Opinion
NO. 2012 CA 0903
2013-09-16
R. LEE BERRY, M.D. v. THE PAUL REVERE LIFE INSURANCE COMPANY
L. Kevin Coleman Mandeville, Louisiana Attorney for Appellant #1/Appellee, R. Lee Berry, M.D. Lauren A. Welch Thomas Anzelmo Hilliard F. Kelley, III Metairie, Louisiana Attorney for Appellant #2/Appellee, The Paul Revere Life Insurance Company
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2006-11442
The Honorable Martin E. Coady, Judge Presiding
L. Kevin Coleman
Mandeville, Louisiana
Attorney for Appellant #1/Appellee,
R. Lee Berry, M.D.
Lauren A. Welch
Thomas Anzelmo
Hilliard F. Kelley, III
Metairie, Louisiana
Attorney for Appellant #2/Appellee,
The Paul Revere Life Insurance
Company
BEFORE: PARRO, MCDONALD, WELCH, HIGGINBOTHAM, AND
DRAKE, JJ.
DRAKE, J.
This is an appeal by both parties, plaintiff, R. Lee Berry, M.D., ("Dr. Berry") and defendant, The Paul Revere Life Insurance Company ("Paul Revere"). Dr. Berry filed suit seeking reinstatement of benefits pursuant to two different disability policies issued by Paul Revere as well as penalties and attorney's fees claiming the insurance company acted arbitrarily and capriciously in terminating his benefits.
FACTS AND PROCEDURAL HISTORY
In the early 1990's Dr. Berry began his residency in Arizona. After completing his residency, he became a board-certified anesthesiologist and practiced from 1995 to November 2002. Dr. Berry worked in Louisiana beginning in late 1996 until he was caught sleeping on the job due to narcotics use in 2001. Dr. Berry left his Louisiana practice and began working contract jobs as an anesthesiologist, first, in November, 2001, at a medical facility in Washington, and then in Montana. Dr. Berry returned to a job in Washington. Although he did not take narcotics for some months after losing his Louisiana job, after a motor vehicle accident while in Montana, he again began using Demerol which he obtained through his employment as an anesthesiologist. On November 12, 2002, while attending a tubal ligation procedure, a patient was without oxygen and sustained severe brain damage leaving her in a permanent vegetative state. Following this incident, an investigation revealed Dr. Berry was diverting narcotics from patients. Following a meeting at the hospital, Dr. Berry entered into a treatment program at Hazelden Springbrook in Portland, Oregon. Dr. Berry was released from Hazelden after the initial phase of treatment in January, 2003. Hazelden released Dr. Berry with orders that he was not to practice anesthesiology for a year and was then to be re-evaluated. He returned to Louisiana and signed up with the Physician's Health Program which directed him to certain health care providers, including Dr. Eileen Correa, a psychologist, and Dr. Howard Wetsman. He stopped seeing Dr. Wetsman in June, 2004, and began seeing Dr. Dean Hickman, a psychiatrist who specializes in addictive disease. He also participated in Alcoholics Anonymous (AA) meetings and a caduceus group, which is an AA meeting for medical professionals. Dr. Berry also saw Dr. Thompson and Dr. Black for an independent medical exam (IME) as directed by the defendant. Dr. Berry has been drug free since November 15, 2002.
Although the record contains various spellings of Hazelden, such as Hazelton, the correct spelling is Hazelden.
A program run by the Physician's Health Foundation to which the Louisiana State Board of Medical Examiners delegates chemical dependency treatment and monitoring.
As a result of the Washington incident and further investigations, Dr. Berry's medical licenses in Arizona, Washington, and Louisiana were suspended. The Louisiana State Board of Medical Examiners issued an order, rendered in February, 2005, prohibiting Dr. Berry from the practice in the field of anesthesiology.
PROCEDURAL BACKGROUND
In January, 2003, Dr. Berry filed claims for disability benefits pursuant to two separate policies he had through the defendant insurer, Paul Revere. Paul Revere paid Dr. Berry full disability benefits under both policies for approximately two and a half years, from March, 2003, through August, 2005, when it deemed him to be no longer presently disabled under the terms of the policy. At the time that Paul Revere discontinued paying disability benefits, Dr. Berry had been drug free since November 15, 2002, was in continuous rehabilitative treatment, and had no license to practice anesthesiology in the State of Louisiana (his covered occupation).
