NANCY STEIN NOWAK, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
The matter before the court is defendant's motion for summary judgment and plaintiff's motion for oral argument on the motion for summary judgment. The parties have consented to the Magistrate Judge conducting all proceedings in this case, including the trial and entry of judgment. Therefore, under 28 U.S.C. § 636(c) and the District Court's random assignment of this case to me, I have jurisdiction to enter this order.
Docket Entries No. 77 and 81, respectively.
Factual Summary
This is an attorney malpractice case. Plaintiff, B.J. Hall ("Hall"), alleges that the defendant, the law firm of White, Getgey Meyer, Co., L.P.A. ("White, Getgey Meyer"), was negligent in its representation of him in a prior lawsuit. The prior lawsuit involved an action by Hall against an insurance company to recover proceeds from a long term disability insurance policy.
The long term disability insurance policy in the underlying lawsuit was issued by The Hartford Life Accident Insurance Company ("Hartford") to Incarnate Word Health Services, Inc. ("Incarnate Word"). On January 1, 1990 when the policy went into effect, plaintiff was employed by Incarnate Word as the Executive Vice President and Chief Operating Officer of Incarnate Word Health Services. Hall was eligible for the benefits in the policy as long as he continued his employment with Incarnate Word.
Docket Entry No. 77, Exhibit 2, Group Insurance Policy GLT-32353 effective January 1, 1990 issued by The Hartford Life and Accident Insurance Company to Incarnate Word Health Services, Inc.
"Your insurance will terminate on the earliest to occur of the following dates: . . . (5) the date your employment terminates." Docket Entry No. 77, Exhibit 2, Group Insurance Policy GLT-32353, Termination, p. 6.
In addition to the Hartford policy, Hall had several other long term disability insurance policies. He had suffered polio as a child. During the relevant time period, he also was suffering from post-polio syndrome, a term which describes the physical difficulties experienced by some polio survivors. Hall appears to have led a normal life and was able to walk and travel without regularly using a cane, leg braces, or a motorized scooter for assistance. The record indicates that during his employment with Incarnate Word plaintiff fatigued easily, but maintained the life of a corporate professional, working ten to twelve hours a day.
Docket Entry No. 80, Exhibit E, Letter from Dr. Carlos Vallbona dated Feb. 8, 1993, p. 2.
Docket Entry No. 77, Exhibit 3, Deposition of B.J. Hall, Vol. II, p. 352, lines 16-18; Docket Entry No. 86, Exhibit 2, Deposition of Dr. Robert J. Grimm, p. 18, lines 16-23; p. 19, lines 25-p. 20, line 1.
Docket Entry No. 86, Exhibit 2, Deposition of Dr. Robert J. Grimm, p. 13, lines 14-18; Docket Entry No. 80, Exhibit D, Letter from Dr. Robert J. Grimm dated March 5, 1991, p. 2.
On Monday, May 7, 1990 Hall was involved in a car accident. He suffered whiplash and numbness in his left arm as a result of the accident. Additionally, Hall began to suffer increased weakness in his lower extremities, making it difficult for him to balance himself and walk unassisted. The days following the accident, Hall apparently did not report to work except to attend a staff meeting. The following Friday, on May 11, 1990, Hall was notified of his termination from Incarnate Word. The record does not address why Hall was terminated, but the timing of the car accident appears to have been wholly coincidental and there is no evidence that it played any part in his termination. Since Hall had a contract with Incarnate Word, he received $12,500 a month for one year as severance pay.
Docket Entry No. 80, Exhibit D, Letter from Dr. Robert J. Grimm dated March 5, 1991, p. 1.
Docket Entry No. 77, Exhibit 3, Deposition of B.J. Hall, Vol. II, p. 303, lines 7-12; Docket Entry No. 80, Exhibit D, Letter from Dr. Robert J. Grimm dated March 5, 1991, P. 1.
Docket Entry No. 80, § E, p. 3 (plaintiff cites to Exhibit B, the deposition of B.J. Hall, to support his contention that he did not return to work following the accident, but the court was unable to locate any evidence within this exhibit to support this assertion).
Docket Entry No. 80, Exhibit C, letter dated May 16, 1990 from James E. Michels, President and CEO of Incarnate Word Health Services.
