* The Honora ble Will iam W Schwarzer, Senior Unit ed States Distr ict Judge for the Northern District of Californi a, sit

ting by designation. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 ELECTRO NIC CIT

ATION: 2004 FED App . 0103P (6th C ir.) File Name: 04a01 03p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ G ARY C ARR ,

Plaintiff- Appellant ,

v.
R ELIANCE S TANDARD L IFE I NSURANCE C OMPANY , Defendant-Appellee. X

- - - -> , - - - - N No. 02-2377

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 02-70387—Denise Page Hood, District Judge.

Submitted: March 17, 2004 Decided and Filed: April 14, 2004 Befor e: ROGERS a

nd COOK, Ci

rcuit Judg es; SCHWARZER, Senior District Judge. * 2 Carr v. Reliance Standard Life Ins. Co. No. 02-2377

_________________ COUNSEL ON BRI EF: Walter J. Goldsmith, MarkH. Fink, MADDIN, HAUSER, W AR TELL , ROTH, HELL ER & PESSES, Southfield, Michigan, for A ppellant. Joshua Bachrach, RAW LE & HENDERSON, Philadelphia, Pennsy lvania, for Appellee.

_________________

OPINION

_________________ WILL IAM W SCHWARZER, Senior District Judge. Gary Carr appeals the district c ourt’s jud

gment r ejecting his claim for long-te rm disabil i ty

(“LTD”) be

nefits under the plan maintained

by his employ

er and ad

minist ered by the defendant , R eliance Standard Life Insurance Company (“Reliance”). Carr suffered from severe corona ry arte ry disease a

nd was aninsulin-de

pendent d

iabetic. He worke d full-time until June 27, 1999, when he left his po siti on for treatment for necrotizingfasciitis (“flesh-eating bacter ia”). He retur

ned to work ona part-time basis on August 16, 1999. He continued to work part-time until January 14, 2000, when he left his position permane

ntly on acco unt of his d

isa bility . After in itia lly rejecting Carr’s claim for L TD benefits for lack of sufficient clinical finding s, Relianc e aga

in revie w ed the cl aim after Carr filed suit. It de termined that Carr was not

eligible for benefit s becaus e he did

not qualify

under the definition of Total Disability when he

ceased being a full–time employ ee on June 27, 1999. The L TD plan pr

ovides in r

elevant part: “Totally Disabled” and “Total Disability ” mean, that as a result o f an I

njury or Sickne ss:No. 02-2377 Carr v. Reliance Standard Life Ins. Co. 3

(1) during

the Elimination Period, an Insured cannot perform each and

every m aterial d

uty o f his/her regular occupation ; and (2) for the first 6 0 months for

which a M onthly Benef it is payable, an

Insured cannot per

form the material duties of his/her regular occupa tion; (a) “Partia

lly Di sa bl ed ” a nd “P ar ti al Di sa bi li ty” mean that as a result

of an Injury

or Sickness an In sured is capable of performing the mater ial duties of his/her regular occupation on a p arttime basi s o r some of the material duties on a full-time basis. An Insured who is P artially D isabled will be considered Totally D isabled , except during the Elimination Period. . . . (Emphasi s added.) Reliance deter mi ned that Carr was not Totally Disabled during the E lim ination Period because he “demonstrated

that he was not disab led from Each and Eve ry mat e rial duty of his occupation during the period that he worked 20 hours weekly in his executive ca pacity wi t h severa l operat ing units reportin g to him between August 16, 1999 and January 15, 2000.” It also determined that Carr could not recover benefits beginning on January 14, 2000, when he l e ft work permanently , because his coverage ha d terminated

as of June 27, 1999, when he ceased being an active, full-time

employee as required under the terms of the plan. Oncross-motions for s

ummary judgmen t, the district

court granted Reliance’s motion, rejecti ng Carr ’s claim f

or benef its beginning onJune 26, 1999. It held that “[i]t is clear from the Policy language that an employ

ee cannot be partiall

y disabled duri ng th e Eliminat

ion Period

” and tha

t here “ [t]here is nothing in the medical record that shows that Pla intiff was unable to perform the materialduties of his occup ation whil e he was work

ing par t-timebetween August 1999 and January 2000.” 4 Carr v. Reliance Standard Life Ins. Co. No. 02-2377

1 We reject

Carr’s content ion th at Reli ance shoul d be estopped fr om receiving t

he 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 c omp any err one ously se nt him an earlier v ersion of the p olicy wh ich did not giv e Relianc e disc ret ion to interpr et the p lan and deter mine e ligibility for benefit s. Carr has fai led to es tabli sh th e element s of an estoppel clai m, in par ticu lar t hat he det ri me ntal lyand ju sti fi ably rel ied onact ions or re prese ntations of Reliance

