1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 CAROLINE L. CONNOR, M.D., Case No. 4:19-cv-06552-YGR

7 Plaintiff, ORDER GRANTING MOTION FOR JUDGMENT v. 8

9 UNUM LIFE INSURANCE COMPANY OF Re: Dkt. Nos. 44, 45

AMERICA,

10 Defendant.

11 12 Plaintiff Caroline L. Connor, M.D., brings this action against defendant Unum Life 13 Insurance Company of America (“Unum”) under the Employment Retirement Income Security 14 Act of 1974, 29 U.S.C. §1001, et seq. (“ERISA”), challenging the denial of benefits under a long- 15 term disability (“LTD”) plan. In short, this matter turns on two issues. First, the interpretation of 16 on one sentence in the underlying LTD plan regarding eligibility; and second, whether Dr. Connor 17 worked at least 30 hours a week to qualify for benefits under the LTD plan. For the reasons set 18 forth more fully below, the Court finds that Dr. Connor qualifies an eligible employee for 19 disability benefits. Accordingly, Dr. Conner’s motion for judgment is GRANTED. 20 I. RELEVANT BACKGROUND1 21 Dr. Connor was formerly a practicing doctor in the Humboldt Medical Specialists 22 (“HMS”). She previously worked for Eureka Family Practice, prior to April 2017. St. Joseph 23 Health Medical Group purchased the practice which it then operated as HMS. In 2016, HMS 24 bought the LTD policy at issue here. Dr. Connor worked part time in both the Eureka Family 25 Practice, and at HMS. She was offered and accepted a “part time physician” position in this 26

27 1 For the good cause shown therein, the administrative motion requesting to file select 1 transition to HMS. Dr. Connor separately receives an individual disability insurance (“IDI”) 2 payment from The Paul Revere Life Insurance Company (“Paul Revere”). 3 Dr. Connor bought the IDI policy in 1999 and filed a claim for residual disability benefits 4 thereunder in January 2004 due to migraines. No one disputes that Dr. Connor suffers from a 5 disability within the meaning of the LTD plan effective December 28, 2018. Rather, the dispute 6 centers on whether she is an eligible employee, and even if she is, whether Dr. Connor worked 30 7 hours per week prior to her disability. 8 Dr. Connor’s evidence, in summary, consists of the following: 9 Dr. Connor provided a declaration, under penalty of perjury, where she detailed her 10 calculations showing that she averaged 32.5 hours per week, before inclusion of on-call hours. 11 (AR 7472-7475.) With respect to on-call hours, she attests that she worked an average of 15 hours 12 per week between July and December 2018 (AR 7474-7475), and provided Unum with the HMS 13 Family Medicine Call Schedule for July to December 2018. (AR 7477-7482.)2 14 Dr. Connor’s employer initially confirmed she worked at least 30 hours per week in the 15 Employer Statement completed and signed by HMS Physician Benefits Specialist Beth Shanahan 16 on January 18, 2019. (AR 44-46.) On the form, Ms. Shanahan wrote that Dr. Connor’s regular 17 work schedule hours were 30-32 hours per week and that Dr. Connor worked eight hours on 18 December 27, 2018, the last day that she worked. (Id.) Ms. Shanahan further confirmed that Dr. 19 Connor worked at least 30 hours a week in a February 14, 2019 telephone call. (AR 152.) As of 20 February 14, 2019, Unum received both written and verbal confirmation from Dr. Connor’s 21 employer that she worked at least 30 hours per week; which meant she satisfied the Plan’s 22 minimum hours requirement. For an unknown reason, Unum ignored the foregoing and found 23 instead that plaintiff was “part time” based on the language in her employment contract and did 24 not work over 30 hours per week. 25 2 Dr. Connor also provided the employment contract stating that she was required to be 26 “on-call” 24 hours a day, 7 days a week, and also participate in the “call group” (AR 55), which required that she go into the office on certain weekends to provide coverage and care for patients, 27 and make herself available by telephone, answering service and email to answer patient care 1 2 II. LEGAL FRAMEWORK 3 The parties agree that this Court should review this dispute under the de novo standard of 4 review. (Dkt. No. 24 at 4.) In a de novo review, the Court undertakes an independent inspection 5 of the Administrative Record without affording any deference to the plan administrator’s findings. 6 Silver v. Executive Car Leasing LTD Plan, 466 F.3d 727, 728 (9th Cir. 2006). When a district 7 court reviews de novo a plan administrator’s determination of a claimant’s right to recover long- 8 term disability benefits, the claimant has the burden of proving by a preponderance of the evidence 9 that she qualifies for benefits. Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 10 2010); Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999). 11 In construing the language of an ERISA-governed policy, courts apply federal common 12 law. Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir. 2002). Under that law, policy 13 terms are interpreted in the “ordinary and popular sense as would a person of average intelligence 14 and experience.” Id. (quoting Babikian v. Paul Revere Life Ins. Co., 63 F.3d 837, 840 (9th Cir. 15 1995)). In developing federal common law to govern ERISA claims, courts may “borrow from 16 state law where appropriate, and [be] guided by the policies expressed in ERISA and other federal 17 labor laws.” Id. (quoting Babikian, 63 F.3d at 840) (alteration in original). Under California law, 18 “if the meaning a layperson would ascribe to the language of a contract of insurance is clear and 19 unambiguous, a court will apply that meaning.” Montrose Chem. Corp. of Calif. v. Admiral Ins. 20 Co., 10 Cal.4th 645, 666-667 (1995). “This reliance on common understanding of language is 21 bedrock.” Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co., 5 Cal.4th 854, 867 22 (1993). 23 Only where a term is subject to two reasonable competing definitions after the application 24 of these rules of interpretation will the Court apply the contra proferentem doctrine and interpret 25 that term against the insurer. Deegan v. Cont’l Cas. Co., 167 F.3d 502, 507 (9th Cir. 1999) (citing 26 Babikian, 63 F.3d at 840). See also Lang v. Long-Term Disability Plan of Sponsor Applied 27 Remote Tech., Inc., 125 F.3d 794, 799 (9th Cir. 1997) (Doctrine of contra proferentem “requires 1 Entm’t Am. Inc. v. Am. Home Assur. Co., 532 F.3d 1007, 1012 (9th Cir. 2008). 2 III. ANALYSIS 3 A. Relevant Language of the Plan 4 The plan provides coverage for:

