If a plaintiff is found to be disabled by the date of trial, can she still claim for future disability benefits?

This is particularly true where the proposed counterclaims for a declaration, as here, add no further dimension to the issues at trial. The trial judge must make a finding of fact whether the plaintiff has been and remains disabled within the meaning of the policy in order to determine whether the plaintiff is entitled to be paid her past benefits owing up to the date of trial. The same findings of fact would have to be made in order to determine the defendant’s proposed counterclaim for a declaration that the plaintiff is not disabled and not entitled to benefits. I am of the view that the trial judge could not make a determination as to future benefits, even if the plaintiff were found to be disabled on the date of trial, since its findings of fact will be restricted to disability up the date of trial. She could conceivably not be disabled a week after trial. As stated in Harrison v. Antonopoulos, supra at p. 471: “because payments are periodic under the terms of the policy or statute, a determination cannot be made on a ‘once and for all’ basis at trial.” As such, the proposed amendments add no new issues and it would be an abuse of process to allow them for the sole purpose of moving the action out of simplified procedure to allow for examinations for discovery.