Donna C. Ray v. Prudential Insurance Company of America

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. Fed. R. App. P. 34(a)(2).
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA C. RAY,
Plaintiff - Appellant,
v.
PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
Defendant - Appellee.
No. 11–15504
D.C. No. 3:09-cv-05598-RS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted October 19, 2012**
San Francisco, California
Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.
Plaintiff-Appellant Donna C. Ray appeals the district court’s decision
FILED
OCT 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The parties are familiar with the facts, and we repeat them here only as1
necessary to explain our decision.
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granting summary judgment on her claims relating to Defendant-Appellee
Prudential Insurance Company of America (“Prudential”)’s denial of her claim for
long-term disability benefits. Prudential denied Ray’s claim in 1995, but Ray did
not file this action until 2009. Ray concedes that her claims are time barred unless
the doctrines of equitable estoppel or waiver apply. We review the district court’s
decision to grant summary judgment de novo. Michelman v. Lincoln Nat’l Life
Ins. Co., 685 F.3d 887, 892 (9th Cir. 2012) (citation omitted). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1
Relying on Spray, Gould & Bowers v. Associated International Insurance
Co., 71 Cal. App. 4th 1260, 1266-74 (1999), Ray argues that equitable estoppel
should preclude Prudential from asserting the statute of limitations defense because
it had a duty to disclose the statute of limitations to her pursuant to Cal. Code Regs.
tit. 10, § 2695.4(a) and § 2695.7(f). Section 2695.4(a) does not apply here because
by its own terms it applies to “time limits . . . of any insurance policy” and not a
statutory limitations period. See, e.g., Juarez v. 21st Century Ins. Co., 105 Cal.
App. 4th 371, 375-76 (2003) (stating that “by its plain language the regulation
requires disclosure of time limits contained in an insurance policy rather than time

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limits set forth in a statute”).
Ray raises her argument concerning § 2695.7(f) for the first time on appeal.
Although Ray argues that this presents a “purely legal issue,” there was evidence
in the record suggesting that Ray was represented by counsel in 1995, which would
thereby have relieved Prudential of any obligation under § 2695.7(f). This is a
factual issue that is dependent on the factual record developed by the parties before
the district court and if we were to consider it, it would necessarily prejudice
Prudential. See Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1005 (9th Cir.
2004). Accordingly, we decline to consider it.
Ray also argues that Prudential waived the statute of limitations defense by
agreeing to consider her 2008 appeal on the merits. Generally, an insurer’s “denial
of coverage on one ground does not, absent clear and convincing evidence to
suggest otherwise, impliedly waive grounds not stated in the denial.” Waller v.
Truck Ins. Exch., Inc., 11 Cal. 4th 1, 31 (1995). Additionally, the Supreme Court
of California has previously stated that an insurer’s failure to invoke an applicable
limitation when denying a claim “cannot, as a matter of law, amount to a waiver[.]”
Prudential-LMI Commercial Ins. v. Superior Court, 51 Cal. 3d 674, 690 n.5
(1990). Applying California law, we have previously explained that we are bound
by Prudential-LMI. See Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1163-64 (9th

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Cir. 1995). Under the applicable law, Prudential did not waive the statute of
limitations defense by considering Ray’s belated appeal on the merits long after the
limitations period had expired.
AFFIRMED.

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