## Facts

- Berkshire issued Paul Shapiro, a dentist and owner of two dental practices, two disability income policies (1990 and 1995) providing benefits for “total disability” and “residual disability.”
- The policies defined “total disability” as the inability to perform the material and substantial duties of the insured’s occupation, and defined “your occupation” as the occupation engaged in immediately before disability onset.
- “Residual disability” was defined to include inability to perform one or more substantial and material duties of the insured’s business or profession, or inability to perform duties for the usual length of time.
- Immediately before disability onset, Shapiro spent about 90% of his working time performing clinical “chair work” (hands-on dental treatment) and the remainder on administrative and management tasks.
- Shapiro developed degenerative arthritis and cervical spondylosis, which made chair dentistry unsafe; he stopped clinical work but remained able to perform management and administrative duties.
- Shapiro sought total disability benefits, asserting his occupation was practicing dentist and the material duties were clinical; Berkshire denied total disability benefits, asserting he remained occupationally active due to continued management work and substantial ongoing income.
- In a diversity action, the district court granted summary judgment to Shapiro on breach of contract (total disability) and granted summary judgment to Berkshire on Shapiro’s New York General Business Law § 349 claim (deceptive practices).
- Berkshire appealed the total-disability ruling; Shapiro cross-appealed the § 349 ruling.

## Issues

1. Under an “own occupation” disability policy, is an insured dentist “totally disabled” when he can no longer perform clinical dentistry but can still perform practice-management duties?
2. Did the insurer’s marketing and claims-handling conduct constitute materially misleading, consumer-oriented deception actionable under N.Y. Gen. Bus. Law § 349?

## Decision

- The Second Circuit affirmed summary judgment for Shapiro on the breach of contract claim.
- The court held that Shapiro’s occupation immediately before disability was practicing dentist, whose material and substantial duties were predominantly clinical chair work.
- Because Shapiro could no longer perform the principal clinical duties, he was totally disabled under the policies even though he could still perform administrative/management work and continued to earn substantial income.
- The Second Circuit affirmed summary judgment for Berkshire on the § 349 claim because Shapiro failed to produce sufficient evidence of materially misleading, consumer-oriented conduct.

## Legal Principles

- “Your occupation” in an own-occupation disability policy is determined by the insured’s actual primary work immediately before disability, not by every task associated with the insured’s business.
- Total disability may be established when the insured cannot perform the principal material and substantial duties of the occupation, even if the insured can still perform incidental administrative or managerial functions.
- Continued income from business ownership or delegation of professional work does not, by itself, defeat a finding of total disability where the policy focuses on occupational capacity rather than earnings.
- A N.Y. Gen. Bus. Law § 349 plaintiff must show consumer-oriented conduct that is materially misleading and causes injury; a dispute over coverage or claim handling, without evidence of broader consumer-directed deception, is insufficient.

## Conclusion

The court held that a dentist who loses the ability to perform clinical chair work is totally disabled under an own-occupation policy despite continued management activity and income, and it rejected a § 349 claim absent proof of materially misleading, consumer-oriented insurer conduct.


Shapiro v. Berkshire Life Ins. Co., 212 F.3d 121 (2d Cir. 2000)