Florian Lekavich, Plaintiff-appellant, v. Unum Life Insurance Company of America; Astech/mcimanufacturing Inc., Group Long Term Disabilityinsurance Plan, Defendants-appellees, 141 F.3d 1177 (9th Cir. 1998)

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US Court of Appeals for the Ninth Circuit - 141 F.3d 1177 (9th Cir. 1998) Decided March 9, 1998. Presiding Argued and Submitted December 3, 1997 Pasadena, California

Appeal from the United States District Court for the Central District of California Linda H. McLaughlin, District Judge.

Before SCHROEDER and KOZINSKI, Circuit Judges, and WHYTE,**  District Judge.

MEMORANDUM* 

Plaintiff-Appellant Florian Lekavich challenges UNUM Life Insurance Company of America's denial of his claim for disability benefits under the Employee Retirement Security Act, 29 U.S.C. §§ 1001, et seq.

Lekavich first argues that the district court erred in applying the "arbitrary and capricious" standard because UNUM's dual status as claim administrator and claim underwriter created a conflict of interest. Although there was a formal conflict because of UNUM's dual status, plaintiff was required to show evidence that the fiduciary's self-interest actually caused it to breach the administrator's fiduciary obligations. See Lang v. Long-Term Disability Plan, 125 F.3d 794, 798 (9th Cir. 1997); Snow v. Standard Ins. Co., 87 F.3d 327, 331 (9th Cir. 1996). Appellant presented no evidence of bad faith or improper motivation on the part of UNUM. Appellant relies on Lang where the plan took inconsistent positions. See Lang, 125 F.3d at 799. That did not occur here.

Applying the arbitrary and capricious standard, we conclude that the plan's decision must be upheld. It was supported by the opinion of a doctor who examined plaintiff's medical records. He reviewed the undisputed diagnoses and treatment of conditions that he noted were "not well controlled," and which are risk factors for coronary artery disease, and concluded that they "contributed to" the disabling condition, consequently, there was no arbitrariness or irrationality.

AFFIRMED.

 **

Honorable Ronald M. Whyte, United States District Judge for the Northern District of California, sitting by designation

 *

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