Full opinion text
AMENDED ORDER DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING TOTAL DISABILITY ISSUE IN PLAINTIFF’S BREACH OF CONTRACT CLAIM AND TOTAL AND RESIDUAL DISABILITY ISSUES IN DEFENDANTS’ COUNTERCLAIM. WILSON, District Judge. I. INTRODUCTION/FACTUAL & PROCEDURAL BACKGROUND Dr. Gross is an orthopedic surgeon. He became permanently disabled when, as a result of diabetes, he developed numbness in his hands and feet as well as problems with his eyes, all of which led to his ceasing to perform surgery on December 17, 2001. On February 7, 2002, Dr. Gross filed a request for total disability benefits under two policies with Paul Revére, a disability income policy and a business overhead expense policy. After being asked to provide a great deal of evidence, he was denied benefits under his policies on January 16, 2003 because Defendants determined that he did not fit within the definitions of “totally disabled” in his two policies. The primary question in this action is whether Dr. Gross is entitled to coverage for total disability under the policies issued by Paul Revere Life Insurance Company (“Paul Revere”). A secondary question is whether Dr. Gross is entitled to residual disability benefits, which he was denied because he allegedly does not fit within the income loss requirements of the policy’s residual disability clause. On October 3, 2003, Defendants filed a Motion for Partial’ Summary Judgment. On November 12, 2003, the Court issued an order granting in part and denying in part Defendants’ Motion (“November 12 Order”). Namely, the Court granted the Motion insofar as it sought a definition of total disability, which the Court defined for purposes of this case as Plaintiffs inability to perform all the important duties of his occupation. The Court denied the Motion insofar as it sought an adjudication that Plaintiff is not totally disabled. The parties were in disagreement as to Plaintiffs ability to perform the non-surgieal important duties of his occupation post-disability; as to whether Plaintiff timely notified Defendants of his inability to perform these duties; and as to what duties ought to be included within the scope of “important duties.” Thus, the Court at that time was unable to reach a determination regarding whether or not Dr. Gross met its definition of totally disabled. As a result, the Court postponed the trial date to give the parties an opportunity to further develop those factual issues. On January 26, 2004, Defendants filed a second Motion for Partial Summary Judgment Regarding Total Disability Issue in Plaintiffs Breach of Contract Claim and Total and Residual Disability Issues in Defendants’ Counterclaim. For the reasons set forth below, that Motion is now DENIED. Defendants have not met their summary judgment burden with respect to the total disability issue; furthermore, the Court declines to decide the residual disability issue until the total disability question has been resolved. II. LEGAL STANDARD — SUMMARY JUDGMENT Rule 56(c) requires summary judgment for the defendants, as the moving party, when the evidence, viewed in the light most favorable to the plaintiffs, shows that there is no genuine issue as to any material fact. See Fed.R.Civ.P. Rule 56(c); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). The defendants bear the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be met by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Once the defendants have met their initial burden, Rule 56(e) requires the plaintiff to go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 323-34, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. DISCUSSION — TOTAL DISABILITY Paul Revere issued a disability income protection policy to Plaintiff on April 3, 1989. That policy defines total disability as follows: “Total Disability” means that because of Injury or Sickness: a. You are unable to perform the important duties of your occupation; and b. You are under the regular and personal care of a Physician. (Berube Decl., Exh. A, at 23.) A. Definition of Total Disability Plaintiffs disability policy is an “own occupation” policy, also known as an occupational policy. “Occupational policies indemnify the insured when he becomes disabled from performing the material acts necessary to his chosen profession, whereas,, general disability policies indemnify the insured only when he becomes incapable of following any occupation for profit.” Yahiro v. Northwestern Mut. Life Ins. Co., 168 F.Supp.2d 511, 515 (D.Md.2001). Regarding the task of discerning the precise meaning of total disability in this insurance policy, the decades-old words of Justice Tobriner ring particularly true: On countless occasions we have inveighed against the careless draftsmanship of documents of insurance and have decried the evil social consequences that flow from lack of clarity. We have emphasized that the uncertain clause leaves in its murky wake not only the disillusioned insured and the protesting insurer but also the anguished court. Bareno v. Employers Life Ins. Co. of Wausau, 7 Cal.3d 875, 878, 103 Cal.Rptr. 865, 500 P.2d 889 (1972) (internal citations omitted). Plaintiff urges the Court to adopt the definition of total disability set forth by the California Supreme Court in Erreca v. Western States Life Ins. Co., 19 Cal.2d 388, 121 P.2d 689 (1942): “such a disability as renders the insured unable to perform the substantial and material acts necessary to the prosecution of a business or occupation in the usual or customary way.” Id. at 396, 121 P.2d 689. “[AJbsolute helplessness” is not required; thus, an insured’s ability “to perform sporadic tasks, or give attention to simple or inconsequential details incident to the conduct of business” does not preclude recovery. Id. “Conversely, the insured is not totally disabled if he is physically and mentally- capable of performing a substantial portion of the work connected with his employment. He is not entitled to benefits because he is rendered unable to transact one or more of the duties incidental to his business.” Id. The Erreca court held that the insured, a farmer, was totally disabled because he was unable to perform manual labor of any kind or to supervise and manage farm operations. Id. at 396-97, 121 P.2d 689. The insured did remain able to negotiate loans and leases, sign notes and mortgages, talk with grain buyers, participate in buying supplies, and talk with his son concerning farm operations, but the court found that “[a]lthough such activities are neither trivial nor inconsequential, they are the type of duties that are infrequently and intermittently performed and cannot be said to constitute the substantial and material acts of the occupation of farming.” Id. at 397,121 P.2d 689. It is true that Erreca involved an “any occupation” policy, not an “own occupation” policy. Erreca, 19 Cal.2d at 390, 121 P.2d 689. That factual difference does render some of the holdings in Erreca inapplicable to this case, or to any case involving an own occupation policy. For instance, the court defined total disability for purposes of an any occupation policy as “a disability which prevents [the insured’s] working with reasonable continuity in his customary occupation or in any other occupation in which he might reasonably be expected to engage in view of his station and physical and mental capacity.” Id. at 