NEIL SOLOMON V ROYAL MACCABEES INS COAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
NEIL SOLOMON, M.D., PH.D.,
November 28, 2000
Oakland Circuit Court
LC No. 97-540616-CK
ROYAL MACCABEES LIFE INSURANCE
January 19, 2001
Before: Jansen, P.J., and Doctoroff and O'Connell, JJ.
Plaintiff appeals as of right from an order granting defendant's motion for summary
disposition, MCR 2.116(C)(10).
On appeal, plaintiff argues that summary disposition was
improper because he presented sufficient evidence to establish a question of fact that precluded
summary disposition. Plaintiff also argues that the trial court erred in failing to address his
argument that defendant's experts' opinions lacked sufficient foundation to be considered as
substantive evidence. We affirm.
On March 19, 1997, plaintiff filed a complaint against defendant to recover disability
insurance benefits pursuant to a disability insurance policy and a policy covering overhead
expenses. Plaintiff 's disability insurance policy provided benefits in the event that, because of
"accident or illness," plaintiff was prevented from performing the "substantial and material duties
of his regular occupation." In his complaint, plaintiff alleged that he was a medical doctor who
maintained a full-time practice in Baltimore, Maryland, until June 1993, when his severe bipolar
affective disorder caused him to become totally and permanently disabled.
plaintiff, his bipolar disorder caused him to have improper sexual relationships with his female
patients. In October 1993, plaintiff voluntarily surrendered his license to practice medicine in
Maryland. Plaintiff admitted that defendant paid him disability benefits and overhead expenses
from November 22, 1993, to January 22, 1994, but alleged that defendant ceased paying benefits
when it incorrectly determined that plaintiff was not totally and permanently disabled. Plaintiff
sought to recover the amount of unpaid benefits.
On May 11, 1998, plaintiff filed a motion for partial summary disposition with regard to
the issue of defendant's liability. Plaintiff asserted that, throughout his adult life, he had been
afflicted with bipolar disorder, otherwise known as manic depression, and that his disorder
forced him to voluntarily cease practicing medicine during the summer of 1993 and ultimately to
surrender his medical license in October 1993. On that same date, defendant filed its motion for
summary disposition, arguing that plaintiff was fully able to practice medicine and that only his
voluntary surrender of his medical license prevented him from doing so. Defendant argued that
plaintiff did not become depressed until June 1993, when one of his lovers began to blackmail
him, a number of his former patients commenced legal proceedings against him, and the
Maryland Board of Physician Quality Assurance (board) began to investigate him. Defendant
further argued that plaintiff 's inability to practice medicine was not the result of his bipolar
disorder because plaintiff had practiced successfully for thirty years notwithstanding the disorder.
Defendant also contended that, while plaintiff claimed to have been disabled in June 1993, he did
not seek psychiatric help or discontinue treating patients until August of that year. Therefore,
defendant argued, plaintiff was not disabled in June 1993 because he was able to continue
At the hearing on the parties' respective motions for summary disposition, the trial court
recognized that the sole issue in this case was which of two possible causes, plaintiff 's medical
illness or the surrender of his license, prevented him from performing the substantial and
material duties of his regular occupation. The trial court determined that plaintiff established the
existence of a factual disability, but that his legal disability was the actual cause of his inability to
practice medicine. Therefore, the trial court granted defendant's motion for summary disposition
and denied plaintiff 's motion for partial summary disposition.
Plaintiff argues that trial court erred in granting defendant's motion for summary
disposition. According to plaintiff, a factual question existed regarding whether he sustained a
factual, versus a legal, disability, and this factual question prevented the trial court from granting
defendant's motion for summary disposition.
Plaintiff 's position is that the uncontradicted
evidence established that he had suffered from bipolar disorder since his late teens and that his
condition worsened after he suffered a severe head injury in an automobile accident in 1982.
After that time, plaintiff began having inappropriate sexual relationships with his patients, and
because of his impaired condition, he was unable to control and prevent this inappropriate
A generally recognized principle of insurance law is that the burden of proof lies with the
insured to show that the policy covered the damage suffered. 10 Couch, Insurance, 3d, § 147:29,
p 147-46; Williams v Detroit Fire & Marine Ins Co, 280 Mich 215, 218; 273 NW 452 (1937).
