                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA
______________________________
                                )
JOHN S. HUNTER,                )
                                )
                Plaintiff,     )
                                )
          v.                    )    Civ. Action No. 12-1144 (EGS)
                                )
MASSACHUSETTS MUTUAL LIFE      )     UNDER SEAL
INSURANCE COMPANY,             )
                                )
                Defendant.     )
______________________________)

                            MEMORANDUM OPINION

     John Hunter brings this lawsuit alleging that Massachusetts

Mutual Life Insurance Company (“MassMutual”) breached an

insurance contract by failing to pay him the correct amount of

monthly disability benefits and commencing payment on the wrong

date. Pending before the Court is defendant’s motion for summary

judgment. Upon consideration of the motion, the responses and

replies thereto, the applicable law, the oral argument, and the

entire record, the Court GRANTS defendant’s motion.

I.        BACKGROUND

     A.     The Disability-Insurance Policy

     Dr. Hunter, a dentist, has practiced in Washington, D.C. since

1985. Def.’s Statement of Material Facts (“Def.’s SMF”), ECF No.

22-1 ¶¶ 1–2. On October 5, 1992, he obtained a disability-

insurance policy (“the Policy”) from MassMutual. Id. ¶ 3. The

Policy provides a maximum monthly benefit of $3,000 and an
additional $1,000 monthly maximum if Dr. Hunter does not receive

other disability benefits. See Ex. 1 to Def.’s Mot. for Summ. J.

(“Mot.”), ECF No. 24 at 3, 23.1 The amount of benefits to be paid

each month is tied to Dr. Hunter’s “loss of earned income,”

which is the difference between his average monthly income

during the twelve months preceding the onset of his disability

and his income during the current month. See id. at 7–8.

  Benefits may be paid only after a waiting period, which lasts

for sixty days after the onset of the disability. Id. at 3–4, 9.

Benefits are then available “subject to certain notice and proof

of disability requirements.” Id. at 13. The insured must provide

“notice” by indicating in writing that he “is disabled and that

a claim may be made,” and must do so “before the end of 20 days

after the Waiting Period, or as soon afterwards as it is

reasonably possible to do so.” Id. He must also submit “proof of

claim . . . before the end of 90 days after the end of each

monthly period” for which he claims benefits. Id. “[I]f it is

not reasonably possible to give . . . proof within this time

limit, then proof may be given as soon thereafter as it is

reasonably possible to do so.” Id. This extension is limited to

one year, “[u]nless the delay is due to legal incapacity.” Id.



1
     The parties dispute whether Dr. Hunter is entitled to an
additional $863 per month pursuant to a policy rider, but that
dispute is immaterial to this motion. Compare Def.’s SMF ¶ 4,
with Plaintiff’s Statement of Material Facts, ECF No. 27-1 ¶ 4.


                                2
  B.   Dr. Hunter’s Injury and Insurance Claim

  On July 17, 2004, Dr. Hunter was involved in a motorcycle

accident. See Pl.’s Opp. to Mot. for Summ. J. (“Opp.”), ECF No.

27 at 2. He did not contact MassMutual about the accident until

March 4, 2011, when he provided notice of a claim. See Ex. 2 to

Mot., ECF No. 22-5 at 1–2. That day, MassMutual sent him a claim

package and asked him to complete certain forms. Ex. 3 to Mot.,

ECF No. 22-6 at 1. On April 12, 2011, Dr. Hunter submitted his

forms and listed various medical conditions as resulting from

the accident. See Ex. 4 to Mot., ECF No. 24-1 at 5.

  MassMutual wrote Dr. Hunter on April 21, 2011 to request that

he “explain, in detail, why he filed a claim more than 6 years

after the date on which he is claiming Partial Disability.” Ex.

5 to Mot., ECF No. 22-8 at 2. Dr. Hunter replied on June 3,

2011, and attached a letter from a doctor stating that the

conditions resulting from the accident “caused [Dr. Hunter] to

not pursue or understand the option of pursuing disability

coverage since 2004.” Ex. 2 to Opp., ECF No. 28-1 at 3.