394-95, 121 P.2d 689 (quoting Hurwit v. Prudential Ins. Co. of America, 45 Cal. App.2d 74, 81, 113 P.2d 691); accord Moore v. American United Life Ins. Co., 150 Cal.App.3d 610, 618, 197 Cal.Rptr. 878 (1984). It should not, however, affect the applicability to a case involving an own occupation policy of Erreca’s more general definition of total disability to perform a given occupation. See Austero v. Nat’l Casualty Co. of Detroit, Michigan, 84 Cal. App.3d 1, 20, 148 Cal.Rptr. 653 (1978) (“We see no reason for distinguishing between nonoccupational and occupational disability policies in terms of the definition of ‘total disability’ ....”); id. at 22, 148 Cal.Rptr. 653 (“it is clear that the California courts oppose strict adherence to a highly limited definition of ‘total disability’ in both nonoccupational and general occupational disability policies”). See also Bareno, 7 Cal.3d at 886-87, 103 Cal.Rptr. 865, 500 P.2d 889 (applying Erreca’s definition of total disability without specifying whether the policy was an own occupation or an any occupation policy). The policy at issue in Austero defined total disability as the insured’s inability to perform “any and every duty pertaining to his profession or occupation.” 84 Cal. App.3d at 5, 148 CaLRptr. 653. Notwith.standing the apparent strictness of this definition, the appellate court upheld a jury instruction that the plaintiff was totally disabled if he was “rendered unable to perform the substantial and material duties of his occupation in the usual and customary way.” Id. at 19, 148 CaLRptr. 653. The court resisted a literal instruction based on the precise wording of the policy. “Certainly, it would be far beyond the reasonable expectations of an attorney covered by a disability policy, to discover, for instance, if he were still able to return a client’s telephone call or Shepardize a case but do nothing else, that he would not be considered totally disabled.” Id. at 22, 148 CaLRptr. 653. The Court upheld the jury verdict that the plaintiff, an attorney, was totally disabled even though there was evidence that, for example, in one year for which he claimed total disability “he appeared at 251 hearings [and] had 689 appointments with clients.” Id. at 23, 148 CaLRptr. 653. Because there was a sharp conflict in the evidence as to whether the plaintiff was totally disabled, the court declined to disturb the jury verdict. Id. The courts’ expansive reading of the total disability language is consistent with the general principle of reading .ambiguities in insurance policies against the insurer. “We think that the responsibility for writing clear and simple policies lies with the insurance industry, and that the tremendous growth of insurance in this country enhances the need for such policies.” Bareno, 7 Cal.3d at 878, 103 Cal. Rptr. 865, 500 P.2d 889. “These considerations of public policy have long led courts to insist that insurers draw clear policies or suffer adverse consequences; we have consistently held that ambiguities in such documents must be resolved against the insurer.” Id. (citing, inter alia, Gray v. Zurich Ins. Co., 65 Cal.2d 263, 269, 54 Cal.Rptr. 104, 419 P.2d 168 (1966)); accord, Cal. Civ.Code § 1654 (“In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.”). Defendants argue that total disability has a different 'definition where, as here, the insurance policy contains a residual (or partial) disability clause in addition to a total disability clause. The policy defines residual disability as follows: “Residual Disability”, prior to the Commencement. Date, means that due to Injury or Sickness: a.(1) You are unable to perform one or more of the important duties of Your Occupation; or (2) Yo.u are unable to perform the important duties of Your Occupation for more than 80% of the time normally required to perform them; and b. Your Loss of Earnings is equal to at least 20% of Your Prior Earnings while You are engaged in Your Occupation or another occupation; and c. You are under the regular and personal care of a physician. (Berube Deck, Exh. A, at 23.) A 1935 California Supreme Court case considered the interplay between a total disability clause and a partial disability clause. Dietlin v. General Am. Life Ins. Co., 4 Cal.2d 336, 49 P.2d 590 (1935). The Dietlin court adopted verbatim the opinion of the Court of Appeal. Id. at 338, 49 P.2d 590. The insurance policy at issue in that case defined total disability as inability to perform “any and every kind of duty pertaining to [insured’s] occupation” and partial disability as the inability to perform “one or more important daily duties pertaining to his occupation.” Id. at 341, 49 P.2d 590. The insured, a plastering contractor, claimed total disability as a result of his inability following an accident to climb ladders and scaffolds, a required part of his job. Id. at 345, 49 P.2d 590. The court held that the plaintiff was not totally disabled where he was able to perform his other duties. Unlike in the case at bar, the policy in Dietlin plainly defined total disability as the inability to perform all the duties of the insured’s occupation. Nonetheless, the insured argued against a literal interpretation of the policy language. “Appellant complains that the trial court applied a literal construction to the words ‘total disability’, [sic] We fail to see how the term could have been construed otherwise. He is not totally disabled unless he is prevented from performing ‘any and every kind of duty pertaining to his occupation’, [sic] If he is disabled only to the extent of being unable to ‘perform one or more important daily duties’, [sic] he is within the definition of the term ‘partial disability.’ ” Id. The Dietlin court attempted to reconcile its holding with the precedents holding that total disability need not mean .absolute helplessness. “There is no contention that it is necessary that appellant be helpless and unable to perform any of his daily duties, to constitute total disability.” Id. at 345, 49 P.2d 590. But in the very next sentence, the court restated its holding that anything less than inability to perform each and every occupational duty would constitute partial disability, not total disability. “However, where he is disabled only from performing one or more of those duties, and is able to perform others, he is only partially disabled.” Id. It is hard to imagine how, under this definition, one who was anything but absolutely helpless, at least with respect to performing the duties of his own occupation, could be found to be totally disabled. In distinguishing Erreca from Dietlin, the California Supreme Court did not discuss the definition used by the Dietlin court. Instead, the Erreca court distinguished Dietlin on its facts, stating that, “In denying recovery of benefits for total disability, the [Dietlin ] court reasoned that the climbing of scaffolds did not constitute a substantial portion of his duties. Unlike respondent, he was still able to perform the managerial and supervisorial activities connected with his business.” Erreca, 19 Cal.2d at 398, 121 P.2d 689. Thus, the Erreca court essentially found that Dietlin would have failed to prove total disability even under the “substantial and material duties” standard, because the one duty Dietlin was unable to do — climbing scaffolds — did not represent a substantial portion of his duties. Similarly, the Austero court, while noting that “the terms of the policy [which used the same any and every duty language to define total disability as was used in the Austen policy] were seemingly adhered to” in Dietlin, distinguished Dietlin on its facts. Here, plaintiff claims that he was unable to perform all the substantial and material duties of his profession; thus, he was totally disabled. He did not contend that he was totally disabled because he was unable to perform a substantial and material duty. Dietlin specifically addressed the former situation in stating that ‘after ability of the plaintiff to perform certain substantial portions of his daily duties had been admitted by plaintiff, proof that he could not perform certain other important portions of those duties was not relevant.’ Austero, 84 Cal.App.3d at 21, 148 Cal.Rptr. 653 (quoting Dietlin, 4 Cal.2d at 346, 49 P.2d 590). It is unclear whether the Austero court was saying that the plaintiff there would have satisfied even the stringent test adhered to by the Dietlin court, or that Dietlin would have failed to show total disability even under the'more permissive and non-literal test espoused by the Austero court. Defendants also rely on Dym v. Provident Life & Accident Ins. Co., 19 F.Supp.2d 1147 (S.D.Cal.1998). Dr. Dym was a board certified gynecologist who was injured in an automobile accident. Id. at 1148. Like Dr. Gross, Dr. Dym held an own occupation disability income insurance policy. Id. The policy defined total disability as: 1. you are not able to perform the substantial and material duties of your occupation; and 2. you are receiving care by a Physician which is appropriate for the condition causing the disability. Id. The policy further defined “your occupation”, as “the occupation (or occupations, if more than one) in which you are regularly engaged at the time you become disabled. If your occupation is limited to a recognized specialty within the scope of your degree and license, we will deem your specialty to be your occupation.” Id. Dr. Dym claimed that he was totally disabled because, after his accident, he was unable to perform most of the surgeries he had performed prior to the accident. When he was denied total disability coverage, he sued Provident, his insurance company. Provident moved for summary judgment on the interpretation of the total disability provision. Id. at 1149. The court held that Dr. Dym was not permanently disabled because he was still able to perform one of the substantial and material duties of his occupation — performing minor surgery in the form of first trimester abortions. Id. at 1149. The court determined that total disability means inability to perform any of the substantial and material duties of the insured’s occupation. Id. at 1149-50. This conclusion was compelled by the interplay between the policy’s total disability and residual disability clauses. The policy provided that “Residual disability or residually disabled, during the Elimination Period, means that due to Injuries or Sickness:” 1. you are not able to do one or more of your substantial and material daily business duties or you are not able to do your usual daily business duties for as much time as it would normally take you to do them; 2. you have a Loss of Monthly Income in your occupation of at least 20%; and 3. you are receiving care by a Physician which is appropriate for the condition causing disability. Id. (emphasis added in Dym). “A comparison of the two definitions suggests that the phrase ‘you are not able to perform the substantial and material duties of your occupation’ as used in the ‘total disability’ definition cannot reasonably be read as ‘you are not able to perform one or more of the substantial and material duties of your occupation,’ because if such a reading was intended, the language ‘one or more’ would have been used, as it is in the ‘residual disability’ definition.” Id. at 1150. The Court finds this reasoning unpersuasive. If the insurer meant, in the total disability provision, to say “all,” the insurer easily could have done so. Thus, that the insurer did not write “one or more” in the total disability clause does not compel the conclusion that the total disability provision impliedly includes the word “all.” Furthermore, it is possible to apply California’s standard total disability definition without reading “one or more” into the total disability provision. The Dym court did not at any time consider Erreca or any of the other California total disability precedents. There must be a point at which an insured passes over from partial disability to total disability, a point that may be short of being disabled from performing all the substantial and material duties of her profession. Along these lines, it is worth noting that, even under the Dym court’s construction of the total disability provision there would be some overlap between total disability and residual disability, as one who is unable to perform all the substantial and material duties of her occupation is, by definition, unable to perform one or more of those substantial and material duties. The opinion gives no indication that Dr. Dym raised these objections. Instead, Dr. Dym protested that he had been insured as a board certified gynecologist, but that post-disability he was only able to perform first trimester abortions, which non-gynecologists could do as well. Id. The court rejected this argument. First, the court noted repeatedly that Dr. Dym’s expectations were irrelevant because reasonable expectations arguments are considered only when the policy language is ambiguous. Id. at 1150 & n. 2 (citing AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 822, 274 Cal.Rptr. 820, 799 P.2d 1253 (1990); Republic Indem. Co. v. Superior Court, 224 Cal.App.3d 492, 504, 273 Cal.Rptr. 331 (1990)). The court found that the language of the total disability provision was unambiguous “when read in the context of the entire policy.” Id. at 1150. Again, the court did not consider California’s total disability precedents. In addition, the court found that Dr. Dym would fail to show total disability even if his reasonable expectations were considered. Dr. Dym presented no evidence that doctors other than gynecologists performed first trimester abortions. Id. Moreover, Dr. Dym could still perform first trimester abortions, to which he had devoted approximately half of his time prior to the accident. Id. In addition, Dr. Dym admitted that performing first trimester abortions constituted performing minor surgery, and he had previously said that minor surgery was one of the important duties he performed prior to the accident. Id. “[P]lain-tiff cannot reasonably argue that he is not getting the protection he was promised under the policy where he can continue to perform what he himself admitted is an ‘important duty’ of a gynecological surgeon, a duty to which he previously devoted a substantial portion of his practice.” Id. The U.S. District Court for the District of Maryland reached the same conclusion in Yahiro v. Northwestern Mut. Life Ins. Co., 168 F.Supp.2d 511 (D.Md.2001). Dr. Yahiro was a board certified orthopedic surgeon who, as a result of suffering from “repeated and debilitating episodes of lightheadedness, diaphoresis, nausea, and vomiting,” discontinued performing surgery. Id. at 512. Northwestern paid Dr. Yahiro partial