We review de novo a trial court's grant or denial of a motion for summary disposition. Spiek v
Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When reviewing a motion
for summary disposition granted pursuant to MCR 2.116(C)(10), we consider the affidavits,
pleadings, depositions, admissions, and documentary evidence in the light most favorable to the
nonmoving party. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998).
A motion for summary disposition under MCR 2.116(C)(10) is proper if no genuine issue of
material fact exists, thereby entitling the moving party to judgment as a matter of law. Id.
Plaintiff testified during his deposition that he became very depressed in June 1993 and
decided to decrease the amount of time that he spent treating patients. The record below
contained evidence that plaintiff also stopped paying blackmail money to a woman with whom
he had had a sexual relationship for seven or eight years. When plaintiff refused to continue
paying, the woman reported to the board that plaintiff had had inappropriate sexual relationships
with his patients. Several patients, along with the woman who allegedly blackmailed plaintiff,
then filed a lawsuit against him in June or July 1993, and plaintiff became severely depressed and
contemplated suicide. He then visited Dr. Neil Pauker, who referred him to Dr. Chester W.
Dr. Schmidt, a psychiatrist, diagnosed plaintiff with bipolar disorder toward the end of
1993 or the beginning of 1994. He first treated plaintiff on August 24, 1993, and determined, at
that time, that plaintiff suffered from depression. Dr. Schmidt then completed a claim form
indicating that plaintiff was unable to practice medicine, and plaintiff submitted the form to
defendant. The form indicated that plaintiff was partially disabled from June 19, 1993, until
August 14, 1993, and that, thereafter, he was totally disabled.
Plaintiff admitted during his deposition that he had had numerous inappropriate sexual
relationships with many different women, some of whom were patients, and that the board was
investigating him as a result. He testified that he feared that he would again initiate sexual
relationships with patients if he were to resume practicing medicine. He further testified that he
signed a letter permanently surrendering his medical license only because he was horribly
depressed and unable to defend himself and that signing the letter was the only way to prevent
the board from releasing the information to the media. The letter read, in pertinent part:
I understand that this letter of surrender shall be considered a PUBLIC
document immediately upon its acceptance by the Board of Physician Quality
Assurance (the "Board"). I also understand that this surrender of my medical
license is and shall be considered IRREVOCABLE.
My decision to surrender my license to practice medicine has been
prompted by an investigation of my practice by the Board. The Board initiated
this investigation after it received several complaints, and after it became aware of
several civil actions filed against me by former patients, all of which alleged that I
instigated improper sexual contact with patients during the physician/patient
I admit that for at least the past 20 years, I have used my position as a
physician to instigate a wide range of sexual relations with at least eight women
patients. This conduct included acts of sexual intercourse, as well as other
explicit sex acts. These activities took place in my medical office during patient
visits, as well as in other locations. I admit that I engaged in sexual misconduct
with my patients during the physician/patient relationship. I admit that I engaged
in this conduct with multiple patients over the same time period. I recognize that
these patients developed a sense of trust, confidence and dependence through the
physician/patient relationship, and that I misused my influence as a physician and
the trust my patients placed in me for my own sexual gratification. I admit that it
was improper to engage in any sexual relationship with any patient.
The Board's investigation resulted in charges under the Maryland Medical
Practice Act (the "Act").
Dr. Schmidt testified that plaintiff had not had any inappropriate sexual relationships
since his treatment began. He determined that plaintiff had suffered bipolar disorder his entire
life, along with long periods of hypomania, and that a severe head injury that he suffered in an
automobile accident in 1982 may have made him more susceptible to developing bipolar
disorder. Dr. Schmidt testified that plaintiff would never be able to return to work because he
would be at risk of again initiating inappropriate sexual relationships. Dr. Schmidt admitted that
plaintiff could possibly restrict his practice to the treatment of men and children only, but that
returning to the practice of medicine could destabilize plaintiff 's mood. Therefore, Dr. Schmidt
determined that plaintiff was permanently and completely disabled from treating patients and that
his medical disability both preceded, and was a factor contributing to, his legal disability.
Dr. Gerald A. Shiener, one of defendant's experts, reviewed plaintiff 's file for the purpose
of advising defendant on how to proceed with plaintiff 's claim, but he did not personally
examine plaintiff. Dr. Shiener testified that he had no doubt that plaintiff had bipolar disorder,
but that it did not appear that plaintiff was disabled. Dr. Shiener also testified that he saw no
evidence of a longstanding history of bipolar disorder.
