WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Plaintiff William F. Nefsky's ("Plaintiff") Motion for Reconsideration and Motion to Alter/Amend Judgment [29] ("Motion for Reconsideration").
On June 9, 1979, Defendant Unum Life Insurance Company of America ("Defendant") issued a disability insurance policy ("Policy") to Plaintiff. ([19.4] at 2). The Policy includes a Lifetime Sickness Benefit Rider (the "Rider"), which states that, beginning on June 9, 2013, Defendant is required to make payments to Plaintiff if he is "totally disabled."
(DSMF ¶ 11). The Policy does not provide coverage, after June 9, 2013, for any "residual disability" suffered by Plaintiff. The Policy defines residual disability as follows:
(DSMF ¶ 5).
In 1974, Plaintiff began working for Precious Metals Exchange, a company that sold gold and silver coins and bars to investors. (DSMF ¶ 14). In 1978, Plaintiff bought Precious Metals Exchange and incorporated it as WFN Enterprises, Inc. ("WFN"). (DSMF ¶ 15). Plaintiff is the president and sole shareholder of WFN. (DSMF ¶ 16). He exercises "complete control" over WFN and has done so continuously since 1978. (DSMF ¶ 17).
In the late 1970s, Plaintiff, through WFN, started buying and selling watches and jewelry. (DSMF ¶ 19). He continues to do so today. Plaintiff also buys and sells china, crystal and silverware. (DSMF ¶¶ 19, 23). Plaintiff often purchases items, especially watches, wholesale from manufacturers. (DSMF ¶ 25). He also purchases items from estates, stores with excess inventory, and stores going out of business. (DSMF ¶ 26; [20] at 63). Watches constitute the largest portion of Plaintiff's inventory. (DSMF ¶ 24;
Plaintiff's inventory is stored in an office space, which he has rented for the last twenty years. (DSMF ¶ 30). The office has a workroom, with good lighting, where Plaintiff processes "small inventory deals." (DSMF ¶ 31). Plaintiff sells most of his inventory on eBay. (DSMF ¶ 33). He also sells items at trade shows, through his company website, and occasionally over the telephone if he is contacted by a former customer. (DSMF ¶¶ 26, 34-36). His products are not sold in a showroom or store. (DSMF ¶ 32). Plaintiff, using a template, drafts descriptions of the items he sells online. (DSMF ¶ 37). It usually takes him about fifteen minutes to draft a description. (DSMF ¶ 38). He composes only one description for an item he buys in bulk. (DSMF ¶ 39). These descriptions are posted on eBay and WFN's website.
In the late 1990s, Plaintiff hired Mike Hoffland ("Hoffland") to maintain Plaintiff's eBay account, to photograph and lists the items to be sold, and to fill any orders received over the internet. (DSMF ¶¶ 40-43).
On November 8, 2006, Plaintiff suffered a retinal vein occlusion. (DSMF ¶ 48). He was fifty-nine (59) years old at the time. (DSMF ¶ 49). The incident severely impaired Plaintiff's vision in his left eye. (DSMF ¶ 48). Plaintiff can see colors and shapes with his left eye. (DSMF ¶ 40; [22] at 55). His vision in his right eye is 20/25 or 20/30, which he considers "pretty good." ([20] at 40, 50). The damage to Plaintiff's left eye causes his right eye to "tire out much faster." ([20] at 50). This prevents him from "analyz[ing] items for more than short periods of time" because his vision "blur[s] out in a short period." (DSMF ¶¶ 50, 71; [20] at 50). It has not resulted in other physical limitations. (DSMF ¶ 51). Plaintiff is able to drive, hike, bike, swim, jog, and travel for pleasure. (DSMF ¶ 52).
Plaintiff previously was able to visually evaluate "three-dimensional" products for up to eight hours a day. (DSMF ¶ 72; [20] at 49, 67). With his diminished eye sight, he can only do this kind of evaluation for a maximum of two hours a day. (DSMF ¶ 72; [20] at 47, 50). As a result, he sometimes declines business opportunities that would require him to inspect items for long periods of time. ([20] at 48).
Plaintiff continues to purchase watches at wholesale prices. (DSMF ¶ 74). Manufacturers often call him and ask him if he is interested in buying excess inventory. (DSMF ¶ 78). Plaintiff takes fifteen minutes, or less, to decide whether to make the purchase. (DSMF ¶ 79). Plaintiff considers his finances, whether he has "staff to do the fulfillment," and the price at which the items are selling in secondary markets. (DSMF ¶ 80). He typically buys a limited number of watch models in large quantities. (DSMF ¶ 77). Plaintiff also "occasionally help[s] some[one] broker a collection" of watches. (DSMF ¶ 85).
Plaintiff remains a representative for at least two watch manufacturers. (DSMF ¶ 75). He is the exclusive representative for Reactor watches, and also sells watches manufactured by Wenger. (DSMF ¶ 76). He continues to advertise in two trade magazines. (DSMF ¶ 91). He continues to evaluate and purchase items from estates and jewelry businesses. (DSMF ¶¶ 93, 96). In 2015, he traveled to jewelry stores in North Carolina and Florida, where he evaluated and purchased items from both stores. (DSMF ¶ 95). He sometimes has products "shipped directly from [a jewelry store] and he doesn't even have to physically handle it." (DSMF ¶¶ 92, 94). In 2015, Plaintiff sold approximately 1,500 watches on eBay and listed other items that did not result in a sale. ([22] at 42-43). Plaintiff has a computer at home, uses an iPhone and an iPad, and has three computers on his desk at work. (DSMF ¶¶ 53-54).
