FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIFE INSURANCE COMPANY OF NORTH 

AMERICA, a Pennsylvania

corporation,

Plaintiff, No. 07-55308

v. D.C. Nos. 

GLORIA IRENE ORTIZ, an individual, CV-05-07347-MLR

Defendant-Appellant, CV-05-08117-MLR

GRACIELA ELENA ORTIZ, an

individual,

Defendant-Appellee. 

LIFE INSURANCE COMPANY OF NORTH 

AMERICA, a Pennsylvania

corporation; RELIANCE STANDARD

LIFE INSURANCE COMPANY,

Plaintiffs,

v. No. 07-55331

GLORIA IRENE ORTIZ, an individual, D.C. Nos.

Defendant-Appellant,  CV-05-08117-R

GRACIELA ELENA ORTIZ, an CV-05-07347-R

individual, OPINION

Defendant-Appellee,

and

J.J.O., a minor; JAVIER A. ORTIZ,

Sr.; GRACIELA CASTANO ORTIZ,

Defendants. 

9791
Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

June 4, 2008—Pasadena, California

Filed August 1, 2008

Before: Alex Kozinski, Chief Judge, Ruggero J. Aldisert,*

and Dorothy W. Nelson, Circuit Judges.

Per Curiam Opinion;

Dissent by Chief Judge Kozinski

*The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge

for the Third Circuit, sitting by designation. 

9792 LIFE INSURANCE COMPANY v. ORTIZ
COUNSEL

Robert A. Foster, II, Robert A. Foster II Law Offices, Irvine,

California, for the defendant-appellant. 

9794 LIFE INSURANCE COMPANY v. ORTIZ
John V. Gaule, Oddenino & Gaule, Arcadia, California, for

the defendant-appellee. 

OPINION

PER CURIAM: 

This case involves an interpleader action over the life insurance proceeds for an officer killed in the line of duty.

Although Luis Gerardo Ortiz’s ex-wife, Gloria Ortiz, was designated as beneficiary, Graciela Ortiz argues that divorce

extinguished Gloria Ortiz’s expectancy interest. The district

court awarded the life insurance proceeds to the estate for

intestate division among Graciela Ortiz and the decedent’s

two sons. We reverse and remand. 

FACTUAL AND PROCEDURAL BACKGROUND

On August 2, 1998, Luis Gerardo Ortiz (“Jerry”) designated his wife, Gloria Ortiz (“Gloria”), as the beneficiary of

his life insurance policies with Life Insurance Company of

North America and Reliance Standard. Jerry and Gloria separated in March 2002, and the Superior Court of California

entered a Judgment on Reserved Issues in their divorce on

December 15, 2004. The Judgment on Reserved Issues

awarded “[a]ll right, title and interest in any and all of Petitioner’s retirement/pension, 457(b) plans, 401(k) plans or

other deferred benefits in [Jerry]’s name” to Jerry. The document also included a pre-printed notice indicating that “[i]t

does not automatically cancel the rights of a spouse as beneficiary on the other spouse’s life insurance policy.” 

In February of 2005, Jerry’s divorce attorney sent an exit

letter advising him to “reaffirm and/or change any beneficiaries on any . . . insurance policies.” The attorney also spoke

with Jerry after the divorce judgment issued and urged him to

LIFE INSURANCE COMPANY v. ORTIZ 9795
change the beneficiaries of his life insurance policies immediately. Jerry indicated that “he intended to go and look into

those policies” and “again assured [her] that he would.”

Despite these assurances, Jerry did not attempt to change the

written beneficiary designations on file with Life Insurance

Company of North America and Reliance Standard.1

Jerry married Graciela Ortiz (“Graciela”) on May 28, 2005.

Jerry did not work May 28-31 because of the marriage and the

honeymoon. On June 24, 2005, Jerry died as a result of a gunshot wound to the head while on duty. The term life insurance

payment that funded Jerry’s coverage at the time of death was

withdrawn from his May paycheck. The life insurance companies deposited life insurance and accidental death benefits

totaling $518,483.13 with the clerk of the court. 

The life insurance companies instituted an interpleader

action naming Gloria and Graciela as defendants. The district

court judge found that the life insurance policies became

Jerry’s separate property at the time of his divorce from Gloria. The judge also found that Jerry expressed an intent to

name Graciela as his beneficiary, but he died intestate before

he could make that change. Accordingly, the judge awarded

the proceeds of the policies to the estate to be split equally

between Graciela and Jerry’s two sons. The district court

denied a motion to stay the judgment pending appeal, but this

court granted an unopposed application for an emergency stay

order. 