In his deposition testimony, Mr. Hall claims that his termination claim as a complete surprise and he was not aware of the exact reasons he was terminated. Docket Entry No. 40, p. 31-35.
Docket Entry No. 80, Exhibit C, letter dated June 8, 1990 from James E. Michels, President and CEO of Incarnate Word Health Services; Agreed Pre-Trial Order, Undisputed Facts, p. 7, ¶ CC.
The same day Hall was terminated from Incarnate Word, he traveled to his son's graduation in Cincinnati. After his termination, Hall also traveled to Louisville, Kentucky, Portland, Oregon, and spent three weeks in Europe on vacation. He also searched for another hospital management position. Hall looked for a job which would not require extensive travel since after the accident he experienced increased difficulty in walking unaided. While using the services of a job placement agency in his search for a new position, Hall received an offer of employment from the agency itself. Hall worked for approximately one month for the job placement agency around September of 1991 until he was forced to resign for health reasons. Hall claimed that the long conversations on the telephone were fatiguing him and causing him to slur his words. By September of 1991 he began to realize that he was disabled and that his physical condition would not permit him to work long interrupted hours.
Docket Entry No. 40, Exhibit F, Deposition of B.J. Hall, Vol. II, p. 167.
Docket Entry No. 40, Exhibit F, Deposition of B.J. Hall, Vol. II, p. 168-69; Docket Entry No. 77, Exhibit 3, Deposition of B.J. Hall, p. 115.
Docket Entry No. 77, Exhibit 3, Deposition of B.J. Hall, Vol. I, p. 116-17; Docket Entry No. 80, Exhibit B, Deposition of B.J. Hall, Vol. II, p. 88, lines 21-22.
Docket Entry No. 80, Exhibit B, Deposition of B.J. Hall, Vol. II, p. 90, lines 21-25.
Id., p. 91, lines 10-18.
Id.
Docket Entry No. 77, Exhibit 3, Deposition of B.J. Hall, Vol. I, p. 142.
During this same time period, Hall consulted two physicians for his post-polio condition. Dr. Grimm of Portland, Oregon and Dr. Vallbona of Houston, Texas each saw Hall on several occasions. In 1991 both of these doctors declared Hall totally disabled. Hall subsequently began to file claims under various long term disability policies he held.
Docket Entry No. 80, Exhibit D, letter from Dr. Robert J. Grimm to Paul R. Davis (stating that he believed Hall to be disabled for his CEO position prior to the May 7, 1990 accident); Exhibit E, letter from Dr. Carlos Vallbona dated Feb. 8, 1993 ("the May 7, 1990 accident is probably the point at which Mr. Hall's condition worsened so dramatically that he could no longer perform the duties of his job").
One of Hall's long term disability policies was held by Incarnate Word Health Services for the benefit of its employees. To recover under the policy, Hall must have become "totally disabled" as defined by the policy while he was an employee of Incarnate Word, that is, before his termination on May 11, 1990. When Hall submitted his claim for long term disability benefits to Hartford in April of 1991, the insurance company denied it.
See supra note 2.
Hall retained Houston attorney Harvill E. Weller in 1993 to represent him in a lawsuit against Hartford to recover his insurance benefits under the Incarnate Word policy. In March of 1995, just several months before the case was scheduled to go to trial, Hall changed attorneys and substituted the Cleveland, Ohio law firm of White, Getgey Meyer for Weller's services. Hall chose White, Getgey Meyer because the firm had previously represented him in a similar lawsuit against another insurance company over long term disability insurance benefits.
The substitution of attorneys in 1995 occurred just 2 months before trial. At the hearing on pretrial matters before Judge Mireles of the 73rd Judicial District Court of Bexar County, Texas, Hartford's motion to exclude all of Hall's expert witnesses was granted. Hall's attorneys had failed to supplement their responses to interrogatories concerning the identity and disclosure of any expert witnesses who were going to testify at trial for Hall. The experts had been originally designated to the court in the formal designation of experts, but this failure to supplement the interrogatories resulted in all of Hall's expert witnesses being excluded from testifying at trial. Without any medical experts to testify on his behalf Hall was advised that he had no possibility of winning his case and settled with Hartford for $20,000.