5 ELIGIBLE GROUP(S): All Full-Time Employees in active employment in the United 6 States with the Employer. Temporary and seasonal workers are excluded from coverage. 7 (AR 103; emphasis in original.) The bolded language is contained in a Glossary which defines 8 “active employment” as: 9 ACTIVE EMPLOYMENT means you are working for your 10 Employer for earnings that are paid regularly and that you are performing the substantial and material acts of your usual 11 occupation. You must be working at least 30 hours per week. 12 (AR 139; emphasis in original.) Under the plan, there is no reference to “part time employee;” 13 only, “full-time, employees” and “[t]emporary and seasonal workers.” By definition, the latter are 14 not an eligible group. The Glossary does not contain specific definitions of “full-time,” 15 “[t]emporary” or “seasonal.” However, it does define “employee” as “a person who is in active 16 employment with the Employer.” (Id.; emphasis in the original.) 17 Here, the analysis turns on whether the term “full-time” has a meaning separate and apart 18 from the characteristics describing “active employment,” namely that (i) earnings are paid 19 regularly, (ii) substantial and material performance of usual occupation, and (iii) at least 30 hours 20 of work per week. If so, then what is the meaning? Unum’s argument that “full-time” carries a 21 separate and distinct meaning, and therefore requirement, outside of the confines of the plan 22 ignores the full context of the Glossary definition. 23 According to the Merriam-Webster dictionary, the common definition of “full time” is the 24 “amount of time considered normal or standard for working during a given period.” Full-Time, 25 Merriam-Webster Dictionary, available at (last accessed November 23, 2020). The only numerical reference in 27 the plan document for that consideration is “30 hours per week.” That 30 hours could be sufficient 1 plans. See, e.g., Campos v. Reliance Standard Life Insurance Company, 2:15-cv-08304-ODW 2 (GJSx), 2017 WL 1370691, at *1 (C.D. Cal. Apr. 12, 2017) (“The LTD Plan terms define ‘full- 3 time’ as follows: ‘‘Full-time’ means working for you for a minimum of 30 hours during a person’s 4 regular work week.’”); Montoya v. Reliance Standard Life Insurance Company, Case No. 14-cv- 5 02740-WHO, 2016 WL 5394024, at *1 (N.D. Cal. Sept. 27, 2016) (Full-time means working “for 6 a minimum of 30 hours during a person’s regular work week.”); Ruttenberg v. U.S. Life Ins. Co. in 7 City of New York, 413 F.3d 652, 666 (7th Cir. 2005) (“The term ‘full-time’ is defined to mean[ ] 8 active work on the Participating Employer’s regular work schedule for the class of employees to 9 which you belong. The work schedule must be at least 30 hours a week.”).3 10 In construing the plan, the Court gives it its plain, and explicit, meaning. Unum could 11 have required some other number of hours, such as 40 hours per week, to define “full time.” It did 12 not. Therefore, Unum cannot now impose such a definition different than one which contradicts 13 the explicit timing requirement referenced. Such would not be plain to a lay reader.4 The three 14 requirements set forth explicitly in the plan define both a full time and active employee. Unum 15 cannot impose more. 16 B. Evidence of Full Time Status 17 Dr. Conner’s evidentiary showing, submitted under penalty of perjury, satisfies a 18 preliminary showing that she worked at least 30 hours per week. 19 Unum’s challenge thereto does not persuade. First, while Unum challenged the 20 calculation, it did so generically and without any evidentiary basis. Ms. Shanahan did not submit 21 anything in writing, substantiating the new, unverified estimate of weekly hours. She also failed 22 to explain the basis for the decrease in approximate weekly hours from 30-32 hours to 19 hours. 23

