Masseth
Masseth v. Hartford Life & Accident Insurance
Opinion
Lead Opinion
MEMORANDUM *
Masseth appeals the district court’s grant of summary judgment in favor of the Hartford Life & Accident Insurance Com *52 pany, an ERISA insurance plan provider. The district court held that the pre-existing condition exclusion language in the insurance contract precluded coverage. We have jurisdiction and we affirm.
We review a grant of summary judgment de novo. Vernon v. Southern Cal. Edison Co., 955 F.2d 1361, 1365 (9th Cir.1992). When interpreting an insurance policy under ERISA, we apply federal common law, which “interpret^] terms in ERISA insurance policies in an ordinary and popular sense as would a person of average intelligence and experience.” Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir.2002) (internal quotation marks and citation omitted). ‘We will not artificially create ambiguity where none exists. If a reasonable interpretation favors the insurer and any other interpretation would be strained, no compulsion exists to torture or twist the language of the policy.” Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir.1990) (internal quotation marks and citations omitted).
In this case, the insurance contract expressly stated a…
Dissenting Opinion
Thomas, J.
dissenting.
I respectfully dissent. In applying the applicable law, I would follow the generally accepted pre-ERISA view that the legal definition of “consultation” with a physician means more than a “casual inquiry.” Jeffress v. New York Life Ins. Co., 74 F.2d 874, 876 (4th Cir.1935) (citing cases). In this instance, the insured sought treatment from the physician about another ailment. The only evidence in the record that he “consulted” with the physician about excessive blinking on that occasion is a notation on the physician’s notes. The record is unclear as to whether the insured inquired about the condition, or whether the notation was made in response to routine medical history inquiries. As such, construing the facts in the light most favorable to the non-moving party, I would conclude that there exist genuine issues of material fact that preclude summary judgment.