On April 5, 2006, Dr. Berry filed a petition for damages against Paul Revere, claiming that his addiction to prescription medications rendered him permanently and totally disabled from the practice of anesthesiology, because resuming his practice would require him to handle a great variety of narcotic and other controlled substances, in turn, increasing his risk of relapse. Dr. Berry alleged that Paul Revere was arbitrary and capricious in terminating his benefits, thereby entitling him to recover the full benefits under both policies, as well as statutory penalties, interest, costs, and attorney's fees.
In May 2007, Dr. Berry filed a Motion for Summary Judgment, or alternatively, for Partial Summary Judgment, declaring he was totally disabled from his occupation under the terms of both disability policies for the remainder of his life. He sought judgment ordering the payment of benefits from September 1, 2005, (the date benefits were terminated) through the date of the judgment. The trial court denied Dr. Berry's motion. Paul Revere subsequently filed its own motion for summary judgment asserting that there were no genuine issues of material fact and that Dr. Berry's risk of relapse did not constitute a present total disability as defined and provided for in the policies at issue. Paul Revere claimed that Dr. Berry was not entitled to benefits and sought dismissal of the claims with prejudice. The trial court granted Paul Revere's motion for summary judgment and dismissed Dr. Berry's claims. Dr. Berry appealed and this court reversed the trial court reinstating the claims of Dr. Berry and affirmed the trial court's denying of Dr. Berry's motion for summary judgment. See Berry v. Paul Revere Life Ins. Co., 08-0945 (La. App. 1 Cir. 9/14/09), 21 So. 3d 385, 392, writs denied, 09-2220, 09-2241 (La. 12/18/09), 23 So. 3d 942 and 945 (hereinafter referred to as Berry I). The matter was remanded to the trial court.
A jury trial was held on August 29 through September 1, 2011. Following the jury verdict, the trial court signed a judgment which stated that judgment was rendered "in favor of plaintiff, R. Lee Berry, M.D., and against the defendant, The Paul Revere Life Insurance Company, finding that the plaintiff is totally disabled under the terms of the two policies in question...." The judgment further awarded Dr. Berry previously stipulated damages of benefits from August 31, 2005 through September 1, 2011 in the amount of Three Hundred Forty-Seven Thousand Five Hundred Twenty-Four and 56/100 Dollars ($347,524.56), together with legal interest on each payment from date due until paid, and for all costs of these proceedings. The judgment also sets forth that the "obligations and benefits in the future are to be in accordance with the terms and conditions of the policies." Finally, the judgment recognizes that Dr. Berry's claims for penalties and attorney's fees under LSA-R.S. 22:1821 were denied.
Although the judgment refers to LSA-R.S. 22:1221, the appropriate statute is LSA-R.S. 22:1821.
Following the signing of the judgment, Paul Revere filed a Motion Notwithstanding the Verdict which the trial court denied. Both Dr. Berry and Paul Revere appeal the judgment.
ASSIGNMENTS OF ERROR
Both parties assigned numerous errors which are summarized as follows: Dr. Berry claims:
(1) The trial court erred in not allowing the jury to award future damages;Paul Revere claims:
(2) The jury erred in failing to find bad faith;
(3) The trial court erred in allowing defendant to present alternative forms of medical treatment without first having to prove that the care afforded by plaintiff's chosen physicians was not within prevailing medical standards;
(4) The trial court erred in excluding evidence of numerous reported incidences of defendant's bad faith;
(5) The trial court erred in failing to rule there was no further need for "physician's care" and instruct the jury as to plaintiff's Suggested Jury Charge No. 2.
(1) The jury verdict is tainted by error because the jury instructions and verdict form failed to fairly and reasonably denote the issues and proved correct principles of law which is reversible error due to the confusion of the jury;
(2) The evidence of plaintiff's inability to perform his duties of his occupation due to legal disability preceded any alleged factual disability he claims to have;
(3) Plaintiff failed to meet his burden of proof to establish his entitlement to benefits since there is no evidence in the record which the jury could base a reasonable conclusion that Dr. Berry is currently receiving appropriate care for the condition causing his disability.