JURISDICTION AND STANDARD OF REVIEW

The district court derived jurisdiction from 28 U.S.C.

§ 1332 because the parties are diverse and the amount in controversy exceeds $75,000 exclusive of interest and costs. We

1Both companies required written notice to change the designated beneficiary. 

9796 LIFE INSURANCE COMPANY v. ORTIZ
find jurisdiction over this appeal of the final judgment pursuant to 28 U.S.C. § 1291. 

The interpretation of a divorce judgment is a matter of law,

which we review de novo. Lowenschuss v. Selnick, 170 F.3d

923, 929 (9th Cir. 1999).

DISCUSSION

I. DIVORCE JUDGMENT 

[1] Under California law, we look to the language of the

property settlement agreement to determine whether the

agreement extinguishes the expectancy interests of life insurance beneficiaries. Life Ins. Co. of N. Am. v. Cassidy, 676

P.2d 1050, 1053 (Cal. 1984). “[G]eneral language in a marital

settlement agreement will not be construed to include an

assignment or renunciation of the expectancy interest conferred on the named beneficiary of an insurance policy or a

will unless it clearly appears that the agreement was intended

to deprive either spouse of such a right.” Id. A property settlement covering all property and releasing all claims may be

found to include a life insurance expectancy interest, “but

where the language is not broad enough to encompass such an

expectancy . . . the wife may still take as beneficiary if the

policy so provides.” Thorp v. Randazzo, 264 P.2d 38, 40 (Cal.

1953). 

[2] We find that the language of the divorce judgment

between Jerry and Gloria Ortiz did not extinguish Gloria’s

expectancy interest in Jerry’s life insurance proceeds. The text

of the relevant Judgment on Reserved Issues did not contain

a single direct reference to life insurance policies. Although

one could read the provision awarding “[a]ll right, title and

interest in any and all of Petitioner’s retirement/pension,

457(b) plans, 401(k) plans or other deferred benefits” to

encompass life insurance policies, it was not clearly apparent

that the provision encompassed beneficiary status. Unlike in

LIFE INSURANCE COMPANY v. ORTIZ 9797
Thorp, the judgment did not “clearly indicate[ ] that the parties’ attention had been directed to the expectancy of the

insurance proceeds, and that it was intended that plaintiff

waive all interest therein, present and future.” 264 P.2d at 41.

Thus the divorce judgment was insufficient to waive beneficiary status because it is not clear from the text of the agreement that such status was contemplated and intentionally

waived. 

Additionally, the context of the Judgment on Reserved

Issues suggests that the parties did not extinguish beneficiary

status. The document contained a pre-printed notice that “[i]t

does not automatically cancel the rights of a spouse as beneficiary on the other spouse’s life insurance policy.” This notice,

while not dispositive, provided information regarding the

additional steps required to alter life insurance beneficiaries.

We can infer that Jerry and his attorney did not expect the

judgment to terminate Gloria’s beneficiary status because

Jerry’s attorney advised him to “reaffirm and/or change any

beneficiaries on any . . . insurance policies” in her exit letter.

Jerry also indicated that he understood the necessity of changing his named beneficiary when he spoke with his attorney in

February. The pre-printed notice on the judgment form and

the record evidence regarding Jerry’s state of mind support

our conclusion that the divorce judgment did not extinguish

Gloria’s expectancy interest. 

We distinguish this case from Meherin v. Meherin, 222

P.2d 305 (Cal. Ct. App. 1950). In Meherin, a property settlement agreement terminated a wife’s expectancy interests by

assigning “all of her right, title and interest in and to said policy” and further requiring her “to execute any instrument or

documents required by the husband or the [ ] Insurance Company to carry out the intention of this paragraph.” Id. at 306.

Unlike the Ortiz divorce judgment, the agreement in Meherin

specifically referenced the insurance policy. Id. The agreement also referenced the documentation required by the husband or the insurance company to change the beneficiary and

9798 LIFE INSURANCE COMPANY v. ORTIZ
the wife’s interests in post-death recovery. Id. Finally, the

agreement in Meherin was a complete settlement whereas the

Ortiz document was only a Judgment on Reserved Issues. The

Meherin agreement clearly indicated that the parties directed

their attention to expectancy interests and intended to waive

those interests; the Ortiz judgment did not. 

