NOT FOR PUBLICATION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 APPEALS
2 

In this action under the Employee Retirement 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 

denied Earle’s claim for accidental death and dismemberment (“AD&D”) benefits 

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 addition, 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 preexisting 
3 

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, the district 

court’s conclusion that Earle’s preexisting VMT substantially contributed to her

vision loss is unaffected.

1

 

AFFIRMED.

1 Because we resolve this case without reaching the California 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.