* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AL YEAGER,

Plaintiff-Appellant,

v. PURINA BENEFIT ASSOCIATION LONG-TERM DISABILITY PLAN,

Defendant-Appellee. No. 97-5053 (D.C. No. 95-CV-1045-E) (N.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Plaintiff claims the date of his disability is May 5, 1994, and defendant

submits May 9, 1994. The difference between the tw o dates is irrelevant for purposes of this appeal. -2- Plaintiff brought this action against the long-termdisability plan of his former employer, seeking disability benefits. Plai ntiff was employed by a subsidiary of Ralston Purina Company, which establi shed the defendant plan to provide long-term disability benefits for its emplo yees. Plaintiff’s application for long-term disability benefits was denied because th e employer determined plaintiff was not eligible for such benefits under the terms of the plan. Plaintiff brought suit, and the district court granted summary judgment in favor of defendant, finding that plaintiff was not eligible for benefits under the terms of the plan. We review the district court’s grant of summary jud gment de novo and apply the same standard as the district court. See Thomas v. Wichita Coca-Cola Bottling Co. , 968 F.2d 1022, 1024 (10th Cir. 1992). “Summary j udgment is appropriate if ‘there is no genuine issue as to anymaterial fact and . . . the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). We affirm for the same reasons as set forth in the district court’s opinion. Plaintiff’s employment was terminated on May 13, 19 94. Several days before that, plaintiff became totally disabled. 1 The benefits provision of the-3-

eligibility section of the long-term disability plan provides that benefits will be paid “[u]pon receipt of written proof as required b y Section 5.1 demonstrating that a Covered Employee, while covered under this P lan, became Totally Disabled and remained so Totally Disabled during the Qualify ing Disability Period.” Appellant’s App. at 131. The Qualifying DisabilityPeriod is defined as “180 consecutive days of continuous Total Disability.” Id. at 128. Coverage terminates under the plan when a “Covered Employee ceases to perform work as a regular employee other than a result of a Total Dis ability . . ..” Id. at 130. We agree with the district court that plaintiff was no t eligible for benefits under the plan because he did not 1) become totally disabled while he was a Covered Employee; and 2) remain totally disabled while he w as a Covered Employee for the qualifying period (180 days). The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge