United States v. 2012-07-18 | 11-15046 | Philip Seltzer V. Paul Revere Life Insurance Com |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 PHILIP A. SELTZER, No. 11-15046
Plaintiff-Appellant, D.C. No. 2:09-cv-
v. 02104-SRB
District of Arizona,PAUL REVERE LIFE INSURANCE PhoenixCOMPANY; UNUM GROUP, FKA  UnumProvident Corporation, ORDER
Defendants-Appellees. CERTIFYING A
QUESTION TO
THE SUPREME
COURT OF
ARIZONA

Filed July 18, 2012
Before: Stephen Reinhardt, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
COUNSEL
Steven C. Dawson (argued), Anita Rosenthal, and Steven A.
Gruenemeir, Dawson & Rosenthal P.C., Phoenix, Arizona, for
the appellant.
Stephen M. Bressler, Ann Martha Andrews, Kristina N. Hol-
mstrom, Lawrence Kasten (argued), Lewis and Roca LLP,
Phoenix, Arizona, for the appellee.
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ORDER
Plaintiff Philip Seltzer has asserted contract and bad faith
claims against Defendant Paul Revere Life Insurance Com-
pany and Unum Group, Paul Revere’s parent company.1 This
appeal presents the question of when the claims accrued for
the purpose of determining whether those claims are barred
by Arizona’s statute of limitations.
As described in more detail below, Seltzer became disabled
in 1981 and was unable to continue his career as a chiroprac-
tor. He was paid monthly disability benefits by Paul Revere
starting that year. Under the policies, those payments would
continue for the rest of Seltzer’s life if the disability was the
result of an “accident,” but would cease when Seltzer turned
65 if it was the result of “sickness.” Seltzer initially reported
the disability as a “sickness,” and Paul Revere classified it
that way. Seltzer later revised the description to characterize
it as the result of an “accident.” After meeting with a Paul
Revere employee in 1986, Seltzer signed a statement at Paul
Revere’s request that “I agree to the understanding of this as
a sickness claim and not an accident.” Some years later, Selt-
zer again took the position that the disability resulted from an
“accident,” but Paul Revere did not change its position and
stopped paying benefits when Seltzer turned 65 in 2009.
Seltzer argues that his claims did not accrue until 2009,
when Seltzer turned 65 and Paul Revere stopped paying bene-
fits. Paul Revere argues that Seltzer’s claims accrued no later
than 1986, when Seltzer agreed to the classification of his
claim as resulting from “sickness.”
1Paul Revere was acquired by Provident in 1997. Provident merged
with Unum in 1999 and did business under the name “UnumProvident”
for several years before re-naming itself “Unum.” The correspondence in
the record reflects these changes of ownership and name, but for the sake
of clarity we refer to Seltzer’s insurer as “Paul Revere” throughout this
Order.
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Because this issue is governed by Arizona law but is not
clearly addressed by relevant Arizona authorities, we certify
it to the Supreme Court of Arizona pursuant to the procedures
established by Arizona Revised Statues § 12-1861 and Rule
27 of the Rules of the Supreme Court of Arizona.
I. Factual Background
Pursuant to Supreme Court of Arizona Rule 27(a)(3)(B),
we set forth the facts relevant to the question certified.
In 1981, at the age of 36, Seltzer’s wrist pain forced him
to cease his practice as a chiropractor. ER 204.2 Seltzer was
covered by two disability insurance policies issued by Paul
Revere. ER 3. Both policies provided monthly payments in
the event of the insured’s disability. If the disability was due
to “accident,” the policies provided for benefits for the rest of
Seltzer’s life. If the disability was due to “sickness,” the poli-
cies provided for benefits only until the insured’s 65th birth-
day. ER 146, 158.
Seltzer submitted a disability claim to Paul Revere. He used
the claim form for a disability caused by “sickness.” ER 4.
The physicians’ records and letters he submitted in support of
his claim described his disability as a progressive condition
from chronic trauma related to his occupation and did not
trace the condition to any specific accident, though one doctor
did use the word “injury.” ER 33-34, 137, 204. In response to
a request for clarification from Paul Revere, Seltzer’s treating
physician said that “[a]s far as the date of his injury, I feel this
was probably a slowly progressive thing which came on from
chronic trauma related to his occupation.” An orthopedic sur-
geon agreed, opining that “it is my belief that [Seltzer] had an
occupational overuse syndrome.” ER 134.
2“ER” references are to the excerpts of record filed by Seltzer in this
Court for the purposes of this appeal.
