Fitts v. Unum Life Ins.Co. of America,
2008 U.S.App.LEXIS 6451 (D.C. Cir. March
28). This case, which concerns the issue of
whether bipolar mental illness falls within
Unum's 1995 policy limitation relating to
mental disorders, has had a long history.
The first ruling, Fitts v. Federal
National Mortgage Assn., 191 F. Supp. 2d
67 (D. D.C. 2002), held that bipolar mental
illness would not fall within the mental
impairment limitations of a UNUM long-term
disability policy because the policy
definition failed to specifically include
that illness, and substantial evidence
supported a conclusion that bipolar mental
illness is organic. That opinion was later
vacated (2002 U.S. Dist. LEXIS 26212 (D.D.C.
May 10, 2002)), but a subsequent ruling
again found the definition of ''mental
illness'' ambiguous, leading to application
of the doctrine of contra proferentum to
construe the ambiguity in favor of the
insured — Fitts v. Unum Life Insur.Co. of
America, 2006 U.S. Dist. LEXIS 9235 (D.D.C.
Feb. 23, 2006). Ultimately, in Fitts v.
Unum Life Ins.Co. of America, 2007
U.S.Dist.LEXIS 33397 (D.D.C. May 7, 2007),
the court awarded partial summary judgment
to the plaintiff, finding as a matter of law
that Fitts was entitled to benefits under
the policy. The saga will continue, since
this ruling vacated the district court's
judgment and remanded the case.
The policy at issue here
defines ''mental illness'' as ''mental,
nervous or emotional diseases or disorders
of any type'' and limited the payment of
benefits to a maximum duration of 24 months
if the diagnosis was deemed to fall within
that definition. Fitts maintained that
bipolar disorder is a physical illness, not
a mental illness; ultimately, the district
court agreed. The Court of Appeals reversed,
framing the issue as follows:
''In reaching this
conclusion, the court thought there was 'no
dispute over the possible causes and
manifestations of bipolar disorder. Both
parties' doctors acknowledge that bipolar
disorder is characterized by a combination
of physical, psychological, and social
factors, and they generally agree as to what
those factors are.' Id. The courts of
appeals disagree whether a court may rely on
a cause-based interpretation of illness to
find ambiguity in an ERISA-covered plan. The
Fifth Circuit believes that permitting a
cause-based interpretation would eliminate
the distinction between mental and physical
disorders. Lynd v. Reliance Standard Life
Ins. Co., 94 F.3d 979, 984 (5th Cir.
1996). The Eighth Circuit holds that it is
improper to consider the cause of a mood
disorder because a layperson classifies an
illness by its symptoms, not its causes.
Brewer v. Lincoln Nat'l Life Ins. Co.,
921 F.2d 150, 154 (8th Cir. 1990). The
Seventh, Ninth, and Eleventh Circuits hold
that a cause-based interpretation is
permissible. Phillips v. Lincoln Nat'l
Life Ins. Co., 978 F.2d 302, 310-11 (7th
Cir. 1992); Kunin v. Benefit Trust Life
Ins. Co., 910 F.2d 534, 541 (9th Cir.
1990); Billings v. Unum Life Ins. Co. of
Am., 459 F.3d 1088, 1090 (11th Cir.
2006).''
The court concluded there
was disagreement in the record both as to
the cause of bipolar illness in general and
as to whether Fitts's disorder had a
physical cause. Because the matter was
decided on summary judgment, the court of
appeals ruled it was improper for the
district court to have decided the issue as
a matter of law.
A concurrence highlighted
additional issues. First, the concurring
judge faulted the district court's holding
that no bipolar disorder may constitute a
mental disorder under the policy. Second, it
was never conclusively determined what
caused Fitts's disorder. Third, it remained
unclear whether Fitts' disorder was caused
in part by physical factors. The court
elaborated:
''Unum admits that some
neurological disorders with physical causes
and behavioral symptoms — such as
Alzheimer's disease or vascular dementia —
are not mental illnesses as defined by its
policy. If it is determined that Fitts'
bipolar disorder does have a physical cause,
then, at the very least, the District Court
must determine whether the causal nexus
between physical factors and behavior
symptoms for Fitts' bipolar disorder are
more similar to the neurological disorders
fully covered by Unum, or to traditional
mental illnesses that are subject to the
policy limitation.''
This ruling illustrates
how difficult it has been for courts to deal
with exclusions such as this in disability
policies. As the court explained, there are
two schools of thought at to how ''mental
illness'' in a disability insurance policy
is to be viewed. One school, exemplified by
Billings v. Unum Life Insur.Co. of
America, 459 F.3d 1088 (11th Cir. 2006),
looks to the cause of the disorder, while
other cases such as the ones cited above and
those catalogued in Parker v. SunLife
Assurance Co. of Canada , 2005 U.S.
Dist.LEXIS 15436 (M.D.Fla. July 29, 2005),
take a symptom based approach and would
subject any condition whose symptoms are
behavioral and are treated by mental health
professionals to the policy limitation. Yet
another approach is simply to see whether
the condition at issue is listed in the
compendium utilized by the mental health
profession — the Diagnostic and Statistical
Manual of Mental Disorders IV (DSM IV)
(American Psychiatric Association 2000).
See, Fuller v. J.P. Morgan Chase & Co.
, 423 F.3d 104 (2d Cir. 2005). Many
insurance policies have been rewritten to
define ''mental illness'' in this manner,
precisely to avoid having to litigate cases
such as Fitts. As neurobiology advances,
though, there will be increasing pressure to
altogether eliminate policy limitations
relating to mental disorders as being
contrary to what scientists are learning
about the causes of such conditions.
