688 F.3d 966 (9th Cir. 2012), 11-15046, Seltzer v. Paul Revere Life Ins. Co.

Docket Nº:11-15046.
Citation:688 F.3d 966
Opinion Judge:STEPHEN REINHARDT, Circuit Judge.
Party Name:Philip A. SELTZER, Plaintiff-Appellant, v. PAUL REVERE LIFE INSURANCE COMPANY; Unum Group, fka UnumProvident Corporation, Defendants-Appellees.
Attorney:Steven C. Dawson (argued), Anita Rosenthal, and Steven A. Gruenemeir, Dawson & Rosenthal P.C., Phoenix, AZ, for the appellant. Stephen M. Bressler, Ann Martha Andrews, Kristina N. Holmstrom, Lawrence Kasten (argued), Lewis and Roca LLP, Phoenix, AZ, for the appellee.
Judge Panel:Before: STEPHEN REINHARDT, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.
Case Date:July 18, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 966

688 F.3d 966 (9th Cir. 2012)

Philip A. SELTZER, Plaintiff-Appellant,

v.

PAUL REVERE LIFE INSURANCE COMPANY; Unum Group, fka UnumProvident Corporation, Defendants-Appellees.

No. 11-15046.

United States Court of Appeals, Ninth Circuit.

July 18, 2012

Page 967

Steven C. Dawson (argued), Anita Rosenthal, and Steven A. Gruenemeir, Dawson & Rosenthal P.C., Phoenix, AZ, for the appellant.

Stephen M. Bressler, Ann Martha Andrews, Kristina N. Holmstrom, Lawrence Kasten (argued), Lewis and Roca LLP, Phoenix, AZ, for the appellee.

D.C. No. 2:09-cv-02104-SRB, District of Arizona, Phoenix.

Before: STEPHEN REINHARDT, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

ORDER

STEPHEN REINHARDT, Circuit Judge.

Plaintiff Philip Seltzer has asserted contract and bad faith claims against Defendant Paul Revere Life Insurance Company 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 chiropractor. 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, Seltzer again took the position that the disability resulted from an " accident," but

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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 benefits. 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."

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 Statutes § 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 policies provided for benefits only until the insured's 65th birthday. 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 surgeon agreed, opining that " it is my belief that [Seltzer] had an occupational overuse syndrome." ER 134.

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 progress 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...

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