Kai Weaver, on behalf of herself and all others similarly situated v. Aetna Life Insurance Company

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAI WEAVER, on behalf of herself and
all others similarly situated,
Plaintiff - Appellant,
v.
AETNA LIFE INSURANCE COMPANY,
et al.,
Defendants - Appellees.
No. 08-17512
D.C. No. 3:08-00037-LRH-VPC
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted February 12, 2010
San Francisco, California
Before: GOODWIN, BERZON and IKUTA, Circuit Judges.
Kai Weaver appeals from the judgment dismissing without prejudice under
Fed. R. Civ. P. 12(b)(6) her first amended, class-action complaint alleging financial
injury to class members, who purchased a group life-insurance policy from Aetna
FILED
MAR 10 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Life Insurance Company, administered by Western Insurance Specialities, Inc.
The alleged loss is premiums paid, commencing in 2004, for the group policy that
allegedly was not finalized until 2006. This court reviews a district court’s
dismissal under Fed. R. Civ. P. 12(b)(6) de novo and “can affirm on any ground
supported by the record.” Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008).
Standing is the “essential and unchanging part of the case-or-controversy
requirement of Article III” for a plaintiff’s case. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). “A plaintiff must allege personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be redressed by the
requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)
(citation and internal quotation marks omitted). Although economic injury can
satisfy Article III injury-in-fact, see Clinton v. City of New York, 524 U.S. 417,
432-33 (1998), Weaver did not allege that she made a claim for which payment
was not received during the time that she paid premiums or that the policy for
which she and other members of the purported class paid was worth less than they
paid for it; she excluded from the class all insureds who received benefits
payments for claims on the group policy. Thus, she has failed to show that she did
not receive the benefit of the group-insurance contract or that the policy did not

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exist, because benefits were paid to insureds who made claims. Therefore, Weaver
has shown no injury-in-fact to support standing. Similarly, to proceed in federal
court, Weaver’s state-law claims have failed to “meet the stricter federal standing
requirements of Article III.” Cantrell v. City of Long Beach, 241 F.3d 674, 683
(9th Cir. 2001).
Weaver’s allegations that the group-insurance policy did not meet formation
requirements implicate compliance with Nevada regulatory insurance law. Any
right to relief for Weaver’s claims alleging violation of the Nevada Insurance Code
resides exclusively with the Insurance Commissioner, Nev. Rev. Stat. §
686A.015(1), and the Nevada Supreme Court has held that there can be no private
right of action related to the regulatory requirements for insurers in Nevada.
Allstate Ins. Co. v. Thorpe, 170 P.3d 989, 994 (Nev. 2007); accord Baldonado v.
Wynn Las Vegas, LLC, 194 P.3d 96, 104 n.32 (Nev. 2008) (confirming Thorpe that
the exclusive jurisdiction of the Insurance Commissioner precludes a private cause
of action). Federal courts in diversity cases “are bound by the pronouncements of
the state’s highest court on applicable state law” and cannot review by declaratory
judgment Nevada insurance law. Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d
931, 939 (9th Cir. 2001).
AFFIRMED.

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Weaver v. Aetna Life Insurance Company, 08-17512
BERZON, Circuit Judge, concurring:
I agree that the judgment of the district court should be affirmed.
FILED
MAR 10 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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