response was intended to mislead him, a person suffering from "substantial neurocognitive problems." Sixth, the defendant's failure to pay monthly disability benefits is an ongoing breach of the policy which renders suit timely. None of these contentions are convincing for the following reasons.
In arguing that the policy is ambiguous, the plaintiff relies on the absence of a policy definition of "proof of claim." He then contends that the phrase "proof of claim" can be interpreted as meaning the "initial" proof of claim and then a "subsequent" proof of claim that deals with continuing disability. The argument is not entirely clear, but the plaintiff is apparently maintaining that his lawsuit is timely because he satisfied the obligation of making an initial proof of claim and that one or more of the letters he sent UNUM contesting its decision that he was not physically disabled was a proof of claim of continuing disability. These subsequent proofs of claim each started new limitations periods, and the suit was timely filed within one of these unspecified periods.
We reject this argument. The policy is not ambiguous for failing to define "proof of claim." Even to state the argument refutes the plaintiff's position because it indicates, the plaintiff's correct understanding of what the policy requires: an initial proof of claim and, if this is successful, subsequent proofs of claim to show continuing disability and hence coverage under the policy.
The argument breaks down because the plaintiff understood perfectly well that his claim based on physical disability had been rejected; by letters dated February 27, 1992, and September 4, 1992, he expressed his dissatisfaction with the denial of benefits based on physical disability. Hence, any subsequent letters from the plaintiff seeking coverage on that basis could not have been for a continuing disability because UNUM never agreed that he was physically disabled in the first place.
The policy language as a whole dealing with notice and proof of claim rebuts the plaintiff's argument. The "Notice" provision generally requires written notice within 30 days of disability and that UNUM will then send the insured its claim forms to fill out, but if it does not do so, the insured can submit "written proof of claim without waiting for the form." The "Proof" provision describes what must be included in a proof of claim: the onset date of disability, the cause of disability, and the seriousness of the disability. Taken together, these provisions clearly indicate what a proof of claim is and that, as UNUM asserts, the application the plaintiff submitted on July 19, 1991, was a proof of claim.
The plaintiff's second argument does not assist him either. His factual assertion in his affidavit, attached to the reply to the defendant's motion for summary judgment, that UNUM representatives led him to believe he could "prove" his "claim" throughout the administration of the claim does not support his legal conclusion that every time he submitted evidence in support of the claim, he was submitting a new proof of claim.
The plaintiff's third argument, based on tolling, also fails. The plaintiff first cites Dercoli, supra, but that case is distinguishable because it is not a limitations case. Instead, Dercoli recognized a cause of action against an insurance company for a violation of the duty of good faith and fair dealing when the company advised the insured that she did not have to obtain a lawyer and then failed to tell her of a potential claim against the policy. On this point, the plaintiff also cites Miller v. Keystone Insurance Co., 402 Pa. Super. 213, 586 A.2d 936 (1991), but that case was reversed. See 535 Pa. 531, 636 A.2d 1109 (1994). Further, unlike the company in Dercoli, UNUM made no affirmative misrepresentations here; it simply processed the claim and denied it.
The plaintiff next cites Samuels, supra. Samuels held that a contractual period of limitations is tolled while the insured exhausts the company's internal claims appeal procedure. We reject reliance on Samuels in this case for two reasons. First, the plaintiff does not attempt to show how on the facts of the instant case Samuels renders his case timely. Second, Samuels is distinguishable because it appears from the facts of that case that exhaustion of the appeal procedure put the plaintiff beyond the applicable contractual period of limitations. As we noted above, the plaintiff here had exhausted all of UNUM's appeal procedures well before the limitations period expired.
The plaintiff's fourth argument, based on estoppel, is also incorrect. It is true that the limitations provision can be extended or waived when the company leads the insured to believe that the provision will not be enforced, see Schreiber v. Pennsylvania Lumberman's Mutual Insurance Co., 498 Pa. 21, 444 A.2d 647 (1982)(citing General State Authority, supra); Commonwealth v. Transamerica Insurance Co., 462 Pa. 268, 341 A.2d 74 (1975), but UNUM did nothing to justify a waiver.
The plaintiff relies on the course of the parties negotiations, especially UNUM's repeated offers to consider additional evidence. He maintains that:
Had Defendant not continually advised Plaintiff that they would be happy to review additional evidence from him, but rather had the Defendant advised Plaintiff that it would consider no more evidence and was closing its file, Plaintiff would not have been lulled into a false sense of security that his claim was still viable.
(Plaintiff's opposition brief at p. 12)
We reject this interpretation of the facts. On several occasions, such as on July 27, 1993, and August 31, 1993, UNUM did advise the plaintiff that it would be willing to examine additional evidence of physical disability, but, contrary to plaintiff's position, the defendant did subsequently do what he insists should have been done; it told him that it was denying the claim and closing his file.
On October 20, 1993, the defendant wrote the plaintiff informing him that it was denying any liability, closing his file, and that, in the absence of an appeal, its decision would be final. On February 17, 1994, UNUM not only denied the appeal of the October 20 decision, but was silent on whether it would accept additional evidence.
In any event, the next exchange of letters is fatal to the plaintiff's claim that the defendant lulled him into believing that the limitations clause would not be enforced. On June 17, 1994, some five months after the denial of his appeal, the plaintiff wrote the defendant, inquiring about the deadline for taking legal action. On August 2, 1994, the defendant, while again stating that it would consider "supplemental information," responded that suit had to be filed within three years of the deadline for filing a proof of claim and that:
Our position regarding your disability claim . . . is outlined in our letter of February 17, 1994 . . . Your claim has been closed and we will not continue our investigation of your condition at this time.