STANDARD OF REVIEW
Both policies issued to Dr. Berry contain insuring language which is essentially identical. One of the policies provides for a maximum benefit period until age 65. The second policy provides for a lifetime maximum benefit period. Each policy defines a "Total Disability" as meaning:
[B]ecause of Injury or Sickness:
a. You are unable to perform the important duties of Your Occupation; and
b. You are receiving Physician's Care. We will waive this requirement if We receive written proof acceptable to Us that further Physician's Care would be of no benefit to You.
Paul Revere seeks to reverse the jury verdict that Dr. Berry is totally disabled as defined by the policy. In order to reverse a fact finder's determination of fact, an appellate court must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. Denton v. Vidrine, 06-0141 (La. App. 1 Cir. 12/28/06), 951 So. 2d 274, 287, writ denied, 07-0172 (La. 5/18/07), 957 So. 2d 985; Stobart v. State through Dept. of Transp. and Development, 617 So. 2d 880, 882 (La. 1993). Based on our exhaustive review of the record before us, and mindful of the great deference we must afford the trier of fact, we find no manifest error in the jury's finding that Dr. Berry is totally disabled and that he received regular and appropriate physicians' care for his addiction.
LAW AND ANALYSIS
Paul Revere's Assignments of Error
Error No. 1--Tainted Jury Verdict
Paul Revere acknowledges that the manifest error standard is applied to factual findings which cannot be set aside unless the appellate court finds that the trier of fact's determination is manifestly erroneous or clearly wrong. Denton, 951 So. 2d at 287. However, Paul Revere claims that when the jury instructions do not fairly and reasonably denote the issues and provide correct principles of law, the manifest error standard will not apply. Verret v. Tonti Management Corp., 95-158 (La. App. 5 Cir. 6/28/95), 662 So. 2d 480, writ denied, 95-3030 (La. 2/16/96), 667 So. 2d 1054.
It is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions, and that a trial court judgment will not be reversed so long as the charge correctly states the substance of the law. Harris v. State, through Department of Transportation and Development, 07-1566 (La. App. 1 Cir. 11/10/08), 997 So. 2d 849, 868, writ denied, 08-2882 (La. 2/6/09), 999 So. 2d 985. Paul Revere claims that the jury should have been instructed that if the revocation of Dr. Berry's licenses resulted solely from his negligence and drug diversion, he was not entitled to benefits, and it was unnecessary to address his risk of relapse. Further, Paul Revere claims that the jury should have been instructed that an illness is not the same as an impairment that prevents an individual from performing the duties of his occupation.
To determine the law with regard to this matter, this court addresses its own prior opinion on a previous motion for summary judgment. This court previously stated:
We find this factual inquiry as to Dr. Berry's licensing status remains a genuine issue of material fact. Our review of the record reveals that the license revocations imposed on Dr. Berry could have been based upon and in response to his addiction (sickness or disease under the policies); the negligence in the performance of his duties; his wrongful acts of diverting his patient's medications for his own personal use; or a combination of all three. Thus, we believe there remains a genuine issue of material fact concerning whether Dr. Berry's claim for benefits arises from factual disability and not solely on his inability to practice medicine based on the revocation of his medical licenses.Berry I, 21 So. 3d at 392. Paul Revere argues that the above passage means that if the jury found that the revocation of his medical licenses was solely due to his negligence and drug diversion, Dr. Berry would not be entitled to benefits. Berry I found:
If the suspension of the license arises out of the covered sickness, then it may be a basis for determining disability. Indeed, many jurisdictions are in accord that where a health-related disability, on its own, would make a return to work impossible, the existence of a legal disability, even one caused by the health-related disability, does not justify the denial of benefits.
Id. at 390-391.
This court then determined that a risk of relapse for drug addiction as a basis for disability was not excluded by the policies issued by Paul Revere. Id. at 394. The case was remanded to determine if Dr. Berry's risk of relapse was sufficiently high to determine that he was unable to return to the important duties of his occupation. Id. at 395-396. This court set forth that a legal disability caused by a health-related disability does not justify the denial of benefits.
