United States District Court, N.D. Illinois, Eastern Division
Michael B. Frazin, Plaintiff,
The Paul Revere Life Insurance Company and Unum Group, Defendants.
MEMORANDUM OPINION & ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
Michael B. Frazin sued defendants The Paul Revere Life
Insurance Company and its parent company Unum Group in
connection with Paul Revere's termination of his
disability benefits. Defendants move to dismiss Counts I and
IV of Frazin's complaint under Fed.R.Civ.P. 12(b)(6). R.
7. For the following reasons, the Court grants
12(b)(6) motion challenges the sufficiency of the
complaint. E.g., Hallinan v. Fraternal Order of Police of
Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A
complaint must provide “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The statement must give
defendant “fair notice” of the claim and the
basis for it. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). This standard “demands more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While “detailed factual allegations”
are not required, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. The
complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).
“‘A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Mann v.
Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting
Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party.
Mann, 707 F.3d at 877.
2009, Frazin stopped working as a particular type of stock
options trader known as a “Market Maker” due to
anxiety and depression. R. 1-1 ¶¶ 7-8, 13. Frazin
was insured under a disability policy issued by Paul Revere,
which provided coverage in the event that Frazin could no
longer work as a Market Maker. Id. ¶ 16. Paul
Revere approved Frazin's disability benefits claim in
June 2009. Id. ¶¶ 24-30.
Revere's policy does not prohibit Frazin from working in
another gainful occupation; as long as he can no longer work
as a Market Maker, he is entitled to benefits. Id.
¶¶ 16-18. Frazin informed a Paul Revere
representative that he had returned to part-time work in a
back office accounting position in June 2010, and Paul Revere
continued to find benefits appropriate. Id.
¶¶ 33-41. Paul Revere asked an independent
psychiatrist, Dr. Henry Conroe, to evaluate Frazin in August
2010, and Dr. Conroe found it unlikely that Frazin
“could return to trading without “a recurrence of
significant anxiety symptoms.” Id. ¶
Revere closed Frazin's claim and terminated benefits in
October 2015 after finding an improvement in Frazin's
condition. Id. ¶¶ 71-72. As part of the
review that led to the closing of Frazin's claim, Paul
Revere raised the issue of Frazin's part-time employment.
Id. ¶¶ 52-54. A Paul Revere representative
noted in April 2015 that “Frazin returned to gainful
employment approximately January, 2011 but [didn't]
notify us of that change until July, 2011, ” and
further noted, “I don't see where we reacted to
that change in status . . . . I'm not sure we ever
clarified the pre-disability duties completely or
compared/contrasted them to the current ones.”
Id. ¶ 53. Paul Revere also learned from a
personal visit in 2015 and follow up internet research that
Frazin had played poker since 2005, including competing in
poker tournaments reported online. Id. ¶¶
59-60. Dr. Conroe's August 2010 report had mentioned
Frazin's poker playing, stating: “[Frazin's]
falling asleep is affected by his playing internet poker
prior to bedtime.” Id. ¶ 39(b)
psychiatry consultant from Paul Revere who concluded that
Frazin could not return to his Market Maker job back in 2010
came to a different conclusion in 2015. Id.
¶¶ 40, 63. He determined in 2015 that: “(1)
Frazin is involved in ‘financial issues' [in his
part-time job] without resurgence of anxiety; (2) the concern
over relapse has not materialized; (3) Frazin seems gratified
with capacity to use trading strengths in poker playing[;]
and[ ] (4) Frazin is able to manage anxiety during poker
tournaments.” Id. ¶ 63. Frazin alleges
that Paul Revere came to the determination that he was no
longer entitled to benefits and then “work[ed]
backwards” to find justifications for that decision.
Id. ¶¶ 56, 62.
submitted an internal appeal of Paul Revere's revocation
of benefits. Id. ¶¶ 74-76. After receiving
the appeal, Paul Revere asked its vocational rehabilitation
analyst to compare poker playing with Frazin's prior
employment as a Market Maker, and then asked its doctors for
further review. Id. ¶ 77-81. One of the doctors
noted that Frazin was “active in playing in and running
high-stakes poker tournaments, ” which he found
“would engage the same cognitive capacities as would
his prior occupation.” Id. ¶ 81. Frazin
takes issue with Paul Revere allegedly ignoring the opinions
of its own vocational rehabilitation analyst and Frazin's
doctors in the course of rejecting his appeal. Id.
sued Paul Revere and its parent Unum, asserting claims for
declaratory relief (Count I), breach of contract (Count II),
insurance bad faith under 215 ILCS 5/155 (Count III), and
violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act (“ICFA”) (Count IV). R.
1-1. Defendants removed the case from Illinois state court in
March 2017 based on diversity jurisdiction. R. 1. Defendants
answered Counts II and III and moved to dismiss Counts I and
motion to dismiss argues that Frazin has taken a
“straightforward breach of insurance contract and
§ 155 [insurance bad faith] action” and improperly
attempted to dress it up with declaratory judgment and ICFA
claims. R. 8 at 3. For the reasons set forth below, this