                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUL 22 2003
                           FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 WILLIAM A. REINER, a Wyoming
 resident,

              Plaintiff-Appellant,
                                                        No. 02-8045
 v.                                               (D.C. No. 01-CV-138-D)
                                                         (D. Wyo.)
 THE UNITED STATES LIFE
 INSURANCE COMPANY IN THE
 CITY OF NEW YORK, a New York
 corporation,

              Defendant-Appellee.


                            ORDER AND JUDGMENT


Before TACHA, Chief Judge, HARTZ, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.   This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

      In this civil action for monetary relief, Plaintiff William A. Reiner contends

that defendant United States Life Insurance Company (USLIC) breached its group

disability policy by failing to pay him a lump sum total disability benefit. Reiner

also alleges that USLIC denied his claim for benefits in bad faith and that he is

entitled to reasonable attorney fees.

      USLIC moved for summary judgment on Reiner’s claims, arguing that its

denial of benefits had been proper under the terms of the policy. It contended

that Reiner had not been eligible to participate in the group insurance policy

because he was not “actively at work” on “a full-time” basis, as those terms are

defined in the policy. Reiner in turn moved for partial summary judgment on

several grounds, including that USLIC was estopped from asserting this coverage

condition against him. The district court granted USLIC’s motion for summary

judgment and denied Reiner’s motion. We affirm.


                                        FACTS

      In 1971 Reiner, a self-employed court reporter, obtained group disability

insurance made available to members of the National Court Reporters Association

(NCRA). During the twenty-eight year period Reiner paid premiums for disability

insurance through NCRA, the group was insured by a number of different

                                         -2-
carriers. Effective August 1, 1998, USLIC replaced Allianz Life and issued

NCRA a new group disability policy.

      USLIC’s policy contains the following provisions relevant to this appeal:

      ELIGIBILITY

      ELIGIBLE CLASSES

      All persons who:

      • are members in good standing with the National Court Reporters
      Association;
      • are actively at work on a full-time basis; and
      • were insured under the prior plan [defined elsewhere in the policy]
      on July 31, 1998.

      ....

      DATE INSURANCE ENDS

      A person’s insurance will end at the earliest of:

      ....

      3. the date the person ceases full-time employment for reasons other
      than total disability.

Jt. App., Vol. I at 112.

      DEFINITIONS

      ACTIVE WORK or ACTIVELY AT WORK means that a person
      performs, in his customary manner, each duty of his occupation for
      full pay. This must be done at the person’s customary place of
      employment or business or any place to which such employment or
      business requires the person to travel.




                                        -3-
      FULL-TIME means active work on a regular work schedule that must
      be at least 30 hours a week.

Id. at 111.

      USLIC also issued a certificate of insurance in connection with the policy.

It contains the above definitions and the above-quoted provision regarding when

insurance ends, but it does not include the provision denominated “Eligible

Classes.” Id. at 130.

      Reiner did not receive a copy of this certificate of insurance until

November 1999, after his claimed onset of disability. Id., Vol. II at 487.

An insurance certificate issued in 1991 by Allianz Life, however, contains

substantially similar provisions conditioning coverage on the insured’s continuing

to work thirty hours per week at his customary place of employment or at

a location where he is required to travel. Id., Vol. I at 21-22. Reiner

acknowledges receiving a copy of this certificate at some time prior to 1994, and

an addendum to the certificate in 1994. Id. Vol. I at 277; Vol. II at 487.

      USLIC’s policy provides for two forms of disability benefit. First, if the

insured becomes totally disabled, he is entitled to a long-term disability benefit of

$150 per month for a period of twelve months. Second, if after payment of such

benefits for twelve consecutive months, the insured is suffering a disability

involving the loss of sight, speech, hearing, or use of hands, the insured is entitled

to an additional benefit.

                                          -4-
      After injuring his hand, Mr. Reiner made a claim for benefits. He was

quickly approved for the $150 per month disability payments. But after he made

a further claim for the $50,000 permanent disability benefit for loss of use of his

hand, USLIC required him to undergo an independent medical examination.

Based on his comments to the physician and other information that he submitted,

USLIC determined that he had not met the thirty-hour-per-week requirement for

full-time employment during the time the policy was in effect, and was therefore

not entitled to the additional disability benefit. This action followed.


                                     ANALYSIS

             Summary judgment is appropriate if the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any
      material fact and that the moving party is entitled to a judgment as
      a matter of law. We review a grant of summary judgment       de novo ,
      applying the same standard as the district court. We examine the
      record to determine whether any genuine issue of material fact was in
      dispute; if not, we determine whether the substantive law was applied
      correctly, and in so doing we examine the factual record and
      reasonable inferences therefrom in the light most favorable to the
      party opposing the motion.    However, where the non moving party
      will bear the burden of proof at trial on a dispositive issue that party
      must go beyond the pleadings and designate specific facts so as to
      make a showing sufficient to establish the existence of an element
      essential to that party’s case in order to survive summary judgment.

Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation

marks omitted).



                                          -5-
      Reiner devoted considerable energy in the district court to the question of

whether he met the policy condition of working at least thirty hours per week.

Although he mentions the controversy over this issue in the statement of facts in

his appellate brief, he does not renew his arguments concerning whether he meets

the policy condition. Instead, he focuses on whether USLIC was estopped from

asserting the policy condition by its failure to provide statutorily required notice

of the policy terms. Reiner essentially makes two claims in support of his

estoppel theory: (1) he was entitled to, but did not receive, a copy of the policy;

and (2) he was entitled to, but did not receive, a summary certificate of coverage.

      Reiner bases his arguments on provisions of the Alabama Insurance Code.

(The terms of the policy provide that it is governed by the law of Alabama.)

“[T]he general rule in Alabama is that coverage under an insurance policy cannot

be enlarged by waiver or estoppel.” Brown Mach. Works & Supply Co. v. Ins. Co.

of N. Am., 659 So. 2d 51, 53 (Ala. 1995) (internal quotation marks omitted).

Alabama law does, however, provide for estoppel when an insurer has failed to

provide a policy or certificate to the person entitled thereto, to his prejudice.

      1. Delivery of policy to Reiner

      The Alabama Insurance Code provides that “every policy [of insurance]

shall be mailed or delivered to the insured or to the person entitled thereto within

a reasonable period of time after its issuance.” Ala. Code § 27-14-19(a).


                                          -6-
“[W]hen an insurer has not complied with § 27-14-19 and its failure to comply

has prejudiced the insured, the insurer may be estopped from asserting an

otherwise valid coverage exclusion.” Brown Mach. Works, 659 So. 2d at 58.

Reiner contends that USLIC’s failure to provide him with a copy of the policy

estops it from enforcing its full-time-work condition. We disagree, for two

reasons.

      First, the Alabama Supreme Court has indicated that a beneficiary of a

group disability insurance policy, such as Reiner, is not an “insured” or “person

entitled” to a copy of the policy within the meaning of the statute. Although

Brown Machine Works did not involve a group disability policy, the court, in

determining whether the plaintiff was an insured or person entitled to the policy,

found it “instructive to employ a hypothetical spectrum of possible insureds or of

persons to whom benefits may possibly be owed under an insurance policy.”

659 So. 2d at 60.

      On one end of the spectrum are the purchaser of the policy and the
      named insured, both of whom we have concluded are definitely
      included in the phrase “the insured or . . . the person entitled
      thereto,” as it is used in § 27-14-19. On the other end are incidental
      beneficiaries and beneficiaries of a group policy, who we conclude
      are probably excluded from the statutory phrase and are therefore
      not individually entitled to copies of the policy, absent an inquiry,
      even though they may be “insureds.” We do not read the statute as
      being so broad as to extend the right to receive a copy of a policy to
      all persons who may claim some coverage rights under the policy.



                                         -7-
Id. (emphasis added). To the extent that the discussion of a “hypothetical

spectrum of possible insureds” in Brown Machine Works is dictum, we find such

dictum persuasive on the issue of how the Alabama Supreme Court would rule if

presented with a case involving an insurer’s duties under § 27-14-19 to insureds

covered by a group insurance policy. See United States v. Ramstad, 308 F.3d

1139, 1145 (10th Cir. 2002) (“[E]ven dicta can be persuasive evidence of how a

state court might rule on an issue of state law”).

      Second, we agree with USLIC that the general policy-delivery requirement

of § 27-14-19 is superseded in the group-policy context by a specific provision

that individual insureds under group disability policies are entitled to a certificate

of insurance. Alabama Code § 27-20-2(2) provides that each group disability

insurance policy must contain a provision that the insurer will furnish a summary

statement (certificate) to the policyholder for delivery to each employee or

member of the insured group. The policy at issue complies with this statute. It

contains the following provision: “[USLIC] will issue certificates to the

Policyholder. The Policyholder must give a certificate to each insured person.

Such certificates will described [sic] such person’s benefits and rights under this

policy.” Jt. App., Vol. I at 120.

      Reiner responds that the duty to provide a certificate does not preclude an

equally binding duty to provide a copy of the policy. He does not explain,


                                          -8-
however, why an insured who is entitled to the policy itself also needs a

certificate of insurance. As USLIC points out, providing copies of both

documents is likely to result more in confusion than in adequate notice of the

policy’s terms.

      Indeed, a two-tiered structure is the common practice within the industry.

“When a group insurance plan goes into effect, a group or master policy is

customarily issued to the employer or analogous policyholder, and certificates of

insurance or other literature, which are prepared by the insurer, the policyholder,

or both, and which explain the benefits provided by the plan, are issued to the

individual employees or other persons who are insured thereunder.” Donald M.

