Zaven Bilezikjian v. Unum Life Insurance Company of America , 443 F. App'x 231 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ZAVEN BILEZIKJIAN, No. 10-55249
Plaintiff- Appellant, D.C. No.8:07-cv-01438-AHS(AN)
v.
MEMORANDUM *
UNUM LIFE INSURANCE
COMPANY OF AMERICA;
UNUM GROUP,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Submitted June 8, 2011 **
Pasadena, California
Before: D.W. Nelson and IKUTA, Circuit Judges, and PIERSOL, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
Zaven Bilezikjian appeals the district court’s grant of summary judgment in
favor of Unum Life. Bilezikjian seeks lifetime disability benefits under the
“injury” benefit portion of his various insurance policies with Unum.**** We
affirm the judgment in Unum’s favor.
Bilezikjian is disabled by carpal tunnel syndrome. The parties agree the
etiology of Bilezikjian’s carpal tunnel syndrome is the many years of repetitive
stress placed on his hands by performing orthopedic surgery. According to
California case law “accidental bodily injury” requires a sudden event causing an
identifiable injury. Gin v. Pennsylvania Life Ins. Co., 134 Cal. App. 4th 939, 944,
36 Cal. Rptr. 3d 571, 575 (2005); Alessandro v. Massachusetts Casualty Ins. Co.,
232 Cal. App. 2d 203, 208, 42 Cal. Rptr. 630, 633 (1965). There is no convincing
evidence the California Supreme Court would not follow Gin. Chalk v. T-Mobile
U.S.A., Inc., 560 F.3d 1087, 1092 (9th Cir. 2009). Because no sudden event was
responsible for Bilezikjian’s carpal tunnel syndrome, the district court did not err
in determining that his condition did not fall within the policy’s “injury” coverage.
Further, because the clause at issue arises in a disability insurance policy rather
****
“Injury” is defined in the policies as “accidental bodily injury occurring
while this policy is in force.”
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than in the double-indemnity provision of a life insurance policy, we are not
persuaded that the California courts would interpret the term “accidental” to
require coverage for all unintended injuries. Cf. Weil v. Federal Kemper Life
Assurance Co., 7 Cal. 4th 125, 140, 27 Cal. Rptr. 2d 316, 324, 866 P.2d 774, 782
(1994).
Interpretation of an insurance policy is a question of law. Waller v. Truck
Ins. Exchange Co., 11 Cal. 4th 1, 18, 44 Cal. Rptr. 2d 370, 378, 900 P.2d 619, 627
(1995). The meaning of the terms of an insurance policy are to be determined by
looking first “to the language of the contract in order to ascertain its plain meaning
or the meaning a layperson would ordinarily attach to it.” Id.; Cal. Civ. Code §
1638. The language at issue must be construed in context within the policy, and
will not be found to be ambiguous in the abstract. Bank of the West v. Superior
Court, 2 Cal. 4th 1254, 1265, 10 Cal. Rptr. 2d 538, 545, 833 P.2d 545, 552 (1992).
The district court correctly found the Unum policies are not ambiguous.
AFFIRMED.
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