PETRA HENG V. METROPOLITAN LIFE INS. CO., No. 17-16726 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION OCT 15 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT PETRA HENG, U.S. COURT OF APPEALS No. 17-16726 Plaintiff-Appellant, D.C. No. 3:16-cv-04136-EMC v. MEMORANDUM* METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding Submitted October 11, 2018** Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges. Petra Heng appeals pro se from the district court’s summary judgment in her action under the Employee Retirement Income Security Act of 1974 (“ERISA”) for accidental death and dismemberment (“AD&D”) benefits. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Tremain v. Bell Indus., Inc., 196 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). F.3d 970, 975 (9th Cir. 1999). We affirm. The district court properly granted summary judgment because Heng failed to raise a genuine dispute of material fact as to whether defendant incorrectly denied AD&D benefits. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962-63 (9th Cir. 2006) (en banc) (on de novo review, the district court “simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits;” this court reviews de novo the district court’s application of the standard of review to decisions by fiduciaries in ERISA cases, and for clear error the underlying findings of fact). As appellant conceded in district court in response to Met Life’s motion for summary judgment, her husband Thomas was “no longer coemployed by Tri Net after June 30, 2012.” Accordingly, the contract on which appellant relies no longer covered her husband, either on July 1, 2012 or July 25, 2012 when he was discovered deceased. The conversion option rights in the contract, which were never exercised, unambiguously related only to life insurance coverage, not to AD&D. We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 2 17-16726

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