Elaine Marie Walker Earle v. Unum Life Insurance Company of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELAINE MARIE WALKER EARLE,
Plaintiff-Appellant,
v.
UNUM LIFE INSURANCE COMPANY
OF AMERICA,
Defendant-Appellee,
and
GROUP BASIC ACCIDENTAL DEATH
AND DISMEMBERMENT PLAN FOR
EMPLOYEES OF UNIVERSITY OF
SOUTHERN CALIFORNIA; DOES, 1
through 10 Inclusive,
Defendants.
No. 20-55868
D.C. No.
2:19-cv-02903-JFW-AFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted October 6, 2021
Pasadena, California
Before: GRABER, CHRISTEN, and OWENS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In this action under the Employee Retirement Income Security Act
(“ERISA”), Elaine Marie Walker Earle appeals from the district court’s judgment
concluding that Unum Life Insurance Company of America (“Unum”) correctly
denied Earle’s claim for accidental death and dismemberment (“AD&D”) benefits
for the loss of sight in her right eye. As the parties are familiar with the facts, we
do not recount them here.
“We review de novo a district court’s choice and application of the standard
of review to decisions by fiduciaries in ERISA cases. . . . [and] review for clear
error the underlying findings of fact.” Est. of Barton v. ADT Sec. Servs. Pension
Plan, 820 F.3d 1060, 1065 (9th Cir. 2016) (quoting Abatie v. Alta Health & Life
Ins. Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc)). We affirm.
Because the exclusionary provision in Unum’s AD&D Plan is conspicuous,
the district court did not err in applying the “substantial contribution,” rather than
the “proximate cause,” standard. See McClure v. Life Ins. Co. of N. Am., 84 F.3d
1129, 1136 (9th Cir. 1996) (per curiam). Unum uses a table of contents, glossary,
“question and answer” format, and capitalized and bold headings and terms to
highlight the definition of “accidental bodily injury,” where the exclusionary text is
located. In addition, the AD&D section of the plan is short, making its terms more
conspicuous. Therefore, “substantial contribution” is the correct legal standard.
The district court concluded, as a factual matter, that Earle’s preexisting

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vitreomacular traction (“VMT”) substantially contributed to her vision loss.
Specifically, the court found that Earle could have developed a macular hole even
without her March 15, 2017 fall, and conversely, that she would not have
developed a macular hole without the preexisting VMT. This factual finding is not
clearly erroneous. See Est. of Barton, 820 F.3d at 1065.
Even assuming, without deciding, that de novo review applied, the district
court’s conclusion that Earle’s preexisting VMT substantially contributed to her
vision loss is unaffected.1
AFFIRMED.
1 Because we resolve this case without reaching the California Settlement
Agreement issue, Unum’s motion for this court to take judicial notice of the order
granting rehearing in Cox v. Allin Corp. Plan, 848 F. App’x 343 (9th Cir. 2021)
(unpublished), Dkt. No. 40, is denied.

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