           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2      Carr v. Reliance Standard Life Ins. Co. No. 02-2377
        ELECTRONIC CITATION: 2004 FED App. 0103P (6th Cir.)
                    File Name: 04a0103p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ON BRIEF: Walter J. Goldsmith, Mark H. Fink, MADDIN,
                  FOR THE SIXTH CIRCUIT                                  HAUSER, WARTELL, ROTH, HELLER & PESSES,
                    _________________                                    Southfield, Michigan, for Appellant. Joshua Bachrach,
                                                                         RAWLE & HENDERSON, Philadelphia, Pennsylvania, for
 GARY CARR ,                       X                                     Appellee.
         Plaintiff-Appellant,       -
                                    -                                                        _________________
                                    -  No. 02-2377
            v.                                                                                   OPINION
                                    -
                                     >                                                       _________________
                                    ,
 RELIANCE STANDARD LIFE             -                                      WILLIAM W SCHWARZER, Senior District Judge. Gary
 INSURANCE COMPANY ,                -                                    Carr appeals the district court’s judgment rejecting his claim
           Defendant-Appellee. -                                         for long-term disability (“LTD”) benefits under the plan
                                    -                                    maintained by his employer and administered by the
                                   N                                     defendant, Reliance Standard Life Insurance Company
       Appeal from the United States District Court                      (“Reliance”).
      for the Eastern District of Michigan at Detroit.
    No. 02-70387—Denise Page Hood, District Judge.                         Carr suffered from severe coronary artery disease and was
                                                                         an insulin-dependent diabetic. He worked full-time until
                   Submitted: March 17, 2004                             June 27, 1999, when he left his position for treatment for
                                                                         necrotizing fasciitis (“flesh-eating bacteria”). He returned to
              Decided and Filed: April 14, 2004                          work on a part-time basis on August 16, 1999. He continued
                                                                         to work part-time until January 14, 2000, when he left his
         Before: ROGERS and COOK, Circuit Judges;                        position permanently on account of his disability. After
            SCHWARZER, Senior District Judge.*                           initially rejecting Carr’s claim for LTD benefits for lack of
                                                                         sufficient clinical findings, Reliance again reviewed the claim
                                                                         after Carr filed suit. It determined that Carr was not eligible
                                                                         for benefits because he did not qualify under the definition of
                                                                         Total Disability when he ceased being a full–time employee
                                                                         on June 27, 1999.
                                                                             The LTD plan provides in relevant part:
    *                                                                        “Totally Disabled” and “Total Disability” mean, that as
     The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.       a result of an Injury or Sickness:

                                  1
No. 02-2377 Carr v. Reliance Standard Life Ins. Co.           3    4       Carr v. Reliance Standard Life Ins. Co. No. 02-2377