  On October 20, 2011, MassMutual approved Dr. Hunter’s claim

for disability benefits and assigned him a “temporary disability

date of January 3, 2011.” Ex. 6 to Mot., ECF No. 22-9 at 1. On

February 14, 2012, MassMutual wrote to Dr. Hunter to inform him

of its conclusion that his “permanent date of disability” for

the purpose of calculating his entitlement to benefits would be


                                3
January 3, 2011. See Ex. 7 to Mot., ECF No. 22-10. Among other

reasons for this decision, MassMutual stated:

       [W]e did not receive notice of claim from Dr. Hunter
       until March 4, 2011 and we did not receive the initial
       Proof of Loss until April 6, 2011. It is important to
       note that this is more than 6 ½ years after Dr.
       Hunter’s reported date of disability. As a result of
       the late notice of claim and proof of loss submission,
       MassMutual’s rights have been severely prejudiced . .
       . . As such, we are unable to make an accurate
       assessment of any benefits to which Dr. Hunter may be
       eligible for prior to January 3, 2011.

Id. at 3 (emphasis added).

  C.     Procedural History

  Dr. Hunter filed this lawsuit on July 9, 2012, alleging that

MassMutual breached the insurance contract by failing to pay

disability benefits to cover the period from July 17, 2004 to

January 2, 2011, and by calculating his prospective benefits

based on his average monthly income from the twelve months

preceding January 3, 2011, rather than July 17, 2004. See

Compl., ECF No. 3 ¶¶ 23–29. He was initially granted leave to

proceed under the pseudonym John Doe. See Order, ECF No. 2.

  On September 10, 2012, MassMutual filed two motions to

dismiss. The first claimed that Dr. Hunter violated Federal Rule

of Civil Procedure 10(a) by filing his complaint under a

pseudonym. See Mem. in Supp. of Mot. to Dismiss, ECF No. 4-1.

The second motion sought dismissal of various claims and forms

of relief. See Mem. in Supp. of Mot. to Dismiss, ECF No. 5-1.



                                 4
After a hearing, the Court ordered Dr. Hunter to proceed under

his real name, and dismissed certain of his claims and requests

for relief. See Minute Order of May 2, 2013.

  On September 9, 2013, MassMutual moved for summary judgment.

See Mem. in Supp. of Mot. (“Mem.”), ECF No. 22-2. Dr. Hunter

filed his opposition on November 18, 2013. See Opp. MassMutual

filed its reply on December 6, 2013. See Def.’s Reply (“Reply”),

ECF No. 29. The Court held a hearing on May 21, 2014, and

subsequently ordered the parties to file supplemental briefs.

See Pl.’s Suppl. Br., ECF No. 33; Def.’s Suppl. Br., ECF No. 35.

The motion for summary judgment is now ripe for decision.

II.   STANDARD OF REVIEW

  Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted only if the moving party has shown

that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56;

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material

fact is one that is capable of affecting the outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A genuine issue exists where the “evidence is such that

a reasonable jury could return a verdict for the nonmoving

party.” Id. A court considering a motion for summary judgment

must draw all “justifiable inferences” from the evidence in

favor of the nonmovant. Id. at 255. To survive a motion for


                                5
summary judgment, however, the requester “must do more than

simply show that there is some metaphysical doubt as to the

material facts”; instead, the nonmoving party must come forward

with “‘specific facts showing that there is a genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986) (quoting Fed. R. Civ. P. 56(e)).

III. CHOICE OF LAW

  Federal courts sitting in diversity must apply the choice-of-

law rules of the state in which they sit. Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941). Therefore, the

District of Columbia’s choice-of-law analysis applies. In

insurance cases, where the insured is a D.C. resident and the

insured risk is located in D.C., courts have held that D.C. law

applies. See, e.g., Potomac Elec. Power Co. v. Cal. Union Ins.

Co., 777 F. Supp. 968, 973 (D.D.C. 1991). Defendant argues that

D.C. law applies to this case because Dr. Hunter was a D.C.

resident when the Policy was issued and at the time he submitted

his claim for benefits. See Mem. at 4 n.1. Dr. Hunter does not

dispute this. Accordingly, the Court will apply D.C. law.

IV.   ANALYSIS

  MassMutual claims that Dr. Hunter is not entitled to benefits

prior to January 3, 2011 because he did not provide timely

notice and proof of his claim. See Mem. at 4–7; Def.’s Suppl.

Br. at 2. MassMutual also argues that Dr. Hunter did not submit


                                6
evidence from which a jury could conclude that it was not

reasonably possible to submit timely notice and proof. See Reply

at 1–5. In any event, MassMutual asserts, Dr. Hunter’s failure

to provide timely proof dooms his claim because the Policy

limits the extension for delayed proof to one year, absent legal

incapacity. See id. at 1–2. Dr. Hunter responds that MassMutual

waived this argument and that the Court should ignore the one-

year limit. See Pl.’s Suppl. Br. at 1–9.

