                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 18 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PHILIP A. SELTZER,                               No. 11-15046

              Plaintiff - Appellant,             D.C. No. 2:09-cv-02104-SRB

  v.
                                                 MEMORANDUM *
PAUL REVERE LIFE INSURANCE
COMPANY and UNUM GROUP, FKA
UnumProvident Corporation,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                        Argued and Submitted May 14, 2012
                             San Francisco, California

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

       We address Seltzer’s primary claim for lifetime benefits under the

“accident” provision of his policy in a contemporaneously-filed order certifying a

question of law to the Arizona Supreme Court. In this memorandum disposition,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
we affirm summary judgment as to Seltzer’s alternate theory that he is entitled to

lifetime benefits under the policy amendment pertaining to “irrecoverable loss of

use of both hands.”

      Seltzer waived this theory by failing to plead it in his complaint. Seltzer

alleged that he was entitled to lifetime benefits “[b]ecause plaintiff’s injury

occurred as the result of accident.” He did not allege that he was entitled to such

benefits because he lost of use of both hands, and did not refer to the loss of use

provision. He mentioned that alternate theory for the first time in his opposition to

Paul Revere’s motion for summary judgment, and he never moved to amend his

complaint. Accordingly, we affirm the district court’s entry of summary judgment

as to Seltzer’s loss of use provision-based contract and bad faith claims.

      PARTIALLY AFFIRMED.




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