Insurance Bad Faith

Motion for Partial Summary Judgment

Military Service Exclusion for Disability Policy

Summary of Motion: Fighting Back Against an Unfair Denial

When you’ve paid insurance premiums for years, you expect your insurance company to stand by you when you need them most. But too often, insurers look for ways to save money instead of honoring their promises. That’s what happened to Dr. Josh Brower, a South Dakota dentist who became disabled after more than twenty years of practicing.

Despite his long career and steady work history, his insurance company denied his claim. Their excuse? They said his disability was “caused by” his military service in the late 1990s—more than two decades before his disability forced him to stop working. That denial made no sense. Dr. Brower had served honorably, then built a successful dental practice for over 20 years before becoming disabled. To suggest his disability in 2022 was “caused by” his military service in 1997–2000 is not just unfair—it’s legally wrong.

Our motion asked the court to rule that the company’s denial was invalid. The law is clear: when an insurance policy uses vague or unclear terms, those terms must be interpreted in favor of the insured, not the insurer who wrote the policy. Courts have long recognized that “causation” is a slippery concept—was it the last event, the main event, or just something in the distant past? When a policy doesn’t specify, the law resolves the ambiguity in favor of coverage.

Even if the insurer’s argument had been legally sound, the facts still don’t support them. After leaving the military, Dr. Brower worked full-time as a dentist for more than twenty years. No jury could reasonably conclude that his long-ago service was the direct or “dominant” cause of his later disability.

The insurance company also tried to raise fallback arguments. They suggested that Dr. Brower hadn’t been under the “regular care of a physician,” or that his doctors should have done more to treat him. But those weren’t the reasons they gave when they denied his claim. Insurers can’t shift their explanations after the fact—especially when the insured could have fixed the problem if told about it at the time. The law doesn’t let insurance companies play “gotcha” years later.

This motion is about more than just one dentist’s case. It’s about holding powerful insurance companies accountable to the people who trust them. When an insurer denies a valid claim based on stretched interpretations or after-the-fact excuses, it isn’t just unfair—it’s bad faith. Courts can and should step in to make sure policyholders receive the coverage they paid for.

At DEH Law, we fight these battles because ordinary people deserve a fair shake against giant insurance companies. Dr. Brower paid his premiums, kept his end of the bargain, and worked hard for decades. The insurer didn’t keep its promise. Our motion asked the court to make sure the company can’t get away with it.

Full Text of Motion

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

Josh Brower, DDS,

Plaintiff,

— versus —

Great-West Life & Annuity Insurance Company, Now Known as Empower Annuity Insurance Company of America,

Protective Life Insurance Company,

Protective Life and Annuity Insurance Company,

Protective Life Corporation,

And

John/Jane Doe 1-10,

Defendants.

Civil Action: 4:25-cv-04040-RAL

Plaintiff’s Motion for Partial Summary Judgment

Jury Trial Demanded

Empower Annuity Insurance Company of America F/K/A Great- West Life & Annuity Insurance Company, and Protective Life Insurance Company,

Counterclaim Plaintiffs,

— versus —

Josh Brower, DDS,

Counterclaim Defendant.

TABLE OF CONTENTS

INTRODUCTION 3

THE LAW GOVERNING PARTIAL SUMMARY JUDGMENT — INCLUDING BEFORE DISCOVERY 5

ARGUMENT 6

1. The military-service exclusion is invalid as a matter of law. 6

2. A fallback justification based on the “Regular Care of a Physician” requirement is invalid as a matter of law. 11

The ”Regular Care” requirement relates to times when the insured receives payments — not to the time when the disability began. 11

Because the Defendants did not rely on the Regular Care requirement in the denial — and because a defect would have been curable — the Defendants cannot rely on it now. 12

3. A fallback justification based on second-guessing Brower’s healthcare providers is invalid as a matter of law. 13

CONCLUSION 14

INTRODUCTION

This case can be streamlined by eliminating issues that are plainly meritless. This is an insurance bad faith case. It concerns a disability insurance policy. Great-West (now “Empower”) issued the policy to Dr. Josh Brower, then a 28-year-old dentist. About 20 years after buying the policy, Brower made a claim. The Defendants denied it. While denying the claim and now in response to this lawsuit, the Defendants have raised three issues that can be ruled out now on the undisputed facts. Partial summary judgment now will reduce the cost of discovery, move the case faster, and make a settlement more likely.

