NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIE NEUMILLER, 

Plaintiff-Appellant, 

 v. 

HARTFORD LIFE AND ACCIDENT 

INSURANCE COMPANY, 

Defendant-Appellee.

No. 22-35688 

D.C. No. 2:22-cv-00610-TSZ 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, District Judge, Presiding

Argued and Submitted June 9, 2023

Seattle, Washington

Before: BEA and BRESS, Circuit Judges, and OHTA,** District Judge.

Julie Neumiller appeals the district court’s entry of judgment under Federal 

Rule of Civil Procedure 52 in favor of Hartford Life and Accident Insurance

Company (“Hartford”). Neumiller claims that Hartford violated the Employee 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jinsook Ohta, United States District Judge for the 

Southern District of California, sitting by designation.

FILED

JUN 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B), by 

failing to pay her long-term disability benefits under her Hartford insurance policy. 

“We review de novo a district court’s determinations regarding the text of an ERISA 

plan, including whether plan terms are ambiguous.” Blankenship v. Liberty Life 

Assur. Co. of Boston, 486 F.3d 620, 624 (9th Cir. 2007). We have jurisdiction under 

28 U.S.C. § 1291, and we vacate and remand.

The policy entitles Neumiller to long-term disability benefits, but the benefits 

terminate when Neumiller’s “Current Monthly Earnings” exceed 60% of her “PreDisability Earnings.” The policy defines “Current Monthly Earnings” as “monthly 

earnings You receive from: 1) Your Employer; and 2) Other employment; while You 

are Disabled.” Neumiller maintains that Hartford erroneously determined her

“Current Monthly Earnings” by improperly including her pre-tax contributions and 

Trimester Bonuses as part of the calculation, leading Hartford to cut off benefits

prematurely. Neumiller argues that (1) pre-tax contributions and Trimester Bonuses 

are not “earnings,” (2) pre-tax contributions are not “receive[d],” and (3) Trimester 

Bonuses are not “monthly” earnings. We reject the first two arguments but agree 

with the third.

First, we agree with the district court that Neumiller’s pre-tax contributions 

and Trimester Bonuses unambiguously qualify as “earnings” under the policy. See 

Earnings, Black’s Law Dictionary (11th ed. 2019) (“Revenue gained from labor or 
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services, from the investment of capital, or from assets.”). Neumiller argues that we 

should apply the expressio unius canon to read the term “earnings” as excluding 

bonuses and pre-tax contributions. But because the “text is plain and unambiguous,” 

we must apply it “according to its terms.” Carcieri v. Salazar, 555 U.S. 379, 387 

(2009); see also Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (“[T]he 

canon expressio unius est exclusio alterius does not apply to every statutory listing 

or grouping; it has force only when the items expressed are members of an 

‘associated group or series,’ justifying the inference that items not mentioned were 

excluded by deliberate choice, not inadvertence.” (citation omitted)).

Second, we agree with the district court that Neumiller unambiguously 

“receive[d]” her pre-tax contributions. That Neumiller voluntarily chose to place 

some of her salary into a 401(k) account does not change the fact that she has, in an 

ordinary sense, “receive[d]” a thing of value for her labor. While Neumiller asks us 

to apply the doctrine of contra proferentem to construe ambiguities in the policy 

against Hartford as the policy’s drafter, “[i]f a reasonable interpretation favors the 

insurer and any other interpretation would be strained, no compulsion exists to 

torture or twist the language of the policy.” Evans v. Safeco Life Ins. Co., 916 F.2d 

1437, 1441 (9th Cir. 1990) (quoting Allstate Ins. Co. v. Ellison, 757 F.2d 1042, 1044 

(9th Cir. 1985)). 

Third, the district court erred by treating all Trimester Bonus amounts paid
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out to Neumiller within a given month as “monthly” earnings. The term “monthly,” 

in context, is ambiguous: it could refer to all earnings that Neumiller accrues within 

the course of a month, or it could refer to all earnings distributed to Neumiller within 

the course of the month (Hartford’s position). If an ERISA plan is ambiguous and 

“susceptible of two interpretations,” we adopt “the interpretation that is most 

favorable to the insured.” Blankenship, 486 F.3d at 625. In this case, that 

interpretation is ultimately the stronger one anyway. 

Treating “monthly” bonuses as amounts that an employee accrues in a given 

month is more consistent with Hartford’s practice of treating Neumiller’s “monthly” 

wages as the compensation that she accrues by working in a given month, even when 

some portion of her monthly wages is not distributed until the next month’s 

paycheck. This interpretation is also more consistent with the way that the policy 

treats bonuses for purposes of calculating “Pre-Disability Earnings.” There, the 

policy averages bonuses across 24 months instead of counting all bonuses toward 

the month in which they are distributed. Finally, Hartford’s interpretation would

unexpectedly attach enormous consequences (terminating disability benefits) to an 

employer’s decision to distribute a bonus in a lump sum, instead of spreading it out

across the several months in which it is earned.

We therefore conclude that “Current Monthly Earnings” more probably

includes Neumiller’s pre-tax contributions and those bonusesthat Neumiller accrued 
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over the course of the month. Although the nature of Neumiller’s Trimester Bonus 

is not apparent from the record, by its name it suggests a bonus based on four months 

of work. The record indicates, however, that Hartford credited her entire Trimester 

Bonus payment toward Neumiller’s “Current Monthly Earnings” for the month in 

which the bonus was distributed, “rather than pro-rating [it] over a period of time.” 

It is not apparent from the record what Neumiller’s “Current Monthly Earnings” 

would have been if Hartford had pro-rated her Trimester Bonuses over the period of 

time in which they were accrued.

For these reasons, we remand to the district court for further proceedings 

consistent with this decision. The parties shall bear their own costs on appeal.

VACATED and REMANDED.