Gabrielian v. Lafayette Life Insurance Co.

MEMORANDUM

Leo Gabrielian appeals the district court’s grant of summary judgment in favor of Lafayette Life Insurance Company. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand for further proceedings.

1. Reviewing for abuse of discretion, Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir. 2012), we conclude that the district court abused its discretion in striking from Gabrielian’s declaration his statement that he requested to convert his term life insurance policy prior to the five-year policy deadline. Under the “sham affidavit” rule, “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Id. at 1080 .

Here, Gabrielian’s deposition testimony that he “may have” contacted Lafayette prior to November 11, 2010 is not in “clear and unambiguous” conflict with his later declaration. Id. Nor does Gabrielian appear to have spontaneously recalled when he first contacted Lafayette regarding conversion. Rather, he relied on a letter he had written to Lafayette that he found after his deposition and attached to his declaration.

These facts distinguish Gabrielian’s case from Yeager , where the deponent claimed to…