  A.   MassMutual Did Not Waive the Proof Requirement.

  Dr. Hunter argues that MassMutual waived the notice and proof

requirements, but provides no legal authority for this argument.

See Pl.’s Suppl. Br. at 1–3. He asserts that “MassMutual did not

deny the claim, nor any portion of the claim, on account of Dr.

Hunter’s failure to provide timely notice or proof.” Id. at 1.

He believes that MassMutual’s February 14, 2012 denial of his

claim for benefits prior to January 3, 2011 “was based on the

sufficiency of medical evidence, not the timing of his notice or

proof.” Id. at 2. The Court disagrees.

  The Policy makes the payment of benefits “subject to certain

notice and proof of disability requirements.” Ex. 1 to Mot., ECF

No. 24 at 13. As a result, compliance with the notice and proof

provisions are conditions precedent to coverage. See, e.g.,

Travelers Indem. Co. v. United Food & Comm. Workers Int’l Union,

770 A.2d 978, 991 (D.C. 2001). When “compliance with notice


                                7
provisions is a contractual precondition to coverage, a failure

timely to notify releases the insurer from liability.” Greycoat

Hanover F Street Ltd. P’ship v. Liberty Mut. Ins. Co., 657 A.2d

764, 768 (D.C. 1995); see also Sidibe v. Traveler’s Ins. Co.,

468 F. Supp. 2d 97, 101 (D.D.C. 2006). Accordingly, Dr. Hunter

bears the burden of proving that these conditions precedent were

satisfied as part of his breach-of-contract claim. See Nat’l

Elec. Mfrs. Ass’n v. Gulf Underwriters Ins. Co., 162 F.3d 821,

826 (4th Cir. 1998) (applying D.C. law to an insurance dispute

and noting that “conditions precedent must be proved by [a]

plaintiff who seeks to recover on [an] insurance policy”).

  Dr. Hunter’s argument appears to be that he need not prove

compliance with the notice and proof provisions because

MassMutual waived those conditions by failing to rely on them in

adjudicating his initial request for benefits. In fact,

MassMutual focused on the delayed notice and proof during the

investigation of Dr. Hunter’s claim. See Ex. 5 to Mot., ECF No.

22-8 at 2 (April 21, 2011 letter requesting a detailed

explanation why Dr. Hunter “filed a claim more than 6 years

after the date on which he is claiming Partial Disability”).

Moreover, in its final decision, MassMutual clearly stated that

the delayed notice and proof “severely prejudiced” its rights,

made it difficult to investigate the claim, and rendered

MassMutual unable to assess whether Dr. Hunter would otherwise


                                8
have been entitled to benefits prior to January 3, 2011. See Ex.

7 to Mot., ECF No. 22-10 at 3.

    MassMutual specifically relied on the delayed notice and

proof. Waiver, by contrast, “‘is an intentional relinquishment

or abandonment of a known right or privilege.’” Nortel Networks,

Inc. v. Gold & Appel Transfer, S.A., 298 F. Supp. 2d 81, 88

(D.D.C. 2004) (quoting United States v. Robinson, 459 F.2d 1164,

1168 (D.C. Cir. 1972)). “To preserve a right to notice, a party

may question the sufficiency of the notice it has received or

otherwise indicate its belief that the party obligated to give

notice has in some way been deficient.” Id.; see also FDIC v.

Interdonato, 998 F. Supp. 1, 10 (D.D.C. 1997). MassMutual’s

invocation of the delayed notice and proof in its letter setting

forth its decision on Dr. Hunter’s claim was sufficient to

preserve its right to notice.

    B.   Dr. Hunter Failed to Provide Timely Proof of His Claim.

    MassMutual contends that Dr. Hunter’s claim must fail because

he did not comply with the Policy’s notice and proof provisions.

As discussed above, these provisions are conditions precedent to

coverage. See supra at 7. It is undisputed that Dr. Hunter did

not comply with the Policy’s enumerated time limits because he

did not provide notice of his claim until March 4, 2011, well

after the eighty days prescribed by the Policy, and did not

provide proof of his claim until April 12, 2011.


                                 9
  The Policy provides an escape valve for delayed notice,

however, by alternatively permitting notice “as soon as it is

reasonably possible.” Ex. 1 to Mot., ECF No. 24 at 13. Dr.

