Ninth Circuit Holds Tight to ERISA Interpretation Rule That Courts Will “Not Artificially Create Ambiguity Where None Exist”

In 1987 Robert Fier started working for the Boyd Group (“Boyd”) as a casino slot repairman. After a promotion to management, Fier subsequently enrolled into Boyd’s two benefits programs: a Long Term Disability (“LTD”) Policy and an Accidental Death and Dismemberment Insurance (“AD&D”) Policy. Both policies are maintained pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.

In 1992, as a result of a shooting, Fier became permanently quadriplegic (i.e. the loss of both arms and legs). In 1993, Fier returned to work in a new job specifically tailored to his physical limitations where he earned the same salary as he had prior to the accident. In 1997, Fier’s salary was reduced by $20,000 when he was assigned to a new position at Boyd. In early 1997, Fier submitted a claim for benefits under the LTD policy, and received benefit payments from UNUM. Between 1997 and late 2004, UNUM paid Fier $152,069.02.

In late 2004, UNUM informed Fier that regarding his 1997 LTD claim, it should have ceased payments in 1998 because Fier left Boyd to take another job. At the new job, Fier was earning approximately the same salary he had earned before the accident. The rationale for UNUM’s decision was based upon the LTD policy which stated:

Disability benefits will cease on the earliest of:

The date the insured is no longer disabled;

The date the insured dies;

The end of the maximum benefit period;

The date the insured’s current earnings exceed 80% of his pre-disability earnings.


Fier filed suit against UNUM in the District Court of Nevada for both a declaratory judgment entitling him to continued payment of benefits, and for four years of benefits from 1993 until 1997. The Nevada district court found Fier was not eligible for benefits between 1993 and 1997 because he was working at his full salary and that he was not entitled to benefits after 1998 when he began his new job with a salary at the pre-disability level. The district court also held Fier was no longer covered under the LTD policy because he no longer was employed by Boyd. Lastly, the district court rejected Fier’s claim for benefits under the AD&D policy because his feet and hands had not been severed from his body.

On appeal with the United States Court of Appeals for the Ninth Circuit the lower court correctly determined Fier’s ineligibility for benefits from 1993 to 1997 and from 1998 forward under the LTD policy. The policy was not ambiguous as to when benefits would terminate. In addition, the Ninth Circuit court also held the district court correctly determined that Fier’s LTD benefits terminated in 1998 when Fier left his employment with the Boyd.

With respect to the AD&D policy, Fier appealed the district court’s determination that to be eligible for any AD&D benefits; he had to have suffered dismemberment by “severance.” The Ninth Circuit, not having had to construe this term before, relied upon Cunninghame v. Equitable Life Insurance Society of the Untied States, 652 F.2d 306 (2d Cir. 1981). In Cunninghame, the Second Circuit held the policy’s definition of ‘loss’ was not ambiguous, and interpreted the terms ‘dismemberment by severance’ by stating:

The word ‘dismemberment’ itself implies actual separation; the noun derives from the transitive verb ‘dismember’, defined as meaning ‘to cut or tear off into pieces; take apart roughly or divide (a whole) into sections or separate units’ or, obsoletely, to ‘lop’ or ‘sever’. “Dismemberment” as a noun, therefore, refers to “the act of dismembering or the state of being dismembered: division into separate parts or units.”

Therefore, the Ninth Circuit concluded that Fier was not owed any benefits under the AD&D policy because he “did not suffer the physical detachment of his limbs.”

The Court applied long-standing law in the Ninth Circuit that if there is no ambiguity to the interpretation of a policy provision, courts will not create one, and will “interpret terms in ERISA insurance policies in an ordinary and popular sense as would a [person] of average intelligence and experience.” Evans v. Safeco Life Ins. Co., 916 F.2d 1437 (9th Cir. 1990).

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