On August 1, 2013, Plaintiff contacted Defendant and requested disability benefits under the Rider. (DSMF ¶ 65).
On May 14, 2015, Plaintiff filed his Complaint [1.1] in the State Court of DeKalb County, Georgia. Plaintiff asserted a claim for breach of contract, arguing that Defendant refused to pay him disability benefits to which he is entitled under the Rider. Plaintiff also asserted a claim, under O.C.G.A. § 33-4-6, for penalties and attorney's fees on the grounds that Defendant, in bad faith, "refused to pay [him] within sixty (60) days after [he] made a demand for payment" under the Rider. (Compl. ¶ 23). Plaintiff sought payment of the disability benefits, interest, penalties, and attorney's fees.
On June 12, 2015, Defendant removed this action from state court. ([1]). On March 2, 2016, Defendant filed its Motion for Summary Judgment [19], which the Court granted on February 15, 2017. (
On March 10, 2017, Plaintiff filed his Motion for Reconsideration, challenging the Court's February 2017 Order. Plaintiff claims the Order erroneously found (1) that "Plaintiff's reading vision in his left eye is now 20/40 or 20/50" and (2) that "Plaintiff could visually evaluate three dimensional products for a maximum of two hours a day." ([29.1] at 2-4). Plaintiff states that "if the [corrected] `facts' change the court's opinion, then the grant of defendant's motion for summary judgment should be vacated and denied." ([29.1] at 8).
Motions for reconsideration "should be reserved for extraordinary circumstances" and are not to "be filed as a matter of routine practice." LR 7.2(E), NDGa;
Plaintiff here seeks reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure. ([29.1] at 2);
"[T]he moving party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision."
Plaintiff claims that the Court's February 2017 Order contains two facts that are incorrect: (1) that "Plaintiff's reading vision in his left eye is now 20/40 or 20/50," and (2) that "Plaintiff could visually evaluate three dimensional products for a maximum of two hours a day." ([29.1] at 2-4). The Court's first conclusion does not constitute a manifest error of fact. Plaintiff, at his deposition, was asked whether he had "lost all vision in the left eye." ([20] at 40). He responded, "I have—I've lost all reading vision. I have about 20—what did he tell me?—I think it's around 20/400 or 20/800. It's—I think reading vision is about 20/40 or 20/50." ([20] at 40). Plaintiff now claims he meant that "when both eyes are open his reading vision is about 20/40 or 20/50." ([29.1] at 3 (emphasis added)). As Plaintiff acknowledges, his deposition testimony does not clearly convey the meaning he apparently intended. ([29.1] at 3). Plaintiff, in response to a question about vision in his left eye, stated that his "reading vision is about 20/40 or 20/50." Based on this testimony, the Court did not commit "manifest error" in concluding that "Plaintiff's reading vision in his left eye is now 20/40 or 20/50." (February 2017 Order at 6);
The Court's second factual conclusion—that "Plaintiff could visually evaluate three dimensional products for a maximum of two hours a day"—also does not constitute manifest error. Plaintiff claims this conclusion is incorrect because, on some days, Plaintiff is unable to examine items for two hours at a time. ([29.1] at 4). The Court's conclusion is consistent with this factual assertion. The Court found that Plaintiff could "do [three-dimensional] evaluation for a maximum of two hours a day." (February 2017 Order at 6 (emphasis added)). Nothing in this statement suggests that Plaintiff could examine items for two hours every day. Plaintiff has not shown that the Court's February 2017 Order contains manifest errors of fact.
Even assuming the Court's two factual conclusions were manifestly erroneous, they do not warrant relief from the February 2017 Order because Defendant still is entitled to summary judgment. The Court's decision to grant Defendant's summary judgment motion was not based on the reading vision in Plaintiff's left eye or on the conclusion that Plaintiff could examine three-dimensional items for two hours every day. The Court awarded summary judgment to Defendant because Plaintiff is residually, not totally, disabled:
(February 2017 Order at 18-19).
Plaintiff's business involves buying and selling watches, jewelry and other related items. The undisputed evidence is that Plaintiff continues to engage in his business today and does so substantially. He buys and sells items at trade shows, over the telephone, and over the internet. He actively seeks new business by advertising in two trade magazines. He is the exclusive representative for one watch manufacturer and represents another. He continues to purchase watches at wholesale, and "occasionally help[s] some[one] broker a collection" of used watches. He evaluates and purchases items from estates and jewelry stores. In 2015, he attended seven or eight trade shows, sold approximately 1,500 watches on eBay, and traveled to jewelry stores in North Carolina and Florida where he evaluated and purchased items from both stores. He is able to purchase items in bulk, from stores with which he is familiar, without "physically handl[ing]" the items at issue. ([21] at 44). He continued to work ten or twenty hours per week after his retinal vein occlusion. (DSMF ¶ 57).
Plaintiff's eye condition restricts his ability to perform certain tasks "for as long [or as effectively] as he customarily performed them before [his] injury or sickness." (DSMF ¶ 5). It does not, however, "prevent[] him from engaging in his regular occupation." (DSMF ¶ 5). He continues to operate WFN and engage in his occupation. Plaintiff is not totally disabled, he is not eligible for payments under the Rider, and the Court's February 2017 Order correctly awarded summary judgment to Defendant.
For the foregoing reasons,