text:
    Avery ARMANI, Plaintiff-Appellant, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a corporation, Defendant-Appellee.
    No. 14-56866
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 3, 2016 Pasadena, California
    Filed November 4, 2016

      Charles Fleishman (argued) and Paul A. Fleishman, The Fleishman Law Firm, Woodland Hills, California, for Plaintiff-Appellant.
    Linda M. Lawson (argued) and Charles K. Chineduh, Meserve Mumper & Hughes LLP, Los Angeles, California, for Defendant-Appellee.
    Before: DOROTHY W. NELSON and RICHARD A. PAEZ, Circuit Judges, and ELAINE E. BUCKLO, Senior District Judge.

       The Honorable Elaine E. Bucklo, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

   OPINION

D.W. NELSON, Senior Circuit Judge:

Avery Armani (Armani) appeals the district court’s judgment denying him benefits under his long term disability policy sponsored by his employer and issued by Appellee Northwestern Mutual Life Insurance Company (Northwestern Mutual). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we VACATE the part of the judgment denying Armani benefits and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

Armani worked as a full-time controller for the Renaissance Insurance Agency (Renaissance) from November 3, 2008 to May 18, 2011. On January 6, 2011, during the normal course of his employment, Armani injured his back while lifting a heavy backup power supply. A family practitioner treated Armani on January 26, 2011, and diagnosed a lumbar region sprain, muscle spasms, and sciatica. A chiropractor, Dr. Brian Padveen, later treated Armani, restricted him to modified work effective April 13, 2011, and instructed Armani not to sit continuously without the ability to change position. On April 19, 2011, an MRI revealed minor disc desiccation as well as disc bulge and annular tear. Armani stopped working .on May 18, 2011 as a result of his increasing back pain. Dr. Padveen. determined the next day that Armani was unable to work and that he should be re-evaluated on June 22, 2011. Armani saw a different chiropractor on June 22, 2011, who also determined that Armani was unable to work and that he should be reevaluated again at a later date.

As a Renaissance employee, Armani was insured under a group long-term disability policy (the LTD Plan) issued by- Northwestern Mutual. Under the terms of the LTD Plan, the definition of disability changes after benefits are paid for 24. months. For the first 24 months, a claimant is “only required to be Disabled from [his] own occupation,” which means the claimant is either “[u]nable to perform with reasonable continuity the material duties of [his] own occupation” or “[u]n-able to earn more than 80% of [his] Indexed Predisability Earnings while working in [his] own occupation.” To receive benefits after 24 months of disability payments, the claimant must then “be Disabled from all occupations.” This requires the claimant to demonstrate that he is “[u]nable to perform with reasonable continuity the material duties of any gainful occupation for -which [he is] reasonably fitted by education, training, and experience” or “[u]nable to earn more than. 80% of [his] Indexed Predisability Earnings while working in [his] own or any other occupation.”

Armani completed a Group Disability Claim Employee Statement for Northwestern Mutual on July 15, 2011, reporting that his back injury prevented him “from sitting, standing, walking, driving, and concentrating for prolonged period of time without experiencing a lot of pain &/or difficulty.” Northwestern Mutual also received a description of Armani’s- “working conditions” as “sedentary the majority of the time in a quiet office environment.” Armani indicated that his job required him to sit for approximately seven hours a day and stand or walk for one hour a day. On July 25, 2011, Northwestern Mutual received an Attending Physician Statement indicating that Armani was limited to sitting for four hours, standing for two hours, and walking for two hours during an eight-hour workday. Northwestern Mutual’s vocational case manager later confirmed that Armani’s occupation was classified as sedentary, and Armani’s disability claim was approved under the “own occupation” test effective July 18, 2011.

Between September 2011 and January 2012, Armani continued to visit chiropractors, pain specialists, and physicians, all of whom confirmed that Armani’s disability precluded him from working. On January 16, 2012, another chiropractor' indicated that Armani was limited to sitting for four hours a day and to standing and walking for two' hours a day, but believed that Armani’s condition would improve and that he could return to work on July 6, 2012. Based solely on these medical records, Northwestern Mutual’s reviewing physician, Dr. John Hart, determined that Armani was capable of working in a sedentary position.