Zupanec, Annotation, Group Insurance: Binding Effects of Limitations on or

Exclusions of Coverage Contained in Master Group Policy but not in Literature

Given Individual Insureds, 6 A.L.R. 4th 835, § 2[a] at 837 (1981).

      In this circumstance we believe that Ala. Code § 27-1-6 governs. It states:

“Provisions of this title relative to a particular type of insurer or a particular

matter shall prevail over provisions in [Title 27] relating to insurance in general,

insurers in general or such matters in general.” Although there may be no

“logical” inconsistency between requiring delivery of the policy (a provision

applying to insurance in general) and requiring delivery of a certificate (a

provision applying to group disability insurance in particular), we have already


                                           -9-
noted that there is scant need for a certificate when one has the policy, so it is

unlikely that the legislature would require delivery of both. We conclude that

USLIC is not estopped under § 27-14-19 from asserting the condition of its policy

requiring full-time employment, because it had no duty to provide a copy of the

policy to Reiner.

      We find support for our conclusion in a Louisiana case applying a statute

virtually identical to Alabama’s § 27-14-19, where the court rejected a claim by

a group policy insured that his late filing of a suit should be excused because

he had never received a copy of the policy. King v. Pan Am. Life Ins. Co.,

324 So. 2d 535, 538 (La. Ct. App. 1975). The court credited testimony that “in

the case of group policies it is customary to deliver the policy to the group along

with certificates of the contents of the policy to be delivered by the group to each

of its members eligible for coverage.” Id. Thus, non-delivery of the policy itself

to a group member did not excuse the late filing.

      2. Delivery of certificate to Reiner

      Even though Reiner was not entitled to delivery of the policy, he was

entitled to a certificate of insurance. See Ala. Code, § 27-20-2(2). An insurer

who fails to provide a certificate to a member of the insured group may be

estopped from denying coverage based on exclusions contained in the certificate.

See Moses v. Am. Home Assurance Co., 376 So.2d 656, 658 (Ala. 1979).


                                          -10-
      USLIC contends that Reiner has waived any argument about the certificate

by failing to present the argument to the district court. To be sure, Reiner did not

expressly cite § 27-20-2(2), but he did raise the issue whether he should have

been provided with a certificate prior to November 1999. Jt. App., Vol. II at 532-

35. Moreover, the district court addressed the issue, noting that “Alabama law

governing group and blanket disability insurance does not even require the insurer

to furnish each covered person a certificate.” Id. at 611. We conclude that the

issue has been preserved for our review.

      As noted, the district court determined that Reiner was not entitled to

a certificate of insurance. It reached this conclusion based on its reading of

Ala. Code § 27-20-6. Section 27-20-6 states: “An individual application shall

not be required from a person covered under a blanket disability policy or

contract, nor shall it be necessary for the insurer to furnish each person a

certificate.” Reiner argues that § 27-20-6 does not apply here, however, because

the USLIC policy is a “group disability policy” as defined in Ala. Code § 27-20-1,

rather than a “blanket disability policy or contract” as defined by section 27-20-

4(8). USLIC concedes that section 27-20-6 does not apply in this case. Aplee.

Br. at 16. Hence, we may assume that § 27-20-2(2) applies.

      Nevertheless, summary judgment is appropriate on the certificate claim. In

order to overcome the general rule against enlargement of policy coverage by


                                         -11-
estoppel, the insured must show that the insurer’s failure to comply “has

prejudiced the insured.” Brown Mach. Works, 659 So. 2d at 58. Reiner cannot

show prejudice from failure to receive a certificate from USLIC, because he

admits he received a certificate from the prior Allianz Life policy, which

contained the same thirty-hour-work-week requirement as the USLIC policy.

      Reiner argues that although he received the Allianz Life certificate, he did

not know about the change of carriers until he attempted to submit a claim. Jt.

App., Vol. II at 487. He now contends that had he been provided a new

certificate of insurance when USLIC took over the policy, he might have

discovered the thirty-hour restriction and searched elsewhere for disability

insurance. He fails to argue, however, that he was misled in any way by lack of

notice that USLIC had become the carrier on the policy. Given that he already

had notice of the thirty-hour restriction, which did not change, there is no basis

for application of estoppel. See, e.g., Ex parte Baker, 432 So. 2d 1281, 1285

(Ala. 1983) (estoppel requires misleading statement or silence by actor, and

reliance thereon by injured party).

      We conclude that Reiner has failed to demonstrate a genuine issue of

material fact concerning whether he was prejudiced by failing to receive a

certificate from USLIC, and has shown no basis for the application of estoppel.




                                         -12-
     The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.

                                     Entered for the Court


                                     Harris L Hartz
                                     Circuit Judge




                                      -13-