In a jury trial, the trial court is obligated to give instructions that properly reflect the law applicable in light of the pleadings and facts in each case. Hymel v. HMO of Louisiana, Inc., 06-0042 (La. App. 1 Cir. 11/15/06), 951 So. 2d 187, 198, writ denied, 06-2938 (La. 2/16/07), 949 So. 2d 425. Adequate jury instructions are those instructions that fairly and reasonably point out the issues presented by the pleadings and evidence and that provide correct principles of law for the jury to apply to those issues. Id. Whether or not to include a requested jury instruction is a matter within the wide discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. Gardner v. Griffin, 97-0379 (La. App. 1 Cir. 4/8/98), 712 So. 2d 583, 586. When assessing an allegedly erroneous jury instruction, it is the duty of the reviewing court to evaluate such impropriety in light of the entire jury charge to determine if it adequately provides the correct principles of law as applied to the issues and whether they adequately guided the jury in its deliberation. Hymel, 951 So. 2d at 198. An appellate court must exercise great restraint before overturning a jury verdict on the suggestion that the jury instructions were so erroneous as to be prejudicial. Id.
The trial court properly instructed the jury on the policy language at issue. The trial court stated:
When deciding whether Dr. Berry is totally disabled under the policy you must also determine whether Dr. Berry's claim for disability benefits arises solely from his addiction in that he is unable to perform the important duties of his occupation because there would be a serious risk to his health and the health and well-being of the public because it has being proven by the preponderance of the evidence that there is a probability of relapse by Dr. Berry which is sufficiently high. If instead you find the only reason Dr. Berry is unable to perform the important duties of his occupation is because of the revocation of his medical license due to any negligence in the performance of his duties or his wrongful act of diverting patient's medications for his own personal use, then Dr. Berry is not considered totally disabled under the policy.
The jury properly had before it the information regarding the loss of Dr. Berry's licenses in several states. The trial court instructed the jury that if it found the sole reason Dr. Berry was unable to perform the important duties of his occupation was due to revocation of his medical license due to negligence or diverting of patients medication, then Dr. Berry was not to be considered totally disabled under the policy. The trial court's instruction is clearly what Berry I stated. Taking the entire jury charges as a whole, the jury found that the revocation of Dr. Berry's medical license due to negligence or diverting patient medication was not the sole reason Dr. Berry was unable to perform the important duties of his occupation. The jury's factual finding will not be overturned absent manifest error of which this court finds none.
Paul Revere also claims that the jury should have been instructed that an "impairment" is different from an "illness." The policies at issue do not require an "impairment" in order to be disabled. The policies require for "Total Disability" a claimant show that "because of Injury or Sickness" the claimant is "unable to perform the important duties of Your Occupation" and that the claimant is "receiving Physician's Care." "Sickness" is defined in the policy as "sickness or disease which first manifests itself after the Date of Issue and while Your Policy is in force." The trial court did not abuse its wide discretion by not allowing the suggested jury instruction of Paul Revere as to 'impairment" as the policies do not require an "impairment" for an insured to be totally disabled. The policy does not define a "sickness" as anything other than a "sickness or disease." Paul Revere could have easily distinguished between "sickness" and "impairment" in its definitions. The trial court is not required to supplement the definitions of an insurance policy when the insurer does not include language that it now wishes it had.
Paul Revere complains that the jury verdict form is misleading and that no rational basis exists for the conclusions of the jury. The jury answered the following special jury interrogatories:
(1)Do you find by a preponderance of the evidence that Dr. Berry is unable to perform the important duties of his occupation as an anesthesiologist because of his addiction? Yes.
(2) Do you find by a preponderance of the evidence that Dr, Berry is unable to perform the important duties of his occupation only because of the revocation of his medical license due to his negligence or wrongful acts and not solely because of a probability of a relapse into addiction? No.
(3) Do you find by a preponderance of the evidence that the probability of Dr. Berry having a relapse into addiction if he returned to the practice of anesthesiology is sufficiently high enough to pose a serious risk to his health and the health and well-being of the public to justify a finding of total disability? Yes.
(4) Do you find by a preponderance of the evidence that Dr. Berry has received regular and appropriate physicians' care for his addiction? Yes.
(5) Do you find by a preponderance of the evidence that the defendant had just and reasonable grounds when it terminated Dr. Berry's disability benefits? Yes.