. See Trus tees of t he M ich. Laborer

s’ Health Care Fund v. Gibbons , 209 F.3d 58 7, 591 (6th Cir. 2000).
2 Our appli cati on of

the ar bitr ary and ca

prici ous st andard of re view is “shaped by the ci rcumstances of th e inher ent conf lict of interes t” arisi ng from the fact tha t Relian ce bo th funde d the p lan and deter mined eligibility forbene fits. Bor da v. Ho rdy, L ewis, P ollard & Pa ge, P .C., 138 F.3d 1062, 1069 (6th Cir. 1998) (int ernal quotati on omitt ed). However, we have not f

ound that

this inherent conflict of interest in any way i nfl uenced Relia nce’s decisio n. See Peruzz i v. Summa M ed. Pl an , 137 F.3d 431, 433 (6th Cir. 1998). C arr timely appeale d. The district cou rt had jur is dictio n under 29 U.S.C. § 1132(e) an d 28 U.S. C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION Under the terms of the plan at issue, Reliance serves as the claimsreview fiduciary

with respect to the insur ance policy and the plan and has the discretionary authority to interpr et the plan and the insurance policy and to determine eligibil ity for benefit s. 1 We there fore re vie w its “ decision to deny benefit s using ‘the highly

deferential arbitrary

and capricious standard of review.’” 2 Killian v. Healthsource Provident Adm’rs , 152 F.3d 5 14, 52 0 (6th Cir. 1998) (quot ing Yeager v. RelianceS

tanda rd Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996)). Carr co ntend s that Relia

nce and the distri ct court

erred i n interpre ting the plan’s de finition of

“Total D isability

” to bar recovery if the appl i cant can perform any of his material duties during the Elimination Period. He argues that “the Policy unmistaka

bly manifest s the inten

t and unde

rst a ndingNo. 02-2377 Carr v. Reliance Standard Life Ins. Co. 5

that anInjured

who, duri

ng the E limination

Period, is unable to perform one or more of the mat erial duties of his/her regular occupation — e ven on a part-time basis — will be deemed Totally Disa

bled.” We disagree. The plan plainly limits finding “Total Di sa bi li ty” to a claimant

who “cannot

perform each and every material duty of his/her reg ular occupation ” duri ng the Elimination Period. If a claimant c an 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) (“Bec auseGallagher could perform ce rtain o ccupational duti es prior to [the date he resigned] and ha s not pres ente d evidence demon strat ing tha t his condition became more severe onor after [that date], we conclude that Gallaghe r has notsubmitted objectively satisfactory evidence t

ha t he was unable t o p erform e ach and

every materia l duty of his o ccupation

during t

he elimina

tion perio d.”); Porter v. Me tropolitan Life Ins. Co. , 17 F. Sup p. 2d 500, 5 06 (D.S. C

. 1998) (affirming company ’s determination that analogous provisionmeans “that it need only de monstrate that [the applica nt] is not wholl

y a nd continu

ously unable to do her job (i.e. that there is some part of her job that she can do)”). Here, it is undispu

ted that C arr returned to work on Aug ust 16, 1999, before the end of the Elimination P eriod , and continued to work

part-time until January 14, 2000. He worked approximately twenty

hours per week and ea

rn ed roughly $4 ,4 00 ev er y two weeks. This record supports the findingthat during the El i mination Period, Carr was not unable to “ perfor

m each a

nd every materia l duty of his [occupation].” Indeed Carr’s situat ion falls squa

rely within the p lan’s d efinition of “Partial Disability” since he was “capab le of performing the m ater ial duties of his[] regular occupation

ona part-time basis.” The plan clearly states that an insured who is only Partially Disabled duringth e 6 Carr v. Reliance Standard Life Ins. Co. No. 02-2377

3 Carr al so ar gues that hi s reasonable expectations concerning t he int erpre tat ion of the plan should control. He conced es on reply, however, that this contra prof

erent um rule a pplies only where contractuallanguage is found to hav e mo re than one in terpre tation. S ee Marquett e Gen. Hosp.
v. Goo dm an F orest Indu s. , 315 F. 3d 629, 632 n. 1 (6t h Cir. 2003) . As discus sed above, the planis unambi guou s on its face , rend ering C arr’s reaso nab le exp ectatio ns irrelev ant. Elimination Pe ri od wi ll no t b e c on si de re d T ot al ly D isabl ed and thus e ligible f

or benef its. 3
Becau se we conclude that Reliance did not act arbitrarily or capric iously

in deny ing Car r’s clai m f or LT D benefits, the judgmen t of the district cou

rt is AFFIRMED

.