The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion for class certification (Doc. No. 30) filed pursuant to Federal Rule of Civil Procedure 23(b)(3) in the above-captioned civil action by James D. Meyer ("plaintiff" or "Meyer"). Plaintiff seeks class certification for persons who purchased disability insurance issued in the state of Pennsylvania from the defendant CUNA Mutual Group (the "defendant" or "CUNA") pursuant to policies containing a particular definition of "Total Disability" and whose claims for disability benefits were allegedly wrongfully denied after those persons had received disability benefits pursuant to the policy for approximately a twelve-month period.*fn1
On December 16, 2004, the court held a class certification hearing. On February 25, 2005, the plaintiff submitted a proposed trial plan (Doc. No. 47), the defendant submitted a response to the proposed trial plan (Doc. No. 46), and the parties submitted proposed findings of fact and conclusions of law (Doc. No. 49).
Pursuant to Federal Rule of Civil Procedure 52, this court makes the following findings of fact and conclusions of law.
Plaintiff sought in his amended complaint the certification of a nationwide class. Plaintiff seeks in his motion for class certification, however, the certification of a state-wide class limited to the Commonwealth of Pennsylvania. Plaintiff seeks certification of a class defined as follows:
All persons who purchased disability insurance issued in Pennsylvania from the defendant CUNA Mutual Group, or its subsidiaries, which policies contain the definition of total disability including the following material language: "After the first twelve consecutive months of disability, the definition changes and requires the Member to be unable to perform any of the duties of his occupation, or any occupation for which he is reasonably qualified", [sic] to the extent that such individuals were determined by the defendant to be not able to perform all of the duties of his or her occupation, but were determined by the defendant to be capable of sufficient physical activity that the defendant decided that they were no longer eligible for total benefits under the defendant's interpretation of the subject policy.
Plaintiff's and Defendant's Proposed Findings of Fact and Conclusions of Law ("Joint Filing") at 2 (citing Plaintiff's Brief in Support of Motion for Class Certification ("Pl.'s Br.") at 8).
1. On February 24, 1999, plaintiff purchased credit disability insurance pursuant to a group policy (the "policy") issued by defendant CUNA to URE Federal Credit Union (the "credit union") in connection with the financing by the credit union of an automobile purchase made by plaintiff. Joint Filing, Agreed Findings of Fact ("AFF") ¶3.
2. The policy provided that, in the event plaintiff became totally disabled, defendant would make payments on the loan to the credit union on plaintiff's behalf. AFF ¶6 (citing Group Credit Insurance Policy at 4).
3. The policy contained a definition of "Total Disability" that provided: during the first 12 consecutive months of disability means that a member is not able to perform substantially all of the duties of his occupation on the date his disability commenced because of a medically determined sickness or accidental bodily injury. After the first 12 consecutive months of disability, the definition changes and requires the member to be unable to perform any of the duties of his occupation or any occupation for which he is reasonably qualified by education, training or experience.
AFF ¶7 (citing Group Credit Insurance Policy at 1).
4. This policy was approved by the Pennsylvania Insurance Department, as required by Pennsylvania law, before being sold to plaintiff. AFF ¶8.
5. The policy at issue-including the language defining total disability-resulted from defendant's efforts to modify language in its policies during the 1980s and to use "plain language" in drafting its policies. Pl.'s Br., Ex. 8, Deposition of Diane Konz ("Konz. Dep.") at 14-18. Diane Konz, defendant's representative, testified:
Q: Okay. Now, in changing whatever that prior not-plain language policy was to this plain language policy, do you recall whether nor not any changes were made to the words describing total disability?
A: We re-cast the definition to simply make it -- to use easier words to understand.
Q: Okay. And was the reason for doing that at that time the fact the insurance commissions were requesting plain language be used?
Q: And in this particular instance at that point in time was the Pennsylvania Insurance Commission requesting plain language be used?
Q: Was that something you anticipated coming down the road?
6. Ms. Konz testified in her deposition that she worked with a team at CUNA that drafted insurance contracts, submitted them to state regulators, and worked with the regulators to gain approval. Konz Dep. at 6-7. Ms. Konz testified that the drafting team included the manager of claims, the manager of underwriting, the manager of accounting, an actuary, and herself on behalf of the government relations and regulatory compliance group. Id. Ms. Konz testified that she drafted the language of the policy at issue during CUNA's efforts to modify policies to contain plain language. Konz Dep. at 21. Defendant asserts that the policy was drafted by a group, whereas plaintiff asserts that the policy was drafted by Ms. Konz, but reviewed by a group. See Defendant's Proposed Findings of Fact ("DFF") ¶2 and Plaintiff's Response thereto.
