UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 14, 2011
ANACOMP, INC. ACCIDENTAL DEATH AND DISMEMBERMENT PLAN AND
LIFE INSURANCE COMPANY OF NORTH AMERICA, DEFENDANTS.
The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER: CERTIFYING SUMMARY JUDGMENT ORDER FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b)
Plaintiff Robert Francis moves for certification for interlocutory
appeal this Court's Summary Judgment Order. In the Order, the Court
found that California state law regarding the interpretation of
accidental death provisions in the insurance policy is not saved from
ERISA preemption. That decision is based on the holding of McClure v.
Life Ins. Co. of North America,
84 F.3d 1129 (9th Cir. 1996).*fn1
The more recent case of Kentucky Ass'n of Health Plans, Inc.
v. Miller, 538 U.S. 329 (2003), could change the law to be applied if
the court of appeals re-visits the issue.
Pursuant to 28 U.S.C. § 1292(b), three factors control whether an interlocutory order ought to be certified for immediate appeal:
1. Where the issue involves a controlling issue of law;
2. Where there are substantial grounds for differences of opinion regarding the controlling issue of law; and
3. Where an immediate appeal may materially advance the ultimate termination of litigation.
In this case, each of the factors are present. Therefore, the motion is granted.
This Court's summary judgment order is, hereby, certified for immediate appeal under 28 U.S.C. § 1292(b).