. On February 11, 2013, Armani returned to Dr. Padveen, who determined that Armani was still limited to sitting for four hours a day and to standing and walking for. two hours a day. In a follow-up visit on April 15, 2013, Dr. Padveen again , stated that Armani could sit for between two and four hours a day and must alternate between sitting and standing to relieve pain every 30 minutes.

Dr. Hart was asked again by Northwestern Mutual to review Armani’s medical records and on April 18, 2013, wrote that Armani was “capable of doing a sedentary-level occupation without limitations or restrictions.” Using Dr. -Hárt’s report, Northwestern Mutual’s vocational case manager assessed Armani’s ability to perform “any occupation” given his functional capacity, work history, skills, and training. On June 12, 2013, the case manager identified three positions in addition to Armani’s own position that he could perform at a “sedentary” level. She based her assessment on the Dictionary of Occupational Titles (DOT), published by the United States Department of Labor, which states that “[s]edentary work involves sitting most of the time, but may involve walking or standing for brief periods of time.” (emphasis added).

By letter dated July 9, 2013, Northwestern Mutual informed Armani that his LTD claim was being closed because his records did not support a disability under the “own occupation” or “any occupation” test. Armani appealed the decision and asked for review by a second doctor. After being assigned to review Armani’s records, Dr. Hans Carlson also found that the records “[did] not support that [Armani] would be precluded from sedentary-level work.” Dr. Carlson further elaborated that “[i]t would be reasonable that [Armani] would have the ability to reposition from sitting to standing occasionally as needed.” On September 11, 2013, Northwestern Mutual informed Armani that it was upholding its claim decision.

On September 16, 2013, Armani filed a lawsuit pursuant to the Employee Retirement Income Security Act (ERISA) seeking judicial review of Northwestern Mutual’s claim decision. Following a bench trial, during which the district court reviewed de novo Northwestern Mutual’s determination, the court awarded Armani benefits for the remainder of the first 24 months of disability under the Plan, finding that “there was no change in circumstances sufficient to warrant denying [Armani] the nine days of benefits at the end of the ‘own occupation period.’ ”

However, the district court also held that Armani failed to show by a preponderance of the evidence that he was disabled from “all occupations” after July 18, 2013, reasoning that “[t]he Administrative Record contain[ed] scant information regarding [Armani’s] condition during this period.” Although Armani argued that he was “unable to perform any occupation classified as ‘sedentary,’ because, by definition, ‘sedentary' requires an ability to sit for six hours,” the court held that Northwestern Mutual was not bound by this definition, and that Armani had failed to demonstrate how his disability prevented him from performing any of the sedentary occupations identified by the vocational case manager.

The district court also excluded four exhibits from outside the administrative record that Armani attempted to introduce with his Reply Trial Brief, finding that the documents “[were] not necessary to adequately conduct [the court’s] review.” One such exhibit included an August 7, 2013 medical evaluation stating that Armani was still limited to sitting for two to four hours a day. Armani timely appealed.

STANDARD OF REVIEW

We review the district court’s findings of fact for clear error and its conclusions of law de novo. United States v. Bell, 602 F.3d 1074, 1079 (9th Cir. 2010).

ANALYSIS

When a district court reviews de novo a plan administrator’s determination of a claimant’s right to recover long term disability benefits, the claimant has the burden of proving by a preponderance of the evidence that he was disabled under the terms of the plan. Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010).

The administrative record available to the district court plainly showed that, between July 25, 2011, and April 15, 2013, every physician and chiropractor who treated Armani determined that he could not sit for more than four hours a day. Nonetheless, the district court upheld Northwestern Mutual’s determination that Armani could perform work at the “sedentary” level as of April 18, 2013. The district court rejected Armani’s proposed definition of “sedentary” work on the basis that it was drawn from the Social Security context. Citing “the vast differences in both form and function between Social Security law and ERISA law,” the district court concluded, without further discussion or analysis, that “the federal criteria for Social Security claims are not transferable to ERISA cases.” This conclusion was erroneous.

