McGregor

MEMORANDUM *

The Paul Revere Life Insurance Company (“Paul Revere”) appeals the denial of its motions for judgment as a matter of law (“JMOL”) and for a new trial, following a verdict in favor of Susan McGregor, and the denial of its motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I. Motion for JMOL

We review the denial of a JMOL motion de novo. Janes v. Wal-Mart Stores Inc., *415 279 F.3d 883, 886 (9th Cir.2002). We will reverse the jury’s verdict only if it is not supported by substantial evidence. See Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.1999).

A. Breach of Contract

Under McGregor’s occupational disability policy (the “Policy”), she is entitled to “Total Disability” benefits if, “because of Injury or Sickness,” she is: (1) “unable to perform the important duties of [her] regular occupation;” (2) “not engaged in any other gainful occupation;” and (3) “under the regular and personal care of a Physician.” Whether McGregor is totally disabled under the Policy is a question of fact. Erreca v. W. States Life Ins. Co., 19 Cal.2d 388 , 121 P.2d 689, 696 (Cal.1942).

1. The Important Duties of McGregor’s…

I concur in all of the majority’s disposition, except for Part I.C, from which I respectfully dissent. The majority misapplies the future benefits rule of Egan v. Mut. of Omaha Ins. Co., 24 Cal.3d 809 , 169 Cal.Rptr. 691 , 620 P.2d 141 , 149 n. 7 (Cal. 1979). When the rule is correctly applied, *421 I disagree that substantial evidence supports the award of the present value of future benefits in this case.

As the majority correctly states, an insured can recover the present value of future “Total Disability Benefits” that the jury reasonably concludes she “would have been entitled to receive had the contract been honored by the insurer.” Id. Egan requires that whether the insured would “engage[ ] in any other gainful occupation” be answered as of the date of the insurer’s breach and not as of the date of the verdict. In other words, under Egan, the jury is required to consider what would have happened if the contract had not been breached. Contrary to this rule, the majority looks at the issue as of the date of the trial and considers events that occurred as a result of Paul Revere’s breach to sustain its position. See Maj. dispo. at 418 (“Even if the jury ultimately had reached…