ROGER KLIGLER v. THE PAUL REVERE LIFE INSURANCE COMPANY & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-809

ROGER KLIGLER

vs.

THE PAUL REVERE LIFE INSURANCE COMPANY & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Roger Kligler, brought this action for

breach of contract, breach of the covenant of good faith and

fair dealing, and violation of G. L. c. 93A against the

defendants, The Paul Revere Life Insurance Company (Paul Revere)

and Unum Group (Unum), following a dispute over the amount of

Kligler's disability insurance benefits. A summary judgment

entered in favor of Paul Revere and Unum. Kligler appeals, and

we affirm.

Background. The following facts are taken from the summary

judgment record, construed in the light most favorable to

1 Unum Group.
Kligler. See Sarkisian v. Concept Restaurants, Inc., 471 Mass.

679, 680 (2015).

Paul Revere2 issued a disability income policy to Kligler

with an effective date of May 18, 1990. The maximum benefit

period under that policy was to age sixty-five. Approximately

ten months later, Kligler submitted an application requesting

additional benefits. As pertinent here, Kligler requested (1)

gradually increasing monthly total disability benefits to

$13,300 and (2) a lifetime total disability benefit rider. The

lifetime total disability benefit rider provided that lifetime

total disability benefits would "start to pay on the later of:

(a) [y]our 65th birthday; or (b) the date the [t]otal

[d]isability benefit payable under [y]our [p]olicy ends." On

April 18, 1991, Paul Revere issued a new policy to Kligler that

included the requested additional benefits.

In December 2014, Kligler submitted a claim to Paul Revere

for total disability due to sickness. Paul Revere approved the

claim and began paying benefits to Kligler. Beginning around

January 2015, Paul Revere paid total disability benefits to

Kligler in the amount of $13,300 per month. When Paul Revere

started paying total disability benefits to Kligler, he was

2 Paul Revere is a subsidiary of Unum. Unum argues that
Kligler's claims against it should have been dismissed because
Kligler's contract was with Paul Revere, not Unum. We need not
reach the argument.

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sixty-two years old. Then, a few months after Kligler reached

the age of sixty-five, Paul Revere stopped paying him total

disability benefits and began paying him lifetime total

disability benefits in the amount of $3,990 per month.

Discussion. Kligler claims entitlement to two types of

benefits per month, total disability benefits in the amount of

$13,300, and lifetime total disability benefits also in the

amount of $13,300.3

"The interpretation of an insurance policy is a question of

law" (quotation omitted). Dorchester Mut. Ins. Co. v. Miville,

491 Mass. 489, 492 (2023). If the language of a policy is

unambiguous, the language "must be given its usual and ordinary

meaning" (quotation omitted). Id. at 493. "We consider the

language of an insurance policy as a whole, without according

special emphasis to any particular part over another, and where

possible, giving meaning and effect to every word" (quotation

and citation omitted). Id. at 492.

The language of Kligler's policy was unambiguous. With

respect to the total disability benefit, the policy provided as

3 For the first time on appeal, Kligler also argues that his
policy violates various Massachusetts statutes and regulations.
The argument is waived. See Weiler v. PortfolioScope, Inc., 469
Mass. 75, 86 (2014). Regardless, as Kligler explained in his
reply brief, he pointed to the statutes and regulations as "a
guidepost for measuring ambiguity" in the policy. As we
explain, infra, the policy was not ambiguous.

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follows: "This benefit will begin on the [c]ommencement [d]ate.

We will continue to pay it while [y]ou remain [t]otally

[d]isabled. But in no event will [w]e pay beyond the [m]aximum

[b]enefit [p]eriod." As noted above, the lifetime total

disability benefit rider provided that the lifetime total

disability benefit would "start to pay on the later of: (a)

[y]our 65th birthday: or (b) the date the [t]otal [d]isability

benefit payable under [y]our [p]olicy ends." Reading these

provisions together, Kligler was not entitled to receive both

benefits at the same time, as he could not start receiving

lifetime total disability benefits until he stopped receiving

total disability benefits.