Indeed, while this Court has yet to address the question, other courts evaluating ERISA claims and interpreting the DOT have consistently held that an employee who cannot sit for more than four hours in an eight-hour workday cannot perform work classified as “sedentary.” See, e.g., Connors v. Connecticut General Life Ins. Co., 272 F.3d 127, 136 n.5 (2d Cir. 2001) (“The ability to sit for a total of four hours does not generally satisfy the standard for sedentary work.”); Brooking v. Hartford Life & Accident Ins. Co., 167 Fed.Appx. 544, 548-49 (6th Cir. 2006); Robertson v. Standard Ins. Co., 139 F.Supp.3d 1190, 1209 (D. Or. 2015) (“Since sedentary work, as defined by the DOL’s Dictionary of Occupational Titles, ‘involves sitting most of the time,’ ... courts have concluded that even a four-hour sitting tolerance is insufficient to render one capable of performing sedentary work.”) (internal citations omitted). Some of these courts have further noted that “sedentary work” generally requires the ability to sit for at least six hours. See LaVertu v. Unum Life Ins. Co. of Am., 2014 WL 1224736, at *13 (C.D. Cal. Mar. 25, 2014) (“Sedentary work requires the ability to sit for at least six hours of an eight-hour workday.”); Wykstra v. Life Ins. Co. of N. Am., 849 F.Supp.2d 285, 295 (N.D.N.Y. 2012) (“[T]he generally recognized definition of sedentary work is work that ‘involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day.’ ”); Alfano v. CIGNA Life Ins. Co. of New York, 2009 WL 222351, at *18 (S.D.N.Y. Jan. 30, 2009) (noting that “6 hours per day [is] generally recognized as the minimum [sitting] tolerance required for sedentary work”); Mead v. ReliaStar Life Ins. Co., 2008 WL 850675, at *2 n.4 (D. Vt. Mar. 27, 2008) (“A generally recognized standard for sedentary work ‘involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day.’ ”). Accordingly, these cases reflect the logical conclusion that an employee who is unable to sit for more than half of the workday cannot consistently perform an occupation that requires sitting for “most of the time.” We agree with this commonsense conclusion and hold that an employee who cannot sit for more than four hours in an eight-hour workday cannot perform “sedentary” work that requires “sitting most of the time.”

Rather than consider whether the preponderance of the evidence established that Armani was unable to perform “any occupation” while restricted to sitting for no more than four hours a day, the district court rejected Armani’s proposed definition of “sedentary” work on the erroneous basis that the definition was limited to the Social Security context. That error led the court to conclude that Armani had not established that he was unable to perform the four positions Northwestern Mutual had identified based on his functional capacity as of April 18, 2013, despite the fact that all four positions were classified as “sedentary,” and despite undisputed evidence that, as of that date, Armani was unable to sit for more than four hours a day.

Accordingly, we hold that the district court erred in denying Armani his long term disability benefits under the Plan. Because we vacate the district court’s judgment on these grounds, we need not decide whether the district court properly excluded extra-record evidence submitted by Armani.

CONCLUSION

We VACATE the part of the district court’s judgment denying Armani his long term disability benefits and REMAND the case for further proceedings consistent with this opinion.

      . The beneficiary of a disability insurance plan may bring a civil action under ERISA "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29U.S.C. § 1132(a)(1)(B).


source: Caselaw Access Project

author: THOMAS, Chief Judge:

license: Public Domain

text:
    Leslie FELDMAN; Luz Magallanes; Mercedez Hymes; Julio Morera; Cleo Ovalle; Peterson Zah, Former Chairman and First President of the Navajo Nation; The Democratic National Committee; DSCC, AKA Democratic Senatorial Campaign Committee; The Arizona Democratic Party; Kirkpatrick for U.S. Senate; Hillary for America, Plaintiffs-Appellants, Bernie 2016, Inc., Intervenor-Plaintiff-Appellant, v. ARIZONA SECRETARY OF STATE’S OFFICE; Michele Reagan, in her official capacity as Secretary of State of Arizona; Maricopa County Board of Supervisors; Denny Barney; Steve Chucri; Andy Kunasek; Clint Hickman; Steve Gallardo, member of the Maricopa County Board of Supervisors, in their official capacities; Maricopa County Recorder and Elections Department; Helen Purcell, in her official capacity as Maricopa County Recorder; Karen Osborne, in her official capacity as Maricopa County Elections Director; Mark Brnovich, in his official capacity as Arizona Attorney General, Defendants-Appellees, The Arizona Republican Party; Debbie Lesko; Tony Rivero; Bill Gates; Suzanne Klapp, Intervenor-Defendants-Appellees.
    No. 16-16865
    United States Court of Appeals, Ninth Circuit.
    Filed November 4, 2016
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

