House v. American United Life Insurance

ly аpplicable from that to the other non- REAVLEY, Before GARZA and (Class 3). attorney employees For attor- DENNIS, Judges. Circuit neys, that term meant “because Injury or Sickness the Person per- cannot REAVLEY, Judge: Circuit form the material and substantial duties of Walter House sued American United regular occupation.” his For the other (“AUL”) Life Insurance Company for employees, totally disabled meant that he long-term disability benefits. The district or she “cannot perform the material and granted court summary judgment by substantial any gainful duties of occupation which disability total benefits and a Louisi- for which the reasonably Person is fitted ana penalty state law were awarded to education, by training, experience.” House. We hold that House’s claim comes agreement, Under disability that preempts the benefits for all replace classes would penalty state law and that he was person’s covered pre-disability monthly in- partially disabled. $10,000, up come subject but to dollar- for-dollar employment reduction for other I. Background earnings. Partial disability benefits would Walter House attorney trial through formula, calculated a stated firm, founding partner of earning ap- his yielded which a percentage of thе covered $350,000 proximately per year. In Octo- person’s pre-disability income as reduced age ber at forty-nine, House suffered by other income and not to exceed a maxi- a heart month, attack. In that same $10,000 mum per disability month. Partial sought House’s law firm competitive pro- subject benefits would be to discontinua- posals from provide several insurers to upon the firm’s termination as a “Par- more disability affordable life and insur- ticipating Unit” AUL’s insurance firm, ance for the entire including attor- words, trust —in other when firm no neys and staff. longer maintained insurance through AUL. The firm entered into a subscription

agreement for group disability life and firm provided The AUL with enrollment AUL, coverage with providing for one materials for all participants in the life and class of life insurance coverage and three insurance coverage. On his enrollment classes of coverage: form, Class 3 cov- House filled in his occupation as ering non-attorney employees, Class cov- “Attorney.” Because of House’s cardiac ering non-partner attorneys, and 1 problems, Class required AUL a letter from his covering partners. doctor stating that he was able to return to for non-partner attorneys work full-time with no restrictions before Deductions, 1. Internal Revenue Service Schedule K-l and Other Items.” (Form 1065), Income, "Partner’s Share of $100,000 him paid position that litigation coverage. group approve it would year. per letter AUL a provided physician House’s excel- prognosis House’s stating that un- initially applied for benefits House to work return he could and that lent in November of der the AUL limitations. notified AUL

without totally contending that he was disabled for the application insurance firm that the returning doctor advised because his provided approved had been “group” could work cause to the stress trial rates for stating the premium rate exhibit including repercussions, medical severe through coverage made available all the of total nine months’ paid AUL death. no distinction There was policy. group to House from Janu- disability payments associates, or partners, between rates 2001, apparently while September ary rate staff, per-coverage-dollar rather a but Initially, his claim. AUL told evaluating group. entire medi- independent need an House it would assess his examination to cal of insurance provided certificates AUL claim, ultimately obtain did not onе. but individuals, in- delivery to the insured Instead, relying on 2001 and in November re- The certificate cluding House. AUL denied interpretation, its firm ceived, all other like the certificates that, given claim on grounds received, disabil- the describes participants and current em- post-operative activities refer- provided, but coverage he was ity of “capable to appeared he ployment, of all as the source group policy the ences an sedentary occupation of performing benefits, being sub- policy and rights in the normally performed it is Attorney as by the cancellation or termination ject to economy.” national group policy, Under the firm or AUL. and, for certain responsibility sued, seeking full benefits firm undertook House (related determining including law, to bad tasks penalties administrative under state of enrollment misrepresenta- and eligibility participation, pay, to faith refusal premiums, and parties calculation of filed participants, tion), attorneys fees. and The firm submit- mo- summary judgment payment premiums. of partial a series of each and preemption check to AUL single premium debating ted a ERISA2 tions month, partner’s terms, court held: deducting the and the district рolicy accounts. from their draw premiums (1) not law claims were state was policy preempted because his October a month after About plan; an ERISA not trial attack, to his House returned heart on (2) totally disabled based House was he failed stress year practice, but later despite ability his language policy quadru- subsequently underwent tests an income as attor- earn substantial briefly returned surgery. He ple bypass ney; 2000, but in November to work (3) dis- partially as also qualified House reassign his up practice his trial wind language, under abled firm. clients, left the which he after mutually exclu- being not such status 2001, position accepted October written; disability sive with total Depart- the Louisiana counsel to executive that; and therefore a non- Development, of Economic ment seq. Security Act Employee Retirement Income § 1001 et seq., 29 U.S.C.A. 2 et (4) House was entitled to the greater of: ERISA. To determine the answer “we (1) (2) ask plan: exists; whether a

(a) falls monthly maximum total dis- within the safe-harbor $10,000 provision estab- ability benefit of per by lished the Department Labor; month, subject but offset (3) primary satisfies the from elements an earnings agen- Louisiana ‘employee ERISA cy, benefit plan’ —establish- ment emplоyer maintenance in- (b) partial disability benefit as cal- tending to employees.” benefit Meredith formula; culated Co., (5th Time (5) partial disability benefits terminated Cir.1993). February as of 2002 when House’s former AUL asserts that firm terminated the House’s state law firm’s policies AUL; claims penalties attorneys fees are preempted (6) because covering House was due total disability bene- House was part of an “employee fits without offset for the time frame plan” as defined and not ex- October 2001 to November empt under safe harbor. Relying when on was our AUL disputing that it decision benefits, Robertson v. owed Alexander plus a Grant penalty equal- & Cir.1986), F.2d 868 ing $10,000 an additional for each district court held that month the Class 1 AUL did disabili- pay not during that ty coverage for frame; time in House’s firm a separate plan and, since it (7) benefited House was entitled to total disability only partners and not any employees, it benefits with offset after the Febru- governed by ERISA and therefore ary 2002 termination date of par- House was entitled to state penalties law tial disability benefits because attorneys fees. court’s earlier determination that House was entitled to greater the A. Standard of Review total or partial benеfits; disability (8) House attorneys was entitled to fees haveWe frequently stated that the

