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GHAZI v. FISERV

March 17, 1997

SYED I. GHAZI and SYEDA GHAZI, Plaintiffs,
v.
FISERV, INC. and UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendants.



The opinion of the court was delivered by: BUCKLO

 The defendants, Fiserv, Inc. ("Fiserv") and UNUM Life Insurance Company of America ("UNUM"), move for summary judgment on the complaint filed by the plaintiffs, Syed I. Ghazi *fn1" and his wife, Syeda Ghazi. For the reasons stated above, the defendants' motion is denied.

 I. *fn2"

 Mr. Ghazi was employed by Fiserv as a computer operator. While so employed, Mr. Ghazi was entitled to certain "fringe" benefits, issued to Fiserv by UNUM. Specifically, Fiserv and UNUM provided a group life insurance policy, whose coverage discontinued when the insured was no longer employed by Fiserv. The coverage extended beyond termination of employment, however, if the employee became "totally disabled" while still employed. An employee would be deemed "totally disabled" if he or she was "unable to perform each of the material duties of any gainful occupation for which he is reasonably fitted by training, education or experience." To be entitled to this coverage, an employee had to give notice and furnish "first proof" of the disability within a year of the disability's onset. UNUM and Fiserv waived the one-year proof, but not the notice, requirement, if the insured died within a year of the disability's commencement. *fn3" Mr. Ghazi received Fiserv's employee benefit book which set forth the above information.

 Mr. Ghazi last reported to work on June 22, 1994. On that day, he was able to perform his duties as a computer operator. Mr. Ghazi called in sick on June 23 and took vacation days on June 24, 28 and 29. He was absent from work from June 30 to July 7 without an excuse.

 His supervisor, Tom Immer, called Mr. Ghazi on June 30 and Mr. Ghazi told him that he was taking medication that would not allow him to drive to work. On July 7, Fiserv sent an overnight letter to Mr. Ghazi requesting a call by noon on July 8, and indicating that if no call was received by that time, Fiserv would terminate Mr. Ghazi's employment. Mr. Ghazi did not contact Fiserv, although he received the letter. Fiserv discharged Mr. Ghazi on July 8 for job abandonment.

 On September 30, Mr. Ghazi was diagnosed with an inoperable malignant brain tumor, glioblastoma multiforme. On January 9, 1995, Mr. Ghazi died as a result of the brain tumor.

 The plaintiffs claim that Mr. Ghazi was "totally disabled" when Fiserv fired him on July 8 and that Mrs. Ghazi, the beneficiary of the life insurance policy, is therefore entitled to the proceeds under the policy in the amount of $ 92,000. The defendants move for summary judgment.

 II.

 The standards for summary judgment are well known and will not be repeated here. To be entitled to life insurance proceeds, the plaintiffs must show three things: one, that Mr. Ghazi was "totally disabled" when he was terminated by Fiserv; two, that he died within a year of the onset of the disability; and three, that the defendants were notified of Mr. Ghazi's "total disability" within a year of its onset. I have previously held that the defendants received notice of the claim of "total disability" within a year of its onset, and it is undisputed that Mr. Ghazi died within a year. Thus, the only issue is whether there is evidence that Mr. Ghazi was "totally disabled" when his employment was terminated.

 The disability provision in the defendants' life insurance policy is a "general" disability provision. Hammond v. Fidelity & Guar. Life Ins. Co., 965 F.2d 428, 430-31 (7th Cir. 1992). Although referred to as "total disability," this

 
provision[] should not be construed so literally that an individual must be utterly helpless to be considered disabled. Rather, the insured should be entitled to recover provided he or she is unable to perform all the substantial and material acts necessary to the prosecution of some gainful business or occupation.

 Id. at 431. "Gainful" means "any occupation from which [the insured can] earn a reasonably substantial income rising to the dignity of an income or livelihood." Helms v. Monsanto Co., 728 F.2d 1416, 1421-22 (11th Cir. 1984). Total disability "is a question of fact that depends upon all the circumstances of a particular case." Id. at 1420. Drawing all reasonable inferences in favor of the plaintiffs, they have raised a genuine issue of material fact that Mr. Ghazi was "totally disabled" on July 8, 1994, the date of his discharge from Fiserv.

 Dr. Martin Boyer, Mr. Ghazi's oncologist, testified, with a reasonable degree of medical certainty, that Mr. Ghazi was suffering from a progressive brain tumor on June 28. Dr. Boyer also indicated that the symptoms associated with such a brain tumor are memory loss, headaches, emotional instability, problems with speech, and lethargy. These symptoms are consistent with Mr. Ghazi's ...


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