First, the Defendants’ primary basis for denying Brower’s claim is invalid as a matter of law. The Defendants denied Brower’s claim based on a military-service exclusion — an exclusion for injuries caused by military service. Brower served in the Army from 1997 – 2000. He filed his claim under the disability policy in 2022, after working as a dentist full time for more than 20 years after his service. How did the Defendants stretch the line of causation cover that two-decade gap? They conflated the standard for causation under this private disability policy with the very different standard that applies for Veterans Administration disability benefits. VA regulations have a generous causation standard — authorizing VA benefits for injuries “incurred coincident with service” in the armed forces, regardless of whether military service was the dominant cause of the disability. The private disability insurance policy, on the other hand, excluded coverage where the dominant cause of a disability was being on active, full-time military service. The Defendants had a full opportunity to investigate the claim, but they never asserted that Brower’s military service was the dominant cause of his later injuries, after 20 years of full-time work as a dentist. The Defendants’ application of the wrong standard of causation to the military-service exclusion was invalid as a matter of law. That is, their primary stated basis for denying Brower’s claim was invalid as a matter of law. Nothing that happens in discovery can change that. So this issue is ripe for summary judgment.

Second, the Defendants’ fallback justification based on the requirement for “Regular Care of a Physician” is invalid as a matter of law. After Brower appealed the claim denial to the company, the company hinted that the claim might be invalid because Brower was not under the “Regular Care of a Physician.” The Defendants hinted at that, but they did not explicitly rely on it as a basis for denying the claim. If the Defendants had explicitly raised that as a basis for denying the claim, Brower could have cured the defect. So that alleged defect cannot be a basis for sustaining the denial now.

Third, similarly, the Defendants’ fallback justification based on second-guessing Brower’s healthcare providers is invalid as a matter of law. In denying Brower’s appeal, the Defendants also hinted that the claim might be denied because Brower’s primary care provider did not recommend various diagnostic or treatment measures. But the Defendants did not rely on that as a basis for denying the claim. To the extent the Defendants wish to sustain the denial now on that basis, the Defendants are wrong as a matter of law. Brower was not required to second-guess his primary care provider concerning what diagnostic testing, consultations, and treatment were appropriate. But even if Brower had been required to do so, that would be a defect he could have cured if the Defendants had raised the issue when processing the claim. So that potential rationale cannot be relied on now to justify denying the claim.

In the interest of “the just, speedy, and inexpensive determination of [this] action,” FRCP 1, we ask the Court to remove these issues from the case now. We ask the Court to enter an order declaring that the claim denial cannot be justified based on (i) the military-service exclusion, (ii) the regular-care-of-a-physician requirement, or (iii) any inadequacy in the diagnosis or treatment recommended by Brower’s primary care provider.

THE LAW GOVERNING PARTIAL SUMMARY JUDGMENT — INCLUDING BEFORE DISCOVERY

The Federal Rules of Civil Procedure expressly provide for partial summary judgment — judgment on “the part of each claim or defense” on which judgment is sought. FRCP 56(a). Neither the general Rules nor the Local Rules for this District require that a summary judgment motion must await the close of discovery. Instead, Rule 56(d) provides that the party opposing the motion can “show[] by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” In that event, the motion may be deferred.

But where an issue is ripe — where further discovery is unnecessary to resolve the issue — there are good reasons to resolve the issue without delay. The earlier that meritless issues are disposed of, the earlier the parties can see the merits and resolve the dispute by private settlement.

ARGUMENT

Plaintiff’s Statement of Undisputed Material Facts contains the factual background. We cite the essential facts below as they become relevant.

1. The military-service exclusion is invalid as a matter of law.

We ask the Court to order that the Defendants’ sole stated basis for denying Brower’s claim, the military-service exclusion, is invalid as a matter of law and that the Defense cannot argue or rely on that exclusion at trial.

The Claim & Denial

In March 2022, Brower contacted the Company to inquire about a claim under his disability Policy. Later, in May of that year, Brower told the Company his claim was based on his general condition, including physical pain and limitations as well as depression and anxiety. (See Ex 5 at JBB 1301.) The claims process lasted several months, extending into early 2023. On January 24, 2023, the Company’s claim adjustor emailed Brower:

I am writing with some good news! Upon meeting with management this morning I have conﬁrmed that underwriting will not be pursuing any coverage issues. … I plan to review your ﬁle tomorrow to ensure I have all the ﬁnancials needed for this calculation and will get back with you if any additional information should be needed.

(Ex 4.) Then something changed. Ten days later, on February 3, 2023, the Company’s claim adjustor sent Brower a denial letter (the “Denial”).

The Company denied Brower’s claim on a single ground — that coverage was precluded by an exclusion for disabilities “caused by or due to” active full-time service with any armed forces:

* * *

(Ex 5 at JBB 1298, 1302.)