and costs. existence of an ERISA plan within the statutory definition question is a of fact. Neither party fully satisfied with the See, Meredith, e.g., 980 F.2d at 353. How outcome and both appeal. argues House ever, where the factual circumstances are he is entitled to penalties additional established as a matter of undisput law or either offset-free disability benefits or ed, we have treated question the as one of continuing partial disability benefits. law to be reviewed de novo. See id. at argues AUL disability the policy un- (stating our purpose as review of the der which House is claiming benefits is summary judgment record genuine for is governed by ERISA, state law penalties fact, sues of material but applying the being therefore preempted, and challenges statutory scheme a question of law to the district finding court’s that House was the by facts established the district court simultaneously totally as well as partially and overturning the district court’s deter disabled policy. existed); mination an plan ERISA see II. ERISA Governance also Custer Pan American We are presented with Cir.1993) the thresh 12 F.3d 410 (holding that question old of whether House’s when the factual circumstances are undis policy is a plan regulated benefit puted, whether the facts suffice to demon- insur- group group-type a states that as defined plan of a the existence strate considered an will not be program ance law to be reviewed question of is a ERISA (1) does not employer if al, Plan ERISA novo)', F. JoRden Hand- de et James (2) 201(A) (3d Litigation is participation plan; § ed. to the contribute on Erisa book (3) limit- role is 2007) (“[W]hen employer’s circumstances voluntary; the factual remitting of an ERISA collecting premiums the existence undisputed, ed are (4) de insurer; employer to be reviewed of law question a plan is them to that, so novo”). while not plan. It is clear from the profit no receives cir- our sister have followed meet stating, plan we must l(j). The C.F.R. 2510.3— of an the existence treating from ERISA. exempt cuits criteria to all four fact question as a mixed plan ERISA case, the parties that, where In this

and law.3 consider question is no There employ- firm’s the existence a disability plan concede life and the firm’s ing rela- and the facts plan benefit ee welfare is whole, harbor exclusion the safe was a whether tive to partic employees, 2 and 3 For Class met. plan separate aor that scheme part of the firm con mandatory and ipation inter- district court’s undisputed, the were premiums. the employees’ 100% of tributed “plan” as used the word pretation true for the the same holds believe We subject to of law question poses ERISA standing alone. partner coverage Class review. de novo their First, paid own partners while under which cover Whether optional B. for the premiums in this claiming benefits unitary rate they from age, benefited harbor the safe falls under action negotiate the firm was able structure exclusion. coverage as a for bargaining all classes. package inqui- Meredith to the first respect With premium effectively received therefore dispute (existence is no there plan), ry from contribution or constructive discount plan exist- that an intentional here not, Second, role was the firm’s the firm. with begin Thus we firm. ed at the coverage, limit to the Class respect qualify as Meredith factor: second part serving as a conduit merely ed to fall within cannot plan, found sufficient We have premiums. ner harbor safe of Labor’s Department safe har- defeat involvement to employer provision harbor The safe exclusion.4 (10th 1043, Utah, n. 5 Co., 1047 F.2d 964 See, Mut. Mutual Ins. e.g., England New of Cir.1999) 1, (1st 1992) (same). Cir. Baig, F.3d 3 v. 166 Inc. interpretation of the ("[T]he district court's poses ques a in ERISA 'plan' as used analysis word for the begin with safe harbor 4. We subject de novo review [but] of law tion We tracking Meredith. note clarity in sake of scope nature and the inquiry into court's were, he that, if actually at issue ... demands the benefits of comprising plan non- wholly separate urges, a reviewable factfinding, to that extent and is of outside only, fall employees it would (internal ‍‌‌​‌‌‌‌​​​‌​‌​​​‌‌​​​‌​​‌​‌‌‌​​​​‌‌‌‌​​​​‌​​​​‌‌‍error.”) quotation and only clear prong of Meredith and three under ERISA omitted); Bio- v. Medtronic Kulinski citation by failure swept in back not be could Cir.1994) 254, (8th Inc., Medicus, 256 21 F.3d analysis. the safe harbor qualify under Ky. by grounds Ass'n abrogated on other House’s, is, words, objective one’s if other 329, Miller, Plans, 538 U.S. Inc. Health establishing plan, that prove a non-ERISA (stating 468 155 L.Ed.2d 123 S.Ct. prong three fails plan consideration plan is ERISA of an the existence plan), (no would welfare employee benefit appeal and law that on question of fact mixed analysis moot. harbor render safe novó)', v. Gem State Peckham de reviewed is 450

bor in cases where employer had a under which employees no are covered is degree lesser of administrative involvе not an plan, ERISA § 29 C.F.R. 2510.3- See, ment here. e.g. Hansen v. Con 3(b), and that partners wholly who own a tinental 977-78 business are not normally employees of Cir.1991). ERISA, business under id. at subsec (c)(2). We conclude that neither the multi-class Raymond Yates, M.D., See B. life coverage as a whole nor P.C. Sharing Hendon, Plan v. 541 Profit specific partner Class 1 coverage meet 1, 21, U.S. 1330, 1344, S.Ct. the safe harbor exclusion. Even if safe (2004) (“Plans L.Ed.2d 40 that cover only barred, harbor however, is that does not sole partners owners or and their spouses mean necessarily that the insurance ... fall outside domain.”); [ERISA’s] Mer part is of an ERISA A plan. plan that edith, 980 F.2d at 358 (finding no ERISA falls outside of the safe harbor exception plan where group insurance policy covered does not fall within jurisdiction sole proprietor spouse employ and no ERISA unless it satisfies the third Mere- ees); However, a plan covering both work Hansen, dith prong. 940 F.2d at 975. ing-owner employers or shareholders as C. Whether the insurance policy under well as employees governed is by ERISA. which House claiming is benefits Yates, 124 S.Ct. at 1341-42. this action is part of an employee

benefit plan under ERISA. We 2510.3-3(b) § clarify that specifically limited in application its to the To meet the third Meredith prong, a determination of the existence of an em plan satisfy must the primary elements of ployee welfare plan. benefit An owner of an “employee ERISA plan” benefit —es- a business is not considered an “employee” or tablishment maintenance an employ- for purposes of determining er intending to existence employees. benefit Under anof ERISA, plan; ERISA words, other employee an welfare plan is, does pertinent govern plan part: only whose fully vested are

... beneficiaries any fund, company’s own plan, or program, which Yates, ers. See was ... or is ... S.Ct. at 1343-44 established or main- (“Plans tained cover employer ... sole owners pur- pose ... providing fall its outside participants [ERISA’s] do main.”). beneficiaries, their through However, purchase once an employee ben otherwise, insurance or (because ... efit plan is benefits established other em in the sickness, event accident, ployees dis- are covered in addition ability, death or unemployment.... owner), to the a working owner, in com mon 1002(1). employees, other U.S.C. plan “par is a “The ‘partici- term pant’ ticipant” governed by means Yates, ERISA.5 employee or See former em- ployee (“Plans of 124 at employer an S.Ct. ... who 1341-42 may is covering beсome eligible working to a receive benefit owners and any of their nonowner em ” type from an employee ployees, plan.... benefit hand, on the other entirely fall (2)(B)(7). Id. at subsection Department of within compass.”) ERISA’s (emphasis in Labor regulations specify that plan original).

