                                                                           FILED
                                  NOT FOR PUBLICATION                       FEB 24 2010

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




                                 FOR THE NINTH CIRCUIT

 DAVID L. MAZET,                                         No. 08-17101

             Plaintiff - Appellant,                      D.C. No. 2:04-cv-00493-FJM

  v.                                                     MEMORANDUM *

 HALLIBURTON COMPANY LONG TERM
 DISABILITY PLAN; HARTFORD LIFE
 AND ACCIDENT INSURANCE
 COMPANY,

            Defendants - Appellees.




                       Appeal from the United States District Court
                                for the District of Arizona
                      Frederick J. Martone, District Judge, Presiding

                        Argued and Submitted December 10, 2009
                                San Francisco, California

Before: O’SCANNLAIN, COWEN,** and RAWLINSON, Circuit Judges.




       *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
       **
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
      David L. Mazet appeals from the district court’s judgment in favor of

Appellees Halliburton Company Long Term Disability Plan and Hartford Life and

Accident Insurance Company. The district court rejected his claim for disability

benefits under an employee benefit plan subject to the Employee Retirement

Income Security Act (“ERISA”). Among his other arguments on appeal, Mazet

asserts that the district court committed reversible error by reviewing Appellees’

denial of benefits for an abuse of discretion. We review de novo the district court’s

choice of the applicable standard of review. Montour v. Hartford Life & Accident

Ins. Co., 588 F.3d 623, 629 (9th Cir. 2009). We conclude that the district court

applied the wrong standard and accordingly vacate the judgment in favor of

Appellees.

      “De novo is the default standard of review.” Abatie v. Alta Health & Life

Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc) (citing Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Kearney v. Standard Ins. Co., 175

F.3d 1084, 1089 (9th Cir. 1999) (en banc)). To change the standard of review, the

ERISA plan must unambiguously provide discretion to the administrator. Id.

While there are no “‘magic’ words that conjure up discretion,” Abatie, 458 F.3d at

963 (citing Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.

2000)), the discretionary reading of the language at issue must still be the “the only


                                           2
reasonable reading,” Kearney, 175 F.3d at 1090. “Under this reasoning, if

language only arguably confers discretion, it does not unambiguously confer

discretion and cannot escape the default of de novo review.” Feibusch v.

Integrated Device Tech., Inc. Employee Benefit Plan, 463 F.3d 880, 884 (9th Cir.

2006).

         The district court turned to a “Proof of Loss” provision in the Plan’s policy

document as grounds for adopting the abuse of discretion standard. The Plan

stated, inter alia, that: “The Hartford reserves the right to determine if your proof

of loss is satisfactory.” (SER14.) This provision, especially its “reserves the right

to determine” language, could reasonably be read as conferring discretion.

However, this is not “the only reasonable reading” of the provision. In fact, we

have repeatedly found similar “Proof of Loss” or “Satisfactory Proof” provisions to

be ambiguous. See Feibusch, 463 F.3d at 883-85; Thomas v. Or. Fruit Prods. Co.,

228 F.3d 991, 993-95 (9th Cir. 2000); Sandy, 222 F.3d at 1203-08; Newcomb v.

Standard Ins. Co., 187 F.3d 1004, 1005-06 (9th Cir. 1999); Kearney, 175 F.3d at

1089-90. Based on this precedent, we must likewise find the Plan provision at

issue here ambiguous. See, e.g., Thivierge v. Hartford Life & Accident Ins. Co.,

No. C 05-0163 CW, 2006 WL 823751, at *10 (N.D. Cal. Mar. 28, 2006) (finding

identical provision ambiguous under Ninth Circuit case law).


                                            3
      Appellees contend that the denial of benefits should be upheld under the de

novo standard. However, it would be inappropriate for an appellate court to make

such a determination, especially because Mazet presented additional evidence not

contained in the administrative record that the district court refused to consider but

that could be admissible under the applicable de novo standard. Abatie, 458 F.3d

at 970 (citing Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income

Protection Plan, 349 F.3d 1098, 1110 (9th Cir. 2003); Kearney, 175 F.3d at 1090-

91; Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d

938, 944 (9th Cir. 1995)); Kearney, 175 F.3d at 1090-91 (quoting Mongeluzo, 46

F.3d at 944). We therefore remand for the district court to apply the proper de

novo standard of review. In the process, the district court must also exercise its

discretion to decide whether the additional evidence should be considered.

Mongeluzo, 46 F.3d at 944 (holding that district court has discretion to allow

evidence not before administrator “only when circumstances clearly establish that

additional evidence is necessary to conduct an adequate de novo review”

(quotation omitted)).

VACATED AND REMANDED.




                                           4