Louisiana Code of Civil Procedure article 1792(B) requires the trial court to instruct jurors on the law applicable to the cause submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. LeBlanc v. Landry, 08-1643 (La. App. 1 Cir. 6/24/09), 21 So. 3d 353, 358, writ denied, 09-1705 (La. 10/2/09), 18 So. 3d 117 (citing Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So. 2d 798, 804; Baxter v. Sonat Offshore Drilling Inc., 98-1054 (La. App. 1 Cir. 5/14/99), 734 So. 2d 901, 906). The sufficiency of a jury charge must be determined in light of the charge as a whole. The charge must correctly state the law and be based on evidence adduced at trial. LeBlanc, 21 So. 3d at 358 (citing Baxter, 98-1054 at p. 6, 734 So.2d at 906).
The standard of review in determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. LeBlanc, 21 So. 3d at 358 (citing Belle Pass Terminal, Inc. v. John, Inc., 92-1544 (La. App. 1 Cir. 3/11/94), 634 So. 2d 466, 489, writ denied, 94-0906 (La. 6/17/94), 638 So. 2d 1094). Because the adequacy of a jury instruction must be determined in the light of jury instructions as a whole, when small portions of the instructions are isolated from the context and are erroneous, error is not necessarily prejudicial. LeBlanc, 21 So. 3d at 358 (citing Adams, 07-2110, 983 So. 2d at 805).
Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial, the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case
Id.
Taking the jury instructions as a whole, it cannot be said that Jury Instruction No. 2 is so confusing that it is prejudicial. The jury answered the other instructions consistent that Dr. Berry is totally disabled under the policy and that he has a sufficiently high risk of relapse into addiction that he would pose a serious health risk to himself or to the public. Therefore, Paul Revere's error as to the jury charges is without merit.
Error No. 2--Legal Disability vs. Factual Disability
Paul Revere assigns as error the failure to find that Dr. Berry's inability to perform his duties of his occupation due to a legal disability preceded any alleged factual disability. Therefore, Paul Revere claims Dr. Berry is not totally disabled under the policy. In Berry I, this court distinguished several cases cited by Paul Revere, on the basis that in each of those cases the legal disability occurred prior to the requests for benefits based on a physical disability. 21 So. 3d at 392 n.6. Paul Revere goes through great lengths to attempt to show that the legal disability of Dr. Berry preceded the factual disability. This court previously found that "Dr. Berry had a documented substance abuse problem dating back at least to 2002, began receiving disability benefits in March 2003, and did not sustain the revocation of his medical licenses until 2004 in the state of Washington and until 2005 in Louisiana and Arizona." Id. After an extensive review of the record, there is nothing which changes those facts or alters the view of this court that the factual disability of Dr. Berry preceded any legal disability he may have incurred. This error is without merit.
Goomar v. Centennial Life Insurance Company, 855 F.Supp. 319 (S.D.Cal. 3/8/94); Brumer v. National Life of Vermont, 874 F.Supp. 60 (E.D.N.Y. 1/24/95); and Allmerica Financial Life Insurance and Annuity Company v. Llewellyn, 139 F.3d 664 (9th Cir. 1997).
Error No. 3--"Physician's Care"
Paul Revere claims that there is no evidence in the record on which the jury could base a reasonable conclusion that Dr. Berry is currently receiving appropriate care for the condition causing his disability. As stated above, the policies at issue define a total disability as being "unable to perform the important duties of Your occupation" and "receiving Physician's Care." "Physician's Care" is defined as follows:
the regular and personal care of a Physician which, under prevailing medical standards, is appropriate for the condition causing the disability
Paul Revere claims that Dr. Berry did not receive care which was "appropriate" for the condition causing the disability since the care did not seek to return Dr. Berry to the practice of anesthesiology. Paul Revere employee, Diane Freeman, testified that the expectation is that the insured would receive treatment that is directed at helping the insured return to work. The evidence at trial set forth that Dr. Berry attended group meetings with Dr. Correa, a psychologist at Ochsner's Addictive Behavior unit, and treated with an addiction psychiatrist, Dr. Wetsman. Dr. Berry stopped seeing Dr. Wetsman in June 2004 and began seeing Dr. Dean Hickman, a psychiatrist who specializes in addictive disease. Dr. Berry also attended AA meetings and a caduceus group, which is AA for medical professionals. On June 25, 2004, Dr. Hickman wrote a letter stating that Dr. Berry could never return to work as an anesthesiologist, due to the potential risk of relapse.
Currently Ms. Freeman is employed by the UNUM Group, which wholly owns Paul Revere.
