Milca BUROTTO, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY; Wellpoint Health Networks, Inc. Disability Plan, Defendants-Appellees, 163 F. App'x 565

ORDER Appellant Burotto argues for the first time on appeal that discretionary clauses in disability insurance policies are illegal and contrary to the public policy of California. We do not believe that this issue should be addressed for the first time on appeal. We VACATE the judgment and REMAND to the district court to permit the parties the opportunity to develop a record and offer arguments regarding the validity of discretionary clauses under California insurance law and under ERISA, 29 U.S.C. §§ 1001 et seq. AARP’s motion for leave to file an amicus brief is DENIED AS MOOT. IT IS SO ORDERED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.