Argued October 18, 2007; decided November 27, 2007

White v Continental Cas. Co., 38 AD3d 1157, affirmed.

Pigott, J.

The principal issue presented in this appeal is whether the definition of "total disability" in a disability income policy is ambiguous and, if not, whether plaintiff satisfies the requirements of that definition. We conclude that the definition is not ambiguous and plaintiff failed to establish his entitlement to benefits under the policy as a matter of law. [*2]

In 1992, plaintiff James J. White, Jr., a physician who specialized in orthopedic spinal surgery, purchased a disability income policy from First UNUM Life Insurance Company. In 1996, the policy was transferred to defendant Continental Casualty Company (CNA), and again, in 2001, to defendant Life Insurance Company of Boston & New York (LICOBNY). Prior to the 2001 transfer, the policy provided that plaintiff would be considered totally disabled if he was "unable to perform the substantial and material duties of [his] occupation due to an Injury or Sickness." After the policy transfer, the definition of total disability was changed by adding a second provision which required that plaintiff not be able to "[perform] the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience." Plaintiff does not dispute that he was notified of the change in the language of the policy.{**9 NY3d at 267}

In December 2001, plaintiff informed defendant LICOBNY (defendant^[FN*] ) that he was unable to pursue his occupation as an orthopedic surgeon due to a hip condition and sought disability benefits under the policy. After defendant denied the claim, plaintiff commenced this breach of contract action. Supreme Court granted defendant's motion for summary judgment dismissing the complaint and the Appellate Division, with two Justices dissenting, affirmed, holding that plaintiff failed, as a matter of law, to meet the policy definition of total disability. Plaintiff appealed to this Court as of right, based on the two-justice dissent on a question of law, arguing that the definition of total disability, particularly the definition's second provision, is ambiguous and renders coverage illusory. Plaintiff argues that, absent the second provision, he satisfied the definition of total disability as a matter of law. In the alternative, plaintiff contends that a triable question of fact exists on this issue. We conclude that these arguments lack merit and therefore affirm the order of the Appellate Division.

As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning (see Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996]), and the interpretation of such provisions is a question of law for the court (see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]; Chimart Assoc. v Paul, 66 NY2d 570, 572-573 [1986]). It is well settled that "[a] contract is unambiguous if the language it uses has 'a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion' " (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [brackets in original], quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978], rearg denied 46 NY2d 940 [1979]). "Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter [*3]the contract to reflect its personal notions of fairness and equity" (Greenfield, 98 NY2d at 569-570 [citations omitted]). If the terms of a policy are ambiguous, however, any ambiguity must be construed in favor of the insured and against the insurer (see United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]).

Here, in order to receive disability income benefits under the policy, plaintiff is required to establish that he is "unable to{**9 NY3d at 268} perform the substantial and material duties" of an orthopedic surgeon and not be "performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience." Contrary to plaintiff's assertion, this definition is "reasonably susceptible of only one meaning," and thus, is clear and unambiguous (Greenfield, 98 NY2d at 570; see Michelson v Massachusetts Cas. Ins. Co., 102 AD2d 1003, 1004 [3d Dept 1984] [holding that similar policy language defining total disability was "clear and unambiguous"]).

In addition, although the question of whether a policyholder's condition falls within the policy's definition of total disability is typically one for a jury (see McGrail v Equitable Life Assur. Socy. of U. S., 292 NY 419, 425 [1944]), here, plaintiff failed to present any evidence demonstrating the existence of a triable issue of fact concerning whether he is totally disabled under the policy. Clearly, plaintiff satisfied the first provision of the definition inasmuch as he stopped performing orthopedic surgeries due to medical problems prior to filing a claim under the policy. However, as to the second provision, the evidence in the record demonstrates that plaintiff renders second medical opinions on spinal surgery, performs independent medical examinations and serves as an expert medical witness. Therefore, the courts below correctly determined that, as a matter of law, plaintiff is "performing the duties of [a] gainful occupation for which [he is] reasonably fitted by [his] education, training, or experience," and thus, he is not totally disabled within the meaning of the policy.

Plaintiff's remaining contentions lack merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Jones concur.

Order affirmed, with costs.