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GROSSMAN v. MINNESOTA MUT. LIFE INS. CO.

December 21, 1993

ROBERT GROSSMAN, Plaintiff,
v.
MINNESOTA MUTUAL LIFE INSURANCE COMPANY, a corporation, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Robert L. Grossman brings this three count complaint, asserting that he is entitled to disability insurance benefits from defendant Minnesota Mutual Life Insurance Company. Defendant has moved for judgment on the pleadings on Counts I and III. *fn1" For the reasons set forth below, we deny defendant's motion.

 I. Background

 Defendant Minnesota Mutual Life Insurance Company ("Minnesota Mutual") is a Minnesota corporation with its principal place of business in Minnesota. During all relevant times, Minnesota Mutual was authorized to write disability insurance in Illinois. On July 10, 1984, plaintiff Robert Grossman became insured under a disability insurance policy issued by Minnesota Mutual. Under that policy, an insured was generally entitled to a monthly income benefit of $ 4,500 in the event of a disability. *fn2" The policy defines "disability" or "disabled" as follows:

 
Due to sickness or injury you are unable to perform the substantial and material duties of your regular occupation.
 
. . . .
 
The substantial and material duties of your regular occupation are those duties which account for a major portion of your income. You will be considered unable to perform the substantial and material duties of your regular occupation if you are unable, due to your disability, to earn from your regular occupation more than 50% of your prior average earned income.

 The policy also contains a notice and waiver provision:

 
You must give [Minnesota Mutual] notice of your claim within 30 days after the occurrence or commencement of any loss covered by this policy . . . .
 
Our investigation of a claim, or our furnishing of claim forms, or our acceptance of your notice of claim and proof of loss shall not operate as a waiver of any of our rights to defend any claim arising under this policy.

 According to the complaint and supporting documents, on August 14, 1987, Grossman became extremely dizzy while at work as a trader at the Chicago Board Options Exchange, and fainted, hitting his head. He received stitches for the resulting injury, but the dizziness persisted. As a result, he stopped working on August 17, 1987, but returned to his job on August 25, 1987. Because of the continuing dizziness, however, his ability to perform as a trader was "severely limited." Indeed, both his average hours worked and average monthly earned income fell to less than half their previous levels. Accordingly, Grossman asserts that he became disabled within the meaning of the policy on or about August 14, 1987.

 Approximately three years later, on August 21, 1990, Grossman filed a Disability Claim Notice. In response, Minnesota Mutual obtained and reviewed Grossman's medical and hospital records. On January 8, 1991, Jon B. Meier, a claim consultant for Minnesota Mutual, sent Grossman a letter denying his claim. In relevant part, the letter stated:

 
It is Minnesota Mutual Life's position that these records do not substantiate a medical condition that would preclude you from performing the substantial and material duties of your regular occupation for a period that would exceed your policy's 90-day waiting period. While Minnesota Mutual Life does note that your income dropped significantly in 1988 and 1989, it is not felt that the ...

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