disability, but he filed an action seeking total disability. Id. Dr. Ya-hiro had three policies with Northwestern. The first two had the following relevant definitions: Total Disability.... [T]he Insured is totally disabled when he is unable to perform the principal duties of his occupation. Partial Disability. The Insured is partially disabled when: a. he is unable: — to perform one or more of the principal duties of his occupation; or — to spend as much time at his occupation as he did before the disability started; and b. He has at least a 20% Loss of Earned Income. Occupation. The words “his occupation” mean the occupation of the Insured at the time he becomes disabled. If the Insured is regularly engaged in more than one occupation, all of the occupations of the insured at the time he becomes disabled will be combined together to be “his occupation.” Id. at 513. The third policy had similar, but slightly different terms: Total Disability.... [T]he insured is totally disabled when he is unable to perform the principal duties of his occupation. If the Insured can perform one or more of the principal duties of the regular occupation, the Insured is not totally disabled; however, the Insured may qualify as partially disabled. Partial Disability. The Insured is partially disabled when: a. The Insured is unable: — to perform one or more but not all of the principal duties of the regular occupation; or — to spend as much time at the regular occupation as before the disability started; and b. the Insured has at least a 20% Loss of Earned Income; and c. The Insured is gainfully employed in an occupation. Regular Occupation. The words “regular occupation” mean the occupation of the Insured at the time the Insured becomes disabled. If the Insured is regularly engaged in more than one occupation, all of the occupations of the Insured at the time the disability starts will be combined together to be “the regular occupation.” Id. at 513-14. Dr. -Yahiro argued that the terms “occupation” and “principal duties” should be given their layperson meanings and that, because the layperson would agree that an orthopedic surgeon’s principal duty was to do surgery, his inability to perform surgery rendered him totally disabled. Id. at 514. Northwestern, on the other hand, argued that surgery is not an orthopedic surgeon’s only principal duty; therefore, Dr. Yahiro was only partially disabled. Dr. Yahiro first contended that surgery was the only principal duty of an orthopedic surgeon and that all his other duties were “incidental.” Id. at 515. But the court found that the evidence belied this characterization. At the time Dr. Yahiro applied for disability benefits, he indicated that surgery accounted for only 25% of his time. Id. Post-disability, Dr. Yahiro was still able to have a non-operative orthopedic surgeon practice. Id. at 516. Though his position was not as lucrative as it had been pre-disability, Dr. Yahiro was still able to make a substantial living. Id. “Given the Court’s determination that the principal duties of Plaintiffs occupation include more than just the performance of surgery, and there being no claim that Plaintiffs disability precludes him from performing those other duties, the only conclusion under the terms of the policies is that Plaintiff is partially disabled.” Id. at 517. The court also rejected Dr. Yahiro’s alternative argument, that he was totally disabled unless he could perform all the substantial and material acts necessary to the performance of his occupation. Id. “The policies clearly envision that where the insured ‘is unable to perform one or more but not all of the principal duties of the regular occupation,’ he is not totally disabled, but partially disabled.” Id. at 517 (citation omitted). Plaintiff urges this Court to disregard Yahiro because it rested on fundamental principles of insurance contract interpretation that differ in Maryland and California. The Yahiro court began its analysis by noting that “Under Maryland law, unlike the law in some other jurisdictions, there is no rule that an insurance contract is to be construed most strongly against the insurer.” Id. at 514. But just how different Maryland and California are is open to some dispute. Like the Dym court, 19 F.Supp.2d at 1150 & n. 2, the Yahiro court noted that an insurance policy is only construed against the insurer where it is ambiguous. 168 F.Supp.2d at 514 (citing North River Ins. Co. v. Mayor & City Council of Balto., 343 Md. 34, 40, 680 A.2d 480 (1996)). Nonetheless, this Court recognizes the difference between Maryland and California law in determining what weight to give to Yahiro. A number of other courts to consider the question of the meaning of total disability in a policy that also provided for partial or residual disability have reached the same conclusion: total disability means the inability to perform any of the principal duties of the insured’s occupation. In addition to Dym and Yahiro, see Helus v. Equitable Life Assurance Soc’y, 309 F.Supp.2d 1170 (N.D.Cal.) (page references unavailable) (following Dym in holding that “the plain meaning of ‘inability to engage in the substantial and material duties of your regular occupation,’ when read together with the residual disability provision, is the inability to perform all of the duties”); Giampa v. Trustmark Ins. Co., 73 F.Supp.2d 22, 28 (D.Mass.1999) (listing cases); Provident Life & Accident Ins. Co. v. Cohen, 193 F.Supp.2d 845, 850 (D.Md.2002) (“When the insurance contract is considered as a whole, it is clear that where the insured ‘is unable to perform one or more but not all of the principal duties of the regular occupation,’ he is not totally disabled, but residually disabled.”); McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586, 588 (8th Cir.2002) (“a person who can perform some but not all of his or her important duties has a ‘Residual Disability’ ..., therefore in order to be eligible for total disability payments a person would be required to show that he or she was unable to perform any of those important duties”). In Giampa, the court focused on the facts rather than reaching a hard and fast rule for the total disability definition. There, the plaintiff was a chiropractor who had spent eighty-five to ninety-five percent of his time pre-injury treating patients by conducting examinations and performing manipulations or adjustments. 