Dr. Hickman has continued to see Dr. Berry since 2004, and had last seen Dr. Berry approximately six months prior to the date of the trial. Dr. Hickman's opinion has not changed since the date of his 2004 letter that Dr. Berry should never return to the practice of anesthesiology because it poses special risks since Dr. Berry will be exposed to the availability and administration of controlled substances. Dr. Hickman felt that the risk of relapse is too significant to Dr. Berry as well as the risk to any of his patients. Dr. Hickman considered the length of the addiction and the fact that Dr. Berry stopped using addictive drugs for a while, but eventually resumed using them. Dr. Hickman testified that he has returned addictive doctors to their practices in the past. Dr. Hickman testified that there is no cure for addictive patients. Even though Dr. Berry has been sober for almost a decade, he is still considered opioid dependent, "sustained full remission." Dr. Hickman testified that the fact that Dr. Berry was not exposed to anesthetics has a lot to do with the fact that he remained sober as of the day of trial.
A second treating physician, Dr. Correa, a psychologist, testified that she also recommended Dr. Berry not return to the practice of anesthesiology due to a fear he would overdose. Although she has suggested that at least six addicted physicians return to their field of anesthesiology, she felt fairly certain that Dr. Berry would relapse should he return to anesthesiology. Dr. Correa testified that no matter what percentage of other anesthesiologists returned to their practice after an addiction, Dr. Berry would not be in that number.
Dr. William Black, a neuropsychologist, performed an IME on Dr. Berry, and testified on behalf of Paul Revere. Dr. Black thought Dr. Berry could benefit from further treatment. Dr. John W. Thompson, a psychologist, who is board certified in the filed of psychiatry, forensic psychiatry, and addiction psychiatry, also conducted an IME of Dr. Berry. Dr. Thompson felt Dr. Berry's treatment would be optimized if he attended more AA meetings and adopted a more active approach to his chemical dependency. Dr. Thompson believed a plan could be fashioned for Dr. Berry to return to work as an anesthesiologist with supervision. Dr. Michael Sprintz, a board certified anesthesiologist and expert in pain management and addiction medicine, testified regarding risk of relapse and Dr. Berry's ability to return to the practice of anesthesiology. Dr. Sprintz was hired by Paul Revere to review the case and issue an opinion. Dr. Sprintz testified generally about the ability of an anesthesiologist with substance abuse disorders to return to work and about his disagreement with Dr. Berry's treating physicians.
The jury was presented with the evidence from all of the above doctors and chose to believe that Dr. Berry could not return to being an anesthesiologist. No where does the policy state that the treatment for an underlying disease has to include getting a person back to their occupation. Paul Revere would have this court believe that with more treatment, Dr. Berry could return to being an anesthesiologist as opined by the physicians who testified on behalf of Paul Revere. Even if Paul Revere expected the treatment to return Dr. Berry to anesthesiology, there is no requirement in the policy that the treatment be aimed at doing so. Dr. Berry did receive treatment to become sober and has remained sober. It is his sufficiently high risk of relapse which prevents him from returning to anesthesiology.
As previously noted, in order to reverse a fact finder's determination of fact, an appellate court must find from the record that a reasonable factual basis does not exist but for the finding and that the record establishes that the finding is clearly wrong. Denton, 951 So. 2d at 287; Stobart, 617 So. 2d at 882. This court finds that there was a reasonable factual basis for the jury to determine that Dr. Berry is totally disabled according to the policies issued to him which included that he received "appropriate" medical care. The jury chose to believe the testimony of plaintiff's physicians over the conflicting testimony of the defendant's physicians that Dr. Berry has a sufficiently high risk of relapse so that he is totally disabled. Considering this credibility determination, we cannot say the jury's finding was manifestly erroneous. See Landry v, Leonard J. Chabert Medical Center, 02-1559 (La. App. 1 Cir. 5/14/03), 858 So. 2d 454, 465, writs denied, 03-1748, 03-1752 (La. 10/17/03), 855 So. 2d 761.
Dr. Berry's Assignment of Errors
Dr. Berry has also appealed this matter. We will address Dr. Berry's assignments of Error in a different order than presented.
Errors No. 2 and 4--Bad Faith of Paul Revere
Dr. Berry has made a claim that the action of Paul Revere in terminating his benefits was arbitrary and capricious and sought damages pursuant to LSA-R.S. 22:1821(A) which provides that the defendant is liable for double the amount of all past due monthly benefits and attorney's fees unless it can show that "just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist" to support its non-payment.
