## Facts

- Patrick Mossa earned a degree in economics from Queens College in 1973.
- From 1976 to 1982, Mossa co-owned and operated a retail store selling fruits and vegetables.
- Beginning in 1983, Mossa worked for a plumbing, heating, and air-conditioning contractor, MarBev Mechanical, Inc., a business co-owned by his wife and another employee’s wife.
- Provident Life and Casualty Insurance Company issued Mossa an individual Disability Income Policy effective March 9, 1989, providing $5,000 in monthly benefits upon proof of disability as defined by the policy.
- The policy provided an initial “own occupation” definition of disability: due to sickness or injury, the insured is not able to perform the substantial and material duties of his occupation.
- After benefits were paid for two years, the policy continued benefits until age 65 only if the insured was “totally disabled,” meaning he was not able to engage in any gainful occupation in which he might reasonably be expected to engage because of education, training, or experience.
- Mossa later suffered an injury and submitted a disability claim to Provident.
- Provident paid monthly disability benefits for a period, but in September 1995 it notified Mossa that it would stop payments because its records indicated he could work in a gainful occupation.
- Mossa brought a federal diversity action in the Eastern District of New York seeking continued total disability benefits under the policy’s post–two-year “any gainful occupation” definition.
- Provident moved for summary judgment, arguing that Mossa could engage in gainful work consistent with his background and therefore was not “totally disabled” under the policy.

## Issues

1. Whether Provident was entitled to summary judgment that Mossa was not “totally disabled” under the policy’s post–two-year definition because, as a matter of law, he could engage in a gainful occupation reasonably suited to his education, training, or experience.

## Decision

- The court denied Provident’s motion for summary judgment.
- The court held that the record contained genuine disputes of material fact about Mossa’s medical limitations and whether he could realistically perform a gainful occupation within the policy’s “any occupation” standard.
- Because those disputes required weighing competing evidence, the court concluded the matter could not be decided as a matter of law on summary judgment.

## Legal Principles

- Summary judgment is appropriate only when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law; the court must view the evidence in the light most favorable to the nonmoving party.
- Under an “any gainful occupation” disability clause tied to the insured’s education, training, or experience, “total disability” is assessed as a practical question of employability in work reasonably suited to the insured, not by asking whether some job is theoretically possible.
- Where the medical and vocational record permits competing inferences about functional capacity and work ability under the policy’s standard, the insured’s status is generally a fact question that cannot be resolved on summary judgment.

## Conclusion

The Eastern District of New York denied Provident’s summary-judgment motion because the evidence regarding Mossa’s physical condition and his ability to perform gainful work reasonably suited to his education, training, or experience was disputed, leaving the question of total disability for resolution by the factfinder rather than by the court as a matter of law.


Mossa v. Provident Life and Casualty Insurance Company, 36 F. Supp. 2d 524 (1999)