Hunter rightly notes that D.C. courts interpret such terms to

permit “notice within a reasonable time in view of all the facts

and circumstances of each particular case”—a determination that

“will often be a question for the jury.” Greycoat, 657 A.2d at

768 (quotation marks omitted).

  The Court need not resolve whether Dr. Hunter provided

evidence from which a jury could infer that his notice was

submitted as soon as reasonably possible, however, because the

Policy provides no such extension of the deadline for submitting

proof:

     Written proof of claim must be given . . . before the
     end of 90 days after the end of each monthly period
     for which we are liable for benefits. However, if it
     is not reasonably possible to give us proof within
     this time limit, then proof may be given as soon
     thereafter as it is reasonably possible to do so.
     Unless the delay is due to legal incapacity, this
     extension of time is limited to one year.

Ex. 1 to Mot., ECF No. 24 at 13. The plain language of this

provision bars Dr. Hunter’s claim to benefits prior to January

2011 because he did not submit proof until April 2011. Moreover,

because Dr. Hunter submitted proof over one-year late, he may

take advantage of the extension for circumstances in which it is

not reasonable possible to provide proof only if the delay was



                                 10
“due to legal incapacity.” Id. Dr. Hunter has not argued that he

was legally incapacitated, and, as his counsel appeared to admit

during oral argument, his evidence does not support such a

finding.2

    Under D.C. law, this plain language must be given effect. “An

insurance policy is a contract between the insured and the

insurer, and in construing it [a court] must first look to the

language of the contract.” Cameron v. USAA Prop. & Cas. Ins.

Co., 733 A.2d 965, 968 (D.C. 1999). If that language is

unambiguous, “the policy must be enforced as written, absent a

statute or public policy to the contrary.” Nat’l R.R. Passenger

Corp. v. Lexington Ins. Co., 445 F. Supp. 2d 37, 41 (D.D.C.

2006) (citing Cameron, 774 A.2d at 968–69).

    Dr. Hunter first argues that “the construction of the Policy”

should overrule its plain language. His argument appears to be

that because the Policy provides for an extension of the

deadline for filing notice of a claim so long as it is submitted

“as soon as it is reasonably possible,” it would be incongruous

to prevent recovery because of failure to submit proof during a

time when it was not reasonably possible to submit such proof.



2
     The Court asked during oral argument whether, in the absence of
legal incapacity, the Policy could provide Dr. Hunter with an
additional year of benefits (from January 2010 to January 2011)
due to language permitting a one-year delay in submitting proof
as soon as it is reasonably possible. See id. Plaintiff’s
counsel disavowed this interpretation of the Policy.


                                 11
Plaintiff relies on the case of Barnett v. Mutual Trust Life

Insurance Co., 105 N.Y.S. 2d 769 (N.Y. Sup. Ct. 1951), but that

case is easily distinguishable. In Barnett, the Court

interpreted an insurance contract that required submission of

proof before an insured could obtain benefits and required

notice “during the lifetime of the insured and during the

continuance of total disability.” Id. at 770. The notice

provision permitted delayed notice “if it shall be shown not to

have been reasonably possible to give such notice and that

notice was given as soon as was reasonably possible. Id. The

Court held that interpreting the proof provision to bar recovery

where the notice provision would have granted an extension would

render the notice provision “meaningless and illusory since the

assured . . . [is] not excused from furnishing due proof of

disability within the period during which they are excused from

furnishing notice of claim.” Id.

  The Barnett Court distinguished a prior case in which a

contract required notice “within 20 days after the date of the

accident . . . unless it was not reasonably possible to give

such notice” and required proof “within 90 days after the loss.”

Id. (citing MacKay v. Metropolitan Life Ins. Co., 22 N.E.2d 154

(N.Y. 1939). Those proof and notice provisions were “consistent”

because “[a]lthough the time for giving notice of claim could be

extended . . . beyond 20 days after the date of the accident,


                               12
such extension was not intended to go beyond the 90-day period

provided for the furnishing of proof of loss.” Id.