[3] For the foregoing reasons, we find that Gloria’s expectancy interest survived the divorce. In light of this finding, we

hold that the district court erred when it relied on Jerry’s postdivorce intent to terminate Gloria’s expectancy interests. In

both Cassidy and Thorpe, the court only looked to the decedent’s post-divorce intent after it determined that the language

of the divorce decree terminated the expectancy interest. In

Cassidy, the agreement “waive[d] and relinquish[ed] any

expectancy that was not thereafter reaffirmed,” and the court

looked to evidence of post-divorce intent to determine

whether the failure to change the beneficiary designation constituted a reaffirmation of the expectancy interest. 676 P.2d at

1055-56. In Thorpe, the waiver of future interests in life insurance policies and post-death benefits was explicit, and the

court considered intent for the limited question of whether the

failure to change the beneficiary amounted to a post-divorce

confirmation of the designation. 264 P.2d at 41-42. This case

is distinguishable from both Cassidy and Thorpe, thus the district court’s reliance on post-divorce intent was misplaced. 

II. CHANGE OF BENEFICIARY 

[4] As a general rule, California requires a change to a beneficiary designation to be made in accordance with the terms

of the policy. “[I]f it is not, no change is accomplished, unless

whatever occurred in that respect comes within one of more

of the three exceptions to the rule.” Cook v. Cook, 111 P.2d

322, 328 (Cal. 1941). The three exceptions are (1) when the

insurer waives strict compliance with its own rules regarding

the change; (2) when it is beyond the insured’s power to comply literally with the insurer’s requirement; or (3) when the

LIFE INSURANCE COMPANY v. ORTIZ 9799
insured has done all that he could to effect the change but dies

before the change is actually made. Id.

[5] Only the third exception is potentially applicable to this

case. The Supreme Court of California interpreted this third

exception, stating: 

We think that where the insurer is not contesting the

change the rule is not to [be] applied rigorously and

where the insured makes every reasonable effort

under the circumstances, complying as far as he is

able with the rules, and there is a clear manifestation

of intent to make the change, which the insured has

put into execution as best he can, equity should

regard the change as effected. 

Pimentel v. Conselho Supremo de Uniao Portugueza do

Estado da California, 57 P.2d 131, 134 (Cal. 1936). Thus,

one’s intent to change a beneficiary designation must be

clearly manifested and put into motion as much as practicable.

See Manhattan Life Ins. Co. v. Barnes, 462 F.2d 629, 633 (9th

Cir. 1972) (“California demands that substantial steps be

taken to actually change a beneficiary before the formal

requirements of the contract may be ignored.”). 

[6] In this case, both insurance companies required written

notification of change of beneficiary and Jerry took no steps

toward providing such notification. Jerry’s lawyer stressed the

necessity of changing the designation in both her exit letter

and an informal meeting. Jerry indicated that he understood

and intended to change the designation; however, he took no

action in the four months between the finalization of the

divorce and his death. At any point following the finalization

of his divorce, Jerry could have named Graciela, his two sons,

or anyone else as the beneficiary of his policies. Jerry’s inaction does not amount to substantial steps to change his beneficiary; therefore we find that the original designation of Gloria

9800 LIFE INSURANCE COMPANY v. ORTIZ
Ortiz remained valid. Thus the district court erred by relying

on intent to circumvent a valid beneficiary designation. 

III. COMMUNITY PROPERTY SHARE 

[7] Although we find that the beneficiary designation naming Gloria was valid, we note that Graciela retains a community property interest of 6.45% of the life insurance proceeds.2

This percentage represents a one-half interest in the four days’

earnings that funded the final thirty-one day term of Luis’s

term life insurance. 

CONCLUSION

We REVERSE and REMAND for the district court to

award 93.55% of the disputed life insurance proceeds to Gloria Ortiz and 6.45% to Graciela Ortiz. 

KOZINSKI, Chief Judge, dissenting: 

The majority reaches a senseless, unjust and cruel result by

awarding half a million dollars to the former wife of a peace

officer felled in the line of duty, leaving the officer’s widow

and children out in the cold. We don’t need to do this. The

law, the facts, the equities, common sense and the district

court’s findings all support the just result here: giving the proceeds of the service life insurance policies meant to protect

the officer’s loved ones to the people he actually loved. 