Procedural Summary
Hall brought the present lawsuit against White, Getgey Meyer in state court in February 1997 alleging negligence, breach of fiduciary duty, negligence per se, and gross negligence. Defendant promptly removed the action to federal court, Plaintiff amended his complaint and dropped his claim for gross negligence.
Docket Entry No. 1.
Docket Entry No. 27.
Defendant attempted to implead Mr. Weller, plaintiffs previous attorney, and two other parties as third party defendants in this lawsuit. Judge Biery granted summary judgment in favor of the third party defendants and dismissed them from this case. White, Getgey Meyer also filed a motion for summary judgment, which Judge Biery denied. This case was originally set for trial with Judge Biery on October 26, 1998. The parties consented to magistrate jurisdiction before trial and the case was assigned to me on October 14, 1998. I originally scheduled this case for trial on April 12, 1999, but it was continued to its present trial date of September 20, 1999.
Docket Entry No. 5.
Docket Entry No. 17.
Docket Entry No. 43.
Docket Entry No. 67.
Docket Entry No. 72.
Docket Entry Nos. 90, 94.
Defendant filed another motion for summary judgment at my suggestion so that legal issues could be simplified or resolved before trial. Defendant asks the court to rule as a matter of law that plaintiff was not "totally disabled" on May 11, 1990 and was therefore not entitled to any benefits under the policy. Alternatively, defendant asks the court to rule that plaintiff must show that he would have collected a substantial judgment from Hartford in the underlying lawsuit, that defendant is entitled to a 40% credit which Weller waived for his release, and that several other benefits plaintiff received relating to his disability should be offset from any recovery. Because the first ground upon which defendant moves is dispositive of this case, I do not reach the other issues.
Plaintiff has failed to submit evidence creating a fact issue that he was "totally disabled" and was prevented by disability from doing "all the material and substantial duties of his occupation" as defined in the insurance policy at issue. Because of this lack of evidence, he has failed to create a fact issue that his underlying lawsuit had merit and that the negligence of White, Getgey Meyer was the proximate cause of his failure to collect under that policy. Because Hall has failed to create a fact issue that he was "totally disabled" on May 11, 1990, I will grant the defendant's motion.
Summary Judgment Standard
A party is entitled to summary judgment upon motion if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment; the requirement is there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted?
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986); Banc One Capital Partners Corp. v. Kneipper 67 F.3d 1187, 1198 (5th Cir. 1995); Neff v. American Dairy Oueen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Wise v. E.I. DuPont DeNemours Co., 58 F.3d 193, 195(5th Cir. 1995); MacMillian v. United States, 46 F.3d 377, 380-81 (5th Cir. 1995).
Anderson v. Liberty Lobby, Inc., 477 U.S. at 249; Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir. 1995); Banc One Capital Partners Corp. v. Kneipper 67 F.3d at 1198.
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. However, Rule 56 does not require the moving party support its motion with evidentiary materials negating the opponent's claim. Regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion must be granted if the evidence before the court demonstrates the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Thus, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmoving party may not rest upon the mere allegations or denials in his pleading. Rather, the nonmoving party's response must set forth facts showing there is a genuine issue for trial. If the nonmovant does not so respond, the court must enter summary judgment against him.
Celotex Corp. v. Catrett 477 U.S. at 323; Wise v. E.I.DuPont Nemours Co., 58 F.3d at 195; Burfield v. Brown, Moore, Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995).
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); Celotex Corp. v. Catrett, 477 U.S. at 323.
Id .
Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp. v. Catrett 477 U.S. at 324; Neff v. American Dairy Queen Corp., 58 F.3d at 1065; Engstrom v. First Nat'l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995),cert. denied 516 U.S. 818 (1995).
Lujan v. National Wildlife Federation, 497 U.S. 871, 884 (1990); Celotex Corp. v. Catrett, 477 U.S. at 323.
Discussion
White, Getgey Meyer previously moved for summary judgment in this case in November of 1997. In that motion defendant moved for summary judgment on three separate grounds. Judge Biery denied the motion on January 28, 1998. In his order denying the motion, Judge Biery did not address the merits of defendant's arguments, but simply stated that there were genuine issues of material fact in the record and therefore summary judgment was not appropriate. In this earlier motion, the third ground defendant relied upon alleged that the plaintiffs underlying lawsuit lacked merit.
Docket Entry No. 29.
Docket Entry No. 43.
Defendant now moves for summary judgment on a ground substantially equivalent to the third ground in the prior motion: plaintiff was not "totally disabled" as defined in the policy during his employment with Incarnate Word and therefore was not entitled to judgment in the underlying suit. Thus, if Hall was not entitled to recover any insurance benefits then defendant's negligence could not have been the proximate cause of plaintiff's failure to recover ajudgment. In his response to the first motion for summary judgment, plaintiff did not produce any medical evidence indicating he was in fact totally disabled, but rather relied upon the testimony of Hall's previous attorneys who had believed that the underlying case had potential for a substantial recovery.
A magistrate judge is not bound by the prior opinions expressed by the district judge if both parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c) and the district judge specifically designates the magistrate judge to conduct civil proceedings. While a magistrate judge is not bound by prior decisions, the Fifth Circuit has noted that a magistrate judge's exercise of the power to disregard the prior ruling of a district judge is unusual. But § 636(c) gives the magistrate the authority to act in the capacity of a district court judge. Although the Fifth Circuit has not addressed this exact factual situation, other circuits have specifically found it within the powers of a magistrate judge to grant summary judgment where a district judge had previously denied a similar motion. Thus, I have authority to rule differently than Judge Biery on this motion for summary judgment.
Cooper v. Brookshire, 70 F.3d 377, 378 n. 6 (5th Cir. 1995) (finding that the magistrate judge had the power to decline to follow the district judge's prior ruling even though the magistrate was overruled).
Id.
28 U.S.C. § 636.
See Shouse v. Ljunggren 792 F.2d 902, 904 (9th Cir. 1986) (magistrate's granting of a motion for summary judgment after the district court had denied a similar motion did not violate law of the case), limited by, Fed. Ins. Co., v. Scarsella Bros., Inc., 931 F.2d 599, 601-2 n. 4 (9th Cir. 1991) (law of case doctrine applies to motions for summary judgment when district court clearly intended to decide the issues at hand).See also Washington v. Digital Equip. Corp . No. 91-1217, 1992 WL 167946, at *7 (4th Cir. July 21, 1992) ("It is well accepted that no more justification need be offered to support a trial judge's reversal of his or another district judge's negative ruling on a summary judgment motion than the mere assertion that the judge changed his or her mind, or disagreed with the conclusion of his or her predecessor.") (citations omitted). But see Best v. Shell Oil Co . 107 F.3d 544, 546-47 (7th Cir. 1997) (second judge may not alter previous rulings simply because he has a different view of the law or the facts than the first judge).
An attorney malpractice claim in Texas is based on negligence. To establish an action based on negligence, the plaintiff must prove four elements: (1) defendant owed plaintiff a duty; (2) the duty was breached; (3) the breach proximately caused the plaintiff injury; and (4) damages resulted. To prevail on a claim for legal malpractice arising from prior litigation, a plaintiff has the burden to show that "but for" the attorney's negligence, he would have been entitled to judgment and further show what amount would have been collected if the client had recovered the judgment. This requirement is commonly known as the "suit within a suit."
Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989) (citations omitted).
Id . at 665 (citing McKinley v. Stripling, 763 S.W.2d 407 (Tex. 1989)).
Ballesteros v. Jones 985 S.W.2d 485, 489 (Tex.App. — San Antonio 1998, no pet.); Hall v. Rutherford, 911 S.W.2d422, 424 (Tex.App.-San Antonio 1995, writ denied); Jackson v. Urban, Coolidge, Pennington Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref'd n.r.e.).
Ballesteros v. Jones, 985 S.W.2d at 489.
To satisfy his burden Hall must first establish that he would have been entitled to a judgment in his favor in the underlying lawsuit. Defendant argues that Hall was not "totally disabled" as defined in the Hartford policy and was therefore not entitled to any recovery. The Hartford policy defined "totally disabled" as "prevented by Disability from doing all the material and substantial duties of your occupation." Therefore as a necessary element of his malpractice claim, Hall has the burden to establish that he was in fact "totally disabled" before he was terminated from his employment with Incarnate Word.
Docket Entry No. 77, Exhibit 2, Group Insurance Policy GLT-32353, Definitions, p. 5.
