                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      FEB 5 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

ESTATE OF DAVID MAURICE, JR.;                    Nos. 18-55944, 18-55981, 18-
STACY MAURICE,                                   56558

                   Plaintiffs-Appellees/Cross-   D.C. No. 5:16-CV-2610-CAS-SP
                   Appellants,
                                                 MEMORANDUM*
     v.

LIFE INSURANCE COMPANY OF
NORTH AMERICA,

                   Defendant-Appellant/Cross-
                   Appellee.

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

                        Argued and Submitted January 24, 2020
                                 Pasadena, California

Before: CLIFTON and LEE, Circuit Judges, and BLOCK,** District Judge.

          Life Insurance Company of North America (“LINA”) appeals the district



*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
court’s judgment in favor of the Estate of David Maurice, Jr. (“Maurice”), as well

as its post-judgment order awarding attorneys’ fees and costs. We assume

familiarity with the facts, procedural history, and issues on appeal.

      The policies here do not provide coverage “if a preexisting condition

substantially contributed to the disability.” McClure v. Life Ins. Co. of N. Am., 84

F.3d 1129, 1136 (9th Cir. 1996). “The word ‘substantial’ is used to denote the fact

that [the condition] has such an effect in producing the harm as to lead reasonable

men to regard it as a cause, using that word in the popular sense, in which there

always lurks the idea of responsibility, rather than in the so-called ‘philosophic

sense,’ which includes every one of the great number of events without which any

happening would not have occurred.” Dowdy v. Metro. Life Ins. Co., 890 F.3d

802, 809 (9th Cir. 2018) (quoting Restatement (Second) of Torts § 431 cmt. a (Am.

Law Inst. 1965)). “For a court to distinguish between a responsible cause and a

‘philosophic,’ insignificant cause, there must be some evidence of a significant

magnitude of causation. Such evidence need not be presented with mathematical

precision, but must nonetheless demonstrate that a causal or contributing factor

was more than merely related to the injury, and was instead a substantial catalyst.”

Id.

      Although the district court cited the correct legal principles, its application

of them to the facts was clearly erroneous. The district court found that Maurice

                                          2
cut his feet on glass in a swimming pool; that finding is supported by the record.

However, Maurice’s own medical expert explained that diabetes prevented the cuts

from healing properly and exacerbated the risk of infection. Once the cuts became

infected, diabetes made it more difficult to fight the “bacterial onslaught”—even

with the assistance of antibiotics—allowing the infection to reach the bone.

Eventually, the only way to stop the infection from spreading was amputation. The

effect of diabetes is far more extensive and better-documented here than it was in

Dowdy. The conclusion is inescapable that Maurice’s diabetes “substantially

contributed” to the amputation.

      We reject the argument that diabetes had to be the predominant cause of the

amputation. It is an incorrect statement of federal common law. Our cases

expressly note that where, as here, the policy language is conspicuous, a

preexisting condition can bar coverage “even though the claimed injury was the

predominant or proximate cause of the disability.” Dowdy, 890 F.3d at 808

(quoting McClure, 84 F.3d at 1136).1 The rule under California law is different,

see, e.g., Slobojan v. W. Travelers Life Ins. Co., 450 P.2d 271, 278 (Cal. 1969), but

it is preempted, see McClure, 84 F.3d at 1133 (citing Evans v. Safeco Life Ins. Co.,


1
      An inquiry into a single predominant or proximate cause is necessary if the
policy language is inconspicuous. See McClure, 84 F.3d at 1136 (“[I]f the
language is inconspicuous, a policy holder reasonably would expect coverage if the
accident were the predominant or proximate cause of the disability.”). Maurice
concedes that LINA’s policy language was conspicuous.
                                         3
916 F.2d 1437, 1439 (9th Cir. 1990)). We disagree that recent Supreme Court

cases call Evans into question. The Supreme Court has never questioned that

uniform rules of policy interpretation are an essential part of the “federal common

law of rights and obligations under ERISA-regulated plans.” Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 56 (1987).

      Our disposition of the coverage issue makes it unnecessary for us to address

Maurice’s cross-appeal regarding the amount of coverage. In addition, it requires

us to vacate the award of attorneys’ fees and costs.

      JUDGMENT REVERSED; ORDER AWARDING ATTORNEYS’ FEES

AND COSTS VACATED; REMANDED WITH INSTRUCTIONS TO ENTER

JUDGMENT FOR LINA.




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