7. Ms. Konz is a high school graduate without a formal education in law. Konz Dep. at 9. Ms. Konz testified that she cannot recall ever reading any legal cases dealing with interpretation of insurance contracts. Konz Dep. at 10. Ms. Konz was trained on-the-job, in-house, by defendant CUNA. Konz Dep. at 9-10. This policy was Ms. Konz's first opportunity to participate as a member of a drafting team from start to finish on a policy. Konz Dep. at 15.
8. Plaintiff obtained a loan in the face amount of $19,838.44 and purchased a credit disability insurance policy with respect to that loan. The policy was effective on February 24, 1999 and the premium for the policy was $1,230.00. AFF ¶4.
9. Plaintiff worked as a brakeman and conductor for Union Railroad for approximately 31 years. AFF ¶2.
10. On May 27, 2000, plaintiff suffered an injury at work while moving a train from one yard to another. AFF ¶5, 9.
11. As a result of the injury plaintiff was diagnosed with a herniated cervical disc with radiculopathy, leading to surgical discectomy. AFF ¶10.
12. Plaintiff sued his employer Union Railroad as a result of this incident, alleging that Union Railroad was responsible for his injuries because the equipment he was using at the time he was injured was defective. AFF ¶11. Plaintiff received a jury verdict in this lawsuit in the amount of $600,000.00. AFF ¶12. This jury verdict was vacated by an appellate court in September 2004. AFF ¶13.
13. In connection with this injury, plaintiff filed a claim for disability benefits under the policy at issue in this lawsuit. AFF ¶14.
14. In response to plaintiff's claim, CUNA began to pay plaintiff disability benefits. AFF ¶15. CUNA made its first payment of disability benefits to plaintiff on August 2, 2000 for the period of July 7, 2000 through July 27, 2000. Id.
15. The definition of "Total Disability" in the policy defines "Total Disability" during the first twelve consecutive months of disability differently from "Total Disability" during the time period thereafter. See AFF ¶7. The policy defines "Total Disability" during the first twelve consecutive months of disability to mean "that a member is not able to perform substantially all of the duties of his occupation on the date his disability commenced because of a medically determined sickness or accidental bodily injury." Id. The policy states that the definition of "Total Disability" during the time period thereafter "changes and requires the member to be unable to perform any of the duties of his occupation or any occupation for which he is reasonably qualified by education, training or experience." Id.
16. CUNA paid plaintiff disability benefits for the period between July 7, 2000, and July 7, 2001, pursuant to the definition of "Total Disability" that governed the first twelve months of disability because for that period CUNA determined that plaintiff was totally disabled according to that definition. AFF ¶ 16.
17. CUNA paid plaintiff disability benefits for the period between July 8, *fn2 through November 24, 2002, pursuant to CUNA's interpretation of the definition of "Total Disability" that governed the time period after twelve months had passed from the date the disability commenced because for that period CUNA determined that plaintiff was totally disabled according to that definition. AFF ¶ 17; AFF ¶30.
18. During the time period that CUNA paid benefits to plaintiff under the policy, plaintiff was treated by several physicians. AFF ¶18.
19. During this period, plaintiff saw Dr. Antoin Munirji on a monthly basis for an extended period of time. AFF ¶19. In conjunction with each visit, Dr. Munirji completed two different forms relating to plaintiff's disability status: an internal office form used at Dr. Munirji's office (the "Munirji form") and a form provided by CUNA to Dr. Munirji (the "CUNA form"). AFF ¶¶ 21, 23.
20. The Munirji form contained the question: "Can patient return to his/her pre-injury job without restrictions?" The question was followed by spaces to mark "Yes" and/or "No." AFF ¶22.
21. The CUNA form contained the question: "Has patient been released to return to work?" The question was followed by spaces to mark "Yes" and/or "No." AFF ¶23.
22. In order to complete the certification forms, Dr. Munirji tested plaintiff's strength and range of motion, and recorded these results. AFF ¶24.
23. On several occasions physicians authorized plaintiff to return to work in a sedentary, light, or medium duty capacity. AFF ¶25.
24. For example, on November 13, 2000, Dr. Munirji submitted a claim form to CUNA indicating that plaintiff had as of October 11, 2000, regained the ability to return to work subject to light duty restrictions. Munirji Dep. at 12-14, Ex. 3 at 2. See DFF ¶18 and Plaintiff's Response thereto. On December 5, 2000, Dr. Munirji submitted a claim form to CUNA indicating again that plaintiff had regained the ability to return to work subject to light duty restrictions as of October 11, 2000. Munirji Dep, Ex. 3 at 4.
25. CUNA representative Tarry Blanke testified in her deposition that Dr. Levin had submitted a certification to CUNA indicating that plaintiff could return to light duty work in some capacity as of June 8, 2000. DFF ¶16 (citing Blanke Dep. at 45). (Dr. Levin's report, Ex. 7 to Blanke's deposition, does not appear in the record.)