Hall was employed by Incarnate Word as the Executive Vice President and Chief Operating Officer of Incarnate Word Health Services. His job duties were as follows:
1. Facilitate the development and update of a corporate plan that will ensure the financial viability of Incarnate Word Health Services.
2. Facilitate preparation and analysis of accountability reports of corporate-wide operations and take or recommend follow-up action as appropriate.
3. Ensure that services provided by Incarnate Word Health Services corporate office are effectively accomplished on a measurable value-added basis.
4. Participate in the development of a System long range plan and as an active team member in the ongoing planning function.
5. Serves as a unifying link in the coordination of various programs and services in the hospital system. Develops short, intermediate, and long-range shared service programs, attends inter-hospital committee meetings and serves as the coordinator of designated committees.
6. Attends all corporate member/board meetings and serves in a staff capacity to the corporation board; gathers information, develops policies and prepares system reports needed for board action.
7. Participates on the CEO Advisory Council to obtain input and keep administrators informed of shared activities and programs; works closely with CEO's on common system programs and projects.
8. Attends key meetings, institutes, etc. on local, state and national levels to keep abreast of various trends in the health care and/or other related fields, and in particular, those issues which affect or pertain to multi-hospital systems.
In support of its argument that Hall was not totally disabled, defendant relies on the deposition testimony of Hall himself. Defendant alleges that Hall was still largely capable of performing his job duties, as evidenced by his continued search for employment after his termination. Defendant further argues that plaintiff was not disabled since he did not file for disability benefits under the Hartford policy until the following year.
Hall, on the other hand, argues that he became totally disabled on May 7, 1990, the date of the auto accident. In describing his physical impairments after the accident, Hall claimed that he suffered fatigue, headaches, difficulties in concentration, rubbery legs, and problems with his balance. Hall stated that in the months following his termination, he was unable to travel for business, his speech pattern was not as good as it used to be, his strength was limited so that he was unable to move reports and heavy objects around his office, and he was unable to speak on the phone for long periods of time. In sum, defendant does not dispute that Hall's mobility, balance, and strength were affected, but defendant claims that Hall could still perform his job duties and was not totally disabled.
Docket Entry No. 77, Exhibit 3, Deposition of B.J. Hall, Vol. II, p. 303, lines 14-19.
Docket Entry No. 80, Exhibit B. Deposition of B.J. Hall, Vol. II. p. 89, lines 13-25; p. 91, lines 14-18.
Plaintiff argues that a fact issue has been created for summary judgment purposes concerning whether he was in fact totally disabled by May 11, 1990. Both of the doctors who examined Hall saw him some time after the accident and could not state with certainty the exact date he became totally disabled. However, they both suggested that the May 7, 1990 accident was the probable date since Hall's condition deteriorated more rapidly after the accident. Additionally, plaintiff argues that the evidence creates a fact issue that he was in fact disabled by May 11, 1990 because Hall eventually was declared totally disabled by the Social Security Commission. While the Social Security Commission's finding of disability is not dispositive for purposes of this case, plaintiff argues that because he was declared totally disabled in 1991, it follows that at some point before that date he must have become totally disabled, thereby creating a fact issue that Hall was totally disabled before May 11, 1990.
However, despite his arguments, plaintiff has failed to meet his burden under Texas law. Hall has the burden to show that he would have been entitled to a judgment in his favor in the underlying lawsuit against Hartford. To establish a fact issue that he should have prevailed in the underlying lawsuit and was totally disabled under the terms of the policy, plaintiff must produce evidence that he was "prevented by Disability from doing all the material and substantial duties of [his] occupation." Plaintiff has failed to introduce any evidence relating to his occupation and what the material and substantial duties actually were. Instead, he produced the job requirements for his specific position as the Executive Vice President and Chief Operating Officer of Incarnate Word Health Services. However, no where in the record does plaintiff discuss his occupation generally. Without any evidence regarding his occupation, it is impossible for plaintiff to create a fact issue that he was prevented by disability from doing the material and substantial duties of his occupation, as required by the insurance policy.