Kligler's argument to the contrary focuses on two tables of

benefits, which separately listed the amount payable under the

total disability benefit and the amount payable under the

lifetime total disability benefit. Kligler contends that

because the tables listed two amounts payable, he was entitled

to both amounts. This argument erroneously places special

emphasis on the tables without giving meaning to the policy

language itself. See Dorchester Mut. Ins. Co., 491 Mass. at

492.

Next, we must decide whether Kligler, after reaching age

sixty-five, was entitled to total disability benefits or

lifetime total disability benefits and the amount of those

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benefits. As noted, the policy provided that Paul Revere would

not pay total disability benefits "beyond the [m]aximum

[b]enefit [p]eriod." The "[m]aximum [b]enefit [p]eriod" was

defined as "the longest period of time [w]e will pay benefits

during any [d]isability. It is shown on the [p]olicy

[s]chedule." Thus, to determine when the total disability

benefit stopped paying, we look to the policy schedule. The

maximum benefit period listed on the policy schedule was to age

sixty-five but included an asterisk with the following

information, capitalized: "The maximum benefit period may

change due to your age at total disability. Please see policy

schedule II." Policy schedule II stated that, for total

disabilities starting before age sixty-five, the maximum benefit

period was "LIFETIME."

Kligler argues that the reference to "LIFETIME" means that

Paul Revere agreed to pay total disability benefits for a

maximum benefit period of Kligler's lifetime. Paul Revere

argues that the asterisk was inserted to show that Kligler had

purchased the lifetime total disability rider, and that

therefore his benefits did not terminate upon turning age sixty-

five, but his lifetime benefits were to be calculated under the

lifetime total disability rider. We agree with Paul Revere.

Prior to when Kligler purchased the lifetime total disability

benefit, the maximum benefit period under his policy was to age

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sixty-five. It is only because of the lifetime total disability

benefit that Kligler had any benefits after age sixty-five.

Thus, reading the policy as a whole, see Dorchester Mut. Ins.

Co., 491 Mass. at 492, Kligler's total disability benefits

stopped paying and his lifetime total disability benefits

started paying when he reached age sixty-five. See Aquino v.

United Prop. & Cas. Co., 483 Mass. 820, 839 (2020) ("We . . .

construe policies as a whole. In so doing, the provisions of

the policy concerning different coverage types should be read

together in a way that does not render either coverage

meaningless" [citation omitted]); Commerce Ins. Co. v.

Blackburn, 81 Mass. App. Ct. 519, 521 (2012) ("[E]very phrase

and clause must be presumed to have been designedly employed,

and must be given meaning and effect, whenever practicable, when

construed with all the other phraseology contained in the

instrument, which must be considered as a workable and

harmonious means for carrying out and effectuating the intent of

the parties" [quotation omitted]).

Lastly, Paul Revere correctly calculated Kligler's monthly

lifetime total disability benefits. The rider unambiguously

stated that the amount paid under the rider for total disability

due to sickness was the amount shown on the policy schedule plus

any cost of living benefit rider "multiplied by a factor. The

factor to be used will be based on [y]our age at the start of

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[t]otal [d]isability which continues until age 65." For a total

disability due to sickness beginning at age sixty-two, the

factor was ".3." It is undisputed that the amount shown on

Kligler's policy schedule, plus any cost of living benefit

rider, was $13,300. Thus, Paul Revere correctly multiplied

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$13,300 by .3 to determine that Kligler's monthly lifetime total

disability benefits were $3,990.4

Judgment affirmed.

By the Court (Massing,
Singh & Grant, JJ.5),

Assistant Clerk

Entered: May 21, 2024.

4 Kligler also argues that, if he is correct about his
interpretation of the policy, we should vacate the summary
judgment on his claim for violation of G. L. c. 93A and remand
for a determination of whether Paul Revere engaged in unfair or
deceptive acts or practices. Given our conclusion that Paul
Revere properly paid Kligler's claim, we need not reach the
argument.

5 The panelists are listed in order of seniority.

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