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Goros v. Sun Life Assurance Company of Canada

United States District Court, M.D. Florida, Fort Myers Division

August 28, 2017

GEORGE T. GOROS, Plaintiff,

          OPINION AND ORDER [1]


         This matter comes before the Court on consideration of the Honorable Carol Mirando's Report and Recommendation (Doc. 29), filed on June 28, 2017. Judge Mirando recommends that Plaintiff George T. Goros' (“Goros”) Motion for Summary Judgment (Doc. 22) be denied, and that Defendant Sun Life Assurance Company of Canada's (“Sun Life”) Motion for Summary Judgment (Doc. 19) be granted. (Doc. 29 at 41-42). Thereafter, Goros filed his objections (Doc. 30), and Sun Life responded in opposition (Doc. 31). The matter is ripe for review.


         This case involves an attempt to recover insurance benefits under the Employee Retirement Income Security Act (“ERISA”) under a group policy (the “Policy”) issued by Sun Life to Goros' former employer, United Plastic Fabricating Inc. (“United Plastic”). From October 1995 to November 2012, Goros was the Executive Vice President of Manufacturing Operations for United Plastic. (Docs. 14-1 at 105; 14-4 at 58). In that role, he wielded administrative responsibility for three manufacturing plants in Michigan, Massachusetts and Florida. (Doc. 14-1 at 115). Notably, the Policy included a long-term disability income provision (the “Long Term Disability Policy”) and a life insurance waiver of premium provision (the “Premium Waiver Policy”) (collectively, the “Disability Benefits”). (Doc. 14-1 at 34, 60).

         Notably, the Long Term Disability Policy provides a monthly benefit to replace the income a disabled person could otherwise earn. (Doc. 14-1 at 77). Its terms state that eligibility for monthly benefits hinges on the production of proof of continued total or partial disability and the continuing care of a doctor who provides regular examinations in accordance with the disabling condition. (Doc. 14-1 at 77). It also requires such information to be provided to Sun Life upon request. (Doc. 14-1 at 77).

         Similarly, the Premium Waiver Policy provides for the continuation of life insurance coverage over a totally disabled individual without payment of premiums. (Doc. 14-1 at 60). Its terms allow Sun Life to require periodic proof of the continuation of the total disability condition and to designate a doctor to examine the individual as often as is reasonable. (Doc. 14-1 at 60). Importantly, both the Long Term Disability Policy and the Premium Waiver Policy grant Sun Life total discretionary authority to make all final decisions regarding an individual's eligibility for benefits. (Doc. 14-1 at 95).

         Against this backdrop, on November 18, 2012, Goros first visited Dr. Daniel Kunz, D.O. to seek treatment for lower-back and hip pain and stiffness he claimed had persisted for the previous two years. (Doc. 14-1 at 145). While being examined, Goros further claimed he experienced such a loss in his range of motion he could no longer drive. (Doc. 14-1 at 145). Dr. Kunz diagnosed Goros with ankylosing spondylitis, arthritis that affects the spine.[2] (Doc. 14-1 at 148). Goros was prescribed a medication called Simponi to reduce his symptoms and to prevent spinal fusion. (Doc. 14-1 at 148). Thereafter, Goros continued to work at United Plastic until November 20, 2012, when he ceased employment-related activities. (Docs. 14-1 at 103; 14-4 at 58).

         On January 4, 2012, Goros filed a claim for benefits under the Long Term Disability Policy. (Doc. 14-1 at 103-116). With that filing, Dr. Kunz submitted an opinion that Goros had severe limitations in his functional capacity, and could not drive or sit for more than three hours, could not walk for more than four hours, and could not function in a full-time or part-time employment capacity. (Doc. 14-2 at 7-8). Subsequently, Sun Life obtained an occupational analysis of Goros' position as the Executive Vice President of Manufacturing Operations for United Plastic, which was classified as light work (the “Occupational Analysis”). (Doc. 14-2 at 126). The Occupational Analysis stated that the demands of light work included “exerting up to 20 pounds of force occasionally or up to 10 pounds of force frequently, or a negligible amount of force constantly to move objects[, ]” as well as “occasional traveling.” (Doc. 14-2 at 126).

         Goros also participated in an in-person interview with a Sun Life representative on January 22, 2013. (Doc. 14-4 at 54-63). While speaking about his medical history, he stated his joint problems stretched back to the late 1990's, but that some doctors since then had attributed his ailments to his personal activities. (Doc. 14-4 at 58). In November of 2012, Goros stated his pain had become excruciating, and it was then that he sought treatment from Dr. Kunz. (Doc. 14-4 at 59). Notably, Goros also indicated that he was a motorcycle enthusiast, and tearfully contemplated the probability he would never again be able to ride his motorcycle. (Doc. 14-4 at 63).

         Continuing its evaluation, on March 4, 2013, Sun Life had Dr. Nadia Habal, M.D. conduct a peer review of Goros' medical records. (Doc. 14-4 at 73-79). After doing so, Dr. Habal opined that it was not medically reasonable for Goros to sustain full time light work employment, regardless of whether there were restrictions or modifications. (Doc. 14-4 at 78-79). Likewise, she opined that it was not medically reasonable for Goros to sustain full time sedentary employment. (Doc. 14-4 at 79).