5. The dissent cites (5th to pre-date Cir.1999) cases that 294 in determining that a Yates, which clarified two-part inquiry, this working may qualify owner participant as a in citing and tracking our reasoning own Vega in employee an plan by benefit covered ERISA. Servs., Inc., v. Nat’l Ins. 188 F.3d Life

451 appears to expense) own at their partners & Grant Alexander v. In Robertson one, a dearth there is a common (5th Cir.1986), relied Co., 868 F.2d 798 class partner on whether precedent in court the district heavily by upon plan. separate non-ERISA a constitutes a retirement that case, held we instant Ins. v. UNUM note that Wolk was, We despite only partners benefiting Life plan (3d America, Cir. F.3d plan, employee parallel a to similarities facts&emdash;amul- 1999), nearly identical under not cov therefore and distinctly separate part which under disability policy ti-class In addi at 871-72. Id. by ERISA. ered op for premiums own for their paid ners Robertson, court also the district conceded that parties coverage&emdash;the tional Ins. Revere Paul v. on Slamen relied Life Although plan. an ERISA Cir.1999). policy was (11th In that F.3d 1102 a Texas district we find precedential, not dental solely owned case, a a dentist of its equal because case instructive disability in court separate purchased practice case. instant similarity to the facts and em himself for policies surance Co., 27 F. Ins. v. UNUM See Lain and from times at different but ployees, (S.D.Tex.1998), on other rev’d 2d 926 Supp Circuit The Eleventh insurers. different Cir.2002). (5th Lain grounds to hold in Robertson applied our decision that elected a law firm6 partner was a policy was insurance Dr. Slamen’s that its for all of disability insurance provide pro benefits the insurance from separate Insurance at 927. Id. employees. gov not and was employees to his vided op was under the same partners 1105. House at Id. by ERISA. erned the cost paid the partners and tional opinion, a Ninth Circuit us to also directs The dis- at Id. 927-28. Robertson, insurance. their and Slamen citing both although Lain that court concluded covering trict disability policy a holding defined “participant” not con of a business only owners of estab- purposes initial for the simply because ERISA plan into verted plan under of an ERISA lishing existence sep sponsors subsequently employer “beneficiary” of a 25I0.3-3(b), was a she benefits insurance health arate ERISA part- employees including both plan Pru LaVenture employees. its plan for standing to sue had and therefore ners 1046-47 Co., 237 F.3d dential (“The LTD Id. at 934. ERISA. Cir.2001). evi found no court pay who covers expressly plan disability policy dence paid Lain Because premiums. their own so intertwined were health unrelated beneficiary under awas she premiums, her plan. one overall as to constitute plan.”). Id. at Yates, Wolk, and Ultimately, guided in which instance previous find no We distinguishable Lain, case find this we of Rob- application considered we have Slamen, LaVenture. Robertson, from group insurance to a multi-class ertson cases, and dis- separate those each comprises class where one exclusively maintained were plans tinct es- the scheme While partners. owners Here, record reflects owners. (employer-paid firm tablished part partner-class non-partners coverage for welfare ben- employee comprehensive coverage available optional firm. partner in the law share- was the sole Lain precisely, 6. More P.C., Lain, in turn which of Ellen holder plan efit covering partners both and em- The district court’s separate-plan hold- ployees. The AUL life and disability ing in- would mean that partners and non- bargained partner surance was paid attorneys and for as a could assert identical firm, claims package by relating through identical single sub- terms in the identical certificates scription agreement insurance resulting issued group governed AUL and by a policy. single subscrip- The contemplates and es- agreement, partners’ but the single plan, tablishes a only dis- claims would governed be by state law and tinctions between being classes the method the non-partner participants’ disability of determining pre-disability earnings&emdash; claims would governed by ERISA. variable, since partners’ non-salary income State and federal courts could be asked to would have be calculated differently&emdash; read, interpret apply and same and a generic more disability description provisions for persons in the various dis- to accommodate the variable occupations ability classes. While we acknowledge non-attorney participants. the primary purpose of ERISA is rights of House as well as all non-pаrtner protection of employees,7 we have recog- attorneys and firm employees, while nized the anomaly of requiring some in- spelled out their individual certificates sureds to pursue benefits under state law insurance, arose group from ‍‌‌​‌‌‌‌​​​‌​‌​​​‌‌​​​‌​​‌​‌‌‌​​​​‌‌‌‌​​​​‌​​​​‌‌‍the policy. while requiring others covered the iden- The firm contributed 100% of tical proceed premi- under ERISA as out ums for all non-partner keeping with participants Congress’s and intent of achieving administered the uniformity entire insurance law governing employment for all classes of benefits. insureds. Hollis v. And as dis- Provident above, Co., Accident cussed while partners 259 F.3d paid their Life (5th Cir.2001); Yates, own see also premiums, they U.S. benefited from the 17-18, at 124 S.Ct. at 1341-42 unitary (“Recogniz- rate structure the firm was able to ing the working as an owner negotiate ERISA-shel- bargaining the disability cov- plan tered participant also avoids the erage package, as a effectively receiving a anomaly that the plan same will be con- constructive contribution from the firm. trolled regimes: discrete federal-law We therefore do not find partners’ governance for the nonowner employees; premium contributions enough to establish governance state-law for thе working own- partner-class disability coverage as a er ... Excepting working owner’s from separate plan under Robertson and con- the federal Act’s coverage generate would clude non-partner partner- administrative difficulties and is hardly class life and disability coverage suffi- are consistent with (ci- a national uniformity.”) ciently related and intertwined as to con- omitted). tations stitute one overall plan. benefit Because plan benefits both and em- Because we conclude that the dis ployees, governed it is by ERISA. ability policy covering House part Congress enacted ERISA to correct abuses nerable to they abuses because lack control occurring in the private administration of re- input pension over plan management. plans plans. tirement and ex Robertson v. Id. This concern does not arise where Alexander Grant & plan employer; covers such Cir.1986) (citing S.Rep. Cong., No. 127 plans 93d are excluded from scope ERISA’s broad Sess., reprinted 2d in 1974 U.S.C.C.A.N. employee because when the employer are 4838-44). Employees in the same, traditional em- one and the there is little regu- need to ployer-employee relationship are vul- more late administration. Id.

