Maksoud v. The Berkshire Life Insurance Company of America
- Andrew Carter
- 1:18-cv-09917
- U.S. District Court · Southern District of New York
- 3
In Maksoud v. Berkshire Life, Judge Carter denied Berkshire Life’s summary-judgment motion without prejudice and ordered briefing on amendment and possible sanctions.
Hossam Maksoud and The Berkshire Life Insurance Company of America; the order also required briefing about possible sanctions involving Maksoud’s counsel.
What happened
In Maksoud v. The Berkshire Life Insurance Company of America, Hossam Maksoud claimed that Berkshire breached a disability insurance policy by denying coverage and sought a declaration that he was disabled under the policy. Berkshire argued that Maksoud was not totally disabled because he continued performing his duties as a supervising pharmacist until he sold his pharmacies.
Maksoud’s complaint said his disability began around May 2016, and his 2016 claim identified May 1, 2016. After discovery ended, prescription records showed that he filled prescriptions until September 21, 2016. Maksoud then told Berkshire that September 21 was the actual disability date, but he did not amend his complaint.
Judge Andrew L. Carter, Jr. ordered supplemental briefing on whether Maksoud should be allowed to amend his complaint and whether his counsel should face sanctions for the delay. Judge Carter denied Berkshire’s summary-judgment motion without prejudice and directed the Clerk to terminate the motion from the docket.
The detailed version
- Maksoud v. The Berkshire Life Insurance Company of America · No. 1:18-cv-09917
- Andrew Carter
- June 13, 2022
Background
Hossam Maksoud sued The Berkshire Life Insurance Company of America for allegedly breaching a disability income insurance policy by denying coverage. He also sought a declaratory judgment stating that he was disabled under the policy. The policy defined total disability as being unable, because of sickness or injury, to perform the material and substantial duties of the insured’s occupation.
Berkshire moved for summary judgment on all claims. It argued that Maksoud did not meet the policy’s definition because he continued performing all of his duties as a supervising pharmacist until he sold his retail pharmacies, ending that position.
Disputed Disability Date
Maksoud’s complaint alleged that his disability began “in or around May 2016.” His claim, filed on May 24, 2016, identified May 1, 2016 as the disability date. The opinion states that Maksoud repeatedly told Berkshire representatives during the weeks after filing the claim, and for the next five years, that he had been totally disabled since May 1, 2016.
After discovery closed, Berkshire obtained records showing that Maksoud filled prescriptions until September 21, 2016, when the sale of his pharmacies was finalized. On July 27, 2021, Maksoud sent Berkshire a letter stating that September 21, 2016, rather than May 1, 2016, was the actual start of his disability. He did not amend his complaint to change the alleged disability date.
Court’s Ruling
The court explained that a plaintiff may not amend a complaint simply by presenting new facts or legal theories in papers opposing summary judgment. Because Maksoud’s revised disability date differed from the allegations in his complaint, the court ordered the parties to submit additional briefing on whether he should be permitted to amend the complaint. The court also ordered briefing on whether Maksoud’s counsel should be subject to sanctions for the delay in informing the court and Berkshire about the error.
The court denied Berkshire’s motion for summary judgment without prejudice and directed the Clerk of Court to terminate the motion identified as ECF No. 45. The opinion did not decide whether Maksoud was entitled to disability coverage or a declaratory judgment.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.