  The Policy here is also consistent. The notice provision

provides for an unlimited extension of time, but the proof

provision limits its extension to one year, absent legal

incapacity. Accordingly, notice may be given as soon as

reasonably possible and an insured may then recover prospective

benefits by submitting proof. Having submitted late notice,

however, an insured may not receive retroactive benefits absent

legal incapacity, unless the proof is submitted less than one

year late and as soon as reasonably possible.3

   Alternatively, plaintiff asserts that the “common law”

requires that proof provisions in insurance contracts be

interpreted to permit untimely proof so long as the delay is

“reasonable,” and that this doctrine overrides the Policy’s

plain language. See Pl.’s Suppl. Br. at 7–9. There is minimal

support for such a broad doctrine. The District of Columbia

cases cited by plaintiff involved interpretations of contractual

terms that required notice of a claim within a reasonable period

and contained no other limit on the length of this period. See



3
     Because the Policy is consistent, the canon that ambiguities in
insurance contracts are construed against the insurer is
inapplicable. See Pl.’s Suppl. Br. at 7 (citing Athridge v.
Aetna Cas. & Sur. Co., 351 F.3d 1166, 1172 (D.C. Cir. 2003);
Carey Canada, Inc. v. Cal. Union Ins. Co., 748 F. Supp. 8, 12
(D.D.C. 1990)).


                                 13
Diamond Serv. Co. v. Utica Mut. Ins. Co., 476 A.2d 648, 652

(D.C. 1984) (interpreting a contractual term requiring notice of

potential claim “as soon as practicable”); Starks v. N.E. Ins.

Co., 408 A.2d 980, 982 (D.C. 1979) (same). Those decisions do

not support a finding that explicit contractual limitations may

be ignored.

  The other cases cited by plaintiff stand for the much narrower

proposition that courts may override contractual notice or proof

terms in situations involving “incapacity” or “insanity.” See

Mut. Life Ins. Co. v. Heilbronner, 116 F.2d 855, 858–59 (8th

Cir. 1941) (overriding contractual time limits because of

insured’s “mental incapacity,” which “rendered the insured non

compos mentis”); Saebra v. Puritan Life Ins. Co., 369 A.2d 652,

655, 656 (R.I. 1977) (inferring an exception for “mental

incapacity” or “insanity”); Franklin Life Ins. Co. v. Tharpe,

178 So. 300 (Fla. 1938) (crafting exception for “physical or

mental incapacity”). In another case, a court excused an

insured’s failure to comply with a provision that required proof

“no later than 90 days . . . or as soon thereafter as reasonably

possible” and was interpreted to bar extensions “later than one

year after the deadline.” Chapman v. Choicecare Long Island Long

Term Disability Income Plan, No. 98-cv-4475, 2004 U.S. Dist.

LEXIS 26546, at *2 (E.D.N.Y. May 28, 2004) (quotation marks and

alteration omitted). That policy did not contain an exception


                               14
for incapacity, so the Court relied on principles of equitable

tolling to permit the case to go forward due to evidence that

the plaintiff’s mental illness rendered her “very

dysfunctional.” Id. at *8. The concerns expressed in these cases

are largely—if not entirely—assuaged by the Policy itself, which

extends the deadline for filing proof in cases of legal

incapacity.4

  One case cited by plaintiff, Clarke v. Unum Life Insurance

Co., 14 F. Supp. 2d 1351 (S.D. Ga. 1998), arguably supports his

theory. The Court in that case faced a familiar set of notice

and proof provisions: notice was required “within 30 days” or

4
     Chapman also relied on the doctrine of equitable tolling, which
is inapplicable here. Equitable tolling is “exercised only in
extraordinary and carefully circumscribed instances.” Smith-
Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir.
1998). In D.C., it may apply to a person who is non compos
mentis. Miller v. Rosenker, 578 F. Supp. 2d 67, 72 (D.D.C.
2008). This generally means that the person “is completely
incapable of handling his affairs and legal rights,” id., and
the inquiry “often focuse[s] on whether the plaintiff was ever
adjudged incompetent, signed a power of attorney, had a guardian
or caretaker appointed, or otherwise took measures to let
someone else handle [plaintiff’s] affairs.” Davis v. Vilsack,
880 F. Supp. 2d 156, 162 (D.D.C. 2012) (quotation marks
omitted). Dr. Hunter has not demonstrated legal incapacity. See
supra at 7. Nor has he submitted evidence that he was utterly
incapable of handling his affairs. Indeed, Dr. Hunter has not
disputed that he filed a lawsuit in 2009 seeking to recover
funds allegedly embezzled by his former office manager. See
Reply at 4–5; Ex. 1 to Def.’s Suppl. Br., ECF No. 35-1. This
fact renders him ineligible for equitable tolling because
“[p]articipation in legal . . . proceedings in an effort to
secure rights or benefits is an indication of mental capacity.”
Schmidt v. United States, 89 Fed. Cl. 111, 123 (Fed. Cl. 2009);
see also Messerschmidt v. United States, No. 3-2421, 2005 WL
578174, at *5 (D.D.C. Mar. 10, 2005).