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Paul Revere began paying benefits without specifying
whether it considered Seltzer’s disability to be due to sickness
or accident. Each month, Seltzer submitted a monthly prog-
ress report to the insurer which gave him a choice between
checking a box for “sickness” or for “accident.” From 1981
through early 1984, Seltzer checked the “sickness” box. ER
4.
In February 1984 an orthopedic surgeon reported to Paul
Revere that Seltzer told him that Seltzer’s wrist pain had first
appeared when “he was manipulating a very large patient who
was very muscular” and “felt something snap very sharply in
both of his wrists.” ER 201. Seltzer said he was rushed to the
hospital immediately after the incident. Id.3 Paul Revere was
apparently unsure how to respond to the new report. Its medi-
cal department noted that the “history of sudden onset”
described in the new report was an example of the “discrepan-
cies” in Seltzer’s accounts of his injury. ER 250, 260. In May
1984 Seltzer began checking the “accident” box instead of the
“sickness” box on his monthly forms. ER 4.
In April 1986 Paul Revere dispatched its employee Sandra
Imboden to speak to Seltzer about the classification of his dis-
ability. ER 4. After their meeting, at Imboden’s request, Selt-
zer signed a handwritten, notarized note which read in its
entirety:
I have discussed today with Sandra Imboden the
sickness status of this claim as filed by me in April
1981 and confirmed by letter from Dr. Herbertson.
3The record contains inconsistent references to the date of this incident.
Dr. Ditkoff described the incident as occurring on March 27, 1981, the
date of Seltzer’s first visit to Dr. Herbertson. ER 201-04. Seltzer himself
did the same in subsequent communications with Paul Revere. ER 112,
125, 127. Seltzer now says that this was a mistake, and that the incident
in fact occurred on April 21, 1981, the date of his second visit to Dr. Her-
bertson. ER 137.
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I agree to the understanding of this as a sickness
claim and not an accident.
ER 214. Imboden reported to the insurance company that
Seltzer “understands that sickness and accident pay different
benefit periods.” ER 247. She said that “I will allow you to
use your judgment as to whether a follow-up letter need be
sent.” ER 92. Paul Revere never sent a follow-up letter. Selt-
zer returned to his previous custom of checking the “sickness”
box on his monthly forms.
In 1994, Seltzer met with a representative of Paul Revere
to discuss the possibility of Seltzer’s surrendering future pay-
ments under the policy in exchange for a lump-sum payment
of $403,000. ER 5. The Paul Revere employee said that in the
course of discussing his calculations, he noted that Seltzer
was only eligible for benefits until the age of 65. ER 5. Seltzer
apparently did not object to this assumption. No changes
resulted from the discussion, and the monthly payments con-
tinued. ER 5.
Subsequent doctor visits over the years produced evidence
that Seltzer contends supports his “accident” theory. In 1991,
based on an MRI of Seltzer’s wrists, a radiologist diagnosed
a “rupture of the triangular fibrocartilage of the right wrist,”
which he classified as an “injury.” ER 262. In 1999, one of
Seltzer’s doctors wrote Paul Revere a letter explaining that
Seltzer “apparently had a significant episode on March 21,
1981, after manipulating an extremely muscular patient” and
that “[h]is condition is not known to be related to a systemic
illness.” ER 112.
That same year, Seltzer switched back to checking the “ac-
cident” box on his forms. ER 4. See, e.g., ER 113. Paul
Revere apparently did not take any action in response.
In January of 2009, just nine months shy of his 65th birth-
day, Seltzer sent Paul Revere a letter asking it to confirm that
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it classified his disability as resulting from an accident. ER 4,
125, 127, 130. A Paul Revere employee informed Seltzer over
the phone that “at this point in time, his claim is being han-
dled under the Sickness provision of his policy.” ER 130. Paul
Revere followed up this phone conversation with a letter that
summarized its reasons for classifying Seltzer’s disability as
due to sickness, including the medical evidence from Seltzer’s
doctors and Seltzer’s 1986 statement. ER 134-35.
At Paul Revere’s invitation, Seltzer appealed from the
determination reported in the letter. ER 135-39. Pursuant to
its internal appeals process, Paul Revere’s “in-house physi-
cian” spoke with Seltzer’s attending physician and reviewed
the records related to Seltzer’s claim. ER 137. The in-house
physician concluded that “the etiology [of Seltzer’s disability]
is an overuse syndrome, which aggravated a preexisting
degenerative state of the triangular fibrocartilage or a slight
anatomical anomaly in the ulnar aspect of the wrist area.” ER
138. Consistent with this opinion and its earlier analysis of the
claim file, Paul Revere upheld its determination that Seltzer’s
disability was due to sickness. Id.