Although Dr. Berry refers to this article as LSA-R.S. 22:657(A), the article is now numbered LSA-R.S. 22:1821.
Dr. Berry received a letter on August 31, 2005, from Paul Revere terminating his benefits due to the fact that Paul Revere thought the treatment of Dr. Berry was not appropriate and that it felt a risk of relapse was not covered under the policy.
Whether an insurer had "just and reasonable grounds" justifying its refusal to pay is a question of fact. Dorsey v. Board of Trustees, State Employees Group Benefits Program, 482 So.2d 735, 739 (La. App. 1 Cir. 1985), writs denied, 486 So.2d 735 and 736 (La. 1986). The trial court's finding on this issue should not be disturbed unless it is clearly wrong. Id. What are "just and reasonable grounds" is a question of fact, and the district court's findings should not be disturbed unless they are clearly wrong. Landry v. Louisiana Hosp. Service, Inc., 449 So. 2d 584, 589 (La. App. 1 Cir. 1984) (citing Lucito v. Louisiana Hospital Service, Inc., 392 So. 2d 700 (La. App. 3rd Cir. 1980)). Where an insurer's interpretation of its policy is reasonable and not contrary to any existing jurisprudence, the denial of a claim is not arbitrary so as to require the imposition of penalties, and the insurer has a right to a judicial determination of the issues. While a court may disagree with the interpretation the insurer places upon its policy, its actions in refusing to pay should not necessarily subject it to the penalty provisions of the statute. Landry, 449 So. 2d at 589. A court will reverse an award of penalties and attorney's fees if there is a reasonable basis for the defendant to contest the plaintiff's benefits under the policy. See Mansour v. State Through State Employees Group Benefits Program, 96-0669 (La. App. 1 Cir. 4/29/97), 694 So. 2d 1096, 1100-1101.
When Paul Revere terminated the benefits for Dr. Berry, there were no Louisiana cases regarding the issue of whether a risk of relapse was covered by a disability policy containing the language of the Paul Revere policies. Therefore, the issue before the court was res nova in Louisiana. Berry I, 21 So. 3d at 393. It was reasonable to interpret the policy not to include the "risk of relapse" until decided by the court. Additionally, the jury has found that Paul Revere was just and reasonable in terminating the benefits when it did. This court does not find that the jury's finding of fact is clearly wrong.
Dr. Berry assigns another error regarding bad faith claiming that the trial court erred in excluding evidence of the numerous reported incidences of defendant's bad faith. Dr. Berry lists numerous cases, regulatory actions, and newspaper articles depicting incidences of defendant's actions in other states.
The trial court is granted a broad range of discretion when ruling on the admissibility of evidence, and evidentiary rulings shall not be disturbed on appeal absent a clear abuse of that discretion. Grayson v. R.B. Ammon and Associates, Inc., 99-2597 (La. App. 1 Cir. 11/3/00), 778 So. 2d 1, 10. We find no merit that the trial court made an erroneous evidentiary ruling with regard to Paul Revere's prior acts. La. C.E. art. 404(B) does not permit the introduction of other wrongs or acts to prove the character of a person to show that he acted in conformity therewith. Dr. Berry clearly attempted to use the prior acts of Paul Revere to show that it acted in conformity with its previous acts. We find no abuse of discretion in the trial court's refusal to admit into evidence the prior bad acts of Paul Revere.
Error No. 3--Alternative Forms of Treatment
Dr. Berry assigns as its third error that the trial court erred in allowing Paul Revere to present alternative forms of medical treatment without first having to prove that the care afforded by the Dr. Berry's chosen physicians was not within prevailing medical standards. The policies require that the beneficiary be receiving "Physician's Care" which is defined as:
... the regular and personal care of a Physician which, under prevailing medical standards, is appropriate for the condition causing the disability.
