Francis v. Anacomp, Inc. et al

Filing 41

ORDER Granting 36 Motion to Certify Summary Judgment Order for Interlocutory Appeal. Signed by Judge Roger T. Benitez on 12/14/2011. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT FRANCIS,

CASE NO.10cv467 BEN (BGS)

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Plaintiff,
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ORDER:
vs.

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CERTIFYING SUMMARY
JUDGMENT ORDER FOR
INTERLOCUTORY APPEAL
UNDER 28 U.S.C. § 1292(b)

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ANACOMP, INC. ACCIDENTAL DEATH
AND DISMEMBERMENT PLAN and LIFE
INSURANCE COMPANY OF NORTH
AMERICA,
Defendants.

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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).1 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

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The Defendant appears to be the same entity in both cases.
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issue.
Pursuant to 28 U.S.C. § 1292(b), three factors control whether an interlocutory order ought
to be certified for immediate appeal:

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1. Where the issue involves a controlling issue of law;

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2. Where there are substantial grounds for differences of opinion regarding the controlling

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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).

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DATED: December 14, 2011

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Hon. Roger T. Benitez
United States District Judge

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