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Raynor v. United of Omaha Life Insurance Co.

United States Court of Appeals, Ninth Circuit

June 6, 2017

Cynthia Raynor, Plaintiff-Appellant,
v.
United of Omaha Life InsuranceCompany, a Nebraska corporation, Defendant-Appellee.

         D.C. No. 3:14-cv-05252-RBL

          Before: Alex Kozinski and William A. Fletcher, Circuit Judges, and John R. Tunheim, [*] Chief District Judge.

         ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF OREGON

         SUMMARY[**]

         Certification to Supreme Court of Oregon The panel certified the following questions of state law to the Oregon Supreme Court:

1. If the Director of the Department of Consumer and Business Services approves a contractual limitations provision in an insurance policy under Oregon Revised Statutes § 742.021, does the language of the policy always control or do the standard provisions of the Oregon Insurance Code apply if the standard provisions are more favorable than the approved insurance policy provision?
2. If the Oregon standard provisions do apply, when does "the period for which the insurer was liable" under Oregon Revised Statutes § 743.429 end?

          ORDER

          Alex Kozinski, Circuit Judge

         Oregon law requires insurance policies to conform with the standard provisions of the Oregon Insurance Code. Or. Rev. Stat. § 742.021. Under the standard provisions, insureds who suffer from continuing loss have three years and ninety days "after the termination of the period for which the insurer is liable" to file suit. Or. Rev. Stat. §§ 743.429, .441. Oregon law permits insurers to issue policies with alternatively worded provisions, but only when those alternatively worded provisions are approved by the Director of the Department of Consumer and Business Services. Or. Rev. Stat. § 742.021. Those policies must be "in each instance not less favorable in any respect to the insured or the beneficiary." Id.

         In the present case, we are asked to apply an insurance policy that may not conform with the standard limitations period required under Oregon law. The insurer contends that the policy terms must control because the policy has been approved by the Director of the Department of Consumer and Business Services. If the policy terms control, the claims of Plaintiff, the insured, are time-barred. But if we are permitted to apply the State's standard provisions despite the Director's approval of the policy, Plaintiff's suit may go forward if 1) we determine that the standard limitation provision is more favorable than the corresponding provision in her policy, and 2) we determine under the standard provisions that her claim is not time-barred. To determine whether Plaintiff's claim is time-barred under the standard provisions, we must interpret the phrase, "period for which the insurer is liable." Neither the meaning of this phrase, nor a court's authority to apply standard provisions to a Director-approved policy, has been directly addressed by Oregon courts.

          The timeliness of Plaintiff's suit therefore depends on two important and unresolved issues of Oregon law that are dispositive in this case. We respectfully certify both questions to the Oregon Supreme Court so that we, as well as the Oregon bar, might benefit from an authoritative decision on these issues. We offer first "[a] statement of all facts relevant to the questions certified, " before turning to "[t]he questions of law to be answered." Or. Rev. Stat. §§ 28.210(1), (2).

         BACKGROUND

         I. Factual and Procedural History

         From December 2002 to March 2008, Cynthia Raynor worked as a real estate agent for RE/MAX in Washington State. RE/MAX held, on Raynor's behalf, a long-term disability ("LTD") policy ("Policy") offered by United of Omaha Life Insurance Company ("Omaha"). The Policy was issued in Oregon and is subject to Oregon law. On March 5, 2008, Raynor left RE/MAX for medical reasons. ...


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