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Arum v. Paul Revere Life Ins. Co.

United States Court of Appeals, Ninth Circuit
Aug 25, 2003
73 F. App'x 979 (9th Cir. 2003)

Opinion

Argued and Submitted August 11, 2003.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Insured appealed grant, by the United States District Court for the District of Nevada, Kent J. Dawson, J., of summary judgment for insurer. The Court of Appeals held that (1) issue of fact existed as to whether insured was totally disabled under disability income insurance policy, and (2) insured was not entitled to additional payment under supplemental social insurance benefit rider.

Affirmed in part, reversed in part, and remanded. Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding.

Steven J. Parsons, Alan D. Cates, Law Offices of Steven J. Parsons, Las Vegas, NV, for Plaintiff-Appellant.

Ann-Martha Andrews, Patricia Norris, Lewis & Roca, Phoenix, AZ, Von S. Heinz, Lewis & Roca, Las Vegas, NV, for Defendant-Appellee.


Before REINHARDT and GRABER, Circuit Judges, and SHADUR, Senior District Judge.

The Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Plaintiff Beverly Arum sued Defendant Paul Revere Insurance Company, and the district court granted summary judgment in Defendant's favor. We affirm in part and reverse in part.

A. Claims for Breach of Contract and Bad Faith.

Plaintiff produced enough evidence to give rise to a genuine issue of material fact as to whether she was "totally disabled" under the parties' disability income insurance policy. For example, in January 2000, her treating physician reported that for the indefinite future she would be unable to work in any occupation, and he testified that Plaintiff could not perform any productive job without retraining. Because there is a genuine issue of material fact, the district court erred in entering summary judgment.

The policy states in relevant part:

Page 981.

B. Supplemental Social Insurance Benefit Rider.

Plaintiff is not entitled to receive the additional payment because, under the terms of the rider, the payment would be due only if she were not receiving social security benefits. Nevada Revised Statute § 689A.240 does not invalidate an excess policy of this kind. See State Farm Mut. Auto. Ins. Co. v. Cramer, 109 Nev. 704, 857 P.2d 751 (1993) (holding that a catastrophic medical expense rider was enforceable even though not provided for in § 689A). Therefore, the district court properly enforced the rider according to its terms.

C. Costs.

Because we are reversing and remanding the case for further proceedings, and the issue may not arise again, we need not reach the question whether the district court correctly calculated costs.

AFFIRMED in part, REVERSED in part, and REMANDED. The parties shall bear their own costs on appeal.

[A]fter the Total Disability benefit has been payable for 24 months during any one period of disability, then "Total Disability" means that because of injury or Sickness:

a. You are completely unable to engage in any gainful occupation for which You are reasonably fitted by education, training, or experience, considering Your prior economic status; and

b. You are under the regular and personal care of a Physician.


Summaries of

Arum v. Paul Revere Life Ins. Co.

United States Court of Appeals, Ninth Circuit
Aug 25, 2003
73 F. App'x 979 (9th Cir. 2003)
Case details for

Arum v. Paul Revere Life Ins. Co.

Case Details

Full title:Beverly R. ARUM, Plaintiff--Appellant, v. PAUL REVERE LIFE INSURANCE…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 25, 2003

Citations

73 F. App'x 979 (9th Cir. 2003)