Henry

SUPPLEMENTAL ORDER ON CROSS MOTIONS FOR SUMMARY ADJUDICATION

On apparent first impression in the Ninth Circuit, the Court holds a disability insurance policy may condition benefits on the insured’s consent to appropriate medical care, which may include surgery.

I. BACKGROUND

In 1988 Provident Life & Accident Ins. Co. issued disability coverage to the insured doctor. Since 1997 Provident has paid policy disability benefits, with a reservation of rights, on the doctor’s claim that carpal tunnel syndrome makes him unable to practice his occupation as a podiatric surgeon.

The coverage contains an “appropriate care” provision requiring the insured to “receiv[e] care by a Physician which is appropriate for the condition causing the disability.”

In 1999 Provident sued the doctor for declaratory relief, money had and received, and restitution of benefits. Provident asserts the insured failed to fulfill the “appropriate care” policy provision. Among other things, Provident contends the insured had a duty to undergo carpal tunnel syndrome release surgery. Provident contends more conservative treatment has failed, and the surgery in question is a common, low-risk procedure with the…