Christina RUSSELL, an individual, Plaintiff-Appellant, v. COMCAST CORPORATION, a foreign corporation, Short Term Disability Plan and Long Term Disability Plan sponsor for the Comcast Short Term Disability and Long Term Disability Plans; et al., Defendants-Appellees, 381 F. App'x 657

MEMORANDUM We review de novo an order granting

summary judgment and a district court’s determination of the appropriate standard of review of an ERISA administrator’s decision. Sznewajs v. U.S. Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727, 732 (9th Cir.2009). “In the absence of a conflict, judicial review [of an ERISA administrator’s decision] ... involves a straightforward application of the abuse of discretion standard.” Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 629 (9th Cir.2009).

When a conflict of interest exists, we apply “abuse of discretion review, tempered by skepticism commensurate with the plan administrator’s conflict of interest.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 959 (9th Cir.2006). When a plan insurer is also the administrator, there is a structural conflict of interest. Montour, 588 F.3d at 630. Here, Comcast delegated administration of the Short Term Disability Plan (“STD” Plan) to Broadspire, though Comcast retained authority to review Broadspire’s determinations.

We need not determine here whether this arrangement creates a structural conflict (as to Comcast) under Montour, because — even if there were a conflict — the “skepticism commensurate” with the conflict is slight. Abatie, 458 F.3d at 959. It is common for an ERISA administrator to be both a plan insurer and administrator, and “[t]he level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history.” Id. at 968.

There is no evidence in the record that suggests heightened scrutiny is appropriate. Rather, the record reflects the opposite, that Comcast did not interfere with Broadspire’s administration of the STD plan. Thus, Comcast’s conflict — if there is one at all — only merits limited skepticism. In addition to administering the STD plan, Broadspire also insured the Long Term Disability Plan (“LTD” Plan). Because Russell was not eligible for STD benefits for 26 weeks, she was never eligible for LTD benefits.

Russell argues that Broadspire acted as a “gatekeeper” with regard to LTD benefits, denying STD benefits in order to prevent eligibility for LTD benefits. While there is no case law suggesting that such an arrangement is inherently a conflict, this situation is analogous to situations where the plan administrator is also the insurer. Again, such a conflict, without more, does not require much skepticism. Thus, it is of little importance to the outcome of this case if there is technically a conflict as to Broadspire.

Because there is no evidence in the record of self-dealing or malice, we find that only minimal skepticism should temper our abuse of discretion review of Broadspire’s determinations. Finally, we note that the district court decided this case before our decision in Montour, 588 F.3d at 623. Though the district court did not have the benefit of Montour, we find the district court’s analysis consistent with that opinion. The district court properly reviewed Broadspire’s determinations for an abuse of discretion. We also find ample evidence on the record to support Broadspire’s determination under this standard.

Comcast made no administrative decisions for this panel to review, and no determinations were made by either defendant under the LTD plan. Accordingly, the district court is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Though Comcast and Broadspire argue that another entity insured the plan, the record before this panel contains no such evidence and suggests that Broadspire insured the plan.