453 ma- of at least one the performing 1. claims state law House’s plan, an ERISA of his duties and substantial terial are attorneys fees and penalties 1144(a) another oc- or occupation regular 29 U.S.C. preempted. or full- part-time on a cupation and “supersede ([ERISA’s provisions] basis; ... they may and time insofar laws all State plan-”). any employee to relate of his than 80% earning 2. is less of the issue reach not do therefore We Earnings Pre-Disability Indexed disput- of payment partial AUL’s whether Injury Sick- same to that due obligation it from relieved ed benefits ness. pay penalties. sub- “material and terms Because the occupation” “regular and Disability stantial duties” of Degree III. the we accord policy, in the are defined the whether issue of to the turnWe accept- generally ordinary and their terms House finding that court erred district & Accident Provident meaning. ed Life and policy under “totally disabled” 634, 641 F.3d 364 Sharpless, v. Ins. Co. deemed simultaneous could be and Cir.2004). partial (5th Reading the “partially and “totally disabled” ly both materia, pari disability provisions total called When policy. under disabled” benefits, to obtain in order poli ERISA-covered interpret upon to that he have demonstrate House would plan de the terms cy, “we construe material and all of perform cannot ad plan gives the benefit novo unless occupation. of his duties substantial discretionary au fiduciary ministrator we provisions, policy analyzing similar benefits eligibility determine thority to a means claimant that this have concluded plan.” terms of the construe or to cannot only if he or she totally disabled Co., 129 F.3d Wegner v. Standard sub- every material and perform each Cir.1997) (internal (5th quotation El- occupation. his or her duty of stantial omitted). in this the record As citation Bos- Co. Liberty Assurance lis v. of discretionary grant of no such case reveals Cir.2004). (5th A ton, F.3d administrator, fiduciary or to a authority under disabled partially thus claimant is our de guides policy of language more, one or perform if able to this Id. interpretation. novo and substantial all, of material but not 1 or for Class definitions id. at occupation. See or her of his duties that: (attorneys) provides 2 insureds par- of total and The definitions 271-72. and TOTALLY DISABILITY TOTAL are AUL disability under tial Inju that because mean DISABLED mutually exclusive. therefore per Person cannot ry or Sickness distinc duties court’s and substantial find district material We form the “lawyer” lawyer” “trial occupation. tion between regular his interpreta sense a common fine PAR- too DISABILITY PARTIAL A number occupation.” “regular tion of that be- mean DISABLED TIALLY interpretation upheld an Person, have courts Injury or Sickness cause of general meaning occupation” “regular material perform every unable while posi particular rather occupation occu- duty regular and substantial Al- employer.8 particular basis, is: a full-time on pation Inc., Fed.Appx. 633-34 Assoc., See, Directory Distrib. e.g., Schmidlkofer 454

though of such interpretation review an in total disability places him squarely many deferential, cases was within having been definition partial disability. by made administrator with vested The dissent discusses total disability as discretion, we do not believe that precludes if the policy not at does the same time interpretation like here. “regu- define partial disability. When read to- lar” occupation was an attorney, as not gether, at the same time the disability can restricted to his specific own job as a be either total partial or but never both. litigation attorney with a So uniquely stressful when the definition of partial disability practice, but fits rather referencing House, the activi- condition of is his benefit. ties that cоnstitute the material duties of an attorney they are as found in gener- urges that such interpretation an economy. See, al e.g., Osborne runs afoul of Louisiana Hartford Revised Statute Co., and Accident Ins. 296, 22:230(0, which provides

Life general “[a] (6th Cir.2007) (“Whatever the meaning of definition of total disability in [a ‘regular’ is, it is not loss synonymous policy] income shall not be more ”). ‘own.’ restrictive than one requiring the individu- al to totally disabled from engaging in Even crediting the opinion of House’s any employment occupation or for which doctor that House’s heart pre- condition is, becomes, he qualified by reason of cludes him from resuming his stressful education, training, or experience and practice, trial House is clearly per- able to which provides him with substantially the form some of the aspects material of his earning same capacity as his former earn- occupation as attorney, an evidenced ing capacity prior to the start of the dis- his post-surgery activities with his firm ability.”9 However, 22:230(D) section per- and his legal current employment with the mits an insurer defining total disability to Louisiana agency. Under the policy, this “specify the requirement of the complete takes House outside of the definition of inability of the individual perform all of Cir.2004) citing v. Dimension Works court finds that interpretation defendant’s Ehrensaft Long Plan, Inc. Disability Term F.Supp.2d 120 'regular terms occupation’ meaning 1253, ("This (D.Nev.2000) 1259 type Court finds of work which a covered employee is term, that the 'occupation,' general is a de perform trained rather specific job than the scription, specific not a person one.... A at employee which the working when he may perform not be able to specific ill, job became is a interpretation rational sup- assignment, but perform still be ported able to plain meaning words.”); of the generally duties part understood to be Co., of his Valeck Wyatt v. Watson & 266 cf. F.Supp.2d 'occupation.' 610, her example, For a secretary (E.D.Mich.2003) 620-21 (up- is not disabled from his or 'occupation' her holding interpretation as the “regular of both just because job” he or she perform "regular cannot occupation” also as "the kind of assigned additional tasks work employer, [insured] did” rather than the "specific moving such as job lifting specific furniture or heavy in the ob office and with specific jects.”); Dionida supervisor v. Reliance Standard and co-workers with whom she Life Co., F.Supp.2d (N.D.Cal. worked”). 50 939 1999) ("The ‘regular term occupation' may be fairly position construed to note, mean ‘a of the concedes, We and AUL that ERISA general same character as the previ insured's preemption preclude does argument such job, ous with similar training because, duties and re applicable, if directly section 22:230 " quirements.' (quoting Dawes v. First regulates Unum the business of insurance and sub- Ins., Co., (S.D.N.Y. F.Supp. 851 stantially affects the risk-pooling agreements 1994))); Hanser v. Ralston Purina between insurers and insureds. See 29 U.S.C. F.Supp. (E.D.Mich.1993) ("The 1144(b)(2)(A). § sub- policy’s contingency against duties and material substantial in- by the cancellation unilateral sequent im- of similar or words occupation regular 22:213(B)(7). above, poli- AnN. the AUL surer. As discussed port.” La.Rev.Stat. held, disability comports Court has Supreme of total The Louisiana cy’s definition Further, Co., while So.2d standard. 538 with this Travelers Ins. v. Soniat trial law- as a occupation with- (La.1989), House’s former have assumed and we 215 some clearly more lucrative yer Gonzales, at deciding, out certainly practices alternative other law insurance-regulating state that this job, agency new than his lucrative more by ERISA. preempted not is provision a more sed- to have switched might House However, protect nоt ben- rules do these still practice legal entary non-trial poli- contingency of the the eficiary against now than he substantially more earned termination, we which subsequent cy’s the agree that sum, cannot we does. as context “cessation in this have defined unduly language is total policy’s insurance contract under an coverage of law. Louisiana under restrictive period policy of the passage the reason of does that House we conclude Because anticipat- some event or the occurrence the under totally disabled as qualify not Gon- the contract.” the terms of ed the issue do reach we policy language, (citations and inter- zales, at 455 F.2d 901 off to set is AUL entitled of whether Soniat, omitted); see also quotations nal dis- against total earnings present (recognizing the & n. 12 at 215 538 So.2d ability benefits. termi- cancellation and between distinction Louisi- coverage under nation of insurance Entitlement of House’s Termination IV. law). ana Disability Benefits to Partial clearly con- covering House policy district the we consider Finally, for a of benefits payment templated partial court’s conclusion during a arising persisting February 2002 as of terminated benefits extended period would covered the terminated firm former when House’s beneficiary’s of a the duration throughout the Reviewing with AUL. policies firm’s poli- the 5 of working Section life. novo, normal find no error. we de record If BENEFIT: “EXTENDED cy reads: law, rights of Louisiana “Under the date on Totally Disabled the Person policy depend, beneficiary of an insurance insurance, pay will AUL of termination of the foremost, the terms on first However, Disability.” Total for benefits Co. Prudential Ins. policy.” Gonzales do not policy insuring provisions Cir.1990).10 (5th Am., F.2d coverage the same extended provide guaranteed the rights “Supplementing condition, coverage disabling partially insurance contract by the beneficiary enu- among ceasing upon, other expressly pro- by the that are established are others firm’s events, of the termination merated Code and Insurance visions of policy. Section group coverage under sprung have rules that jurisprudential reads, part: in relevant policy 8 of Insurance Louisiana Id. The it.” from will con- Disability Benefit Partial “[T]he beneficiary’s claims protects Code follow- EARLIEST until the tinue expenses incurred” accrued “benefits Fed.Appx. 12 Mut. western on superseded statute Recоgnized Cir.2004). (definition disability under grounds other law) Guidry v. North- as stated Louisiana ing: terminates; .. policy 9. The date the claims summary on judgment on the or 10. Participating The date the grounds Unit’s single that a insurance cov- [the ering firm’s] ter- partner both a employee and an Because, minates.” under the terms of beneficiaries constituted an plan, ERISA contract, right permanent partial no preempting the state law claims. Id. at disability coverage bargained pro- applied 189. We two different standards: for, right vided no perpetual partial question of whether the “insurance disability benefits accrued to prior constituted an plan” was a to the termination of the policy. The ces- fact error, issue reviewed for clear while sation of liability partial AUL’s for disabili- the question of whether preempt- ERISA ty payments at the time House’s former ed state law claims was a legal one re- firm ceased to be a covered “Participating Id.; viewed de novo. see also Provident Unit” constitutes a termination rather than and Acc. Ins. Co. v. Sharpless, 364 a (5th Cir.2004). cancellation of thus does Here, and F.3d the not afoul run of the Insurance majority Code. question recasts the same whether the policy insuranсe constitutes

