NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELAINE MARIE WALKER EARLE,

Plaintiff

- Appellant,

v.

UNUM LIFE INSURANCE COMPANY OF AMERICA,

Defendant

- Appellee,

and

GROUP BASIC ACCIDENTAL DEATH

AND DISMEMBERMENT PLAN FOR

EMPLOYEES OF UNIVERSITY OF SOUTHERN CALIFORNIA; DOES, 1 through 10 Inclusive,

Defendants. No. 20

- 55868

D.C. No.

2:19

- cv

- 02903

- JFW

- AFM

MEMORANDUM *

Appeal from the United States District Court

for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted October 6, 2021 Pasadena, California

Before: GRABER, CHRISTEN, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

OCT 19 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

In this action under the Employee Ret irement Income Security Act

(“ERISA”), Elaine Marie Walker Earle appeals from the district court’s judgment

concluding that Unum Life Insurance Company of America (“Unum”) correctly

deni ed Earle’s claim for accidental death and dismemberment (“AD&D”) benef its

for the loss of sight in her right eye. As the parties are familiar with the facts, we

do not recount them here.

“We review de novo a district court’s choice and application of the standard

of review to decisions by fiduciaries in ERISA cases

. . . . [and] review for clear

error the underlying findings of fact.” Est. of Barton v. ADT Sec. Servs. Pension

Plan , 820 F.3d 1060, 1065 (9th Cir. 2016) ( quoting Abatie v. Alta Health & Life

Ins. Co. , 458 F.3d 955, 962 (9th Cir. 2006) (en banc) ). We affirm

.

Because the exclusionary provision in Unum’s AD&D Plan is conspicuous

,

the district court did not err in applying the “substantial contribution

, ” rather than

the “proximate cause

, ” standard

. See McClure v. Life Ins. Co. of N. Am. , 84 F.3d

1129, 1136 (9th Cir. 1996) (per curiam) . Unum uses a table of contents, glossary,

“question and answer” format, and capitalized and bold headings and terms to

highlight the definition of “accidental bodily injury,” where the exclusionary text is

located. In additio n, the AD&D section of the plan is short, making its terms more

conspicuous. Therefore, “substantial contribution” is the correct legal standard.

The district court concluded, as a factual matter, that Earle’s preexisting3

vitreomacular traction (“ VMT ” ) substantially contributed to her vision loss.

Specifically, the court found that Earle could have developed a macular hole even

without her March 15, 2017 fall, and conversely, that she would not have

developed a macular hole without the preexisting VMT

. This factual finding is not

clearly erroneous. See Est. of Barton , 820 F.3d at 1065.

Even assuming, without deciding, that de novo review applied, t he district

court’s conclusion that Earle’s preexisting VMT substantial ly contribute d to her

vision loss is unaffected

. 1

AFFIRMED

.

1 Because we resolve this case without reaching the C alifornia Settlement Agreement issue, Unum’s motion for this court to take judicial notice of the order granting rehearing in Cox v. Allin Corp. Plan , 848 F. App’x 343 (9th Cir. 2021) (unpublished), Dkt. No. 40, is denied.