Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1976)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1224 (9th Cir. 1976)

Robert S. COPELAND, Plaintiff-Appellant,v.CNA FINANCIAL CORPORATION, Credithrift Financial, Inc.,Continental Assurance Company, ContinentalCasualty Company, Defendants-Appellees.

No. 88-6445.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1990.Decided April 10, 1990.

Appeal from the United States District Court for the Southern District of California; William B. Enright, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before GOODWIN, Chief Judge, and CANBY and LEAVY, Circuit Judges.


MEMORANDUM* 

In this action, Robert S. Copeland seeks damages from CNA Financial Corporation et al. ("CNA") for alleged mishandling of his employee benefits plan. The district court awarded summary judgment to the defendants, and Copeland appeals.

We review de novo the district court's decision to grant CNA summary judgment. See Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). Our task is the same as the district court's: to determine, viewing the evidence in the light most favorable to Copeland, whether there are any genuine issues of material fact, and, if not, then whether CNA is entitled to judgment as a matter of law. Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th Cir. 1984), cert. denied, 474 U.S. 865 (1985). We affirm.

II

The Employee Retirement Income Security Act ("ERISA") obligates CNA, as administrator of Copeland's welfare benefits plan, to "discharge [its] duties ... in accordance with the documents and instruments governing" that plan. 29 U.S.C. § 1104(a) (1) (D); see also Blau, 748 F.2d at 1353. As interpreted by this court, that obligation means that CNA's actions in handling Copeland's benefits must not be arbitrary or capricious, taken in bad faith, unsupported by substantial evidence or erroneous as a matter of law. See McDaniel v. National Shopmen Pension Fund, 817 F.2d 1370, 1373 (9th Cir. 1987); Dockray v. Phelps Dodge Corp., 801 F.2d 1149, 1152 (9th Cir. 1986); Blau, 748 F.2d at 1352-53.

Copeland urges us to adopt a new rule, under which the district court would review CNA's handling of the benefit plan de novo, rather than for "arbitrary and capricious" conduct. Such a shift, Copeland argues, would sensibly extend the holding of Firestone Tire & Rubber Co. v. Bruch, --- U.S. ----, 109 S. Ct. 948 (1989), in which the Supreme Court decided that, where plaintiffs challenge a denial of benefits that is based on interpretation of the plan's language, and the plan at issue does not grant discretionary authority to the administrator, courts should review the denial de novo.

We have no need to decide whether the rule of Firestone Tire properly may be extended to reach this case, because our decision on the award of summary judgment would be the same regardless of the standard to which we held CNA.

III

Copeland alleges three distinct wrongful actions by CNA: (A) CNA delayed payment of certain monthly long-term disability benefits; (B) CNA delayed processing certain medical expense reimbursement claims;1  (C) after Credithrift acquired the division of CNA for which Copeland worked, he was transferred to Credithrift's inferior and more expensive medical benefits plan. At trial, Copeland would have had the burden of proving that these actions constitute violations of CNA's fiduciary duties under ERISA. Thus, in order to defeat CNA's motion for summary judgment, Copeland needed "to make a showing sufficient to establish the existence of" the alleged fiduciary duties and breaches thereof. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We concur in the district court's conclusion that Copeland did not make the required showing with respect to any of the three claims.

A. Delays in Processing Claims for Long-term Benefits.

Copeland and CNA agree that from 1976 until the end of 1980 Copeland received his long-term disability payments on the 15th of each month, and that thereafter he often received the payment sometime between the 16th and the 27th of each month. The parties disagree on whether the "delays" in the post-1980 payments constitute a violation of CNA's fiduciary duties under ERISA.

Copeland asserts that the plan provided for payment to be made on the 15th of each month.2  As evidence of this asserted entitlement, however, Copeland offers only the Weickle letter of February 9, 1976, which does not support his claim. That letter merely states that Copeland's benefits became payable on January 15, 1976; it does not mention monthly payments at all, much less the day of the month on which they should arrive. Copeland, therefore, has not produced evidence tending to show that CNA's actions in sending out checks after the 15th violated the terms of the plan. (Moreover, CNA filed the Molle declaration stating that the plan does not provide for payment of disability benefits on a specific day each month.)

Nor has Copeland introduced any evidence, apart from the timing of the payments itself, that CNA acted arbitrarily, capriciously, or in bad faith in issuing his disability checks. Without more, the mere fact that checks sometimes arrived between the 16th and 27th is not sufficient to establish that CNA's conduct descended to that level. Furthermore, Copeland does not dispute that he received every check during the month for which it was issued, and that the checks usually arrived on about the 17th. These facts weigh against a finding of improper conduct.

B. Delays in Processing Medical Benefits.

The parties also do not dispute that certain of Copeland's claims for reimbursement of medical expenses were paid between 2 and 9 months after they were submitted. Copeland alleges that these delays represent violations of the plan. He has produced no evidence, however, that the terms of the plan call for more expeditious processing of claims. For its part, CNA presented the Pikulski declaration, which states that the plan does not provide for processing of claims within a specified time, and that CNA had to coordinate its payments to Copeland with benefits he received from Medicare, a time-consuming procedure. Copeland offered nothing to refute this explanation.

Hence, while Copeland has introduced no support for his allegation that CNA acted arbitrarily or in bad faith, CNA has presented unchallenged evidence that it had a reasonable basis for taking the time it did to process Copeland's claims for reimbursement. On this state of the record, CNA must prevail.

C. Transfer to Credithrift Medical Plan.

There is no disagreement that some months after Credithrift acquired the division of CNA for which Copeland worked, Copeland was transferred to Credithrift's medical benefits plan. There is also no disagreement that Credithrift's plan is inferior to CNA's.

Copeland asserts that he is entitled to remain under the CNA plan. He has not presented any support for this presumed entitlement from the plan itself. Instead, he has merely pointed out that other disabled division employees continued with the CNA plan after the Credithrift acquisition. In response, CNA filed the Halverson and Vulbrock declarations, which state that the acquisition agreement provided for CNA to retain "home office" employees under its plan and for Credithrift to take "field office" employees under its plan. This plausibly explains the otherwise curious disparity in the treatment of Copeland and some others. Copeland simply expresses doubt about the genuineness of this explanation, but introduced nothing to undermine it.

IV

The decision of the district court to award summary judgment to the defendants is AFFIRMED.

 *

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

 1

Appellant conceded at oral argument that these first two allegedly improper actions by CNA would not give rise to liability in damages under ERISA. Appellant contends that they nevertheless retain evidentiary significance, and we therefore address them

 2

Strangely, during the two years of litigation below, Copeland apparently never filed a Rule 34 request for production of the benefits plan document(s). Nor did he, pursuant to Rule 56(f), urge rejection of CNA's application for summary judgment or move for a continuance on the ground that his lack of this documentation prevented him from effectively opposing CNA's motion. In his opening and reply briefs on appeal, Copeland now argues that production of the plan is essential. Having passed up the opportunity to make that point to the district court, Copeland may not make it here. See Avila v. Travelers Insurance Companies, 651 F.2d 658, 660 (9th Cir. 1981)