                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 13 2010

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




                            FOR THE NINTH CIRCUIT



MARY D. LINICH,                                  No. 09-15830

              Plaintiff - Appellant,             D.C. No. 2:05-cv-02983-MHM

  v.
                                                 MEMORANDUM *
BROADSPIRE SERVICES, INC.;
TOWERS PERRIN LONG-TERM
DISABILITY PLAN,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                       Argued and Submitted April 14, 2010
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and MOODY, Judge.**

       In this appeal governed by the Employee Retirement Income Security Act of

1974 (ERISA), Appellant Mary Linich (Linich) challenges the district court’s grant


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James Maxwell Moody, United States District Judge
for the Eastern District of Arkansas, sitting by designation.
of summary judgment in favor of Appellee Broadspire Services, Inc. (Broadspire),

the claims manager for Linich’s employer, Towers Perrin, after denial of Linich’s

claim for long-term disability (LTD) benefits.




      1.     The district court properly applied the abuse of discretion standard.

The Plan did not limit Towers Perrin’s power to delegate fiduciary responsibilities

to Broadspire pursuant to a service agreement, which provided Broadspire with the

discretionary authority to interpret the Plan’s terms and determine LTD benefits.

See Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d

1279, 1283-85 (9th Cir. 1990) (recognizing delegation through a Claims

Administration Agreement).




      2.     The district court properly rejected Linich’s speculative evidence of a

conflict of interest. See LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1136 (9th

Cir. 2009) (“While we must draw all reasonable inferences in favor of the

non-moving party, we need not draw inferences that are based solely on

speculation.”) (citations omitted).




      3.     Although Broadspire’s initial denials of continued LTD benefits was


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arbitrary and an abuse of discretion because it failed to consider all available

medical documents, Broadspire’s review of Linich’s two appeals comported with

ERISA’s requirements. Even though Broadspire did not explicitly mention

Linich’s award of social security benefits, Broadspire fully and fairly reviewed the

complete medical record of Linich’s cognitive and physical conditions, and

specifically rejected the opinions of Linich’s treating physicians. Broadspire’s

decision also comported with the Plan’s terms, as it delineated its reasons for

denying Linich’s claim. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,

972 (9th Cir. 2006) (en banc) (“When an administrator can show that it has

engaged in an ongoing, good faith exchange of information between the

administrator and the claimant, the court should give the administrator’s decision

broad deference notwithstanding a minor irregularity.”) (citations and internal

quotation marks omitted); see also Montour v. Hartford Life & Accident Ins. Co.,

588 F.3d 623, 629 (9th Cir. 2009), as amended (“In the absence of a conflict,

judicial review of a plan administrator’s benefits determination involves a

straightforward application of the abuse of discretion standard. In these

circumstances, the plan administrator’s decision can be upheld if it is grounded on

any reasonable basis.”) (citations and internal quotation marks omitted) (emphasis

in the original).


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       4.     Because Broadspire’s initial denial of benefits was arbitrary and an

abuse of discretion, see Pannebecker v. Liberty Life Assurance Co. of Boston, 542

F.3d 1213, 1221 (9th Cir. 2008) (noting that an administrator abuses its discretion

when its decision is “substantively arbitrary or capricious, or . . . it fail[s] to

comply with required procedures”), the district court should determine an award of

partial benefits for the period between Broadspire’s arbitrary denials of continued

LTD benefits and its proper resolution of Linich’s appeals. See id. (“[I]f an

administrator terminates continuing benefits as a result of arbitrary and capricious

conduct, the claimant should continue receiving benefits until the administrator

properly applies the plan’s provisions.”) (citation omitted).

       AFFIRMED in part and REMANDED in part for an award of partial

benefits.




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