                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 17 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

VALERIE J. WITHROW, FKA Valerie J.               No. 13-55812
Hunt,
                                                 D.C. No. 3:06-cv-00369-JAH-
              Plaintiff - Appellant,             RBB

 v.
                                                 MEMORANDUM*
BACHE HALSEY STUART SHIELD,
INC. SALARY PROTECTION PLAN
(LTD),

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                        Argued and Submitted June 2, 2015
                              Pasadena, California

Before: M. SMITH and N.R. SMITH, Circuit Judges and LAMBERTH,** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
      Valerie Withrow appeals the district court’s Findings of Fact, Conclusions of

Law and Order, following a bench trial, in favor of Bache Halsey Stuart Shield,

Inc. Salary Protection Plan (LTD) in Withrow’s ERISA action. Withrow alleges

that she is entitled to increased monthly disability payments arising from an

alleged miscalculation and misapplication of the terms of the group disability

insurance contract (the Plan) issued by Reliance Insurance Company (“Reliance”).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



1.    We do not find the plain language of the Plan to be ambiguous. The Plan

provides that benefits would be based on “monthly earnings.” 2 ER 103. Although

the Plan does not define “monthly earnings,” it defines “Salary” as “the monthly

salary” plus “the average commissions during the preceding 24 month period, or

from the date of employment, if employed less than 24 months.” 2 ER 105. The

clear meaning of the term “salary” is that the “preceding 24 month period” applies

to that time period immediately preceding an employee’s disability; the only basis

for applying a period less than 24 months is if the employee was not employed for

the full term. Thus, there is no ambiguity. See Evans v. Safeco Life Ins. Co., 916

F.2d 1437, 1441 (9th Cir. 1990) (noting that the court “will not artificially create

ambiguity where not exists. If a reasonable interpretation favors the insurer and


                                          2
any other interpretation would be strained, no compulsion exists to torture or twist

the language of the policy.” (internal citations and quotation marks omitted)).

      Even assuming the Plan’s definition of “salary” contained an ambiguity (as

applied to Withrow), the district court did not err in finding the contra proferentem

doctrine was not applicable here. See Kunin v. Benefit Trust Life Ins. Co., 910 F.2d

534, 538-39 (9th Cir. 1990). Looking at the contract terms based on the

“reasonable expectations of a lay person,” the district court did not err in finding

that Withrow’s interpretation of the Plan was not “objectively reasonable.” See

Allstate Ins. Co. v. Ellison, 757 F.2d 1042, 1044 (9th Cir. 1985).

      Withrow’s argument that the “preceding 24 month period” means something

other than 24 months is an unreasonable and strained interpretation of the policy.

See Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 411-12 (9th Cir. 1995).

Withrow argues that because she was out on disability for several months during

the 24-month period preceding her disability date, Reliance should have considered

only the months in that period in which she actively worked and earned

commissions. However, the terms explicitly anticipate consideration of fewer than

24 months only where an employee has been employed for fewer than 24 months.

Nothing in the record indicates that Withrow ceased to be employed during this



                                          3
period– even when not actively working– and Withrow’s counsel conceded in oral

argument that Withrow was continuously employed by Bache Halsey Stuart

Shield, Inc. from 1976 to 1986. Furthermore, Withrow’s counsel conceded that in

those months during the 24-month period in which Withrow was out on disability,

she received payments under a “Salary Continuation Plan” that her employer

purchased as a source of funding to pay the benefits of disabled employees.

Therefore, Withrow received monthly earnings throughout the 24-month period

immediately preceding her disability. While Reliance chose not to calculate her

disability benefits based on these 24 months, its chosen interpretation was more

favorable to Withrow and was reasonable under these circumstances.

2.    The district court did not err in determining that Withrow’s date of disability

was March 14, 1986. In Withrow’s case, a later disability date would entitle her to

a higher benefit amount; however, the district court’s determination is supported

by evidence in the record. Withrow’s own doctor believed that she was disabled as

of March 14, 1986. 2 ER 96. Additionally, the evidence demonstrates that Withrow

told Reliance that she received California Disability Insurance benefits from March

through July, 1986. 3 ER 569, 4 ER 601, 4 ER 628. She stopped collecting the

benefits when she returned to work, but resumed collection in September 1986. Id.



                                         4
3.    The district court did not err in adopting defendant-appellee’s proposed

findings of fact and conclusions of law without directly addressing all of

Withrow’s arguments. Although this court reviews the district court’s findings of

fact and conclusions of law “with special scrutiny,” because they were adopted

nearly verbatim from a party to the lawsuit, Silver v. Exec. Car Leasing Long-Term

Disability Plan, 466 F.3d 727, 733 (9th Cir. 2006), the district court was entitled to

do so, Barnett v. Sea Land Serv., Inc., 875 F.2d 741, 745 (9th Cir. 1989); Anderson

v. City of Bessemer, 470 U.S. 564, 572 (1985). While some of the district court’s

findings are lacking in particularity, they are not so deficient as to prevent this

court from effectively exercising its role of review. The district court “state[d]

findings sufficient to indicate the factual basis for its ultimate conclusion.” Unt v.

Aerospace Corp., 765 F.2d 1440, 1444 (9th Cir. 1985). Even to the extent that the

district court may have stated mere conclusions, no remand is necessary because

the basis for the court’s decision is clear on the record. Id.

      AFFIRMED.




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