24 3 It is possible that in 1988 the definition may have been different leading to the result in the referenced unpublished opinion of Nelson v. Wick Building Systems, Inc., 860 F.2d 1089 (9th 25 Cir. 1988). As it is not binding, the Court finds it less persuasive here than the other cases referenced and the plain meaning of the plan itself. 26 4 Notably, even Unum’s Lead Disability Benefits Specialist understood the language in 27 this manner stating “. . . the policy requires her to be working full time (at least 30 hours per week) 1 Further, she failed to identify the medical office manager who allegedly provided this information, 2 and Unum never asked for the person’s identity in an attempt to confirm this new information. 3 The proffer is devoid of any objective measure of reliability and the Court discounts it in its 4 || entirety. 5 Next, Unum focuses on the employment contract. The Court acknowledges that the 6 || document anticipated work for only 12-15 hours per week. However, the document does not 7 prove that only 12-15 hours per week were actually performed. Such evidence is hearsay when 8 offered to prove the truth of the statements therein. 9 Rather than do any investigation to challenge the specific details proffered by Dr. Conner, 10 || UNUM principally attacks her credibility. It argues that she may have inflated her income 11 representations to receive a higher IDI benefit payment from Paul Revere and it identifies a 12 || discrepancy with the amount of hours worked as submitted on the IDI form and one submitted six g 13 months later. Unum’s “evidence” that Dr. Connor did not work at least 30 hours a week was 14 based on (i) claim forms submitted in connection with her Paul Revere claim, which were at least 3 15 six months old at the time of her disability (AR 14), and (ii) the unverified statement by an A 16 || unidentified office manager stating that Dr. Connor worked approximately 19 hours per week. 5 17 (AR 7351.) None of these arguments persuade, individually or collectively. 18 Accordingly, based on the administrative record submitted and the evidence therein, the 19 || Court concludes that Dr. Connor has demonstrated that she has worked at least thirty (30) hours to 20 || qualify for benefits under the LTD plan. 21 || IV. CONCLUSION 22 For the foregoing reasons, the motion for judgment is GRANTED. Within fourteen (14) 23 days, the parties shall file a proposed form of judgment consistent with this Order. 24 This Order terminates Docket Numbers 44 and 45. 25 IT Is SO ORDERED. 26 Dated: November 24, 2020 27 Lyon Hrptefleer,

YVONNE GONZALEZ ROGERS

28 UNITED STATES DISTRICT JUDGE