Michael Loza v. American Heritage Life Insurance Company

568 F. App'x 530

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 14, 2014
• Docket: 12-15946
• Status: Unpublished

Opinion

MEMORANDUM **

Michael Loza appeals the district court’s grant of summary judgment in favor of American Heritage Life Insurance Company in Loza’s action arising out of the insurance company’s denial of benefits under a cancer insurance policy. We have jurisdiction pursuant to 28 U.S.C. § 1291, review de novo, and affirm. Hazle v. Crofoot, 727 F.3d 983, 990 (9th Cir.2013); Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127, 1132 (1982).

Loza argues that the pre-existing condition exclusion in his cancer insurance policy is ambiguous and should be construed against the insurance company to require some awareness, during the twelve months before the policy’s effective date, that he was being treated for prostate cancer. However, the plain language of the exclusion requires only that he receive medical advice or treatment for prostate cancer in the year prior to the April 1, 2007, effective date of the policy. Loza received medical advice for prostate cancer three months prior to the effective date of the policy when he reported to his doctor that his father had died of prostate cancer, he exhibited several symptoms consistent with prostate cancer, and his treating physician referred him to a urologist. Those symptoms led to the prostate cancer diagnosis two months after the effective date of the policy.

The fact that a high level of prostate specific antigens in the blood can be caused by other prostate conditions is beside the point. In this case, it is undisputed that Loza had cancer. It is also undisputed that he presented symptoms and received medical advice in the year before the effective date of the policy.

The district court correctly held that Loza failed to come forward with sufficient evidence to establish that the insurance company acted unreasonably or with the “evil mind” necessary for Loza to prevail on a bad faith claim or to obtain punitive damages. Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 234, 995 P.2d 276, 280 (2000); Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 723 P.2d 675, 681 (1986). Similarly, summary judgment was proper on the intentional infliction of emotional distress claim because Loza failed to establish that the insurance company’s conduct was “extreme” and “outrageous.” Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d 580, 585 (1987).

Finally, Loza did not come forward with sufficient evidence that the insurance company caused him “substantial, long-term emotional disturbances.” Harris v. Mari-copa Cnty. Superior Ct., 631 F.3d 963, 978 (9th Cir.2011). Loza’s conclusory statement in his discovery disclosure document that he suffered emotional distress was insufficient to survive summary judgment.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.