Nieto v. The Paul Revere Life Ins. Co.

Filed 7/31/06 Nieto v. The Paul Revere Life Ins. Co. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Haley J. Fromholz, Judge. Affirmed.

Robert S. Gerstein; Giannelli & Morris and Timothy J. Morris for Plaintiff and Appellant.

Barger & Wolen, Robert J. McKennon and Robert E. Hess for Defendant and Appellant.

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INTRODUCTION

Plaintiff Richard Nieto appeals from a summary judgment granted to defendant Paul Revere Life Insurance Company. Defendant cross-appeals from the same judgment. We affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2003, plaintiff filed suit against defendant for breach of contract and breach of the implied covenant of good faith and fair dealing based on alleged underpayments made to him pursuant to the Cost of Living Adjusted Benefit Rider (COLA rider) in plaintiff's Disability Income Policy (Policy). The Policy consists of the following items: (1) the basic policy entitled Disability Income Policy: The Preferred Professional; three additional benefits in separate documents: (2) the COLA rider, (3) the Future Income Option Benefit Rider, and (4) Automatic Increases on Policy Schedule III; (5) the Policy Schedule, identifying and giving dollar amounts for three categories: Premium Summary – Nonsmoker, Table of Total Disability Benefits setting forth the Maximum Monthly Amount, and Table of Additional Benefits; and (6) the list of Maximum Benefit Periods on Policy Schedule II.

The COLA rider states the formula for the COLA Benefit as follows: â€