                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           DEC 9 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    AL YEAGER,

                Plaintiff-Appellant,

    v.                                                   No. 97-5053
                                                   (D.C. No. 95-CV-1045-E)
    PURINA BENEFIT ASSOCIATION                           (N.D. Okla.)
    LONG-TERM DISABILITY PLAN,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before KELLY, McKAY, and BRISCOE, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff brought this action against the long-term disability plan of his

former employer, seeking disability benefits. Plaintiff was employed by a

subsidiary of Ralston Purina Company, which established the defendant plan to

provide long-term disability benefits for its employees. Plaintiff’s application for

long-term disability benefits was denied because the employer determined

plaintiff was not eligible for such benefits under the terms of the plan. Plaintiff

brought suit, and the district court granted summary judgment in favor of

defendant, finding that plaintiff was not eligible for benefits under the terms of

the plan.

      We review the district court’s grant of summary judgment de novo and

apply the same standard as the district court. See Thomas v. Wichita Coca-Cola

Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). “Summary judgment is

appropriate if ‘there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R.

Civ. P. 56(c)). We affirm for the same reasons as set forth in the district court’s

opinion.

      Plaintiff’s employment was terminated on May 13, 1994. Several days

before that, plaintiff became totally disabled. 1 The benefits provision of the


1
      Plaintiff claims the date of his disability is May 5, 1994, and defendant
submits May 9, 1994. The difference between the two dates is irrelevant for
purposes of this appeal.

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eligibility section of the long-term disability plan provides that benefits will be

paid “[u]pon receipt of written proof as required by Section 5.1 demonstrating

that a Covered Employee, while covered under this Plan, became Totally Disabled

and remained so Totally Disabled during the Qualifying Disability Period.”

Appellant’s App. at 131. The Qualifying Disability Period is defined as “180

consecutive days of continuous Total Disability.” Id. at 128. Coverage

terminates under the plan when a “Covered Employee ceases to perform work as a

regular employee other than a result of a Total Disability . . ..” Id. at 130. We

agree with the district court that plaintiff was not eligible for benefits under the

plan because he did not 1) become totally disabled while he was a Covered

Employee; and 2) remain totally disabled while he was a Covered Employee for

the qualifying period (180 days).

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge




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