                                 15
“as soon as it is reasonably possible” and proof was required

“no later than 90 days” or “as soon as reasonably possible”—

“[b]ut . . . not . . . later than one year after the time proof

is otherwise required.” Id. at 1353. Although notice and proof

were submitted over one year late, the Court permitted the case

to go forward because “there is sufficient evidence to raise a

question of fact as to whether [plaintiff’s] failure to provide

timely notice was excused.” Id. at 1356. In Clarke, however, the

Court did not address the impact of the independent proof-of-

claim provision, which limited such an extension to one year,

and the Court was applying Georgia law. The impact of such a

provision is squarely before this Court, and D.C. law applies to

this case.

  In D.C., unambiguous language in an insurance contract “must

be enforced as written, absent a statute or public policy to the

contrary.” Nat’l R.R. Passenger Corp., 445 F. Supp. 2d at 41.

Dr. Hunter has identified no relevant statute and the Court is

not persuaded that a sufficiently strong public policy exists to

override the Policy’s one-year limitation on delayed proof. Some

of the cases cited by Dr. Hunter found the need to infer an

exception for incapacity, but the Policy already contains such a

term. Dr. Hunter asks the Court to infer an exception for all

situations in which providing proof is not reasonably possible,

regardless of the reason or length of delay. That broad request


                               16
to undermine the Policy’s plain language cannot be squared with

the long history of D.C. Court of Appeals decisions emphasizing

the importance of notice-type provisions in insurance contracts,

declaring them “of the essence of the contract,” Greycoat, 657

A.2d at 768, and mandating that they be “given effect in the

interest of the public as well as the insurer.” Diamond, 476

A.2d at 652.5 There is therefore little basis to ignore the plain

language of the Policy’s proof provision.

  Nor is it rare for courts to enforce similar provisions. See

Hunter v. Fireman’s Fund Ins. Co., 448 F.2d 805, 807 (10th Cir.

1971) (enforcing provision that made notice due “within twenty

days . . . or as soon thereafter as it reasonably possible” and

required proof “within 90 days,” but provided an extension if

“not reasonably possible to give proof” and limited that

extension to one year, “except in the absence of legal

capacity”); Wright v. Paul Revere Life Ins. Co., 291 F. Supp. 2d

1104, 1115 (C.D. Cal. 2003) (enforcing provision which

“require[d] that written proof of loss be provided within 90

days . . . unless not reasonably possible” and stated “unless

You are legally incapacitated, written proof must be given

within one year of the date it was required”); see also, e.g.,

Roth v. Nw. Mut. Life Ins. Co., No. 12-452, 2014 WL 1281603, at

5
     D.C. is also among the minority of jurisdictions that do not
require an insurer to prove that late notice caused prejudice.
See, e.g., Nat’l R.R. Passenger Corp., 445 F. Supp. 2d at 43.


                                 17
*3–4 (D. Minn. Mar. 28, 2014); Dawson v. Nw. Mut. Life Ins. Co.,

No. 10-2641, 2011 WL 4842543, at *1–3 (D. Minn. Oct. 12, 2011);

Broughton v. Unum Life Ins. Co., No. 6-4015, 2007 WL 39432, at

*1, 6 (D.S.D. Jan. 5, 2007); Nelson v. Ins. Co. of N. Am., 264

F. Supp. 501, 503 (D.N.J. 1967). The Court will therefore

enforce the Policy as written. Dr. Hunter’s failure to submit

timely proof bars his claim to benefits prior to January 3, 2011

and renders him ineligible for a prospective adjustment of the

amount of his benefits based on an earlier date of disability

because the proof provision is a condition precedent to

coverage. See supra at 7.

V.     CONCLUSION

     For the foregoing reasons, the Court GRANTS defendant’s motion

for summary judgment. The Court issues this Opinion under seal

because it references certain sealed exhibits that were

submitted by the parties. The parties are ORDERED to notify the

Court whether any portion of this Opinion should be redacted

before being filed publicly by no later than July 14, 2014. An

appropriate Order accompanies this Memorandum Opinion.

     SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            July 1, 2014




                                  18
