• Guardian Life Disability And What To Expect When Seeking Disability Benefits
  • Guardian & Berskhire Life Long Term Disabilit Insurance Claims (Ep. 9)

Ambiguous Disability Policy Language is Construed in Favor of Disability Claimant with Berkshire Life Policy

Most purchasing a disability insurance policy may not negotiate specific language. Rather, insurance companies use stock forms, and the negotiation involves the tradeoff between the extent of coverage and the premium. The insurance company supplies the specific statutory provisions once the extent of coverage is determined.

When a dispute arises about specific terms, courts interpreting insurance policies use a time-honored legal principle that construes the language against the drafter. This means that if something in the policy is unclear and susceptible to two or more meanings, the court will favor the interpretation that is most beneficial to the policy holder because the insurance company had the ability to craft the policy in such a manner as to avoid the ambiguity.

Florida Supreme Court Rejects Berkshire Life Insurance Company’s Attempt to Limit Disability Benefits

In Berkshire Life Insurance Company v. Adelberg, the Florida Supreme Court decided when a disability policy fails to define the term “your occupation,” whether the claimant’s “own occupation” is subject to the insurance company’s determination or the claimant’s actual and specific occupation engaged in when the disability occurred. The claimant was employed as a yacht salesman when he injured his knee.

He had an own occupation disability policy with Berkshire Life Insurance Company, which defined “total disability” as the “inability to engage in your occupation, … after the first 120 months, the termtotal disability,’ will have this meaning: your inability to engage in any gainful occupation in which you might reasonably be expected to engage, with due regard for your education, training, experience, and prior economic status.” However, the policy did not define the term “your occupation.” Prior to injury, the claimant had worked as a jeweler, food-commodities salesman, and a yacht salesman. Subsequent to injury, he was employed as a freight-space salesman.

In court, the claimant argued his regular occupation when he was injured was that of a yacht salesman, an occupation which required him to walk and crawl though small spaces to inspect the product. Due to his previous and current employment being in sales, Berkshire Life contended his occupation was that of a general salesman and, because he had subsequently been employed in sales, he wasn’t totally disabled within the meaning of the policy and couldn’t recover disability benefits.

The Court held that Berkshire Life failed to define the term “your occupation,” and in doing so, the policy language would lead a reasonable person to conclude that during the first 120 months “your occupation” means the work in which a person is engaged at the time of disability. Therefore, the Court held, “the term ‘your occupation’ refers to the specific work done by the insured at the time of the injury, not work requiring similar skills and producing a comparable income.”

Comments (8)

  • Janie, if your claim has been denied you will need to go through the administrative appeal process to secure remaining benefits. Please feel free to contact our office to discuss the short term disability denial and what your rights are with respect to appealing the denial and making a claim for any potential long term disability.

    Stephen Jessup May 4, 2021  #8

  • I paid four of short term disability and then denied any remaining time even though my eye sight has not improved and my doctor says I cannot return to work.

    Janie May 3, 2021  #7

  • Jeff, I am sorry to hear all that you are going through and that Berkshire has delayed in approving your claim. We want to review everything to figure out how we can get this claim approved ASAP. Please feel free to reach out to us at your convenience. A lawyer is always available to speak.

    Alex Palamara Mar 16, 2020  #6

  • How long does it take for them to review my policy that has been in review now for 3 weeks? I got cancer back in July for September I’m sorry now I’m still waiting to get my short-term disability monthly check which is around $900. I’m 3 months behind in my mortgage, my mortgage company will be contacting me soon. I’m now back into a corner not sure what to do, please call. Thank you. My kidney was removed from the cancer, I go back every 4 months to make sure it does not come back but I am unable to return to my job as a chemical applicator with chemicals. I was a termite inspector and applicator. Thank you.

    Jeff H. Mar 16, 2020  #5

  • John,

    I don’t think they would give you a problem while taking the classes. The issue is whether you would be able to do a new job with the information or skills you learn in the classes? The chances of a buyout are very slim and also rare with Guardian.

    Gregory Dell Sep 18, 2012  #4

  • Hey Greg, thanks for responding.

    My former occupation was as a human resource consultant and my primary responsibility was to hire potential employees into these fortune 500 companies. When I was diagnosed with delayed onset PTSD, my career came crashing down and it all fell apart.

    The classes I’m taking are in real estate and the program is completely online at my own pace through a local community college. Based on this, do you think they’ll come knocking?

    Also, I’ve been on claim for 4 years now. Do you think there is any possibility they may attempt to buy out the remaining portion of the claim? I’m interested, but I heard that Guardian does not buy out claims for conditions such as PTSD and depression. I just want them out of my life understandably…

    Please advise, and thanks again.

    John Sep 17, 2012  #3

  • John,

    The answer to this question depends on what your occupation was before you became disabled. If the skills required to complete a year of college are similar to the skills necessary to perform your own occupation, then you may be opening up a can of worms. If you are looking into an online program that allows you to work at your own pace, then that would be the best route to take as it is not like a job that requires reasonable continuity of 40 hours a week and 8 hours a day.

    Gregory Dell Sep 17, 2012  #2

  • Greg, can you go to college while receiving disability benefits?

    I am an Iraq combat vet suffering from PTSD, depression and anxiety. I have an individual, own-occupation policy with Guardian (with no two year limit on mental or nervous disorders) and have been on claim with them since 12/2008. I also receive VA disability (100% rating) and SSDI for the same things.

