Susan A. Bjurman; George A. Bjurman, Co-executors of Thewill of Dorothy L. Bjurman, Plaintiffs-appellees, v. Transamerica Corporation Employees Health Care Plan, Aka,transamerica Corporation, Defendant-appellant, 108 F.3d 1384 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 108 F.3d 1384 (9th Cir. 1997) Argued and Submitted March 4, 1997. Decided March 13, 1997

Before: FARRIS, KOZINSKI and T.G. NELSON, Circuit Judges.

MEMORANDUM* 

The plan at issue is self-funded and expressly delegates to plan administrators the right to interpret ambiguous provisions. The district court therefore improperly applied the doctrines of contra proferentem and reasonable expectations to the plan's custodial care exclusion. See Winters v. Costco Wholesale Corp., 49 F.3d 550, 553 (9th Cir.), cert. denied, 116 S. Ct. 276 (1995). Instead, the district court should have deferred to the plan committee's reasonable interpretation of the provision.

The district court also erred in concluding that the plan committee abused its discretion by denying coverage for Bjurman's 24-hour nursing care. While there was a conflict in the medical evidence presented by the parties, the plan's doctors considered and rejected the medical necessity of around-the-clock care to protect Bjurman against the risk of aspiration and other complications. E.g., ER at 659. We must defer to this reasonable conclusion. See Barnett v. Kaiser Foundation Health Plan, Inc., 32 F.3d 413, 417 (9th Cir. 1994). And we do.

REVERSED and REMANDED with instructions to enter summary judgment for appellant. Award of attorney's fees VACATED.


 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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