26. During plaintiff's deposition he was questioned about a report written by Dr. Talbott which apparently indicated Dr. Talbot had stated that plaintiff was capable of full time light employment, as opposed to returning to plaintiff's occupation as a conductor / brakeman. DFF ¶17 (citing Pl. Dep. at 92-94). (Dr. Talbott's report, part of Ex. 7 to plaintiff's deposition, does not appear in the record.).
27. Plaintiff believed that as of October 25, 2000 he was capable of performing sedentary or light work on a full time basis. AFF ¶26.
28. Later, on May 3, 2002, Dr. Munirji indicated that plaintiff was capable of performing modified light duties at work, so long as he did no above-shoulder work and no lifting over 10-15 pounds. AFF ¶27. In December 2002, Dr. Munirji informed CUNA that plaintiff was capable of performing modified light duties at work, so long as he did no above-shoulder work and no lifting over 10-15 pounds. AFF ¶28. On December 10, 2002, Dr. Munirji submitted a form to CUNA and indicated that plaintiff was capable of performing "modified light duty." AFF ¶29.
29. Dr. Munirji's report of December 31, 2002, however, demonstrates that though plaintiff was capable of performing modified light duties, plaintiff continued to suffer effects of his injury that prevented him from returning to his time-of-injury occupation. PFF ¶2. The report indicates, for example, that plaintiff was "totally disabled from performing his own occupation" and that Dr. Munirji expects either "no change" or "unknown," rather than "improvement" or "deterioration," regarding plaintiff's injury. Pl.'s Br., Ex. 6 at 1. In addition, Dr. Munirji testified in his deposition that in the years since 2002, plaintiff's physical condition has not significantly improved and that plaintiff remained unable to perform substantially all of the activities of his prior occupation as a conductor for Union Railroad. PFF ¶3, 5.
30. Although several physicians authorized plaintiff at various times after his disabling injury to return to working in some capacity subject to light or medium duty restrictions, there is no indication in the record that any physician certified that after the disabling injury plaintiff could perform all of the duties of his time-of-injury occupation-conductor / brakeman at Union Railroad.
C. Vocational / Employment Evaluations
31. During the time period that CUNA paid benefits to plaintiff under the policy, plaintiff participated in two vocational/employment evaluations. AFF ¶31.
32. In late 2001, plaintiff's surgeon, Dr. El-Kadi, recommended plaintiff for a vocational evaluation in late 2001. AFF ¶32. This evaluation was performed by Mr. Matey, Director of Physical Therapy at Rehab Plus. Id. The results of this evaluation are detailed in a report (the "Matey Report") dated November 29, 2001. AFF ¶33. Mr. Matey concluded that plaintiff could work at a job with "medium duty" requirements, but due to incomplete information about the specific physical requirements of plaintiff's railroad employment, Mr. Matey could not determine whether plaintiff could return to his railroad employment. Id. Mr. Matey reported, however, among other things, that he "fe[lt] less than confident that return to full duty would be advised at this time" and that "[i]f prior position is unavailable [he] fe[lt] [plaintiff]'s abilities suggest he could return [to] medium duty work at this time with below weight limits recommended." Appendix in Support of CUNA's Memorandum in Opposition to Plaintiff's Motion for Class Certification ("Def. App."), Pl.'s Dep., Ex. 2, Matey Report at 1.
33. In 2002, counsel for plaintiff referred plaintiff to Charles Cohen, Ph.D., a licensed psychologist/vocational expert, for a vocational evaluation in 2002. AFF ¶35. The results of this evaluation are detailed in a report (the "Cohen Report") dated September 30, 2002. Id. Dr. Cohen concluded, among other things, that "[plaintiff] has a loss of earnings capacity associated with his inability to perform his previous job on the railroad." Def. App., Pl.'s Dep., Ex. 1, Cohen Report at 8.
34. The vocational/employment evaluations contained conclusions that plaintiff was capable of some light or medium work duty, even if he could not return to his original job. DFF ¶26 (citing Pl.'s Dep., Ex. 10 & 11). Mr. Matey concluded that plaintiff could work at a job with "medium duty" requirements. Pl.'s Dep., Ex. 10. Dr. Cohen concluded that though plaintiff could no longer perform his job as conductor/brakeman and his skills are not transferable to other work, he may have been able to secure employment in some other occupation such as retail sports equipment sales. Pl.'s Dep., Ex. 11.
D. Termination of Benefits
35. CUNA paid plaintiff benefits under the policy until November 24, 2002. AFF ¶¶30-33, 37.
36. On or about January 27, 2003, CUNA informed plaintiff by letter that he was no longer eligible for benefits under the policy. AFF ¶36. In the letter plaintiff was informed that, though CUNA had processed his claim for the period September 25, 2000, through November 24, 2002, it was terminating his benefits under the policy. The letter explained in pertinent part:
Based on information obtained, no additional benefits may be extended at this time.
The information obtained indicated you're capable of modified light duty work. This, along with other information contained in your claim file, indicates that you are ...