Maynard

MEMORANDUM *

Appellant Constance Maynard (Maynard) appeals the grant of summary judgment in favor of Appellees CNA Group Life Assurance Company, Continental Casualty Company, Hewitt Associates, LLC, and the Hewitt Long Term Disability Plan (collectively CNA).

The district court erred in granting summary judgment to CNA on the issue of which policy controlled. See E. & J. Gallo Winery v. EnCana Corp., 508 F.3d 1027, 1033 (9th Cir.2007) (“Summary judgment is appropriate only where ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”) (citation and internal quotation marks omitted). A material issue of fact exists as to the date the second policy was adopted. Grosz-Salomon v. Paul Revere Life Insurance Co., 237 F.3d 1154 (9th Cir.2001), could control only if the second policy was adopted prior to the date Maynard’s benefits were denied. See id. at 1160-61 . The second policy’s effective date is irrelevant unless the policy was adopted prior to the denial of Maynard’s claim.

Although there was evidence in the record as to when the second policy was effective, there was no evidence in the record as to when the…

Circuit Judge, concurring:

I agree that this case must be remanded for further proceedings, including discov *680 ery to determine the date of adoption of the second policy. I write separately because the majority opinion could be read to imply that — absent estoppel — the second policy will control if it was adopted prior to the date on which CNA denied Maynard’s claim. Our caselaw makes clear, however, that the first policy would apply if (1) by its own terms, Maynard’s rights had vested before CNA denied her claim, or (2) the second policy directed the administrator to apply the first policy. Shane v. Albertson’s Inc., 504 F.3d 1166, 1169 (9th Cir.2007) (noting that both the original and amended policies directed the administrator to apply the policy in effect on the date of disability). On remand, the district court after discovery will be in a better position to interpret the language of both policies to determine whether Maynard’s rights had vested under the first policy or whether the second policy directed the plan administrator to apply the first policy where, as here, the claimant was not actively at work on the effective date of the second policy.