V. Conclusion plan an ERISA as a question mixed of fact subject law that is to de rejects This decision novo review. the contentions of McNeil, Applying we appeal. House’s should review The case is the remanded to district court’s the decision that partner court for district recalculation what policy was separate from amounts due the em- are consistent ployees’ policy error, for this clear opinion. and I do not bélieve any error here is significant AND REVERSED REMANDED. enough to overcome that hurdle. DENNIS, Circuit Judge, dissenting: standard, however, Under either I would affirm (1) the district Because the court’s majority opinion determination disre that House’s gards policy holding part our was not of an Robertson Alexan Robertson, Co., plan. ERISA der Grant & we 798 F.2d held that Cir. 1986) plans benefiting only partners to find that the were not policy insurance is (2) covered governed by ERISA unique because of the ignores ERISA and posture partner a provisions negotiating of Louisiana assumes vis- Revised Statute a-vis his firm. Robertson noted that section 22:230 and jurisprudence Louisiana on disability policy definitions to con [e]mployees in the traditional employer- clude that Walter House does not qualify emplоyee relationship are more vulnera- as totally disabled under the lan partners ble than in a partnership are to guage, respectfully I dissent. abuses because typically workers lack control pension plan over management

I. ERISA Coverage input into the decision whether to matter, As an initial majority mis- extend pension benefits to em- certain states the standard of ques- review ployees. hand, On the other a partner tion of whether House’s insurance has input more control and does constitutes an plan. In McNeil v. employee a partner since has a vote in Time ‍‌‌​‌‌‌‌​​​‌​‌​​​‌‌​​​‌​​‌​‌‌‌​​​​‌‌‌‌​​​​‌​​​​‌‌‍Insurance 205 F.3d partnership Furthermore, affairs. a (5th Cir.2000), we reviewed an identical partnership contains a self-policing fea- question in posture. There, a similar ture absent in largely typical em- district court had dismissed state law ployer-employee relationship. In the argu- intertwinement single plan. The have partners situation