The Standard for Causation for the Exclusion

In discussing whether the military-service exclusion applied, the Defendants ignored the applicable standard of causation and instead relied on the VA’s disability determination, which uses a very different standard of causation.

The Policy excludes coverage for disabilities “caused by or due to” military service. (Ex 2 at JBB 3032.) The Policy does not define the phrase “caused by or due to.” (Id. at JBB 3013-17.) The Policy says it is governed by Illinois law. (Id. at JBB 3037.) The policy contains a choice-of-law clause selecting Illinois law. (Ex 2 at JBB 3037.) Under Illinois law, where an insurance policy does not define “caused,” then for purposes of an exclusion, “caused” means the dominant or efficient proximate cause. See Mashallah v. W. Bend Mutual, 20 F.4th 311 (7th Cir. 2021) (“Generally, it appears that Illinois favors the efficient-or-dominant-proximate-cause rule in the absence of contrary language in the policy.”). The Denial letter did not mention the dominant-cause standard that applied to the military-service exclusion. Nor did the Denial letter make any attempt to show that Brower’s military service from over 20 years earlier was the dominant cause of his disability.

Substituting an Inapplicable Standard for Causation

Instead, the Denial relied heavily on the VA’s determination that Brower’s disabilities were “service-related.” (See, e.g., Ex 5 at JBB 1301 (“The [VA] rating decision letter concluded that you had service connection cervical strain with degenerative arthritis….”).)

The VA uses a relaxed causation standard. VA disability decisions are governed by specific statutes and regulations (e.g., 38 CFR § 3.303) that provide specific definitions and criteria for disability. A veteran qualifies for VA benefits if a “service connection” exists for an injury or illness. The regulation, 38 CFR § 3.303, provides that “Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.”

The Denial relied on the VA determinations but did not mention the causation standard that applies to VA determinations. The Denial did not mention the difference between the “coincident with” standard for VA determinations and the “dominant cause” standard for exclusions under the Policy. (See Ex 5, throughout.)

The Appeal

Brower filed an internal appeal of the denial, with the insurer. In the Appeal Denial, again the Company relied on the military service exclusion:

(Ex 6 at JBB 120.) The Company again failed to acknowledge the dominant-cause standard that applies to the exclusion. The Company again did not explain how Brower’s military service could be the dominant cause of a disability that arose later, after 20 years of full-time work as a dentist. (See Ex 6, throughout.)

Summing Up

The Denial and Appeal Denial did not even say Brower’s military service was the dominant cause of the disability he suffered later, after more than 20 years of working full time as a dentist. Much less did the Defendants discuss that improbable causal connection or offer any evidence for it. Instead, the Defendants denied Brower’s claim by applying the wrong causation standard — the “coincident with” standard that applies to VA disability determinations.

Relief Requested

We ask the Court to enter an order declaring that the military-service exclusion is inapplicable as a matter of law. In the alternative, we ask the Court to enter an order declaring that the military-service exclusion applies only if Brower’s military service from 1997 – 2000 was the dominant cause of the disability he claimed in 2022. This issue is ripe for partial summary judgment. Nothing that could emerge in discovery could affect the standards of causation that apply either to VA determinations or to the military-service exclusion under the Policy. And the Defendants had the entire duration of the claim-handling process to obtain Brower’s medical records — records on the basis of which they denied Brower’s claim. They have no need for additional time to obtain those records.

2. A fallback justification based on the “Regular Care of a Physician” requirement is invalid as a matter of law.

The Appeal Denial floated potential fallback rationales for denying Brower’s claim, without actually invoking them. Those potential attempted justifications are invalid as a matter of law and are ripe for summary judgment.

In the Appeal Denial, without citing it as a basis for denial, the Company included a discussion of whether Brower was under the “Regular Care of a Physician” for the conditions causing his disability. (Ex 6 at JBB 121-22.) The Appeal Denial included discussion of “conversations with Brower dated July 13, 2022, and January 25, 2023” and “Medical records from the VA through March 30, 2022.” (Id. at JBB 121.)

The ”Regular Care” requirement relates to times when the insured receives payments — not to the time when the disability began.

The discussion in the Appeal Denial suggests the Defense may now argue that the policy provided benefits only if Brower had been under the “Regular Care of a Physician” from the beginning of the period in which he became unable to perform the substantial and material duties of his profession and that he did not meet that requirement. But there is no such requirement in the Policy. Instead, the Policy requires only that the insured be under medical care while receiving benefit payments: “The Company will pay Monthly Income Beneﬁts to an insured Member who is continuously under the Regular Care of a Physician for a Total Disability.” (Ex 2 at JBB 3026.) The policy says payments will only be made during periods in which the insured is under a physician’s care. The policy does not say a claim is ineligible because the insured was not receiving medical care before payments began.