Dr. Berry complains that the admission of evidence of other treatment mislead the jury on the issue of the defendant's bad faith. The policies require that the care Dr. Berry received was appropriate "under prevailing medical standards." The trial court permitted Paul Revere to introduce evidence regarding alternative forms of treatment Dr. Berry may have obtained. In an action under an insurance contract, the insured bears the burden of proving the existence of the policy and coverage; however, the insurer bears the burden of proving any policy limits or exclusions. George S. May Intern. Co. v. Arrowpoint Capital Corp., 11-1865 (La. App. 1 Cir. 8/10/12), 97 So. 3d 1167, 1175. The evidence of which Dr. Berry complains pertains to the Paul Revere's burden of proof regarding its insurance policy. Paul Revere was attempting to show the exclusions and limits of its policy. The trial court did not abuse its discretion in permitting the evidence sought to be excluded by Dr. Berry. See Grayson, 778 So. 2d at 10.
Even assuming the trial court erred in admitting the evidence of alternative treatment, we find that it was harmless error. See Gohres v. Dryer, 09-0473 (La. App. 1 Cir. 11/18/09), 29 So. 3d 640, 644. The jury was permitted to hear the evidence of all the physicians and determined that Dr. Berry was totally disabled. Moreover, there is no evidence that the jury was misled by the testimony of any of the physicians. All of the physicians were subject to cross-examination. The jury ultimately found that Dr. Berry received regular and appropriate physicians' care for his addiction. This error is without merit.
Error No. 1--Future Damages
Dr. Berry assigns as its first error that the trial court erred in not allowing the jury to award future damages. The trial court stated the following reasons for not permitting any evidence on the present value of future benefits at the trial:
The Court has reviewed this matter and notes that benefits under the two policies issued to Dr. Berry are payable only on a periodic monthly basis and are subject to continuing proof of loss, requiring the insured to submit to examinations by a physician of the insurer's choice while the claim is continuing. Future benefits are not payable under the policies because they have not yet accrued, and any evidence regarding the value of future benefits is excluded. Defendant's Motion in Limine on this issue is granted.
The rules concerning the interpretation of insurance contracts have been set forth by the Louisiana Supreme Court in the case of Crabtree v. State Farm Insurance Co., 93-0509 (La. 2/28/94), 632 So. 2d 736, 741. Smith v. Burton, 04-2675 (La. App. 1 Cir. 12/22/05), 928 So. 2d 74, 78. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Crabtree, 632 So. 2d at 741. If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent, and the agreement must be enforced as written. Id. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Id. The policy should be construed as a whole, and one portion thereof should not be construed separately at the expense of disregarding another. Id. Further, in the interpretation of statutes and contracts, the specific controls the general. Smith, 928 So. 2d at 78. (citing Aikman v. Thomas, 03-2241, 03-2242 (La.App. 1 Cir. 9/17/04), 887 So. 2d 86, 90).
The policies at issue specifically provide in Section 9.4:
Written proof of loss must be sent to Us within 90 days after the end of each period for which You are claiming benefits. If that is not reasonably possible, Your claim will not be affected, But, unless you are legally incapacitated, written proof must be given within one year of the date it was required.
The policy at issue calls for benefits to be paid on a monthly basis. However, it is not required that Dr. Berry submits to a physician monthly. Other courts have held that the requirement of "regular and personal attendance of a licensed physician" only requires "that the insured is obligated to periodically consult and be examined by his or her treating physician at intervals to be determined by the physician." Rahman, M.D. v. Paul Revere Life Insurance Co., Inc., 684 F.Supp. 192, 198 (citing Heller v. Equitable Life Assurance Society, 833 F.2d 1253, 1257 (7th Cir. 1987)). Given a trial court's broad range of discretion when ruling on the admissibility of evidence, we find no clear abuse of that discretion. See Grayson, 778 So. 2d at 10. Furthermore, the trial court issued a judgment stating that the "obligations and benefits in the future are to be in accordance with the terms and conditions of the policies." Dr. Berry is not entitled to the present value of future damages, but only to benefits in the future as stated in the policy which requires monthly payments after proof of loss and periodic exams by a treating physician "to be determined by the physician." See Rahman, 684 F.Supp. at 198. This assignment of error is without merit.
Error No. 5--Further Physician's Care
Dr. Berry assigns as error that the trial court should have ordered no further need for "physician's care." Dr. Berry makes this assignment of error in the alternative should this court does not award the present value of future damages. For the reasons stated above, Dr. Berry is not entitled to the present value of future damages or to a ruling that he no longer submit to the "regular and personal care of a licensed physician." This error is without merit.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed for the reasons set forth above. Costs of the appeal are assessed to both parties equally.