                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2010

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




                            FOR THE NINTH CIRCUIT



TERRI HICKLIN,                                   Nos. 08-55071
                                                      08-55522
              Plaintiff-Appellee,
                                                 D.C. No. 2:06-cv-04543-GAF-JTL
  v.
                                                 MEMORANDUM *
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY, et al.,

              Defendants-Appellants.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                     Argued and Submitted December 8, 2010
                              Pasadena, California

Before: TROTT and WARDLAW, Circuit Judges, and MOSMAN, District
Judge.**

       Terri Hicklin sued Hartford Life and Accident Insurance Company

(“Hartford”) for discontinuing her life insurance coverage and disability benefits.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
Ms. Hicklin’s policy with Hartford granted Hartford discretion to determine

eligibility for benefits. The district court reviewed Hartford’s decision to

discontinue benefits de novo and ordered Hartford to reinstate life insurance

coverage and disability benefits and to pay retroactive disability benefits. Hartford

appeals, arguing that its decision should have been reviewed only for abuse of

discretion.

      We review an ERISA administrator’s decision de novo unless the plan

grants the administrator discretionary authority to determine eligibility for benefits;

then the review is for abuse of discretion. Metro. Life Ins., Co. v. Glenn, 554 U.S

105, 111 (2008). However, if the administrator commits “wholesale and flagrant

violations of the procedural requirements of ERISA,” the standard of review

reverts back to de novo. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 971

(9th Cir. 2006) (en banc).

      The procedural violations cited by the district court are insufficient to justify

reverting back to de novo review. But even when reviewed for abuse of discretion,

this standard must be “tempered with skepticism” given the structural conflict

presented by Hartford’s simultaneous funding of the plan and evaluation of claims.

See id. at 959. Reviewing the district court’s findings under the proper Abatie

standard, we conclude that the district court was justified in ordering reinstatement


                                           2
of life insurance coverage and disability benefits and retroactive payment. We also

conclude, given the evidence submitted by the parties in this case, that the district

court did not err in finding Hicklin was a manager, and thus entitled to the higher

level of benefits for managers. Nor did the district court abuse its discretion by

awarding Hicklin attorneys’ fees or in the amount of its award.

      AFFIRMED.




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