Plaintiff sued the insurer for breach of contract and insur-
ance bad faith in state court. ER 4. The insurer removed the
action to the U.S. District Court for the District of Arizona.
ER 4. The district court concluded that Seltzer’s claims were
barred by the statute of limitations and granted summary
judgment in favor of Paul Revere. ER 9. Seltzer appealed to
this court. In a memorandum disposition filed concurrently
with this certification order, we affirmed that summary judg-
ment in part. Specifically, we concluded that Seltzer failed to
include in his complaint any allegations in support of his
alternative theory that he is entitled to lifetime benefits under
a policy provision unrelated to the “accident” provision dis-
cussed in this certification order, and that he also failed to
seek leave from the district court to add any such allegations.
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II. The Question of Law
This case turns on an issue of state law: when did Seltzer’s
contract and bad faith claims accrue? Did the claims accrue
no later than 1986, when Seltzer signed a statement agreeing
to the “understanding” that his disability was caused by sick-
ness? Or did they accrue only in 2009, when the insurance
company reiterated its position that the disability resulted
from sickness and ceased making payments? If the claims
accrued in 1986, Seltzer’s claims are barred by the relevant
statutes of limitations. Ariz. Rev. Stat. §§ 12-542; 12-548;
Ness v. W. Sec. Life Ins. Co., 851 P.2d 122, 125 (Ariz. Ct.
App. 1992). If they accrued in 2009, they are not.
The Arizona cases which have been identified do not allow
us to reliably determine how the Supreme Court of Arizona
would answer this question. Seltzer relies primarily on Ness.
In that case the insurer stopped payment to the plaintiff in
1985 because it determined that he was not totally disabled
from any occupation. Id. at 124. In its communications with
Ness over the next two years, however, the insurer said that
Ness’s right to continuing benefits “rests upon a determina-
tion of what jobs, if any, [Ness] may be reasonably qualified
for,” and that the insurer “would be pleased to receive an
update of the medical treatment Ness has received since June
24, 1985.” Id. at 126. It was not until 1987 that the insurer “fi-
nally and unequivocally denied” Ness’s claim. Id. at 125. The
Arizona Court of Appeals reasoned that the insurer’s pre-1987
communications did not necessarily amount to an “unequivo-
cal written denial of the claim,” but may have “held out some
hope to Ness that additional benefits might be paid.” Id. at
125-126. It therefore concluded that there was a genuine issue
of material fact as to when the statute of limitations began to
run. Id. at 126.
Ness supports the proposition that a claim accrues only
upon the insurer’s “unequivocal written denial of the claim,”
id. at 125, but it does not tell us whether or not Paul Revere’s
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communications with Seltzer fit that description. In Ness, the
insurer’s pre-1987 communications implied that it had yet to
make a determination on the dispositive issue, or, at the very
least, that it might be persuaded to reverse the determination
that it had made. Id. at 125-26. It is not clear that any of Paul
Revere’s post-1986 communications with Seltzer did the
same. Moreover, Ness continued to dispute the denial of his
claim during the two-year period in question. See id. at 124.
Seltzer, by contrast, affirmatively repudiated his “accident”
theory in 1986 and made no further attempt to challenge Paul
Revere’s “sickness” classification until 1999, at the earliest.
One possibility implied, but not expressly held, by Ness is
that the question of whether Paul Reverse’s communications
with Seltzer fit the description of an “unequivocal denial of
the claim” should be resolved by a jury.
Nor do the parties’ citations to a line of cases arising from
the malpractice and litigation context answer our question. In
DeBoer v. Brown, 673 P.2d 912, 914-15 (Ariz. 1983), the
Supreme Court of Arizona held that a medical malpractice
cause of action accrues when the patient suffers harm, not
when the doctor commits malpractice. In Amfac Distribution
Corp. v. Miller, 673 P.2d 792, 793-94 (Ariz. 1983), this rule
was extended to the legal malpractice context. Amfac held that
a litigant’s cause of action against his or her attorney does not
accrue when the malpractice occurs or when the litigant dis-
covers it, but when the litigant’s damages become “irrevoca-
ble” upon the finalization of appeal from the case. Id. In
Taylor v. State Farm Mutual Auto Insurance Co., 913 P.2d
1092, 1096-97 (Ariz. 1996), the Supreme Court of Arizona
applied its reasoning from the malpractice cases to a third-
party bad faith claim, holding that the plaintiff ’s claim
against his liability insurer did not accrue until appeal from
the underlying action was final.