Dr. Scott A. Spier, defendant's other expert, reviewed plaintiff 's file, interviewed
plaintiff, and conducted a telephone conference with Dr. Schmidt regarding plaintiff 's condition.
Dr. Spier testified, among other things, that Dr. Schmidt informed him that if plaintiff had a
medical license, he would be able to return to work. Dr. Spier concluded that plaintiff had
bipolar disorder, but that the disorder did not constitute a disability.
Generally, disability insurance policies provide coverage for factual disabilities, such as
illness or injury, but not for legal disabilities. 10 Couch, Insurance, 3d, § 149:9, p 146-24. If a
claimant suffers from both a factual and a legal disability, however, and the factual disability is
medically bona fide and genuinely arose before the legal disability, the fact that the legal
disability arose later will not necessarily terminate a claimant's right to disability benefits. Ohio
Nat'l Life Assurance Corp v Crampton, 822 F Supp 1230, 1233 (ED Va, 1993). The claimant
must demonstrate that his factual disability was the cause of the claimant's inability to work.
Paul Revere Life Ins Co v Bavaro, 957 F Supp 444, 449 (SD NY, 1997).
In Massachusetts Mut Life Ins Co v Millstein, 129 F3d 688, 689 (CA 2, 1997), the
defendant, an attorney, filed a claim with the plaintiff insurance carrier for disability benefits,
contending that he was unable to work because he suffered from attention deficit disorder
(ADD), conduct disorder (CD), and a chemical dependency. The plaintiff eventually refused to
pay benefits and brought an action seeking declaratory judgment, claiming that the loss of the
defendant's license to practice law was the cause of his inability to work. Id. at 690. The
Connecticut Statewide Grievance Committee suspended the defendant's license on July 6, 1994,
following his diversion of funds from his employer in 1986, the fraudulent facilitation of loans
from clients between 1990 and 1992, and the diversion of funds from his clients' trust fund
accounts in 1993 and 1994. Id. The defendant was subsequently charged with criminal conduct
for his misuse of client funds and was convicted and sentenced to serve six years' imprisonment.
Id. He argued in response to the plaintiff 's motion for summary judgment, and on appeal, that
his ADD, CD, and chemical dependency impaired his judgment and caused him to commit the
wrongful conduct that resulted in the loss of his license. Id. The United States Court of Appeals
for the Second Circuit recognized that the question whether a disability caused the loss of earned
income is often a jury question, but held as a matter of law that the defendant's criminal conduct
was the cause of his losing his license to practice law and the resulting loss of income. Id. at
In making this determination, the court emphasized that the defendant did not seek
treatment for his disorders until his license to practice law was threatened, that he practiced law
successfully for many years despite the disorders, and his admission that, but for the loss of his
license, he had the ability to perform legal work. Id. The court also stated that to impose liability
on the plaintiff in that case would have been contrary to public policy in that it would have
rewarded the defendant for his criminal conduct. Id. at 691. Therefore, the court affirmed the
district court's grant of summary judgment in favor of the plaintiff. Id. at 692.
In Massachusetts Mut Life Ins Co v Ouellette, 159 Vt 187, 192; 617 A2d 132 (1992), the
Vermont Supreme Court affirmed the grant of summary judgment in favor of the plaintiff
The defendant, an optometrist, was convicted of lewd and lascivious
conduct with a minor and was sentenced to a term of imprisonment. Id. at 187. As part of the
plea agreement underlying the defendant's conviction, he agreed to surrender his license to
practice optometry. Id. at 188. The defendant did not dispute that he practiced optometry despite
suffering from an atypical paraphilia for approximately ten years before his incarceration and the
loss of his license. Id. After his conviction, he filed a claim seeking disability insurance
benefits, asserting that his illness rendered him totally disabled. Id. The trial court granted
summary judgment in favor of the plaintiff, and the Vermont Supreme Court affirmed, holding
that the plaintiff presented no evidence to contradict the trial court's conclusion that the
defendant's legal disability, rather than his mental illness, was the cause of his inability to work.
