Capianco

MEMORANDUM *

Gil Capianco appeals the district court’s grant of summary judgment to Hartford Life and Accident Insurance Company on Capianco’s suit under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132 (a)(1)(B), for disability benefits. We have jurisdiction under 28 U.S.C. § 1291 . We reverse on two of Capianco’s theories of recovery, affirm the district court’s judgment as to the rest of his theories, and remand for further proceedings.

As an initial matter, we hold that the district court was correct in reviewing Hartford’s decision under a de novo standard of review. 1 Jebian v. Hewlett-Packard Co. Employee Benefits Organization Income Protection Plan, 349 F.3d 1098 (9th Cir.2003), governs this case because page 18 of Uromed’s Plan provides that Hartford will make a decision “in no case more than 120 days after the request for review is received.” It is undisputed that Hartford never rendered a final decision on Capianco’s appeal. Because Hartford violated a “limitation on the exercise of discretion ... which ... is expressly contained in the plan itself,” Jebian, 349 F.3d at 1106 n. 6 (emphasis omitted), there was no exercise of discretion to which a…

concurring:

I would hold that Capianco also came forward with enough evidence to avoid summary judgment on his estoppel claim. Capianco alleges that a Hartford representative caused to be passed along to him, via his employer’s H.R. department, the assurance that his pre-existing condition would be covered. This was not idle chitchat or lunchroom gossip, but a formal written response to a specific inquiry made by an individual with a serious disease. In my opinion, these circumstances, if proven to be true, are sufficiently extraordinary to invoke equitable estoppel.