Ernest E. Evans v. Safeco Life Insurance Company, Personal Security Option Program--Lockheed Special Accident Insurance Plan, Lockheed Corporation

dissenting in part:

I concur in the per curiam opinion with the exception of Part III. I do not agree that the word “children” as used in the insurance policy is unambiguous. Because “children” can be construed to include “stepchildren,” I believe the ambiguity in the ERISA policy should be construed in favor of Evans, and that it was error to dismiss Evans’ complaint.

Numerous authorities have noted or held that stepchildren may be included as children in insurance contracts. See Hummel v. Supreme Conclave Improved Order Heptasophs, 256 Pa. 164, 169-71 , 100 A. 589, 590 (1917); New York Life Ins. Co. v. Beebe, 57 F.Supp. 754, 757 (D.Md.1944) (depending upon circumstances of use, “child” may include stepchildren (interpreting California law)); Martin v. Aetna Life Ins. Co., 73 Me. 25, 27 (1881) (“[t]he word ‘child’ in legal documents ... may include grandchildren, step-children, children of adoption, & e.”); Hilliker v. Dowell, 54 Mich.App. 249, 252 , 220 N.W.2d 712, 714 (1974) (stepchildren included within insurance beneficiary designation “children”); Lehman v. Lehman, 215 Pa. 344, 351 , 64 A. 598, 600 (1906) (dicta that “the child of the widow by her former husband would be…

Ernest Evans (Evans) appeals the district court’s dismissal of his second amended complaint under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461 (1982 & Supp. IV (1987)) for the defendants’ failure to pay insurance benefits allegedly due Evans for the death of his former wife’s natural son, Gerald Evans (Gerald). We affirm.

I

In 1986, Evans was employed by Lockheed Corporation and enrolled in the Lockheed Special Accident Insurance Plan. Evans enrolled in the family plan, which covered the employee’s spouse and children. The handbook to this plan states “[t]he family plan provides coverage for your spouse and your children who are unmarried and under age 19 (or under age 23 if registered full-time students wholly dependent on you for financial support).” In July of 1986, Gerald Evans, the natural son of Evans’ ex-wife, died in an accident. Evans submitted a claim to Lockheed for Gerald’s death, which was denied by Safeco (the issuer of the group policy) on the ground that Gerald was not Evans’ child.

The following facts are taken from Evans’ second amended complaint. In 1968, Evans and Bertha Graham (Gerald’s natural mother) began to live…

Concurring in Part and Dissenting in Part:

I agree with the per curiam opinion’s conclusion that a person who is not related either to the insured or to the insured’s lawful spouse is not a “child” within the meaning of the insurance policy. No court in any state has ever reached a contrary decision. The authority upon which Judge Boochever relies, In re Bordeaux’ Estate, 37 Wash.2d 561 , 225 P.2d 433 (1950), deals with the phrase “child or step-child,” and in a tax rather than an insurance policy context.

I dissent from the per curiam opinion’s further holding, however, that ERISA requires us to develop, on our own, an entirely new federal common law of insurance contract interpretation. This case presents a garden variety question of the meaning of a word in an insurance policy, and the state courts have been deciding such questions routinely for generations. The possibility of departing from state law to create a new federal common law was never even raised by the parties in this case.

It is of course correct that because of ERISA’s broad preemption provisions, this case arises under federal law, and state law does not automatically apply. The question, however, is whether…

916 F.2d 1437 59 USLW 2291 , 12 Employee Benefits Ca 2755 Ernest E. EVANS, Plaintiff-Appellant, v. SAFECO LIFE INSURANCE COMPANY, Personal Security Option Program--Lockheed Special Accident Insurance Plan, Lockheed Corporation, Defendants-Appellees. No. 88-6299. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 14, 1989. Decided Oct. 19, 1990. Kenneth C. Blickenstaff, Lipsky & Blickenstaff, Claremont, Cal., for plaintiff-appellant. William V. McTaggart, Parker, Milliken, Clark, O'Hara & Samuelian, Los Angeles, Cal., for defendant-appellee Safeco Life Ins. Co. Donald B. Wallace, O'Melveny & Myers, Los Angeles, Cal., for defendants-appellees Lockheed Corp. and Personal Security Option Program--Special Acc. Ins. Plan. Appeal from the United States District Court for the Central District of California. Before SCHROEDER, BOOCHEVER and BEEZER, Circuit Judges. PER CURIAM: 1 Ernest Evans (Evans) appeals the district court's dismissal of his second amended complaint under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Secs. 1001-1461 (1982 & Supp. IV (1987)) for the defendants' failure to pay insurance benefits allegedly due…