73 F.Supp.2d at 23. The rest of his time was spent managing his two chiropractic facilities. Id. After injuring his back, Giampa was no longer able to treat patients. Id. He devoted all his time to administrative duties, managing a number of clinics he and his partners opened. Id. This new administrative work was quite lucrative, and Giampa even increased his income by a factor of five. Id. Giampa claimed that his administrative duties had been incidental to his pre-injury chiropractic treatment practice. Id. at 25. Though the Giampa court acknowledged the importance of reading the total disability clause in the context of the partial disability clause so as not to read the partial disability provision out of the policy, the court also stressed that total disability clauses should not be read so literally that the insured’s ability to perform some business duty, no matter how small, would prevent a finding of total disability. See id. at 27-28 (citing Fitzgerald v. Globe Indemnity Co., 84 Cal.App. 689, 258 P. 458 (1927)). In light of this rule that total disability policies should be liberally construed, I conclude that a person in Giampa’s position, who is disabled from engaging in eighty-five to ninety-five percent of his previous substantial and material duties as a treating chiropractor, is entitled to coverage under the total disability provision even if his disability does not prevent him from performing an incidental job duty. This conclusion is consistent with protecting the insured’s expectations and his investment in the set of skills — that'of a practicing chiropractor — for which he sought insurance. On the other hand, if a jury were to conclude that management duties were a substantial arid material part of Giampa’s pre-injury work, rather than an incidental part, the partial disability provision would provide the applicable coverage. This interpretation would protect the contracting parties’ intent that a partial disability only results in coverage when there is a certain income reduction. Id. at 29. Thus, after balancing the policy of protecting the insured’s expectations against the policy of giving meaning to every policy provision, the court found that there wás a triable issue of fact as to whether Giampa’s management duties were substantial and material duties of his pre-disability occupation or whether they were merely incidental. As a result, the court denied summary judgment. Id. In Yahiro, the case involving the orthopedic surgeon, the court distinguished Giampa. “Here, no reasonable trier of fact could conclude that Plaintiffs nonsurgical treatment of patients and his teaching duties were merely incidental to his surgical treatment of patients. These duties consumed a large percentage of his time and directly generated a significant portion of his income. Those duties, by any measure represented a substantial and material part of his pre-disability practice of orthopaedics.” 168 F.Supp.2d at 518. In contrast to the cases holding that where a policy includes both a total disability provision and a residual disability provision total disability must mean the insured’s inability to do all the substantial and material duties of her occupation, Plaintiff cites Dowdle v. Nat’l Life Ins. Co., 2003 WL 22047858 (D.Minn.2003), another case involving an orthopedic surgeon. Dr. Dowdle had an own occupation policy that defined total disability as the inability “to perform the material and substantial duties” of his occupation at the time of disability and partial disability as the inability to “perform one or more of the important daily activities of an occupation as defined in this policy; or [the inability] to engage in an occupation ... for as much time as was usual prior to the start of the disability.” Id. at *1. The question for the court to resolve was “whether or not Dr. Dowdle is entitled to total disability benefits under the terms of his Disability and Expense Policies under circumstances where he is unable to perform surgery but able to conduct office consultations and other non-surgical tasks.” Id. at *2. Though Dr. Dowdle was unable to do surgery, he remained able to see patients, interpret data, and read x-rays, all of which he.had listed on his insurance application as specific duties of his occupation. Id. at *4. The court held that those duties “were manifestly secondary or supplementary tasks incident to the primary function of an orthopedic surgeon of conducting surgery.” Id. Dr. Dowdle asserted that approximately 85% of his pre-disability practice involved surgical and surgical-related care. Id. at *1. The income disparity between Dr. Dowdle’s pre-disability and post-disability practices was “strong evidence of the importance of his ability to perform surgery and its centrality to his occupation.” Id. at *4. His post-disability earning capacity was only 14% of what it had been pre-disability. Id. In finding that Dr. Dowdle was totally disabled under the terms of his policy, the court also found that “Defendant’s reasoning that qualification for a partial disability should preclude total disability coverage is fallacious and would render total disability coverage a nullity. If Dr. Dowdle’s payment of additional premiums to secure extended residual insurance to cover partial injuries were to function to void the operation of his total disability coverage in circumstances where he qualified for total coverage, perversity would result.” Id. at *5. The court further noted that reading the total disability provision in this manner did not render the residual disability provision a nullity. As an example, the court noted that if Dr. Dowdle remained able to perform surgery, but could not perform another of the important duties of his profession, he would be partially disabled. Id. at *5 n. 3. Dowdle, a Minnesota case, is consistent with Fitzgerald v. Globe Indemnity Co. of New York, 84 Cal.App. 689, 258 P. 458 (1927), a 1927 California Court of Appeal ease. The policy at issue in Fitzgerald provided for total disability caused by disease “if such disease causes the insured to be totally and continuously unable to transact all duties pertaining to his occupation”; for intermediate disability if “unable to transact a major portion of all the duties pertaining to his occupation”; and for partial disability if “unable to transact a material portion of any or all duties pertaining to his occupation.” Id. at 691, 258 P. 458. Though predating Erreca by fifteen years, the Fitzgerald court cited the same definition of total disability embraced by the later decision.' “The weight of authority supports the view that provisions in accident policies for indemnity in the event the insured is totally or wholly disabled do not require that the accident shall render the insured absolutely helpless, but such provisions are construed as meaning such a disability as renders him unable to perform the substantial and material acts of his business or occupation in the usual and customary way.” Id. at 697, 258 P. 458. The court rejected the insurer’s argument that, although the weight of authority generally supported construing total disability in that way in order to make the provision operative and prevent a forfeiture, the rationale did not apply where the policy provided for “various degrees of disability.” Id. No logical reason appears, however, why the same rule should not be applied where the policy provides for both total and partial disability in order to make the total disability clause “operative and to prevent a forfeiture” of the indemnity provided by that clause. In either case a literal interpretation of the total disability clause would defeat the very purpose of insurance against total disability, because it rarely happens that an insured is so completely disabled that he can transact no business duty whatsoever. Id. The court, citing cases from Alabama, Kentucky, Texas, and Vermont, noted that other courts had applied the same rule in cases where the policy provided for both partial and total disability. Id. The court held that the plaintiffs engaging in certain business duties did not prevent a finding of total disability. “It cannot be said as a matter of law that the occasional transactions in which he engaged constituted the performance of ‘the substantial and material acts of his business or occupation in the usual and customary way’ or conclusive proof that, in the exercise of reasonable care and prudence he was able to transact such business duties.” Id. at 699, 258 P. 458. See also Heald v. Aetna Life Ins. Co. of Hartford, Conn., 340 Mo. 1143, 104 S.W.2d 379, 383 (1937) (upholding the rejection of the defendant’s proposed jury instruction that the plaintiff was “only partially and not wholly disabled if he was able to perform any one of the substantial duties pertaining to his occupation”). The interpretation of an insurance policy is a question of law. Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 18, 44 Cal. Rptr.2d 370, 900 P.2d 619 (1995). Courts must “look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.” Id. “A policy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. .But language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract.” Id. Thus, the Court looks to the facts of this case in determining the meaning of the policy. Notwithstanding the Court’s categorical statement in its earlier order that where a policy provides for both total disability and residual or partial disability, total disability means the inability to perform all of the substantial and material duties of the insured’s occupation (see Nov. 12 Order at 12), the Court declines to state any hard and fast rule regarding the definition of total disability. To the extent that the November 12 Order stated such a categorical rule, that Order is now vacated. The Court is now of the view that the better approach is to consider all the facts of the case, bearing in mind the sometimes inconsistent law of total disability that has been laid out above, in order to determine whether Plaintiff is totally disabled. To answer the question of whether Plaintiff is totally disabled from performing his occupation, the Court must first resolve what, precisely, Plaintiffs occupation is. B. Plaintiffs Occupation Under the policy, “ “Your Occupation’ means the occupation in which You are regularly engaged at the time You become Disabled.” (Berube Deck, Exh. A, at 23.) Thus, the first question the Court must answer at this time is what were the important duties of Plaintiffs occupation pri- or to his becoming disabled on December 17, 2001. The first step to answering this question is determining what was the occupation in which Plaintiff was engaged at the time he became disabled. In answering this question, Plaintiff focuses on his being an “orthopedic surgeon.” Plaintiff is a board-certified orthopedic surgeon and he contends that his own-occupation policy insured him as such. Plaintiff makes much of a letter he received from Paul Revere on May 22, 1989, in which Paul Revere wrote: (Declaration of Alan M. Gross, M.D. (“Gross Decl.”), Exh. 2.) Plaintiff argues that this letter shows that he was insured as an orthopedic surgeon. Some courts have found that the definition of occupation can recognize specialization. See, e.g., Dixon v. Pacific Mut. Life Ins. Co., 268 F.2d 812, 815 (2d Cir.1959), cert. denied sub nom Pacific Mut. Life Ins. Co. v. Dixon, 361 U.S. 948, 80 S.Ct. 403, 4 L.Ed.2d 381 (1960); Blasbalg v. Massachusetts Cas. Ins. Co., 962 F.Supp. 362, 368 (E.D.N.Y.1997). Your policy, which includes coverage for ‘Total Disability In Your Occupation,’ provides that you would be considered Totally Disabled if, because of injury or sickness, you were unable to perform the important duties of Your Occupation. By ‘Your Occupation,’ we mean that occupation in which you are regularly engaged at the time disability begins. We understand your current occupation to be that of an orthopedic surgeon. If you were performing the important duties of an orthopedic surgeon immediately prior to the time disability begins, and then were unable to perform those duties, you would be considered unable to perform the important duties of Your Occupation. The fact that you could be working in some other occupation or specialty would not preclude the payment of Total Disability benefits. However, the Paul Revere letter makes clear that Plaintiffs insurance policy covered him for whatever occupation he was practicing at the time of disability. Furthermore, the letter notes that “[t]he actual payment of benefits, of course, would be determined in accordance with the provisions of your policy,” (Gross Deck, Exh. 2), and the policy defines occupation in terms of the claimant’s occupation at the time of disability. Thus, what matters is the occupation in which Plaintiff was engaged at the time he became disabled, not the occupation in which he was board-certified or what occupation he might have practiced at the time he purchased the insurance policy. A board-certified orthopedic surgeon who at the time of her disability was working as a firefighter would not be deemed totally disabled as a result of her inability to perform all the important duties of an orthopedic surgeon. In Brumer v. National Life of Vermont, 874 F.Supp. 60 (S.D.N.Y.1995), the plaintiff, who had worked for many years as a po-diatric surgeon, had a total disability insurance policy in which “occupation” was defined as the actual duties a claimant performed “at the time such disability begins.” Id. at 61. Despite the plaintiffs training and previous practice as a podia-tric surgeon, the court held that his inability to perform surgery did not render him totally disabled because he had not performed surgery for at least thirteen months prior to his becoming disabled and instead was engaged in managing the practice. Id. at 65. Plaintiff turns to the Department of Labor for the definition of an orthopedic surgeon’s duties. According to Plaintiff, the Department of Labor defines orthopedic surgeon as one who: Performs surgery to correct deformities, repair injuries, prevent diseases, and improve function in patients: Examines patient to verify necessity of operation, estimate possible risk to patient, and determine best operational procedure. Reviews reports of patient’s general physical condition, reactions to medications, and medical history. Examines instruments, equipment, and surgical setup to ensure that antiseptic and aseptic methods have been followed. Performs operations, using variety of surgical instruments and employing established surgical techniques appropriate for specific procedures ... May specialize in correction or prevention of skeletal abnormalities, utilizing surgical, medical, and physical methodologies, and be designated Orthopedic Surgeon .... Though this definition may be helpful in identifying some of the typical duties of an orthopedic surgeon, it is only relevant here if Plaintiff was, in fact, engaged in these duties at the time he became disabled. Unlike Plaintiff, Defendants take a purely quantitative approach to determining Plaintiffs pre-disability occupation. Defendants argue that Plaintiff was insured not for a job title, but for those occupational duties he actually performed at the time he became disabled. Thus, Defendants conducted an analysis of Plaintiffs billing codes to determine the duties in which he was engaged pre-disability. Defendants argue that Plaintiffs pre-disability occupation was as an orthopedic surgeon with a significant in-office and medical-legal practice. Plaintiff protests that he was insured for the specialty of orthopedic surgeon, and that the letter he received from Paul Revere indicates that he would receive total