         Thereafter, on March 7, 2013, after conducting the Occupational Analysis, an in-person interview and a peer review of Goros' medical records, Sun Life approved Goros' request for benefits under the Long Term Disability Policy. (Doc. 14-4 at 86). On May 17, 2013, Sun Life also approved Goros' benefits under the Premium Waiver Policy. (Doc. 14-5 at 55).

         On November 22, 2013, Sun Life offered Goros $202, 351.80 to discharge its obligation to pay the totality of the Long Term Disability Policy. (Doc. 14-6 at 18-19). Similarly, Sun Life offered Goros $46, 009.60 to discharge its obligation to pay the totality of the Premium Waiver Policy. (Doc. 14-6 at 25-26). Goros indicated he was not interested in the offer regarding the Long Term Disability Policy, but would consider the offer regarding the Premium Waiver Policy. (Doc. 14-1 at 9-10). No final agreement on either provision was ever reached.

         On April 4, 2014, Sun Life began conducting an update of Goros' claim file. (Doc. 14-6 at 28). During the process, Sun Life requested proof of Goros' continued disability and conducted a background check. (Doc. 14-6 at 28, 47-64). Upon reviewing the results of the background check, however, Sun Life discovered that in June of 2013, Goros' ex-wife had posted on social media she was “[h]ome from 5 hrs of riding. 300 miles. Back from 3 great days at bike week w[ith] [Goros].” (Doc. 14-6 at 52). Among other posts, she also uploaded a picture with Goros on December 30, 2013, with the caption “[Goros] is ready for our Christmas drive down the coast!” (Doc. 14-6 at 55).

         Suspicion triggered, from April 25, 2014 until April 27, 2014 Sun Life conducted video surveillance of Goros. (Doc. 14-6 at 65-82). On the morning of the first day, a Sun Life representative observed Goros getting in and out of a vehicle, driving, walking quickly, bending, leaning forward, pushing a lawn fertilizer spreader in the yard outside his home, examining sprinklers and stomping on the ground. (Doc. 14-6 at 68-69). In the afternoon, Goros went to a bar where he was observed sitting on a barstool, leaning against the bar, drinking martinis, and periodically exiting to smoke cigarettes over the course of one hour and 50 minutes. (Doc. 14-6 at 70). The Sun Life representative then made conversation with Goros, who was seemingly unaware of the representative's true identity. (Doc. 14-6 at 70). Goros represented that he was selling his home and moving to Florida, and that he owned and used a motorcycle. (Doc. 14-6 at 70). Goros further represented that he was retired, but that he had a separate business to purchase appreciating properties and sell them for profit. (Doc. 14-6 at 70).

         On the morning of the second day, Goros was observed driving back to the same bar he had frequented on the previous day. (Doc. 14-6 at 72). Once there, he opened the trunk, reached in, and bent at the waste to acquire a plastic bag containing multiple items. (Doc. 14-6 at 72). He then closed the trunk, walked to the front door of the bar, and entered. (Doc. 14-6 at 72). Shortly thereafter, he exited, retrieved an item from the passenger side of his vehicle, and then re-entered the bar. (Doc. 14-6 at 72). Later, Goros drove to another property he owned, an office supply store and a home goods store, and was seen bending at the waste to remove a floor mat from his vehicle, shaking the floor mat, and placing it back into his vehicle. (Doc. 14-6 at 72).

         On the third day, Goros was observed bending at the waist and knees, carrying a piece of glass under his arm, carrying a metal table frame above his head, carrying a wood table with the help of another person, and carrying a couch with the help of another person. (Doc. 14-6 at 74-76). As the day progressed, Goros was seen at a restaurant, where he bent down while smoking a cigarette, and thereafter at a home development store, where he pushed a shopping cart, picked up items such as small tables and plants, and placed them in the shopping cart. (Doc. 14-6 at 78-79). Upon returning to his home, Goros was again observed picking up a small table from the ground and carrying it. (Doc. 14-6 at 81).

         Sun Life also obtained additional video surveillance of Goros between May 18, 2014 and May 24, 2014. (Doc. 14-7 at 4-16). While Goros was not seen on the first day of surveillance, on the second day Goros was observed getting in and out of a newly purchased sports car, driving to a bank, an office supply store, and to the same bar he had been seen at during the prior surveillance. (Doc. 14-7 at 4-8). He remained at the bar during the afternoon, exiting intermittently to smoke cigarettes and converse with individuals. (Doc. 14-7 at 7-8).

         On the third day, Goros was seen driving the sports car to a doctor's office, and then to a pharmacy. (Doc. 14-7 at 9). After driving the sports car back to his home, he rode as a passenger to the same bar he had frequented on previous dates. (Doc. 14-7 at 9). He was again observed leaving the bar intermittently to smoke cigarettes, converse with individuals, and at one point, he was seen squatting to pick up a cigarette from the ground. (Doc. 14-7 at 9).

         On the fourth day, Goros was seen driving an SUV to a pharmacy and returning to his residence. (Doc. 14-7 at 10-11). And while he remained in his home for the remainder of the day, on the fifth day he was observed walking around his neighborhood carrying poster board, and then driving his sports car back to the same bar he had frequented on prior occasions, exiting intermittently to smoke cigarettes and converse with other individuals, but otherwise remaining there until the late afternoon. (Doc. 14-7 at 11-12). Then, on the last day, Goros was seen conducting a garage sale at his home, wherein ...

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