Of the District of Puerto Rico, sitting by designation. *

Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 06-2699

MELVIN PROSTKOFF, M.D.

Plaintiff, Appellant,

v.

THE PAUL REVERE LIFE INSURANCE COMPANY

AND UNUM PROVIDENT CORPORATION,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella and Lynch, Circuit Judges,

and Fusté, District Judge. *

William L. Chapman, with whom Jennifer A. Eber and Orr & Reno,

P.A., were on brief, for appellant.

Byrne J. Decker, with whom Pierce Atwood LLP was on brief, for

appellees.

June 29, 2007
-2-

FUSTE, District Judge. Appellant Melvin Prostkoff, M.D.,

filed a petition against Appellees, Paul Revere Life Insurance

Company and its parent company, Unum Provident Corporation, seeking

declaratory judgment that his insurance policy entitles him to cost

of living increases on his disability benefits for the duration of

his life. Appellant now appeals the district court’s grant of

summary judgment in favor of Appellees. “We review a district

court’s grant of summary judgment de novo, examining all the facts

and making all reasonable inferences in favor of the non-moving

party.” N.H. Ins. Co. v. Dagnone, 475 F.3d 35, 37 (1st Cir. 2007).

Appellant argues that we should vacate the district

court’s judgment and find that he is entitled to receive cost of

living increases on his disability payments for his lifetime because

his insurance policy is ambiguous and the ambiguity must be

construed in his favor. See Concord Hosp. v. N. H. Med. Malpractice

Joint Underwriting Ass’n, 633 A.2d 1384, 1386 (N.H. 1993).

Specifically, Appellant alleges that, although the Cost of Living

Benefit rider explicitly states that no increases in cost of living

benefits will be made after the insured’s sixty-fifth birthday, the

policy is ambiguous because of allegedly contradictory statements

contained in the Lifetime Benefit rider purchased by Appellant. 

The Lifetime Benefit rider provides that policy holders

will continue to receive a monthly payment after age sixty-five.

The rider states that “[t]he monthly amount is the amount shown on
-3-

the Policy Schedule. Any cost of living benefit rider added to your

policy shall apply to this amount.” Appellant argues that this

language implies that the cost of living benefit should continue to

increase after he turns sixty-five, even though the Cost of Living

Benefit rider explicitly states that it will not. Appellees counter

that the Lifetime Benefit rider states only that Appellant will

continue to receive cost of living benefits after age sixty-five,

but not increases. In other words, the amount of the cost of living

benefits shall be frozen at the amount received by Appellant just

prior to his sixty-fifth birthday, as stated in the Cost of Living

Benefit rider. 

We agree with Appellees and the district court that the

language in both the Lifetime Benefits rider and the Cost of Living

Benefit rider is clear and unambiguous. We, therefore, affirm the

district court’s decision to grant summary judgment to Appellees on

the grounds advanced by the district court.