partnership how- plans, the fact that the “ignores ment agree provisions not to an incentive similar, separate plans. are two ever harm certain members may partners pay does covering the partner plan knows each partnership because any principals, being partner benefits up end that he could pay does not bene- covering principals is harmed. who Robertson, at partners.” fits to 798 F.2d at 870. virtually plans identical cover- If two here. logic especially forceful This are con- groups employees ing different of the law partner House was not plans, I see no basis here separate sidered in the firm, with his a founder name but single policy where to hold there is superi- prominent position. House’s most individually paid policies for their partners is evident input partner as a control employees were premiums while the court. by the district from facts found firm, differ- received paid was able to obtain that House It noted negotiated from those em- ent benefits given to em- advantages over employees required were to ployees, and by the income covered ployees. not. partners whereas were participate income, his entire included net policy purchased at the policies That the were to their employees were limited whereas the with time and both tasked firm same forty hour workweek. salary under a base ad- minimal duties does not administrative Co., No. Amer. United House v. Life distinguish the case from Robert- equately (E.D.La. 02-1342, at *9 2004 WL vague as to my in Robertson son view. 2004). to House also was able Apr.20, facts, paral- to involve two appears its but favorable definition a much more secure nearly Keogh plans, with separate lel and employ- compared to his terms, by ac- administered identical an totally dis- be considered could ees. He part- on behalf of counting partnership its Injury or Sickness the “because of abled if employees. ners and its and perform the material Person cannot occupa- regular of his duties substantial certainly nothing pur- about There is tion,” totally employees could whereas employees part- and chasing policies they perform if “cannot disabled time that eliminates at the same ners any duties of and substantial material a has over advantage partner bargaining Person is for which the gainful occupation likely contrary, it To the employee. an education, training, reasonably by fitted to partners, able control enhances it—the added). (emphasis Un- experience.” Id. employees company their which insurance rationale, not House was der Robertson’s select, negotiating gain added are forced to under his be- to abuse vulnerable Likewise, policies. own leverage for their partner as a of his status cause separate common administration him provide was not intended ERISA employ- employees policies distinct protection. with disadvantage partner does ers in a partner a any way was conten- support does not Robertson —House control the administra- position to prime if the is “intertwined” tion that rea- policy. Robertson tion of own partner’s separate employees, policies partners were situated that because by To soned covered ERISA. policy becomes over they exercise control that could rejected argu- an such contrary, Robertson of ERISA application plan, their own plans in that case were ment unnecessary to protect really thus were virtually identical and employers them from their potential other noted the consequences —in words, themselves. Even if policies other interpretation: intertwined, here were that does not If any view, court endorsed this change partner the fact aas insured’s participate choice to in a policy ERISA, protection did not need under other a group policy would be ren- that, statute, plain under the terms of the meaningless; dered ERISA be- would protection would not extend to his come a piece legislation, boundless an employee unless was covered it. sweeping within its all scope claims here, noted, as Robertson [poli- And “the separate made policies purchased cies], similar, however are separate two provide benefits addition to those [policies].” provided Id. plans. ERISA St. Martin v. Provident & Acc. Ins. Other Circuits are accord. The Ninth 92-2120, 92-4244, Nos. 1993 WL Circuit has decided this issue and taken (E.D.La. 1993). July opposite approach majority from the Moreover, the cases cited majori- Watson, opinion. In In re ty change my do not view that Robertson (9th Cir.1998), 596 n. partner argued guide should analysis Court’s here. As while his plan separate from that out, the majority points Yates dealt with employees, it was sufficiently relat- situations in which employee ed to the employee’s plan as to warrant owner, covered both a working such for his own plan as well. partner, as a and at employee. least one rejected The cоurt argument, this holding Yates, Raymond M.D., See B. P.C. that if Profit plans “even the were created simul- Hendon, Sharing 1, Plan 541 U.S. 124 taneously or shared other common charac- 1330, (2004). S.Ct. 158 L.Ed.2d 40 teristics, they independent are plans under Supreme specifically Court noted that “if a Id.; ERISA.” see also LaVenture v. Pru- plan benefit only owners, covers working it Amer., 1042, Ins. Co. dential 237 F.3d of is not covered Title I [of ERISA].” Id. (9th Cir.2001) (reiterating 1046 Watson 6, at 22 n. 124 S.Ct. 1330 (citing appellate and adding that “a company may offer cases) added); (emphasis see also id. at more one benefit plan, covering one (“Plans 124 S.Ct. only 1330 that cover sole only owner of the and the business partners owners or ... fall outside covering other the business’s employees, domain.”). Thus, [ERISA’s] Yates does plans maintain those two as indepen- support not majority’s intertwinement ERISA”). plans under dent where, argument here, there is a relat- Similarly, the Eleventh Circuit has held separate ed but partners, to that “non-ERISA benefits do not fall with- employees which do not have access. Fur- in merely ERISA’s reach they because are ther, Walk, in parties conceded, with- included in a plan multibenefit along with any out analysis by substantive the Third ERISA Kemp benefits.” Corp., v. IBM Circuit, plan that benefit at issue was (11th Cir.1997). 109 F.3d 713 Kemp governed by ERISA pеrtained as it to noted including a non-ERISA benefit both employees. See Wolk v. plan within ERISA does not convert Amer., UNUM Life of that benefit (3d into one covered by Cir.1999). ERISA. The Third Circuit Id. Judge Livavdais of the Eastern Dis- whether, therefore addressed as a Louisiana, trict of in applying Robertson law, to matter of the plaintiff partner, who a holding reach similar to in Kemp, was designated to receive benefits under noted, pre already ERISA at 275-76. As plan, qualified employee Sec apply not here because upon emption does It was not called “beneficiary.” directly the business Finally, regulates 22:230 facing us here. the issue to decide substantially affects presented facts of insurance and from the it is unclear Amer., insurers between risk-pooling agreements Ins. Co. Lain v. UNUM (S.D.Tex.1998), inapposite ex- Sharpless to what and insureds. F.Supp.2d There, to were related we determined partner’s plans reasons. tent similar event, In Lain plans. the Louisiana stat employee’s preempted that ERISA brought and its sum- her binding on this Court the insured is not ute under which claim, interpre Robertson should distinguishing applied contract mary and thus analysis. to federal com principles pursuant not influence our tation law. mon author- sum, have cited nо parties merely argument ity supporting 22:230, case, per- Section present In the are related to each policies two because decisions, and the tinent state court other, does not rationale of Robertson the district required at issue definition authority from our Circuit apply. The House’s total grant court opposite conclusion. supports the others provides: claim. Section 22:230 I affirm on this issue would Respectfully, group A. An individual clearly erroneous stan- under either the provide loss loss of income standard of review. or the de novo dard against total protection income in this state consistent may be issued Disability Definition II. Total provisions the definitions is in error opinion I believe the also this Section. district court’s determination reversing the disability may be defined B. Total under the totally disabled that House was inability person to the relation concedes, does policy. As AUL not be based duties but shall perform regulating Louisiana law preempt inability to: solely upon an individual’s insurance, Louisiana such as business (1) whatsoev- “any occupation Perform 22:230 and state section Revised Statute “any or er”, duty”, “any occupational interpreting limiting and court decisiоns or duty occupation”; his every of in disability definitions of total insurers’ (2) any training or rehabilita- Engage in concluding policies. income program. totally as dis- qualify that House does not abled, disabil- majority applies decisions total general the AC. definition of here: be more distinguishable inapposite shall not ity policy are in such a Boston, indi- Co. the Liberty requiring Assurance than one Ellis restrictive of Cir.2004) 262, engag- and Provi- totally 272 disabled 394 F.3d vidual to be from Sharpless, occupation Ins. Co. v. or any employment dent & Accident ing in Life (5th Cir.2004). becomes, 634, is, qualified 641 which he education, training, experi- reason of case, because, in that inapposite Ellis him with sub- provides which ence and preempted state-law we found that ERISA earning capacity stantially the same faith good processing unfair claims to the earning capacity prior his former claims, applied and we dealing and fair disability. start of in standard abuse of discretion the re- may specify D. An insurer denial of plan administrator’s affirming the inability complete quirement F.3d disability income benefits. 394 total of of 460

