Merklin

concurring in part and dissenting in part.

I concur in the majority’s affirmance of the denial of Merklin’s motion for summary judgment. I respectfully dissent, however, from the majority’s affirmance of the grant of Liberty’s motion for summary judgment in this case. Regardless whether the district court should have reviewed the case under a de novo or an abuse of discretion standard, summary judgment for the defendants was improperly granted.

I. Coverage

Merklin met her burden to prove she was disabled as defined under the policy, thus invoking coverage. Sabatino v. Liberty Life Assur. Co. of Boston, 286 F.Supp.2d 1222, 1223 (N.D.Cal.2003). The policy defines the grant of coverage as whether the insured is disabled from performing stated functions, rather than as requiring specific medical findings as to the cause of that disability. For the first 24 months, Merklin is “disabled” if she cannot function in her occupation because of any “Injury or Sickness.”

Thereafter, for Merklin to continue to be disabled, she must be unable to function in any occupation for which she is or becomes reasonably fitted by training, education, experience, and her personal attributes.

Merklin…

*31 MEMORANDUM *

Mary A. Merklin and Liberty Life Assurance Company of Boston filed cross-motions for summary judgment in her action for disability benefits, and she appeals the judgment in Liberty’s favor. We affirm.

I

We agree with the district court that review is for abuse of discretion because Merklin did not show material, probative evidence beyond the fact of mere apparent conflict of interest tending to show that self-interest caused a breach of Liberty’s fiduciary obligations. Friedrich v. Intel Corp., 181 F.3d 1105, 1109 (9th Cir.1999); Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995). While Liberty was uncertain about Merklin’s diagnosis for a brief period of time, it continuously relied on the policy’s definition of disability and indicated to Merklin that she could only receive benefits for mental illness for 24 months. Once Liberty concluded that her primary disabling condition was psychological and that there was no objective medical evidence that she was unable physically to perform sedentary work as the policy required, it so informed Merklin.. This was months before her benefits were terminated. It was not “manipulative” for Liberty to have…