Philip A. Seltzer v. PAUL REVERE LIFE INSURANCE COMPANY and UNUM GROUP, FKA UnumProvident Corporation

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NOT FOR PUBLICATION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
PHILIP A. SELTZER,
Plaintiff - Appellant,
v.
PAUL REVERE LIFE INSURANCE
COMPANY and UNUM GROUP, FKA
UnumProvident Corporation,
Defendants - Appellees.
No. 11-15046
D.C. No. 2:09-cv-02104-SRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted May 14, 2012
San Francisco, California
Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.
We address Seltzer’s primary claim for lifetime benefits under the
“accident” provision of his policy in a contemporaneously-filed order certifying a
question of law to the Arizona Supreme Court. In this memorandum disposition,
FILED
JUL 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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we affirm summary judgment as to Seltzer’s alternate theory that he is entitled to
lifetime benefits under the policy amendment pertaining to “irrecoverable loss of
use of both hands.”
Seltzer waived this theory by failing to plead it in his complaint. Seltzer
alleged that he was entitled to lifetime benefits “[b]ecause plaintiff’s injury
occurred as the result of accident.” He did not allege that he was entitled to such
benefits because he lost of use of both hands, and did not refer to the loss of use
provision. He mentioned that alternate theory for the first time in his opposition to
Paul Revere’s motion for summary judgment, and he never moved to amend his
complaint. Accordingly, we affirm the district court’s entry of summary judgment
as to Seltzer’s loss of use provision-based contract and bad faith claims.
PARTIALLY AFFIRMED.

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