The rule developed in these cases, however, is not easily
generalizable to the present case. The decisions are based on
the insight that even when a prospective plaintiff discovers a
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doctor, lawyer, or liability insurer’s error, he or she may not
know whether and to what extent he or she has been irrevers-
ibly harmed, and thus may not be in a good position to decide
whether to litigate. See DeBoer, 673 P.2d at 914; Amfac, 673
P.2d at 793; Taylor, 913 P.2d at 1096. First-party insurance
cases may be different. The insurance company’s decision to
deny benefits may itself be a relevant harm. Cf. Rawlings v.
Apodaca, 726 P.2d 565, 579 (Ariz. 1986) (insurance contracts
protect the “peace of mind” of the insured). The insurer’s sub-
sequent non-payment of the denied claim is a second and sep-
arate event, arguably less akin to finalization of appeal from
the judgments in Amfac and Taylor than to payment of those
judgments. We are aware of no Arizona case that suggests a
malpractice plaintiff or third-party insured must pay the judg-
ment in the underlying action before suing his or her attorney,
for example.
The parties also call our attention to the rationales the Ari-
zona courts have given for their interpretation of Arizona’s
statutes of limitations, but the policy arguments may cut both
ways. On the one hand, it has been recognized that “loss of
evidence from death of some witnesses, and the imperfect rec-
ollection of others, or the destruction of documents” can make
it “impossible to establish the truth” of a “stale claim[ ].”
Mayer v. Good Samaritan Hosp., 482 P.2d 497, 500 (Ariz. Ct.
App. 1971) (quoting Riddlesbarger v. Hartford Ins. Co., 74
U.S. 386, 390 (1869)). On the other hand, concern has been
expressed that constructing statutes of limitations in a way
that forces parties into court too soon may “result in precau-
tionary and duplicitous litigation—a waste of both the courts’
and the parties’ time and resources.” Taylor, 913 P.2d at
1096-97; see also Glaze v. Larsen, 83 P.3d 26, 30 (Ariz.
2004). Both of these concerns are particularly acute in this
case. Allowing a lawsuit thirty years after Seltzer became dis-
abled presents the specter of deceased or superannuated wit-
nesses and empty memories. Indeed, some of the depositions
illustrate that. ER 221-22. On the other hand, interpreting the
statute of limitations to bar such a lawsuit would require an
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insured in Seltzer’s position to litigate a classification that
will make no practical difference for many years, and, if the
insured recovers or passes away, might never make any dif-
ference. And, to the extent that the collection of long-term
data on the insured’s disability or advances in medical tech-
nology contribute to the parties’ understanding of the
insured’s claim, early litigation may deprive the court of more
evidence than late litigation.
The trade-offs between these policy considerations and the
interpretation of Arizona’s statutes are better entrusted to the
Supreme Court of Arizona than to us. We therefore certify the
following question of law: under the facts described in this
order, when did Seltzer’s claim for lifetime benefits accrue?
The clerk of this court shall forward the original and six
certified copies of this order, under official seal, to the Ari-
zona Supreme Court, along with copies of all briefs and
excerpts of record that have been filed with this court, as
directed by Supreme Court of Arizona Rule 27.
III. Counsel
For Plaintiff-Appellant Philip Seltzer: Steven C. Dawson,
Anita Rosenthal, and Steven A. Gruenemeir, Dawson &
Rosenthal P.C., 1850 North Central Avenue, Suite 510, Phoe-
nix, Arizona, Telephone (602) 494-3800.
For Defendants-Appellees Paul Revere Life Insurance
Company and Unum Group, FKA UnumProvident Corpora-
tion: Stephen M. Bressler, Ann Martha Andrews, Kristina N.
Holmstrom, Lawrence Kasten, Lewis and Roca LLP, 40
North Central Avenue, Suite 1900, Phoenix, Arizona 85004-
4429, Telephone (602) 262-5311.
IV. Filing fee
The parties shall equally share the required filing fees pur-
suant to Supreme Court of Arizona Rule 27(a)(3)(D).
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V. Stay of Proceedings
In light of our decision to certify the issue described here,
all further proceedings in this case before our court are stayed
pending final action by the Supreme Court of Arizona, save
for any petition for rehearing regarding the memorandum dis-
position filed concurrently with this order. The parties shall
notify the Clerk of this court after the Supreme Court of Ari-
zona accepts or rejects certification, and again within fourteen
days if the Supreme Court of Arizona issues a decision.
QUESTION CERTIFIED; PROCEEDINGS STAYED.
It is so ORDERED.
__________________________________
Stephen Reinhardt, Presiding Judge
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