Elgin K. Cox v. Allin Corporation Plan;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELGIN K. COX,
Plaintiff-Appellant,
v.
ALLIN CORPORATION PLAN; et al.,
Defendants-Appellees.
Nos. 16-15231
18-16975
D.C. Nos. 4:12-cv-05880-SBA
4:16-cv-04675-SBA
ORDER
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted January 11, 2021
San Francisco, California
Before: BYBEE and R. NELSON, Circuit Judges, and WHALEY,* District Judge.
The petition for panel rehearing filed by appellees Allin Corporation Plan
and Unum Life Insurance Company of America on March 2, 2021 is GRANTED.
The memorandum disposition filed February 17, 2021 is WITHDRAWN.
FILED
MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.

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The court considers the issue presented in these appeals important and one
that may affect other insurance contracts in California. Because the record is
insufficient, these appeals are REMANDED for the limited purpose of permitting
further development of the record. The district court shall conduct discovery to
determine whether the Allin Plan is a “California Contract” within the meaning of
Unum’s 2005 California Settlement Agreement (CSA) with the California
Department of Insurance (CDOI). The district court shall determine, based on
development of the record, whether the Allin Plan is “subject to the jurisdiction of
and approved by the [CDOI]” such that it is a “California Contract” governed by
the CSA and subject to the CSA’s prohibition on self-reported symptoms
limitations. We acknowledge that the district court found that the CDOI did not
have jurisdiction over the policy in Cox I, Cox v. Allin Corp. Plan, 70 F. Supp. 3d
1040 (N.D. Cal. 2014), and reaffirmed this finding in Cox II, Cox v. Allin Corp.
Plan, No. C 16-4675 SBA, Order Granting Defendant’s Mot. For Summ. J. at 17.
On the present record, however, the court is unable to determine whether such
finding was in error. The district court may want to consider whether the CDOI
claims to have jurisdiction over the subject policy or equivalent policies. The
district court may also want to address whether, even assuming that a copy of the
policy was not submitted to the CDOI, California insurance law so required. The
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district court may conduct proceedings consistent with this order and issue
findings, at which point we will resume jurisdiction over these appeals. We
express no opinion on the merits.
Submission is VACATED and these appeals shall be held in abeyance
pending resolution of the proceedings on remand. The parties shall inform this
court within 7 days after the district court issues an order. The Clerk shall
administratively close these appeals pending resolution of the remand.
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