disability coverage 'notwithstanding his ability to perform the duties of some other occupation or specialty. In Oglesby v. Penn Mutual Life Insurance Co., 877 F.Supp. 872 (D.Del.1994), the District of Delaware considered whether the insured’s “regular occupation” was, as the insured contended, interventional and vascular radiologist, or, as the insurer contended, general radiologist. The policy provided that the insured would be totally disabled where “You are unable to do the substantial . and material duties of your regular occupation.” Id. at 879. Regular occupation was’ defined as “your usual work when total disability starts.” Id. The insurer Penn Mutual raised two arguments regarding this question: “First, Penn Mutual contends that the policy broadly defines plaintiffs ‘regular occupation’ as a general radiologist, not the more narrowly circumscribed interventional and vascular radiologist. Second, Penn Mutual maintains that even if the policy allows for the latter construction, that it is of no moment; it argues that the substantial and material duties of Oglesby’s regular occupation are the same before and after the onset of disability: general radiology practice.” Id. The court rejected Penn Mutual’s argument that the policy broadly defined regular occupation as general radiologist. First, the court found the policy’s definition of regular occupation to be unambiguous, as its plain meaning indicated that the insured’s regular occupation was his usual work at the time he became disabled, and that the insured would be found to be totally disabled where he was unable to do the substantial and material duties of that usual work. Id. at 881. “Therefore, if Oglesby’s usual work was that of an inter-ventional and vascular radiologist, and not a general radiologist, and he no longer could perform the substantial and material duties of that usual work, he would be entitled to Penn Mutual disability insurance benefits.” Id. Furthermore, the court found that even if it were to find the definition of regular occupation ambiguous, the definition could still be interpreted such that Oglesby’s regular occupation would be interventional and vascular radiologist. Id. Based on the rule that any ambiguity must be resolved in favor of the insured, the policy, if ambiguous, could define “regular occupation” as narrowly as the sub-specialty of interventional and vascular radiologist. . Id. at 881-82. In addition, “[a]n agreed interpretation of the clause at issue by the parties, especially before the controversy arises, is an important aid in the interpretation of alleged uncertain terms.” Id. at 882. Because Penn Mutual had, in a letter to the insured, interpreted “regular occupation” to mean interventional and vascular radiology, the ambiguity had to be resolved in favor of the insured. Id. Thus, the court held that “[u]nder either a plain meaning or ambiguity analysis, ... the Penn Mutual policy could define plaintiffs regular occupation as narrowly as the subspecialty of interventional and vascular radiology.” Id. As a result, summary judgment was not granted for the insurer on the matter of Oglesby’s regular occupation. . Penn Mutual alternatively urged the court to find as a matter of law that Ogles-by’s usual work both pre- and post-disability- was that of a general radiologist. Id. This argument was based on an audit of Oglesby’s pre-disability billing records, which showed that Oglesby spent only approximately 10% of his time working as ari interventional and vascular radiologist. Id. at 882-83. “These data imply that the substantial majority of the plaintiffs pre-disability duties entailed general radiology and administrative function, responsibilities unaffected by his medical condition.” Id. at 883. Oglesby challenged the accuracy of the billing data because of data entry errors; questioned the competency of Penn Mutual’s auditor to categorize the billing data as interventional or non-inter-ventional; and offered his testimony under oath that he spent 80-100% of his time pre-disability on his interventional and vascular radiology duties. Id. Oglesby offered evidence that he had cancelled his interventional and vascular procedures medical malpractice insurance post-disability as an indication of his shift in responsibilities. Id. The court found that there were genuine issues of material fact as to Oglesby’s regular occupation; therefore, summary judgment could not be granted on this question. Id. Thus, although the court found that the policy’s definition of regular occupation could be interpreted narrowly, Oglesby’s actual pre-disability duties had to be ascertained in order to determine his regular occupation. As was noted above, it is important to determine what Plaintiff was actually doing before he became disabled, not only the specialty in which he had been trained. Nonetheless, that specialty is relevant to determining -which of Plaintiffs pre-dis-ability duties were important to his occupation where, as here, it is undisputed that Plaintiff was performing those important duties that are generally associated with an orthopedic surgeon, such as casting and performing surgery, up until the time he became disabled. The insurance policy does, after all, refer to the duties of Plaintiffs “occupation,” not just to his work-related duties. “Occupation” is defined as “[a]n activity or pursuit in which a person is engaged; esp., a person’s usual or principal work or business.” Black’s Law Dictionary 1106 (7th ed.1999). Plaintiffs occupation ought to have some independent value as something more than the amalgamation of random duties, though Plaintiffs title cannot be wholly determinative. One way of striking this balance is to treat the occupation of orthopedic surgeon as a limitation on what can be considered the important duties of Plaintiffs occupation, as opposed to defining those duties regardless of the duties in which Plaintiff actually engaged. In other words, if Plaintiff performed some duties at work that are outside the duties of an orthopedic surgeon (which are not limited to those duties enumerated in the Department of Labor definition), an occupation in which it is undisputed that Plaintiff was engaged at the time he became disabled, then those duties would not be considered as part of the important duties of his occupation. Some courts seem to focus on the substantial and material duties of a typical person pursuing the profession in which the plaintiff was engaged at the time of disability. See, e.g., Austero, 84 Cal. App.3d at 23 n. 21, 148 Cal.Rptr. 653 (“it is clear from the evidence that plaintiff was simply not performing what the jury considered to be the substantial and material duties most attorneys perform”) (emphasis added). In Dowdle, the policy at issue provided total disability benefits where the insured was “unable to perform the material and substantial duties of an occupation.” 