    (1) during the Elimination Period, an Insured cannot             Carr timely appealed. The district court had jurisdiction
        perform each and every material duty of his/her            under 29 U.S.C. § 1132(e) and 28 U.S.C. § 1331, and we
        regular occupation; and                                    have jurisdiction under 28 U.S.C. § 1291.
    (2) for the first 60 months for which a Monthly
        Benefit is payable, an Insured cannot perform the                                       DISCUSSION
        material duties of his/her regular occupation;
      (a) “Partially Disabled” and “Partial Disability”               Under the terms of the plan at issue, Reliance serves as the
          mean that as a result of an Injury or Sickness an        claims review fiduciary with respect to the insurance policy
          Insured is capable of performing the material            and the plan and has the discretionary authority to interpret
          duties of his/her regular occupation on a part-          the plan and the insurance policy and to determine eligibility
          time basis or some of the material duties on a           for benefits.1 We therefore review its “decision to deny
          full-time basis. An Insured who is Partially             benefits using ‘the highly deferential arbitrary and capricious
          Disabled will be considered Totally Disabled,            standard of review.’”2 Killian v. Healthsource Provident
          except during the Elimination Period. . . .              Adm’rs, 152 F.3d 514, 520 (6th Cir. 1998) (quoting Yeager v.
                                                                   Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.
(Emphasis added.) Reliance determined that Carr was not            1996)).
Totally Disabled during the Elimination Period because he
“demonstrated that he was not disabled from Each and Every           Carr contends that Reliance and the district court erred in
material duty of his occupation during the period that he          interpreting the plan’s definition of “Total Disability” to bar
worked 20 hours weekly in his executive capacity with              recovery if the applicant can perform any of his material
several operating units reporting to him between August 16,        duties during the Elimination Period. He argues that “the
1999 and January 15, 2000.” It also determined that Carr           Policy unmistakably manifests the intent and understanding
could not recover benefits beginning on January 14, 2000,
when he left work permanently, because his coverage had                1
terminated as of June 27, 1999, when he ceased being an                  W e reject Carr’s contention that Reliance should be estopped from
active, full-time employee as required under the terms of the      receiving the benefit of this provision of the plan because, in response to
                                                                   a request mad e prio r to the filing o f this lawsuit, the comp any erroneously
plan.                                                              sent him an earlier version of the policy which did not give Reliance
                                                                   discretion to interpret the plan and determine eligibility for benefits. Carr
  On cross-motions for summary judgment, the district court        has failed to establish the elements of an estoppel claim, in particular that
granted Reliance’s motion, rejecting Carr’s claim for benefits     he detrimentally and justifiably relied on actions or representations of
beginning on June 26, 1999. It held that “[i]t is clear from the   Reliance. See Trustees of the Mich. Laborers’ Health Care Fund v.
                                                                   Gibbons, 209 F.3d 58 7, 591 (6th Cir. 2000).
Policy language that an employee cannot be partially disabled
during the Elimination Period” and that here “[t]here is               2
                                                                         Our application of the arbitrary and capricious standard of review
nothing in the medical record that shows that Plaintiff was        is “shaped by the circumstances of the inherent conflict of interest” arising
unable to perform the material duties of his occupation while      from the fact that Reliance bo th funde d the p lan and determined eligibility
he was working part-time between August 1999 and January           for bene fits. Borda v. Ho rdy, Lewis, P ollard & Page, P .C., 138 F.3d
2000.”                                                             1062, 1069 (6th Cir. 1998) (internal quotation omitted). However, we
                                                                   have not found that this inherent conflict of interest in any way influenced
                                                                   Reliance’s decisio n. See Peruzzi v. Summa M ed. Plan, 137 F.3d 431, 433
                                                                   (6th Cir. 1998).
No. 02-2377 Carr v. Reliance Standard Life Ins. Co.         5    6       Carr v. Reliance Standard Life Ins. Co. No. 02-2377

that an Injured who, during the Elimination Period, is unable    Elimination Period will not be considered Totally Disabled
to perform one or more of the material duties of his/her         and thus eligible for benefits.3
regular occupation — even on a part-time basis — will be
deemed Totally Disabled.”                                          Because we conclude that Reliance did not act arbitrarily or
                                                                 capriciously in denying Carr’s claim for LTD benefits, the
   We disagree. The plan plainly limits finding “Total           judgment of the district court is AFFIRMED.
Disability” to a claimant who “cannot perform each and every
material duty of his/her regular occupation” during the
Elimination Period. If a claimant can perform even one
material duty of his regular occupation during the Elimination
Period, he is not totally disabled. See Gallagher v. Reliance
Standard Life Ins. Co., 305 F.3d 264, 275 (4th Cir. 2002)
(“Because Gallagher could perform certain occupational
duties prior to [the date he resigned] and has not presented
evidence demonstrating that his condition became more
severe on or after [that date], we conclude that Gallagher has
not submitted objectively satisfactory evidence that he was
unable to perform each and every material duty of his
occupation during the elimination period.”); Porter v.
Metropolitan Life Ins. Co., 17 F. Supp. 2d 500, 506 (D.S.C.
1998) (affirming company’s determination that analogous
provision means “that it need only demonstrate that [the
applicant] is not wholly and continuously unable to do her job
(i.e. that there is some part of her job that she can do)”).
   Here, it is undisputed that Carr returned to work on
August 16, 1999, before the end of the Elimination Period,
and continued to work part-time until January 14, 2000. He
worked approximately twenty hours per week and earned
roughly $4,400 every two weeks. This record supports the
finding that during the Elimination Period, Carr was not
unable to “perform each and every material duty of his
[occupation].” Indeed Carr’s situation falls squarely within
the plan’s definition of “Partial Disability” since he was           3
                                                                        Carr also argues that his reasonable expectations concerning the
“capable of performing the material duties of his[] regular      interpretation of the plan should control. He conced es on reply, however,
occupation on a part-time basis.” The plan clearly states that   that this contra proferentum rule applies only where contractual language
an insured who is only Partially Disabled during the             is found to have mo re than one interpre tation. See Marquette Gen. Hosp.
                                                                 v. Goo dman F orest Indu s., 315 F.3d 629, 632 n.1 (6th Cir. 2003). As
                                                                 discussed above, the plan is unambiguous on its face , rendering C arr’s
                                                                 reaso nable expectations irrelevant.
