                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUN 25 2014

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



                                FOR THE NINTH CIRCUIT


 GARY AFFONSO,                                          No. 12-16250

                 Plaintiff - Appellant,                 D.C. No. 4:10-cv-5054-PJH

   v.
                                                        MEMORANDUM*
 METROPOLITAN LIFE INSURANCE
 CO.,

                 Defendant - Appellee.


                      Appeal from the United States District Court
                         for the Northern District of California
                      Phyllis J. Hamilton, District Judge, Presiding

                           Argued and Submitted May 16, 2014
                                San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and SELNA, District Judge.**

        Gary Affonso appeals from the judgment of the district court granting
summary judgment to Metropolitan Life Insurance Company (“MetLife”) in this

Employee Retirement Income Security Act (“ERISA”) action arising from

             *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.

        **     The Honorable James V. Selna, District Judge for the U.S. District Court for the
Central District of California, sitting by designation.
MetLife’s partial denial of benefits to Mr. Affonso under his wife, Nance’s,

supplemental life insurance policy. We have jurisdiction under 28 U.S.C. § 1291.

Reviewing de novo, Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d

1083, 1088 (9th Cir. 2012), we affirm.

      The unambiguous Morgan Stanley Benefits Plan (“Plan”) terms limited

Nance Affonso’s eligibility for supplemental life insurance coverage to $500,000

based on her benefits eligible earnings of $53,017.73, even though the Benefits

Center website permitted her to apply for $1,000,000 of coverage. The Summary

Plan Description and the 2010 Benefits Enrollment Highlights booklet, both

available to Mrs. Affonso, clearly limited coverage to “a maximum of the lesser of

ten times [the employee’s] Benefits Eligible Earnings . . . or $5,000,000.” The

Certificate of Insurance issued by MetLife contained the same limitation. This

clear coverage limitation and the Affonsos’ knowledge of it was affirmed by Plan

representatives, who repeatedly told the Affonsos they would be contacted to

adjust discrepancies in Mrs. Affonso’s application. Most tellingly, Mrs. Affonso

was sent a letter confirming the Plan’s supremacy over other representations.

      Because the coverage limitation was unambiguous, Mr. Affonso’s

conditional receipt, waiver, and equitable estoppel defenses fail. Cf. Gaines v. The

Sargent Fletcher, Inc. Group Life Ins. Plan, 329 F. Supp. 2d 1198, 1216–23 (C.D.


                                          2
Cal. 2004) (finding defenses applicable because benefits plan language was

ambiguous). The deduction of a premium at the $1,000,000 coverage level at most

confirms Mrs. Affonso was covered when she died, but does not negate the clear

limitation on her coverage. Cf. Gaines, 329 F. Supp. 2d. at 1221–23 (where plan

language about approval and evidence of good health was ambiguous and

premiums were deducted, waiver and estoppel prohibited insurer from arguing

applicant was not covered).

      AFFIRMED.




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