the individual Shelby all the sub- perform Section 22:230. William McKen- of stantial and material regu- duties III, zie & H. Alston 15 La. Civil Johnson, of occupation lar or words similar im- (3d ed.2007). 290 Law TReatise port. cases, Under Louisiana total may require E. An insurer care a required has never proof that an insured is physician other than the insured or a abject reduced to a helplessness. state member of the family, insured’s Employers Co., Laborde v. 412 Ins. Life added). (emphasis 1301, (La.1982) So.2d 1304 (citing Crowe v. The Louisiana Civil provides Code the Equitable Assurance Soc’y Life general principles the interpretation States, 444, 52, United 179 La. 154 So. laws as follows: a “When law is clear and (1934); Madison v. Prudential Ins. Co. of unambiguous application and its does not America, 103, (1938); 190 La. 181 So. 871 lead to consequences, absurd the law shall Nomey v. Mut. Pacific applied be and no written further inter- (1948); La. 33 So.2d 531 and Pearson pretation may be made search of the America, v. Prudential ‍‌‌​‌‌‌‌​​​‌​‌​​​‌‌​​​‌​​‌​‌‌‌​​​​‌‌‌‌​​​​‌​​​​‌‌‍Ins. Co. 214 La. legislature.” intent of the La. Civ.Code (1948)). 36 So.2d 763 In Johnson v. Ann. art. 9. “When language of the law State Farm Mutual Automobile Insurance is susceptible of different meanings, it Company, (La.1977), So.2d must interpreted be as having meaning Supreme Louisiana Court relied on that best conforms to the purpose of the this line of interpret cases to an insurance law.” La. Civ.Code Ann. art. 10. “The policy defining as the inabil given words of a law must be gener- their ity engage in “every duty occupa of his ally prevailing meaning. Words of art and tion” to mean inability to “perform the technical terms given must be their techni- substantial and part material of his occu cal meaning when law involves tech- pation in the customary usual and way.” nical matter.” La. art. 11. Ann. Civ.Code “When the words of law are ambiguous, Accordingly, Supreme Louisiana their meaning must sought by be examin- Court, Laborde, that, announced where ing they the context in which occur and the insurance expressly purported to text of the law as a whole.” La. Civ.Code adopt the interpretation here, urges AUL Ann. art. 12. on subject “Laws the same would instead be construed to must interpreted in reference to each define total disability as “whether he could other.” La. art. 13. Ann. Civ.Code performed have the substantial and mate- rial part occupation of his properly

To the usual and interpret the statute and customary way.” 412 So.2d at court must 1304. In also take into fact, definition account of total long juris- disability Louisiana’s and unique in prudential Laborde history virtually of was identical to the construing such one the disability majority applies: terms in “complete income statutes as “to- inabil- ity tal disability,” of the Insured ... “occupation,” “regular perform to every occu- pation,” duty and “all pertaining of the substantial to his occupation.” Johnson, material duties of regular occupation,” disability his total similarly de- in addition to Section 22:230 and fined as prede- inability perform its to “every cessor statutes. As legal practi- duty Louisiana occupation.” 342 So.2d at 667. tioner-scholars have recognized, juris- Notably, this meaning imposed liberal in prudence part background of the upon place of nominally these strict definitions which legislature acted in enacting omitted “every.” the word in reference to each cases, provisions statute’s the Louisi- to these

Subsequent other, context, conformity in and in in 1991 enacted Louisiana Legislature ana law, in of the the statute 22:230, purpose provi- section Statute Revised (1) Prohibition of provides essence for: ability of to limit the plainly intended sion absolute, disability in the defining total overly re- adopt to companies insurance may not unqualified sense: Insurers de- disability. A of total definitions strictive inability treatise, disability” solely as to fine “total law Louisiana insurance leading whatsoever”, “any occupation perform H. Alston McKenzie & Shelby William duty”, “any every “any occupational or III, 15 La. Civil Law Treatise Johnson, inability (3d duty occupation”; of his or as to ed.2007), recently explained § 290 any training in or “[ejngage had rehabilitation 22:230 the enactment of Section how (2) of restric- program;” Maximum level the Louisiana substantially incorporated may tiveness in definitions: Insurers disability such jurisprudential courts’ disability” general “total in no more define standards: restrictively “totally disabled from than as expect to that our There is no reason occupation engaging any employment in or interpre- will abandon the liberal courts is, becomes, for which or [the insured] disability. concept accorded the tation education, training, reason of qualified Indeed, to do may there be less reason provides him with experience and which would be in the field of so than there earning capacity as substantially the same In the compensation.... workers’ prior to the earning capacity his former field, the cost is and accident health (3) Specific disability;” start of the insured, who directly borne often inability complete of insured’s requirement that he greater argument a much has regular all duties of insured’s perform entitled to a fair shake on should be “may specify Insurers the re- оccupation: paid that he for. inability of the complete of the quirement Indeed, amendments legislative recent all of the substantial perform individual cannot definitions provide occupa- regular material duties of his might whatever an insurer simply be Thus, import.” of similar words 1990, now to be. Act 879 of want them may condition total ben- insurers 22:230, La. establishes appearing as R.S. complete individual’s efits on the insured disability beyond which a definition important inability perform all may go. Cover- apparently insurer to do regular occupation, but duties of his may disability obviously age for total specify this the insurer requires so Louisiana, but with certain offered inability requirement complete of such restrictions. to the in- it is called so omitted). (footnotes Id. by him. agreed to sured’s attention and mind, background applying With this policy in of income loss leg- principles Code the Louisiana Civil disability as follows: this case defines total it is evident that the interpretation, islative and TOTALLY “TOTAL DISABILITY protect of Section 22:230 to purpose Inju- mean that because DISABLED definite placing of the insured interests per- cannot ry the Person or Sickness may define and limitations on how insurers and substantial duties form the material income disability” disability in apply “total occupation.” regular of his to the Paying careful attention policies. requirements majority misreads the Louisiana The art as defined terms of disregards cases, simply 22:230 and construing the of Section in previous courts jurisprudence defining pre-disability Louisiana his high-stress job an ac- as tive, Rather, in experienced terms of art used the statute. actual lawyer. trial mistakenly it applies inapposite deci- Second, the Louisiana courts have never and, Sharpless, sions in Ellis and in my allowed “total disability” to be defined or opinion, incorrectly pol- concludes that the applied restrictively so against pol- insured icy definition must be construed to mean icyholders’ Laborde, interests. See disability that “in order to obtain total So.2d at (rejecting an insurer’s advo- benefits, House would have to demon- cacy of a definition disability of total simi- perform strate that he cannot all of the lar to that proposed opinion in favor material and duties of substantial his oc- reading the test as “whether he could cupation .... means a claimant [TJhis performed have the substantial and mate- if totally disabled he or she cannot rial part occupation of his in the usual and perform every each and material and sub- Johnson, customary way”); 342 So.2d at duty stantial of his or her occupation.” (same). Moreover, majority also declares “the Third, the Louisiana interpreta- courts’ district court’s distinction between ‘trial disability definitions, tion of total lawyer’ ‘lawyer’ and too fíne com- adopted by statute, well as that inis mon interpretation ‘regular sense occu- accord with that of in general. state courts’ ” Thus, pation.’ according majority, to the See, e.g., 46 C.J.S. Insurance 1089: definition, under the an attorney disability Total does not mean absolute perform

