In Connor, M.D. v. Unum Life Insurance Company of America, No. 21-15034, 2023 WL 417903 (9th Cir. Jan. 26, 2023), Defendant-Appellant Unum Life Insurance Company of America appealed the district court’s judgment awarding Plaintiff-Appellee Dr. Caroline Connor group long-term disability benefits and attorneys’ fees under ERISA. The Ninth Circuit affirmed.
At issue was whether Connor met the policy requirement of Full-Time Employee in active employment where the Unum disability policy defined active employment as “working for your Employer for earnings that are paid regularly and that you are performing the substantial and material acts of your usual occupation. You must be working at least 30 hours per week.” Unum claimed that the phrase “Full-Time” requires a minimum of 35 hours per week. The court rejected Unum’s position, finding it “odd to read the eligibility provision as expressly specifying a particular numerical standard for weekly work, only to then implicitly override that numerical standard by the additional use of a general and undefined term. It would be much more natural to read the provision as meaning that a person is a “Full-Time” employee if she meets the 30-hour minimum required for “active employment” and she is not a temporary or seasonal worker.”
Reviewing for clear error, the court found that the district court properly determined that Connor worked at least 30 hours per week. Connor submitted a declaration under penalty of perjury that she averaged 32.5 hours per week, before inclusion of on-call hours. Her employer reported on a couple occasions that Connor was regularly scheduled to work 30 to 32 hours per week. Though some information appeared to contradict this, that evidence was not reliable.
Lastly, the court affirmed the district court’s attorneys’ fee award to Connor, finding that the court did not abuse its discretion in setting hourly rates for the attorneys in question. The record contains evidence in the form of declarations from other practitioners in the relevant market as to the actual hourly rates paid to local attorneys in ERISA cases. From the district court opinion, the court awarded attorneys Scott Calvert and Michael Horrow the hourly rate of $700 for work performed in 2019 and 2020 and $800 for work performed in 2021.
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