                                                                           FILED
                           NOT FOR PUBLICATION                             APR 14 2014

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



                            FOR THE NINTH CIRCUIT

MICHAEL LOZA, a single man,                      No. 12-15946

              Plaintiff - Appellant,             D.C. No. 2:09-CV-01118-DGC

  v.
                                                 MEMORANDUM*
AMERICAN HERITAGE LIFE
INSURANCE COMPANY, a Florida
corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                             Submitted April 9, 2014**
                             San Francisco, California

Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.

       Michael Loza appeals the district court’s grant of summary judgment in

favor of American Heritage Life Insurance Company in Loza’s action arising out

of the insurance company’s denial of benefits under a cancer insurance policy. We

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction pursuant to 28 U.S.C. § 1291, review de novo, and affirm. Hazle

v. Crofoot, 727 F.3d 983, 990 (9th Cir. 2013); Sparks v. Republic Nat’l Life Ins.

Co., 647 P.2d 1127, 1132 (Ariz. 1982).

      Loza argues that the pre-existing condition exclusion in his cancer insurance

policy is ambiguous and should be construed against the insurance company to

require some awareness, during the twelve months before the policy’s effective

date, that he was being treated for prostate cancer. However, the plain language of

the exclusion requires only that he receive medical advice or treatment for prostate

cancer in the year prior to the April 1, 2007, effective date of the policy. Loza

received medical advice for prostate cancer three months prior to the effective date

of the policy when he reported to his doctor that his father had died of prostate

cancer, he exhibited several symptoms consistent with prostate cancer, and his

treating physician referred him to a urologist. Those symptoms led to the prostate

cancer diagnosis two months after the effective date of the policy.

      The fact that a high level of prostate specific antigens in the blood can be

caused by other prostate conditions is beside the point. In this case, it is

undisputed that Loza had cancer. It is also undisputed that he presented symptoms

and received medical advice in the year before the effective date of the policy.




                                           2
      The district court correctly held that Loza failed to come forward with

sufficient evidence to establish that the insurance company acted unreasonably or

with the “evil mind” necessary for Loza to prevail on a bad faith claim or to obtain

punitive damages. Zilisch v. State Farm Mut. Auto. Ins. Co., 995 P.2d 276, 280

(Ariz. 2000); Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675, 681 (Ariz.

1986). Similarly, summary judgment was proper on the intentional infliction of

emotional distress claim because Loza failed to establish that the insurance

company’s conduct was “extreme” and “outrageous.” Ford v. Revlon, Inc., 734

P.2d 580, 585 (Ariz. 1987).

      Finally, Loza did not come forward with sufficient evidence that the

insurance company caused him “substantial, long-term emotional disturbances.”

Harris v. Maricopa Cnty. Superior Ct., 631 F.3d 963, 978 (9th Cir. 2011). Loza’s

conclusory statement in his discovery disclosure document that he suffered

emotional distress was insufficient to survive summary judgment.

       AFFIRMED.




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