The majority pettifogs its way through the California

caselaw, finding ways to distinguish this case and that, but

loses sight of the key facts that support the district court’s

judgment: Gloria Ortiz—the woman who will get the windfall

2Gloria conceded this issue at oral argument, so we do not analyze it

further. 

LIFE INSURANCE COMPANY v. ORTIZ 9801
under the majority’s stilted reasoning—had given up all interest in the policies at the time of her divorce from Deputy

Ortiz. She had no interest in the policies anyway because they

were for term insurance and thus built up no cash value.

Every month’s coverage was paid for by premiums deducted

that month from Deputy Ortiz’s paycheck. After the divorce,

Gloria had no interest in the deputy’s income. To award Gloria the proceeds, one must believe that Deputy Ortiz meant to

spend a chunk of his salary buying insurance for the benefit

of his estranged wife instead of his wife and sons. 

Breadwinners buy life insurance to provide financial security for their dependents. Deputy Ortiz had no reason to provide financial security for a woman who wasn’t his dependent

and whom, by all accounts, he despised. Which is what the

district court found after a trial. It’s true that Deputy Ortiz had

not yet changed the beneficiary designation on his policies

when he was killed. But the delay wasn’t very long, and certainly doesn’t compel a finding that Deputy Ortiz meant to

leave Gloria a pot of gold and his wife and sons a lump of

coal. 

The delay was, in any event, entirely understandable. While

the deputy could have changed the beneficiary designation

after his divorce in February, he prudently waited for Graciela

to become his wife. The two wedded at the end of May and,

after a short honeymoon, Deputy Ortiz returned to work. He

didn’t rush to change the beneficiary designation on his policies, probably because he didn’t imagine he’d be killed three

weeks later. Deputy Ortiz, like the rest of mankind, must have

believed that he had plenty of time. Imprudent, perhaps, but

very human. Who amongst us hasn’t put off dealing with

wills or other unpleasantries that remind us of our mortality?

Is this the kind of mistake that should deprive Deputy Ortiz’s

wife and children of the insurance he maintained for their

security? Surely not—at least not in California today. 

The California courts have dealt with very similar situations for over half a century and have invariably awarded pol9802 LIFE INSURANCE COMPANY v. ORTIZ
icy proceeds as intended by the decedent. Thorp v. Randazzo,

264 P.2d 38 (Cal. 1953), is typical. The decedent was

divorced from his former wife who, through a consent decree,

gave up “all claims to any benefits that she may have at present, or which may hereafter be derived from the . . . life insurance policies upon the life of [the husband].” Id. at 39. The

former wife was the beneficiary of two policies; the husband

changed the beneficiary on one but not the other. The former

wife sought the proceeds “as the named beneficiary on the

policy at the time of deceased’s death.” Id. at 40. The trial

court ruled against her and awarded the proceeds to the husband’s estate. 

The California Supreme Court recognized that “[t]he failure of the husband to exercise his power to change the beneficiary ordinarily indicates that he does not wish to effect such

a change.” Id. (citations omitted). Nevertheless, it affirmed the

trial court because “each case must be decided upon its own

facts.” Id. (citations omitted). Thorp presented a much closer

case than ours because the husband there did change the beneficiary on one policy but not the other. The most plausible

inference would have been that he wanted the ex-wife to

remain as beneficiary of the policy he didn’t change. Even so,

the trial court found that he did intend to change the beneficiary, and the state supreme court deferred to that finding. 

Thorp distinguished Grimm v. Grimm, 157 P.2d 841 (Cal.

1945), which had reached the opposite result. The only material difference between the cases was that the trial court in

Grimm found that the decedent hadn’t intended to change the

beneficiary, while the trial court in Thorp found that he had.

In each case, the state supreme court deferred to the trial

court’s findings. 

Thorp was followed two decades later by Life Ins. Co. of

N. Am. v. Cassidy, 676 P.2d 1050 (Cal. 1984), where the California Supreme Court again affirmed a trial court judgment in

LIFE INSURANCE COMPANY v. ORTIZ 9803
favor of the estate and against the former wife. The court

ruled: 

We have concluded that the designation of appellant

as beneficiary was superseded as of the date the parties entered into a marital settlement agreement

which comprehensively disposed of all the rights and

obligations between them. By terms of the agreement each waived all rights to take any property

whatsoever at the death of the other unless such right

was conferred by an instrument executed after the

date of the agreement. The evidence produced at

trial clearly shows that the fact appellant remained

the named beneficiary of the subject insurance policy was not the result of an intent by the deceased to

make a new gift of the benefits of the policy to his

former spouse, but was contrary to his expressed

intent that she be removed as beneficiary of all

insurance policies on his life. We therefore affirm

the judgment of the trial court. 

