Pearson

MEMORANDUM *

Neal Pearson appeals from the grant of summary judgment in favor of Provident Life & Accident Insurance Company on his claim alleging he was wrongfully denied occupational disability benefits under his insurance policy. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review the grant of summary judgment de novo and we reverse and remand.

Provident contends Pearson is not entitled to benefits because he failed to show that he is unable to perform the substantial and material duties of the occupation of chief executive officer of a food processing company. We disagree. There remains a material dispute of fact as to whether Pearson is capable of performing the duties of the occupation, rather than merely the particular job at Enway, given the unusual and noncustomary way he performed that job. McHorse v. Portland Gen. Elec. Co., 268 Or. 323 , 521 P.2d 315, 317 (1974); cf. Gammill v. Provident Life & Accident Ins. Co., 346 Ark. 161 , 55 S.W.3d 763, 768 (2001) (reliance on coworkers may be sufficiently unusual and noncustomary to render individual disabled). Pearson testified his disability rendered him incapable of working during normal business hours and…