Graham Mitchell, Plaintiff-appellant, v. Principal Mutual Life Insurance Company, Defendant-appellee, 61 F.3d 911 (9th Cir. 1995)

Before: FARRIS, O'SCANNLAIN, Circuit Judges, and TASHIMA,^*  District Judge.

MEMORANDUM^** 

Mitchell argues that Principal Mutual refused to honor the twelve-month extension of benefits clause in the insurance contract. We do not consider arguments raised for the first time on appeal. Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir. 1980). The rule of waiver is discretionary if the issue "is purely one of law and either does not affect or rely upon the factual record developed by the parties." Id. Mitchell's argument does not fall within this limited category. But that is not Mitchell's primary problem. Mitchell did not submit any claims nor did he file for extended benefits.

Mitchell also argues that under California law he acquired a vested right to benefits that extend beyond the termination of the policy. See Fields v. Blue Shield of Cal., 163 Cal. App. 3d 570, 586-88, 209 Cal. Rptr. 781, 789-92 (Cal.App.4 Dist.1985). As the district court concluded, Principal Mutual's policy clearly limits payments to expenses incurred for treatment during the life of the policy. The contract permitted Principal Mutual to terminate the policy if Trans Sierra was out of business. Principal Mutual discovered the termination of Trans Sierra's business in September 1990 and terminated the insurance policy effective October 31, 1990. Mitchell had heart replacement surgery on October 7, 1991, but no right to benefits had vested.

On the record before us, summary judgment was properly granted. We do not consider the question of ERISA preclusion.

AFFIRMED.