Because the Defendants did not rely on the Regular Care requirement in the denial — and because a defect would have been curable — the Defendants cannot rely on it now.

Just as the Appeal Denial did not explicitly invoke the regular-care requirement to justify the denial, so the Appeal Denial did not tell Brower that he might become eligible for benefits if he were to come under the “Regular Care of a Physician.” Similarly, the Appeal Denial did not request evidence to show that Brower was under the “Regular Care of a Physician.” (See Ex 6, throughout.)

Should the Defendants attempt it here, the law will not allow them to justify their denial of Brower’s claim by means of the “Regular Care of a Physician” requirement. As the Illinois Court of Appeals holds, “While the plaintiff’s recovery from his disabled condition or his failure to make employee contributions might be valid grounds for denying benefits under the insurance policy, a ground for denial is waived unless specifically stated and relied on.” Bessler v. John Hancock, 99 Ill. App. 3d 230 (1981). Under the circumstances here, that rule applies all the more because even if we assume (counterfactually) that Brower did not meet the “Regular Care of a Physician” requirement when he made the claim, that would have been a curable defect — if the insurer had relied on it. As the Seventh Circuit explained in the context of ERISA-governed insurance:

In a nutshell, ERISA requires that specific reasons for denial be communicated to the claimant and that the claimant be afforded an opportunity for full and fair review by the administrator. … These requirements insure that when a claimant appeals a denial to the plan administrator, he will be able to address the determinative issues and have a fair chance to present his case. [D]escribing additional information needed and explaining its relevance … enables a participant both to appreciate the fatal inadequacy of his claim as it stands and to gain a meaningful review by knowing with what to supplement the record.

Halpin v. WW Grainger, 962 F.2d 685 (7th Cir. 1992).

As a matter of law, the Defendants cannot now justify their denial of Brower’s claim by invoking the “Regular Care of a Physician” requirement. That would be a new procedural defense the Defendants were required to assert before litigation. Because they failed to invoke it before litigation, we ask the Court to declare that the Defendants have waived any defense based on the “Regular Care of a Physician” requirement.

3. A fallback justification based on second-guessing Brower’s healthcare providers is invalid as a matter of law.

Without saying this justified the denial, the Appeal Denial recited various measures that Brower’s primary care provider could have, but did not, recommend, by way of diagnostic or treatment measures. (See Ex 6 at JBB 121-22.) This discussion suggests the Defense may now seek to justify the denial on the ground that Brower did not receive adequate medical care. Any such attempted justification is invalid as a matter of law.

The Policy did not require Brower to second-guess his primary care provider concerning what diagnostic testing, consultations, and treatment were appropriate. The Policy did not require Brower to do more than inform his primary care provider of his medical problems and to follow the primary care provider’s recommendations. The Policy did not require Brower — a dentist, not a medical doctor — to decide on his own knowledge what diagnostic testing, consultations, or treatments were appropriate for any medical problem. (See Ex 2, throughout.)

We ask the Court to order that the Defendants cannot justify their denial of Brower’s claim on the ground that his medical providers did not take sufficient steps to diagnose or treat his maladies.

CONCLUSION

In keeping with FRCP 1, the Court can act “to secure the just, speedy, and inexpensive determination of [this] action” by ruling out meritless theories and issues. Doing so will streamline the litigation, bring clarity about the merits, and assist the parties in resolving the dispute. We therefore ask the Court to enter partial summary judgment:

(i) declaring that the military-service exclusion does not justify the denial of Brower’s claim or, in the alternative, that it can justify the denial only if military service was the dominant cause of Brower’s disability,

(ii) declaring that the Defendants have waived any defense based on the “Regular Care of a Physician,” and

(iii) declaring that the Defendants cannot justify their denial of Brower’s claim on the ground that his medical providers did not take sufficient steps to diagnose or treat his maladies.

July 2, 2025

Respectfully submitted,

/s/ Daniel E. Holloway

Seamus Culhane

Turbak Law Office, PC

26 S. Broadway, Suite 100

Watertown, SD 57201

605-349-1722

seamus@turbaklaw.com

Daniel E. Holloway

DEH Law

2062 Promise Road, Unit 1305

Rapid City, SD 57701

404-670-6227

dan@dehlegal.com

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

The undersigned has served the foregoing document on all counsel of record, by filing the document with the Court’s efiling system.