Id. at 1051 (emphasis added). As the underscored language

makes clear, the dispositive issue in Cassidy was the decedent’s intent, with the beneficiary designation constituting but

one indication of that intent, and not even a very significant

one. 

Chief Justice Bird dissented in Cassidy because she thought

the evidence that the decedent intended to cut off the former

wife’s rights under the policy was very weak. Bird emphasized that “Mr. Cassidy’s executor failed to offer any evidence as to Mr. Cassidy’s intentions during the lengthy period

between July of 1975 and Mr. Cassidy’s death in December

of 1976.” Id. at 1059. The Chief Justice’s dissent makes it

very clear that the record in Cassidy was far flimsier than the

record here: Deputy Ortiz made his statement about intending

to remove his former spouse from the policies more forcefully

and far closer to his untimely death than did Mr. Cassidy. Yet

9804 LIFE INSURANCE COMPANY v. ORTIZ
the Cassidy court upheld the finding of the trial court in favor

of the estate and against the named beneficiary, while my colleagues reverse. 

The California intermediate appellate courts have been

even more forgiving of human frailty. In Meherin v. Meherin,

222 P.2d 305 (Cal. Ct. App. 1950), a case the majority is at

pains to distinguish, the ex-wife waived “all of her right, title

and interest in and to said policy and the interest and benefits

therein.” Id. at 306. Here, Gloria gave up “all right, title and

interest” in Deputy Ortiz’s retirement plans and “other

deferred benefits.” No one, not even Gloria, claims that her

interest in the policies survived the divorce; she relies entirely

on the fact that Deputy Ortiz didn’t change the beneficiary

designation. The majority nitpicks at factual distinctions

between our case and Meherin, but none of them matter

because the trial court in both cases found that the decedent

intended to change the beneficiary. If we were the triers of

fact, we could make whatever findings we pleased. But we’re

not, so we must accept the district court’s finding that Deputy

Ortiz did not intend for Gloria to be the beneficiary of his life

insurance policies. This makes our case materially indistinguishable from Meherin, and yet my colleagues reach the

opposite result. 

Finally, the California Court of Appeal in Snyder v. Snyder,

242 Cal. Rptr. 597 (Ct. App. 1987), reached the same result

on a surprisingly thin record. Snyder involved a contribution

savings plan with the deceased husband’s employer, Rockwell. The husband “never changed the beneficiary designation

of the Rockwell savings plan,” which named his former

spouse. Id. at 598. Nor did the husband even say that he

intended to make a change. The trial court nonetheless found

against the ex-wife and in favor of the estate. In affirming that

finding, the appeals court acknowledged: 

[There is] no testimony . . . with respect to [the husband’s] intention to change the beneficiary designaLIFE INSURANCE COMPANY v. ORTIZ 9805
tion. There is, however, documentary evidence of his

intent to supersede the original beneficiary designation: his will. Furthermore, we can see no reason

why [the husband] would have wanted to make a gift

to [his ex-wife] of the plan’s proceeds. From a practical standpoint, any desire to retain [her] as beneficiary could have been implemented by submitting a

postdivorce designation to that effect. 

Id. at 600 (emphasis added). As the opinion makes clear,

however, the will made no mention of the savings plan; it

merely designated the new wife as the estate’s residuary legatee. Id. at 598. Snyder thus relied only on the court’s own

sense of what the husband probably wanted, not on anything

he actually said. Indeed, the court found that his failure to redesignate the former wife as beneficiary was sufficient proof

that he didn’t intend for her to take the savings plan. 

There are two important things to note about the California

cases, both of which my colleagues overlook. The first is that

the designation of a beneficiary in a life insurance or similar

plan is not very significant when there’s been an intervening

divorce. The California courts seem to understand, as the

majority here does not, that a divorce rearranges all property

relationships and, as to property acquired after the divorce,

what really matters is how the deceased intended to distribute

it. Every single case, including Grimm, and Chief Justice

Bird’s dissent in Cassidy, treats the decedent’s intent as the

dispositive question. In this case, Deputy Ortiz was killed in

the line of duty right after his wedding, leaving him virtually

no time to make the change; even Chief Justice Bird—who

dissented in Cassidy largely because 20 months elapsed

between the divorce and the husband’s death—would be persuaded that Deputy Ortiz meant to leave the policy proceeds

to his estate. Second, every one of the majority opinions

affirms the judgment of the trial court, even on a paper-thin

record. We are seriously out of step with the California cases

by reversing the district court here. 

