                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 02 2010

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




                            FOR THE NINTH CIRCUIT



CHRISTINA RUSSELL, an individual,                No. 09-35435

              Plaintiff - Appellant,             D.C. No. 2:08-cv-00309-TSZ

  v.
                                                 MEMORANDUM *
COMCAST CORPORATION, a foreign
corporation, Short Term Disability Plan
and Long Term Disability Plan sponsor for
the Comcast Short Term Disability and
Long Term Disability Plans; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                     for the Western District of Washington
                 Thomas S. Zilly, Senior District Judge, Presiding

                        Argued and Submitted April 8, 2010
                               Seattle, Washington

Before: HAWKINS, LUCERO,** and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit
Court of Appeals, sitting by designation.
      We review de novo an order granting summary judgment and a district

court’s determination of the appropriate standard of review of an ERISA

administrator’s decision. Sznewajs v. U.S. Bancorp Amended & Reinstated

Supplemental Benefits Plan, 572 F.3d 727, 732 (9th Cir. 2009). “In the absence of

a conflict, judicial review [of an ERISA administrator’s decision] . . . involves a

straightforward application of the abuse of discretion standard.” Montour v.

Hartford Life & Accident Ins. Co., 588 F.3d 623, 629 (9th Cir. 2009). When a

conflict of interest exists, we apply “abuse of discretion review, tempered by

skepticism commensurate with the plan administrator’s conflict of interest.”

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 959 (9th Cir. 2006).

      When a plan insurer is also the administrator, there is a structural conflict of

interest. Montour, 588 F.3d at 630. Here, Comcast delegated administration of the

Short Term Disability Plan (“STD” Plan) to Broadspire, though Comcast retained

authority to review Broadspire’s determinations. We need not determine here

whether this arrangement creates a structural conflict (as to Comcast) under

Montour, because—even if there were a conflict—the “skepticism commensurate”

with the conflict is slight. Abatie, 458 F.3d at 959. It is common for an ERISA

administrator to be both a plan insurer and administrator, and “[t]he level of

skepticism with which a court views a conflicted administrator’s decision may be


                                           2
low if a structural conflict of interest is unaccompanied, for example, by any

evidence of malice, of self-dealing, or of a parsimonious claims-granting history.”

Id. at 968. There is no evidence in the record that suggests heightened scrutiny is

appropriate. Rather, the record reflects the opposite, that Comcast did not interfere

with Broadspire’s administration of the STD plan. Thus, Comcast’s conflict—if

there is one at all—only merits limited skepticism.

      In addition to administering the STD plan, Broadspire also insured 1 the Long

Term Disability Plan (“LTD” Plan). Because Russell was not eligible for STD

benefits for 26 weeks, she was never eligible for LTD benefits. Russell argues that

Broadspire acted as a “gatekeeper” with regard to LTD benefits, denying STD

benefits in order to prevent eligibility for LTD benefits. While there is no case law

suggesting that such an arrangement is inherently a conflict, this situation is

analogous to situations where the plan administrator is also the insurer. Again,

such a conflict, without more, does not require much skepticism. Thus, it is of

little importance to the outcome of this case if there is technically a conflict as to

Broadspire. Because there is no evidence in the record of self-dealing or malice,




      1
        Though Comcast and Broadspire argue that another entity insured the plan,
the record before this panel contains no such evidence and suggests that Broadspire
insured the plan.

                                            3
we find that only minimal skepticism should temper our abuse of discretion review

of Broadspire’s determinations.

      Finally, we note that the district court decided this case before our decision

in Montour, 588 F.3d at 623. Though the district court did not have the benefit of

Montour, we find the district court’s analysis consistent with that opinion. The

district court properly reviewed Broadspire’s determinations for an abuse of

discretion. We also find ample evidence on the record to support Broadspire’s

determination under this standard. Comcast made no administrative decisions for

this panel to review, and no determinations were made by either defendant under

the LTD plan. Accordingly, the district court is AFFIRMED.




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