                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 02 2015

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



                            FOR THE NINTH CIRCUIT


U.S. BANK NATIONAL                               No. 13-55767
ASSOCIATION, a national association, as
securities intermediary for Lima                 D.C. No. 2:12-cv-03046-RGK-
Acquisition, LP,                                 MRW
                                                 Central District of California,
              Plaintiff - Appellant,             Los Angeles

  v.                                             MEMORANDUM*

PHL VARIABLE INSURANCE
COMPANY, a Connecticut corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Cental District of California
             R. Gary Klausner, United States District Judge, Presiding

                        Argued and Submitted June 2, 2015
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and SINGLETON,**
Senior District Judge.

      U.S. Bank National Association (“U.S. Bank”) appeals the district court’s

grant of summary judgment on its claim that PHL Variable Insurance Company

(“PHL”) violated the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn.

Gen. Stat. § 38a–816(6), by engaging in a general practice of unfair claims

processing. U.S. Bank also appeals the post-trial verdict on its California bad faith

claim on the ground that the district court failed to properly instruct the jury.

Because the parties are familiar with the factual and procedural history of this case,

we repeat only those facts necessary to resolve the issues raised on appeal. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and

remand.

      1.     We review de novo the district court’s grant of summary judgment.

Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). “We

must determine ‘whether, viewing the evidence in the light most favorable to the

non-moving party, there are genuine issues of material fact and whether the district

court correctly applied the relevant substantive law.’” Id. (quoting Lopez v. Smith,

203 F.3d 1122, 1131 (9th Cir. 2000) (en banc)). A district court’s response to a


       **
             The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
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question from the jury is typically reviewed for abuse of discretion. United States

v. Ramirez, 537 F.3d 1075, 1081 (9th Cir. 2008). Where an appellant did not

object to the district court’s response to the jury question, however, we review for

plain error. Id.; United States v. Anekwu, 695 F.3d 967, 986 (9th Cir. 2012) (citing

Ramirez, 537 F.3d at 1081).

      2.     To prevail on a CUTPA claim, a plaintiff must establish that the

defendant engaged in acts of unfair claims settlement “with such frequency as to

indicate a general business practice.” Conn. Gen. Stat. § 38a–816(6). In support

of its contention that PHL unfairly handled claims as a general business practice,

U.S. Bank submitted affidavits from various individuals who described their

difficulties obtaining payment from PHL on other insurance policies as well as the

report of an expert who opined that PHL systematically resisted, denied, or delayed

valid death benefit claims with respect to both the insurance policies at issue in the

instant case and other insurance policies. The district court concluded that U.S.

Bank failed to provide sufficient facts to establish that PHL engaged in unfair

settlement practices as a general business practice because PHL’s conduct in

relation to the other policies had not been finally adjudicated in other legal actions.

      Construing the evidence in the light most favorable to the plaintiff, we

conclude that U.S. Bank tendered sufficient evidence to demonstrate a triable issue


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of fact as to whether PHL engaged in acts of unfair claims settlement with such

frequency as to indicate a general business practice under CUTPA. We therefore

reverse the grant of summary judgment and remand for further proceedings on the

CUTPA claim.

      3.     U.S. Bank additionally argues that the district court made two errors

concerning the bad faith claim litigated at trial. First, U.S. Bank alleges that the

district court erred when it failed to rule as a matter of law when the time limit

commenced under California Code of Regulations, title 10, section 2695.7(b). But

because the district court gave verbatim U.S. Bank’s proposed jury instruction on

the regulation, review of U.S. Bank’s challenge to it is foreclosed. See Deland v.

Old Republic Life Ins. Co., 758 F.2d 1331, 1337 (9th Cir. 1985). U.S. Bank

likewise argues that the district court erred when it failed to give additional

guidance in response to the jurors’ question about the regulation. U.S. Bank did

not object at trial to the district court’s response, and we find no plain error.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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