would have to be unable to each helplessness, or inability to do anything, every and duty material substantial or inability engage any to in kind of legal profession general in order to business pertaining to insured’s occupa- qualify disability total benefits. tion, or absolute lack of earning power. However, an inability perform some respectfully

I disagree majori- with the aspects of occupation insured’s does not ty’s First, conclusions for several reasons. rise the level of total disability. majority’s definition of total inability perform every duty Total wholly of law- exists when one is yers generically is disabled from pursuing even more the usual restrictive “any every duty customary duties of employment of his occu- his on pation” which he prohibited by depend definition must for a living, Section or 22:2S0(B)(1). part Use of the term substantial “regular ordinary his duties, occupation,” general, injury in Louisiana and in when the is such that common prudence means the individual insured’s usual care and require in- desist, customary livelihood, sured to earning means of and he does fact desist, permit and does from transacting the insurer to his define business. at an unreasonably high level generality so as to offer in- protection

sured no real Generally, the event he when an insurance contract perform becomes disabled to the duties occupation refers to an in promising required by previous regular payments income- work, if insured is unable to earning lawyer, activities. As a occupation occupa- referred to is the qualified was still and able to work as a carrying that insured was on at the civil servant governmental attorney, but time that injured. he was When insured as a regular occupation that role did not an occupational description lists on his provide him with the earning capacity of application that varies from what he ac- disability policy income does, employer’s to his court will look

tually the separate ERISA-pro- from the law firm’s duties, application, to de- not the actual governed employees’ group in- tected and occupation. termine insured’s (2) surance; in inter- an error law omitted) (footnotes citing (collecting and preting applying state law to the total authorities). disability disability definition in the income Fourth, interpreted applied House, policy partner-employer. majority, policy definition would be than the maximum level more restrictive ON SUGGESTION FOR REHEARING 22:230(C). is, That it by Section permitted AND REHEARING EN BANC total disqualify House for would law though present even his benefits 4, Oct. not have sub- capability he does

practice PER CURIAM: as his stantially earning capacity the same Treating suggestion rehearing for en earning capacity prior to the start former it petition panel rehearing, as a for is thus, banc majority imper- disability; of the petition panel ordered that the rehear- disability” “total more missibly interprets ing panel No member of the DENIED. by law. restrictively permitted regular active service of this Judge nor Fifth, did not take policy AUL its that having requested Court the Court be advantage opportunity offered (Fedеral polled rehearing on en banc 22:230(D) “specify for it to Section Appellate Rules of Procedure and Local inability” complete requirement 35), En Rehearing suggestion Rule all of the substantial perform House “to Banc is DENIED. occupa- his regular material duties of contends, among import.” petition, tion or words of similar his House con- merely boiler-plate: things, uses a “TOTAL other that we erred when we ... that because of American United cluded ‍‌‌​‌‌‌‌​​​‌​‌​​​‌‌​​​‌​​‌​‌‌‌​​​​‌‌‌‌​​​​‌​​​​‌‌‍mean[s] DISABILITY benefits per- required pay the Person cannot Life Insurance Injury or Sickness Co. terminated in partial the material and substantial duties him for his form Thus, February because was termi- regular occupation.” his when agreement to Am. did not obtain House’s nated. See House v. United AUL that, at *9 to recover specific requirement WL 2007). benefits, argues Sept. must have House Cir. all of the his claim complete inability perform that we should have examined 22:215(A)(l)(d), § regu- of his which and material duties under substantial La. Stat. policies spe- Louisiana health insurance occupation, group lar as authorized covers 22:230(D), claim cifically, examining neither AUL instead of Revised Statute 22:213(B)(7), disability” § which covers insur- this can define “total nor Court The result is the contrary requirеments policies generally. to the of Section ance 22:230(A)-(C). same, however, under either section be- pol- termination of the insurance cause the

III. Conclusion any benefits House icy prejudice did not reasons, policy. Compare accrued under the respectfully I submit had For these 22:215(A)(l)(d) (noting that the should affirm the district Court La. Stat. “modification, amendment, or cancellation” that court did judgment court’s because (1) “shall be group of a health insurance a clear error of fact or not commit: any claim for benefits partner- prejudice without finding error of law in by Keys, noting Owens, by accrued” and benefits accrued Lizzie Nickie Durr; Owens, by defined and limited Brenda “shall be as Brenna 22:213(B)(7) Durr; policy”) Owens, by terms of the Brenda Renee Bren Durr, (noting policy Movants-Appellants. that the “cancellation” of the da claim for prejudice “shall be without No. 06-60799. noting benefits accrued” and that benefits United States of Appeals, Court defined and accrued “shall be as limited Fifth Circuit. policy”). terms of the policy House accrued under the was the Sept. right payment for partial to receive his until the was terminated. Thus, once the terminated terms,

February policy’s longer payment no entitled to disability. partial Accordingly, prejudice

termination of did not

any benefit House had accrued.

DENNIS, Judge, dissenting Circuit panel rehearing:

from the denial of

I respectfully from the refusal to dissent assigned

rehear this case for the reasons my dissenting opinion. America,

UNITED STATES

Plaintiff-Appellee,

v.

The COVINGTON COUNTY SCHOOL

DISTRICT, Defendant-Appellee, Keys, by Keys

Danniesha Arthur

Peggy Keys; Keys, by Savon Arthur

Keys Peggy Keys; Kadisha Ow

ens, by Johnny Fairley; Zantario Jen

kins, by Johnny Fairley; Cillmuriea

Keys, by Keys; Keys, Lizzie Jahrina

Case Details

Case Name: House v. American United Life Insurance

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 4, 2007

Citation: 499 F.3d 443

Docket Number: 06-30168

Court Abbreviation: 5th Cir.