    Recently, the VA approved a grant for veterans allowing them to go back to school up to a year, and they pay for it. I really want to do this but I don’t want to put myself in a bad position to where they might terminate my benefits.

    Please advise, thanks.

    John Sep 16, 2012  #1

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We represent Berkshire clients nationwide and we encourage you to contact us for a FREE immediate phone consultation with one of our experienced disability insurance attorneys.

Can you help with a Berkshire disability insurance policy?

Our disability insurance lawyers help policy holders seeking short or long term disability insurance benefits from Berkshire. We have helped thousands of disability insurance claimants nationwide with monthly disability benefits. With more than 40 years of disability insurance experience we have helped individuals in almost every occupation and we are familiar with the disability income policies offered by Berkshire.

How do you help Berkshire claimants?

Our lawyers help individuals that have either purchased a Berkshire long term disability insurance policy from an insurance company or obtained short or long term disability insurance coverage as a benefit from their employer.

Our experienced lawyers can assist with Berkshire:

  • ERISA and Non-ERISA Appeals of Disability Benefit Denials
  • ERISA and Non-ERISA Disability Benefit Lawsuits
  • Applying For Short or Long Term Disability Benefits
  • Daily Handling & Management of Your Disability Claim
  • Disability Insurance Lump-Sum Buyout or Settlement Negotiations

Do you work in my state?

Yes. We are a national disability insurance law firm that is available to represent you regardless of where you live in the United States. We have partner lawyers in every state and we have filed lawsuits in most federal courts nationwide. Our disability lawyers represent disability claimants at all stages of a claim for disability insurance benefits. There is nothing that our lawyers have not seen in the disability insurance world.

What are your fees?

Since we represent disability insurance claimants at different stages of a disability insurance claim we offer a variety of different fee options. We understand that claimants living on disability insurance benefits have a limited source of income; therefore we always try to work with the claimant to make our attorney fees as affordable as possible.

The three available fee options are a contingency fee agreement (no attorney fee or cost unless we make a recovery), hourly fee or fixed flat rate.

In every case we provide each client with a written fee agreement detailing the terms and conditions. We always offer a free initial phone consultation and we appreciate the opportunity to work with you in obtaining payment of your disability insurance benefits.

Do I have to come to your office to work with your law firm?

No. For purposes of efficiency and to reduce expenses for our clients we have found that 99% of our clients prefer to communicate via telephone, e-mail, fax, GoToMeeting.com sessions, or Skype. If you prefer an initial in-person meeting please let us know. A disability company will never require you to come to their office and similarly we are set up so that we handle your entire claim without the need for you to come to our office.

How can I contact you?

When you call us during normal business hours you will immediately speak with a disability attorney. We can be reached at 800-682-8331 or by email. Lawyer and staff must return all client calls same day. Client emails are usually replied to within the same business day and seem to be the preferred and most efficient method of communication for most clients.

Dell & Schaefer Client Reviews   *****

Ken A.


5.0 stars


Most likely… if you are reading this now… you are searching for ‘The Right Disability Attorney’! Realizing that no professional, including Greg Dell, can make everyone happy, the attorneys at Dell attempt to. They are still representing my best interests and have literally collected every dime I am entitled to under policy. Insurance companies know that Greg Dell’s firm is large enough to have assets sufficient to fight if necessary. They won’t ‘roll over’ because they don’t have the money to stay in the ring. Your insurance company, I assure you, know who ‘Greg Dell’ is. After they receive that 1st letter from Mr. Dell, putting them on notice that they are no longer to contact you, (that ALL correspondence goes through him)… I assure you their ‘method of operation’ changes gears. Please listen to me.

It has been my experience that once you call your insurance carrier and tell them you are even ‘thinking about’ filing a claim – their ‘helping hands’ attitude changes immediately. You are no longer an asset… you have now become a ‘liability’. Your insurance carrier knows that they will never make another dime from you. From now on you will only cost them money… perhaps for the rest of your life. It’s just business folks… we try to mitigate liabilities. If they can find a way to stall, question and deny… most likely they will.

Understand that insurance companies make money three ways:

1. Collecting premiums.

2. Investing revenues.

3. Denying claims.

They have already collected your premiums and will now determine if they can justify denying your claim… they simply will.


If you are a professional and find yourself in the unfortunate position of filing a disability claim – I admonish you to not try this on your own!


Your decision is whether to hire a “disability claims consultant” or an “attorney” which specializes in professional disability claims. You’d be wise to decide upon the later. The reason being an attorney has “power” and “authority” and actually “represents you”. He/she has authority (power of attorney) to actually communicate with your insurance company and do “Whatever It Takes”. A disability claims consultant does exactly that… they “consult” with “you” (not the insurance company) and make recommendations… they tell you what to say and do.

Mr. Dell notified my insurance company that my claim was legitimate and justified and that they were simply going to pay my claim. 5 years later I have received every single payment, in full and on time!

If you have not decided yet… please listen to me. You are about to step on the field of battle with Goliath. You must never forget that these insurance people are good… very good. They know what they are doing. All day long claims adjusters look for ways to deny claims. They know all the tricks. Unless you are King David… you are going to need much more than a rock.

In conclusion consider this… right now you are not looking for a friend. You need someone who knows what they are doing… and does it exceptionally well. Do yourself a favor and call Greg… call him right now. I assure you… you’ll sleep much better tonight!

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