Id. at 189-191. The opinion emphasized testimony that the defendant was able to practice
optometry for ten years after his disorder manifested itself and that the defendant would have
continued to practice had he not been incarcerated and lost his license. Therefore, summary
judgment in favor of the plaintiff was proper. Id. at 191.
In the present case, defendant does not dispute that plaintiff has bipolar disorder.
However, defendant asserts that the disorder did not prevent plaintiff from performing the
substantial and material duties of his regular occupation. We agree. Viewing the evidence in the
light most favorable to plaintiff, as we are required to do in reviewing motions for summary
disposition under MCR 2.116(C)(10), we accept as true that plaintiff has suffered from bipolar
disorder for most of his life. Nevertheless, as in Millstein and Ouellette, supra, plaintiff was able
to practice in his field for at least twenty years despite his disorder. Plaintiff did not become
unable to work until 1993. Plaintiff 's actions, although certainly inappropriate, did not prevent
him from performing his job and running a highly successful practice. Not until plaintiff decided
to voluntarily surrender his license was he unable to carry out the duties of his regular
occupation.1 Further, Dr. Schmidt testified that had plaintiff not surrendered his license he
would have been able to treat a significant portion of the population without risk.2 We also note
that plaintiff continued to treat patients after he claimed to be totally disabled, although he
worked far fewer hours than before. Finally, we cannot ignore that plaintiff made no mention of
his bipolar disorder in the letter in which he voluntarily surrendered his medical license. In fact,
plaintiff admitted that he chose to surrender his license in order to quell any media exposure.
Plaintiff also argues that the trial court erred in failing to address his argument that
defendant's experts' opinions lacked sufficient foundation to be considered as substantive
Because we conclude as a matter of law that the trial court properly granted
defendant's motion for summary disposition, we need not address this issue. The testimony of
defendant's experts was not essential to the trial court's ruling.
Doctoroff, J., concurred.
/s/ Peter D. O'Connell
/s/ Martin M. Doctoroff
The federal district court in Goomar v Centennial Life Ins Co, 855 F Supp 319, 320 (SD Cal,
1994), aff'd 76 F3d 1059 (CA 9, 1996), also granted summary judgment in favor of the plaintiff 's
insurance carriers. The plaintiff, a medical doctor, contended that visions of astral beings caused
him to sexually molest four female patients when he was in private practice. Id. The plaintiff
continued to practice medicine for three years without incident after the sexual assaults, but his
license to practice medicine was ultimately revoked as a result of the sexual assaults. Id. at 321,
323. He filed claims for disability benefits in March 1992, claiming that a psychological
disability led to the conduct that caused the revocation of his license. Id. The defendants denied
the plaintiff 's claims and moved for summary judgment after the plaintiff sued to recover the
unpaid benefits. Id. The district court found that the plaintiff was trying to recover benefits for a
legal disability, rather than for a factual disability, and that the plaintiff 's inability to practice
medicine was solely due to the revocation of his license. Id. at 325-326.
In Grayboyes v General American Life Ins Co, ___ F Supp ___; 1995 WL 156040 (ED Pa,
April 4, 1995), the plaintiff was an orthodontist for approximately twenty years before his license
to practice dentistry was revoked on July 19, 1991, for a five-year period. Id. at 1-2. The
plaintiff had improperly touched many young female patients in a sexual manner and was
arrested on October 31, 1990, with respect to one such incident. Id. at 1. He pleaded guilty to
the charges and received a four-year term of probation. Id. at 2. At about the same time that he
was arrested, the plaintiff began treatment with a psychiatrist, who diagnosed the plaintiff with
frotteurism, a form of paraphilia involving intense sexual urges to touch and rub against others.
Id. On May 30, 1991, the plaintiff filed a claim for disability benefits, which the defendant
denied. Id. at 2-3. After trial, the district court entered judgment in favor of the defendant,
finding that, but for the suspension of his license, the plaintiff was able to perform the material
and substantial duties of his occupation and was not totally disabled within the meaning of his
insurance policy. Id. at 5. Particularly influential to the court were the facts that the plaintiff was
able to exercise some control over his urges (as his selectivity in choosing his victims
evidenced), he was able to treat a significant portion of the population (i.e., males and adult
females) without risk, and he was able to practice orthodontics for twenty years with the same
condition that he claimed was disabling. Id.