2003, WL 22047858, *1. The own occupation rider defined “an occupation” as “the occupation of the Insured at the time a disability, as defined in the Total Disability provision of the policy, begins.” Id. There,' it was undisputed that Dr. Dow-dle’s occupation at the time he became disabled was “orthopedic surgeon.” Id. at *3. Other courts take a more functional approach. In Yahiro, for instance, the court noted that it “need look no further than Plaintiffs own experience, both before and after he stopped operating, to conclude that the principal duties of an orthopaedist encompasses more than just performing surgeries.... [A]t the time that he first applied for disability benefits, he indicated that ‘surgery, operative care of patients’ consumed just 25% of his time.” 168 F.Supp.2d at 515. The Yahiro court credited the insurer’s expert witness, who “offered statistics from the American Academy of Orthopedic Surgeons showing that 2.45% of the members of the Academy are in full-time, non-surgical clinical practices.” Id. at 516. This statistic indicated that surgery was not the only important duty of an orthopedic surgeon. Id. Similarly, the Giampa court noted that most courts examine “the nature of the substantial and material duties that the claimant actually performed before his injury.” 73 F.Supp.2d at 25 (emphasis added). Thus, while it is undisputed that Plaintiff worked as an orthopedic surgeon pre-disability, it is imperative to examine the important duties he actually performed in order to determine whether, post-disability, he was able to continue working at the occupation he previously practiced. Pre-disability, Plaintiff was an orthopedic surgeon with a significant office practice. Plaintiff has never alleged as, for example, Dr. Oglesby did, that he spent upwards of 80% of his time pre-disability working in the sub-specialty of orthopedic surgery, or, namely, performing surgical duties. To determine whether he is totally disabled, it is necessary to determine the contours of Plaintiffs pre-disability practice in order to ascertain which duties were important and which were merely incidental and to determine whether he continues to perform his pre-disability duties in substantially the same manner. Three major categories of duties are at issue here: surgical duties, medical-legal duties, and in-office orthopedic duties. Each category will be analyzed in turn. C. Plaintiffs Surgical Duties It is undisputed that Plaintiff ceased performing any and all surgical procedures on December 17, 2001. (Defendants’ Uncontroverted Fact (“DUF”) No. 6.) Plaintiff can no longer perform the surgeries he once did, including, inter aha, spinal surgery and joint replacements. (Gross Decl. ¶ 15.) He has no active staff privileges at any hospital and is not on call, whereas he used to be on call 24 hours per day. (Id. ¶ 17.) Though the parties agree that surgery was an important part of Plaintiffs pre-disability practice, there is some dispute as to how important a part it was. On the physician questionnaire portion of the disability claim form he filed in January 2002, Plaintiff indicated that, at the time he became disabled, he spent 5-8 hours per week performing surgery, 5-8 hours per week on rounds and driving, 35 hours per week on office patient care, and 15 hours per week on management. (Be-rube Deck, Exh. C, at 79.) Thus, Plaintiff indicated at that time that surgery took up at most about 13% of his pre-disability time. And surgery together with rounds and driving, neither of which Plaintiff could perform post-disability, took up at most about 24% of his time pre-disability. The parties dispute how much money Plaintiffs surgical work yielded before he became disabled. Christina Lubin, a CPT Analyst employed by Defendant Unum-Provident, conducted an analysis of Plaintiffs CPT (Current Procedural Terminology) Codes, codes used in the health care profession for billing purposes. According to Lubin’s analysis, in the years leading up to Plaintiffs disability, surgical procedures never constituted more than 16.23% of his total billing. (Lubin Decl., Exh. C, at PRL CL 00918.) In addition to being unable to perform surgery, Plaintiff is unable to perform other duties including packing and debriding wounds, performing e.p.r., suturing wounds and removing stitches, giving injections, injecting tendon sheaths and joints, aspirating joints, conducting microscopic evaluations, performing e.k.g.’s, setting fractures, applying bandages, applying splints, applying and fitting braces and orthotics, abscess drainage, and applying and taking off casts. (Gross Deck ¶ 15.) Defendants do not here dispute Plaintiffs post-disability inability to do any of these tasks. (See M.S.J. at 2 (“even accepting as true Gross’s stated limitations, he continues to perform a variety of the same important occupational duties today that he performed before his disability claim”); DUF No. 19 (“Gross reports he can no longer perform the following tasks because of his diabetes: packing wounds and de-briding wound, performing c.p.r., suturing wounds, giving injections, injecting tendon sheaths, performing microscopic evaluations, performing e.k.g.’s, setting fractures, applying bandages, applying splints, applying and fitting braces and orthotics, abscess drainage, and applying] and taking off casts.”).) It is unclear whether, in providing the figure of 5-8 hours per week for the time he spent performing surgery, Plaintiff included any of these duties in the “surgery” category. Plaintiffs Procedure Productivity Reports covering the time period from January 1, 1997 through December 31, 2002, do, however, include under the heading “surgery” such procedures as sheath injections (CPT code 20550); injections of major joints (20610); casting (29075, 29425); cast removal (29700); splinting (29125); and debridement (29822, 29823, 29877, 29898). (Dr. Gross Procedure Productivity Reports, Lubin Deck, Exh. A.) In conducting her analysis, Lubin included all of these procedures, which Plaintiff indisputably no longer can perform, in arriving at the numbers that purportedly show that only 16.23% of Plaintiffs pre-disability billing was for surgical procedures. (Id.; Lubin Deck, Exh. C, at PRL CL 00918.) Plaintiff does not dispute that these procedures are properly labeled “surgical procedures.” (See Plaintiffs Undisputed Facts (“PUF”) No. 14.) Lubin also analyzed how much time Plaintiff spent on surgical procedures pre-disability. According to Lubin’s analysis, all procedures billed by Gross as “surgical,” including injections, casting, splinting, and debridement, accounted for less than 2% of those procedures performed and billed by Gross in each year leading up to his disability. (Lubin Decl., Exh. C, at PRL CL 00918.) The number of units billed analysis, like the charges billed analysis, included injections, casting, splinting, and debridement, as well as surgery. (Id.; Dr. Gross Procedure Productivity Reports, Lubin Decl., Exh. A.) Plaintiff disputes the reliability of the CPT Code Analysis conducted by Christina - Lubin. Plaintiff has moved to strike Lubin’s declaration on the bases that Lubin has been inadequately qualified as an expert, that she relies on out-of-date data, and that the declaration includes codes that are labeled “miscellaneous” and “unidentifiable” without clarifying for what duties the codes were used. (Pis. Mot. To Strike Lubin Decl.) These categories were hardly negligible; in 2000, for example, the “unidentifiable” codes accounted for 47.44% of Plaintiffs billed units, and in almost every year analyzed the “miscellaneous” codes accounted for around 20% of Plaintiffs charges billed. (Lubin Decl., Exh. C, at PRL CL 00918.) Plaintiff further objects that the CPT Codes are an unreliable indication of the duties Plaintiff performed and billed for because: (1) the codes do not indi