Plaintiff's lack of evidence regarding his occupation creates several problems. First, it is not even clear from the record what plaintiffs exact occupation is. Plaintiffs occupation could be described as a finance officer of a multi-hospital system, or possibly administrator of a multi-hospital system, or simply hospital administrator. Plaintiffs evidence even suggests plaintiff was a chief executive officer. The identification and definition of plaintiffs occupation would influence whether he was able to perform the job duties as of May 11, 1990. For example, if plaintiffs occupation was a hospital administrator of a multi-hospital system in an urban area, it may suggest that plaintiff would have a more stressful position and be expected to work longer hours. But, if plaintiffs occupation was simply hospital administrator, there are likely many administrative positions in smaller rural hospitals or nursing homes that do not involve the stress associated with a large urban hospital. Without some evidence, the court has no way of precisely defining plaintiff's occupation.
Docket Entry No. 80, Exhibit D, Letter from Dr. Robert J. Grimm to Paul R. Davis.
Since plaintiff has not identified nor produced any evidence regarding his occupation, the record is void of any information concerning the material and substantial job duties of his occupation. The only information located in the record addresses Hall's specific position at Incarnate Word. Hall stated that he could not travel after the accident, yet only one of the ten job duties listed in his job description appeared to involve travel. It is impossible for the court to know if that travel was a small part of his job, or an integral duty. More importantly, it is impossible to discern if every position within plaintiffs occupation required travel.
Further, plaintiff's evidence produced to establish that he was "totally disabled" is not sufficient to create a material fact for summary judgment purposes. Plaintiffs evidence from Dr. Grimm is not sufficient to even establish that Mr. Hall was disabled from his position at Incarnate Word, much less his occupation, because there is no evidence that Dr. Grimm was aware of plaintiffs job responsibilities. The only knowledge Dr. Grimm apparently had concerning Hall's occupation was that his job occasionally required travel and that Hall had difficulty walking without assistance. The only reference Dr. Grimm makes as to Hall's occupation is that he was aware that in the past Hall had worked as a CEO of a large firm and was accustomed to a twelve hour working day. Furthermore, Dr. Grimm states that he believed Hall to be totally disabled long before he took the job at Incarnate Word. This is problematic because it appears that Hall was in fact capable of performing his job duties prior to the accident.
Docket Entry No. 86, Exhibit 2, Deposition of Dr. Robert J. Grimm, p. 25-26.
Dr. Vallbona, plaintiff's other medical expert, testified that he was familiar with Hall's job responsibilities and that after the accident Hall was not capable of a position that was stressful, required long interrupted working hours, and required travel. He went on to opine that if there were positions available that were not stressful and did not require travel, Hall was capable. However, as noted above, there is no evidence as to what positions were available within Hall's occupation or that every position in Hall's occupation contained stress and travel.
Docket Entry No. 80, Exhibit I, Deposition of Dr. Carlos Vallbona, p. 76-77 (stating that if a position existed that was less stressful, he would not have had any objection to Hall continuing to work).
Finally, even with regard to Hall's position at Incarnate Word, plaintiff has failed to create a fact issue that he was "totally disabled" because he produced no evidence other than a general job description as to what specific duties his job involved. It is impossible to determine how his time was allotted during his workday and if in fact travel was a "material or substantial duty." Only one of the ten duties listed in Hall's job description appeared to require travel. Hall made no attempt to state the frequency of the travel. On that same line, plaintiff had difficulty walking unassisted, but it is not clear whether his job required him to move about the hospital during the day or if he performed all of his job duties from his desk.
The court also notes that Hall alleges that he could not travel for work after the accident, yet Hall's testimony reflects that he traveled the same day he was terminated and he later spent three weeks traveling in Europe. See supra note 14.
Plaintiff has not created a material issue of fact that he was in fact "totally disabled" as defined in the insurance policy before May 11, 1990. Plaintiff has failed to meet his burden to establish that he would have been entitled to judgment in the trial court. Because he has failed to meet the burden, his malpractice claim fails. Because plaintiff has not met his burden, summary judgment is therefore appropriate.
The court also notes that plaintiff pleaded a cause of action for breach of fiduciary duty. However, because that claim is based solely upon defendant's negligence, it will not survive if the negligence claim fails.
Order
Accordingly, it is ordered that Defendant's Motion for Summary Judgment is GRANTED, the Request for an Oral Hearing is DENIED, and plaintiff's claims are DISMISSED. The other pending motions are DENIED AS MOOT.
SIGNED September 13 1999.