California Supreme Court in Erreca v. Western States Life Ins. Co. (1942) 19 Cal.2d 388, 396: “Total Disability” does not signify an absolute state of helplessness but means such a disability as renders the insured unable to perform the substantial and material acts necessary to the prosecu- tion of a business or occupation in the usual or customary way. Recovery is not
precluded...because the insured is able to perform sporadic tasks, or give atten- tion to simple or inconsequential details incident to the conduct of the business. In Moore v. American United Life
Insurance Co. (1984) 150 Cal.App.3d 610, 632, the court further explained how the concept of “total disability” is to be inter- preted in California:
The term “total disability,” as applica-
ble to the insurance policy involved in this case, is defined as a disability that renders one unable to perform with reasonable continuity the substantial material acts necessary to pursue his usual occupation in the usual and customary way....” The test of “total disability” set forth
in Erreca is still black-letter law and must be argued to overcome any insurer’s attempt to curtail benefits under the policy. (Gross, 319
F.Supp.2d at 1132.) The key in “own occ” analysis is prop-
erly identifying the insured’s occupation, which is defined at the time he became disabled. An orthopedic surgeon with a true “own occ” policy who can no longer perform surgery, but can still perform sedentary office-based work, is totally
disabled under California law if he transi- tioned into an office-based occupation after the date of disability. But if he made the transition to less physically-demand- ing work before the claim for disability began, then the insured’s occupation as of the date of disability will be classified as less strenuous. Depending on the severity of his impairment, the claim could be denied on the basis that he can still per- form his pre-disability occupation – which was office-based by then. This is a very common scenario among professionals who are, understandably, reluctant to give up their hard-earned careers. These are the kind of people who drag themselves in to work every day, despite increasing pain and worsening impairment. They will fight to hold onto their professions, finding ways to adapt and accommodate
JUNE 2011 The Advocate Magazine — 71
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