9806 LIFE INSURANCE COMPANY v. ORTIZ
What does the majority offer against this cavalcade of contrary authority? There is, of course, the fact that Deputy Ortiz

was warned by his lawyer to change the beneficiary designations on his policies. But so what? Most of the decedents in

the California cases knew that they should change the beneficiary designation. See, e.g., Thorp, 264 P.2d at 39

(“[D]eceased had discussed with his attorney his intention to

change the policy so as to make it payable to his estate.”);

Cassidy, 676 P.2d at 1051 (“Both parties were fully advised

by their own counsel.”). Had they taken the most sensible and

prudent course of action, we wouldn’t be reading about them

in the opinions of the California courts. Here too, the advice

given by Deputy Ortiz’s lawyer was sound; had he followed

it, he would have saved his family a great deal of aggravation,

uncertainty and money. 

But this doesn’t mean—as the majority claims—“that

[Deputy Ortiz] and his attorney did not expect the judgment

to terminate Gloria’s beneficiary status.” Maj. op. at 9798.

Setting aside the fact that inferences about the parties’ state of

mind are the province of the trial court, the majority is simply

wrong: Deputy Ortiz and his lawyer may well have believed

that the divorce settlement did cut off Gloria’s interest in the

policy—as it surely was meant to—and yet thought it prudent

to change the beneficiary designation so as to avoid the delay,

expense and grief of the current situation. The majority overreaches by reading anything more into their conversation. 

The majority’s reliance on the divorce decree’s pre-printed

notice is a makeweight. The notice was not part of the decree

—it appeared below the judge’s signature line—and could

have had no legal effect on the relationship between the parties. It was good advice, and one wishes Deputy Ortiz had

taken it. But a boilerplate notice in fine print at the bottom of

a two page form can’t possibly undermine the finding that

Deputy Ortiz was not insuring his life for Gloria’s benefit. 

The majority tries to make something of the fact that Deputy Ortiz had a “partial” settlement, whereas the settlement in

LIFE INSURANCE COMPANY v. ORTIZ 9807
some California cases, such as Meherin, was “complete.”

Maj. op. at 9798-99. This may be a distinction, but it makes

no difference. The settlement here covered “all remaining

issues” of property between Deputy Ortiz and Gloria. It was

partial only because it didn’t deal with child “custody, visitation, [and] [ ] support,” which the parties left for a separate

consent decree. Why this should matter, the majority does not

explain. 

Finally, the majority cites to a series of cases which hold

that a beneficiary designation is binding, unless the deceased

complied with the insurer’s terms for changing the designation or was unable to do so. Maj. op. at 9799-9800 (citing

Manhattan Life Ins. Co. v. Barnes, 462 F.2d 629 (9th Cir.

1972); Cook v. Cook, 111 P.2d 322 (Cal. 1941); Pimentel v.

Conselho Supremo De Uniao Portugueza Do Estado Da California, 57 P.2d 131 (Cal. 1936)). These cases are inapposite

because none of them deals with the effect of a divorce

decree. Were the cases the majority relies on in this section

applicable to a situation such as ours, they would conflict with

Thorp, Cassidy, Meherin and Snyder. 

I might understand my colleagues’ herculean efforts to

swim against the current of California caselaw if they were

straining to avoid an irrational and unjust result. But what

sense is there in spinning fine distinctions to perpetrate an

injustice? The wife of a man who put his life on the line to

protect us will lose the protection he thought he had provided

for her; his children will be left with nothing. As his lawyer

predicted, I fully expect we’ll hear Deputy Ortiz yelling from

his grave when the majority issues its opinion. 

After trial, the district court made clear findings and

reached a just result that fulfilled Deputy Ortiz’s fair expectations and protected his wife and children. Only a procrustean

attachment to legal formalism could lead my colleagues to

overturn the district court and reach an unconscionable result.

Deputy Ortiz, and the family he intended to support, deserve

better. Sadly, I must dissent.

9808 LIFE INSURANCE COMPANY v. ORTIZ