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Dupree v. Holman Prof. Counseling Centers (9th Cir. - July 29, 2009)

By Shaun Martin

Here's a difference between me and Judge Pregerson. Surely not the difference. But a difference.

Am I sympathetic to the plaintiff? Of course I am. His teenage daughter has specific medical needs (she's a diabetic), and has psychological and substance abuse problems, and as a parent, he wants the best available treatment for her. So he puts her in a residential treatment program in Malibu, even though his insurer says it's not covered and will only pay for two alternative (allegedly inferior) facilities that aren't able to deal with diabetics in nearly the specialized manner as the place in Malibu.

Of course that's what a parent would do. He then sues, alleging that the treatment's covered. Again, I totally understand that. And he's able to find an alleged ambiguity in the ERISA Plan documents that you could argue makes the Plan ambiguous -- and hence, resolving ambiguities in favor of the insured, creating coverage.

Judge Hall says that the Plan's nonetheless clear and doesn't provide coverage. I agree. It's just pretty darn clear to me that the Malibu place isn't covered, and that that's what any objective reader of the language would conclude. Judge Pregerson dissents, albeit with sincere (in my view) respect. With language like: "I respectfully disagree. . . . [T]he majority opinion?s interpretation of the plan is reasonable. I believe, however, that there is another reasonable interpretation."

I think this is an area where (understandable) sympathy -- "empathy," if you prefer -- plays a different role for Judge Pregerson than it does for me. I too would feel sort of bad about affirming. But I would. Even though I could come up with an argument in favor of finding coverage -- one that's not at all laughable -- in the end, the law requires otherwise. So that's what I'd do.

Full post as published by California Appellate Report on July 29, 2009 (boomark / email).