SMF") ¶ 1 [ECF No. 65]). Benefits under the Policy are provided on a monthly basis. (See id. ¶ 2). Specifically, the Policy provides:


Written Proof of Loss. Written proof of loss must be given to [Northwestern] within 90 days after the end of each monthly period for which benefits are claimed. If the proof is not given within the 90 days, the claim will not be affected if the proof is given as soon as reasonably possible. In any event, the proof required must be given no later than one year and 90 days after the end of each monthly period for which benefits are claims unless the Owner was legally incapacitated.


When [Northwestern] has received satisfactory proof of loss and other information as required by section 5.1 and [Northwestern] has determined that benefits are payable, [Northwestern] will pay benefits on a monthly basis. (Disability Policy 13--14 §§ 5.1--5.2).

Northwestern also issued Kafie a whole-life insurance policy ("Whole Life Policy") [ECF No. 24-2], dated December 12, 2008. (See SMF ¶ 3). The Whole Life Policy allows for an annual waiver of its premium during periods when Kafie is totally disabled. (See id. ¶ 4). The Whole Life Policy provides:

Premium Waived On An Annual Basis. Even if premiums have been paid more often than every 12 months, a premium waived on a Policy anniversary will be an annual premium. (Whole Life Policy 26 § 1).

Kafie submitted a request to Northwestern in June 2008 for disability benefits related to loss of vision. (See SMF ¶ 5 (citing June 2008 Request [ECF No. 65-1])). Northwestern initially communicated its approval of Kafie's request in a letter dated July 1, 2008. (See id. ¶ 6 (citing July 1, 2008 Letter [ECF No. 65-2])). The letter enclosed Kafie's first disability payment and stated:

Future benefits are payable on the monthly payment date listed above as long as we receive satisfactory proof of a continuing disability. The enclosed Request for Continuance of Disability Benefits form should be completed and returned as close as possible to the date indicated on the form. This will ensure that we receive current information when evaluating your continued eligibility for benefits. (July 1, 2008 Letter 1). After further evaluation, in a letter dated February 3, 2009, Northwestern informed Kafie that it was discontinuing his disability benefits. (See SMF ¶ 7 (citing Feb. 3, 2009 Letter [ECF No. 65-3])).

Prior to the discontinuation of Kafie's benefits, Neil Kern ("Kern"), Northwestern's field consultant, interviewed Kafie at his residence. (See id. ¶ 8 (citingKern Report [ECF No. 65-4])). In his Investigative Report, Kern wrote that Kafie stated he no longer drove, he used a large LCD screen to watch television, he no longer cooked due to his vision, and he could do limited computer work using special software to enlarge the size of characters on the screen. (See Kern Report 5). Kern also wrote Kafie reported he no longer shaved with a razor, but only used an electric shaver every two to three days, and that it took Kafie longer to dress himself and walk around the house. (See id.). During the interview Kern observed how Kafie's wife had to assist him to locate a computer on top of the table near where Kafie was sitting, and to sign a document by guiding Kafie's hand and pen. (See id. 2). Kafie "disputes the accuracy and fairness of Mr. Kern's report." (Resp. to Northwestern's Statement of Material Facts ("SMFO") ¶ 8 [ECF No. 71]).

Also prior to discontinuing Kafie's benefits, Northwestern requested that Dr. Marilyn Kay ("Kay"), a neuro-ophthalmologist, conduct a review of medical records from Kafie's physicians. (See SMF ¶ 9 (citing Oct. 30, 2008 Letter [ECF No. 65-5]; Dec. 1, 2008 Letter [ECF No. 65-6])). Kafie disputes the "independen[ce]" of Kay's review. (SMFO ¶ 9). Kay wrote in her evaluation that since Kafie's "visual fields are normal[;] there's no need for him to be visually limited or have any restrictions on activities. With his normal visual fields there's absolutely no reason for him to be prohibited from driving." (Dec. 1, 2008 Letter 2). Kay wrote that in her opinion,

Kafie has had stable mild central serous chorioretinopathy which was stable even as far back as November 2007 and certainly there's no evidence of activity in subsequent examinations. His normal visual fields of September 2008 combined with normal visual acuity at near in July 2008 suggests that his visual functioning is quite excellent. (Id. 3). Northwestern also requested a third-party surveillance report of Kafie's activities during a several-day period. (See SMF ¶ 10 (citing Spectrum Report [ECF No. 65-7])). Northwestern states that Kafie's activities, as observed in the surveillance video, were inconsistent with the information he previously provided to Northwestern. (See id.). Kafie "disputes the accuracy and fairness of the surveillance report," and asserts that activities shown in the surveillance video are consistent with information provided to Northwestern. (SMFO ¶ 10).

Prior to the discontinuation of Kafie's benefits, and while Kafie was receiving benefits, Kafie's mortgage to a property in Miami Lakes was foreclosed. (See SMF ¶ 11 (citing Foreclosure Documents [ECF No. 27-1])). Following the discontinuation, Kafie did not have a mortgage. (See id. ¶ 12 (citing Deposition of Gaby Kafie, Sept. 27, 2011 ("Kafie Dep.") 60:12-- 61:24; 68:5--73:20; 74:9--76:4 [ECF No. 65-8])). During his deposition, Kafie did not testify he has lost future policy benefits. (See id. ¶ 13 (citing Kafie Dep. 51:23--68:4; 106:12--113:20); SMFO ¶ 13).

Kafie sued Northwestern in 2009 for breach of the Disability Policy and Whole Life Policy (collectively, "Policies"). (See SMF ¶ B.1. (citing Kafie v. Northwestern Mut. Life Ins. Co., No. 09-cv-20948-Ungaro ("Kafie I"))). Following a bench trial, Judge Ursula Ungaro found in Kafie's favor, and awarded him his outstanding policy benefits plus statutory interest. (See id. ¶ B.2. (citing Kafie I Final Judgment [ECF No. 64])). In announcing her findings in open court, Judge Ungaro stated in part:

. . . I don't think this is an easy case because I do suspect that there were times when Dr. Kafie, for whatever reason, has exaggerated his condition. The Kern interview is particularly disturbing. [It]

[s]eems obvious to me that Dr. Kafie . . . believed that it was in his interest to grossly exaggerate the level of his impairment.

And these other things that have been brought up by Northwestern Mutual are disturbing, because the case does come down to credibility. But, having said that, maybe Dr. Kafie is the luckiest man on Earth .

So, I have to say that everything that Northwestern Mutual has brought up that goes against Dr. Kafie is disturbing. It's caused me to think hard about the case. But I do not think that Northwestern Mutual has shown by a preponderance of the evidence that Dr. Kafie does not have an impairment that prevents him from practicing podiatric medicine. (Id. (quoting Kafie I Trial Tr. 33:13--35:25 [ECF No. 59])). These statements are not contained in the Kafie I court's Findings of Facts and Conclusions of Law. (See SMFO ¶ B.2. (citing Kafie I Findings of Facts and Conclusions of Law ("Kafie I Findings") [ECF No. 71-3])). Northwestern has fully satisfied the Kafie I Final Judgment to date. (See SMF ¶ B.3.).


Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In making its assessment of summary judgment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997), and "must resolve all reasonable doubts about the facts in favor of the non-movant." United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of America, 894 F.2d 1555, 1558 (11th Cir. 1990). "By its very terms, this standard provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986) (emphasis in original). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Likewise, a dispute about a material fact is a "genuine" issue "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. In those cases, there is no genuine issue of ...

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