The Fifth Circuit yesterday held that a trial lawyer who suffered a heart attack, failed stress tests, and underwent a quadruple bypass couldn’t collect insurance benefits for "total disability". The decision turned on whether or not the lawyer could "perform the material and substantial duties of his regular occupation." The 2-1 majority rejected the lawyer’s definition of his regular occupation as "trial lawyer", holding that his ability to work as any kind of lawyer precluded a finding of total disability. House v. Am. United Life Ins. Co., No. 06-30168 (5th Cir. Sept. 4, 2007) (applying Louisiana law).
The dissent disagreed on several grounds — principally that regular occupation "means the individual insured’s usual and customary means of earning a livelihood" and that the term "does not permit the insurer to define total disability at an unreasonably high level of generality so as to offer the insured no real protection in the event he becomes disabled to perform the duties required by his preivous regular income-earning activities." Slip op. at 38 (Dennis, J., dissenting).