Judges Kozinski and McKeown did not participate in the deliberations or vote in this case.


author: PER CURIAM: THOMAS, Chief Judge,

text:
    Leslie FELDMAN; Luz Magallanes; Mercedez Hymes; Julio Morera; Cleo Ovalle; Peterson Zah, Former Chairman and First President of the Navajo Nation; The Democratic National Committee; DSCC, aka Democratic Senatorial Campaign Committee; The Arizona Democratic Party; Kirkpatrick for U.S. Senate; Hillary for America, Plaintiffs-Appellants, Bernie 2016, Inc., Intervenor-Plaintiff-Appellant, v. ARIZONA SECRETARY OF STATE’S OFFICE; Michele Reagan, in her official capacity as Secretary of State of Arizona; Maricopa County Board of Supervisors; Denny Barney; Steve Chucri; Andy Kunasek; Clint Hickman; Steve Gallardo, Member of the Maricopa County Board of Supervisors, in their official capacities; Maricopa County Recorder and Elections Department; Helen Purcell, in her official capacity as Maricopa County Recorder; Karen Osborne, in her official capacity as Maricopa County Elections Director; Mark Brnovich, in his official capacity as Arizona Attorney General, Defendants-Appellees, The Arizona Republican Party; Debbie Lesko; Tony Rivero; Bill Gates; Suzanne Klapp, Intervenor-Defendants-Appellees.
    No. 16-16865
    United States Court of Appeals, Ninth Circuit.
    Filed November 04, 2016
    Daniel Clayton Barr, Sarah Rae Gonski, Esq., Perkins Coie, Roopali H. Desai, David Andrew Gaona, Esq., Andrew S. Gordon, Esq., Coppersmith Broekelman PLC, Phoenix, AZ, Amanda Calíais, Marc Erik Elias, Elisabeth Frost, Bruce V. Spi-va, Perkins Coie LLP, Washington, DC, Joshua L, Kaul, Perkins Coie LLP, Madison, WI, for Plaintiffs-Appellants.
    Roopali H. Desai, David Andrew Gao-na, Esq., Andrew S. Gordon, Esq., Cop-persmith Broekelman PLC, Phoenix, AZ, Malcolm Seymour, III, Garvey Schubert Barer, New York, NY, for Interveno’r-Plaintiff-Appellant.
    Karen Hartman-Tellez, Kara Marie Karlson, Arizona Attorney General’s Office, for Defendants-Appellees Arizona Secretary of State’s Office, Michele Reagan, in her official capacity as Secretary of State of Arizona, and Mark Brnovich, in his official capacity as Arizona Attorney General.
    Colleen Connor, Andrea Lee Cummings, Joseph Isaac Vigil, Deputy County Attorney, Maricopa County Attorney’s 1 Office, for Defendants-Appellees Maricopa County Board of Supervisors, Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, Steve Gallardo, member of the Mari-copa County Board of Supervisors, in their official capacities, Maricopa County Recorder and Elections Department, Helen Purcell, in her official capacity as Maricopa County Recorder, and Karen Osborne, in her official capacity as Maricopa County Elections Director.
    Sara J. Agne, Esquire, Colin Patrick Abler, Brett William Johnson, Snell & Wilmer L.L.P., Phoenix, AZ, for Intervenor-Defendants-Appellees.
    BEFORE: THOMAS, Chief Judge and O’SCANNLAIN, W. FLETCHER, RAWLINSON, CLIFTON, BYBEE, CALLAHAN, N. R. SMITH, MURGUIA, WATFORD, and OWENS, Circuit Judges.
   ORDER

PER CURIAM:

En banc oral argument will take place during the week of January 17, 2017, in San Francisco, California. The date and time will be determined by separate order. Plaintiffs’ motion for an injunction pending appeal is DENIED.

In this action, plaintiffs challenge the provisions of Arizona law that precludes counting ballots that are "cast outside of the voter’s designated precinct, even when those ballots include races and ballot measures for which the voter is eligible and qualified to vote. Plaintiffs argue that this procedure violates the Voting Rights Act of 1965, and the Fourteenth Amendment to the Constitution.

The district court denied the plaintiffs’ request for a preliminary injunction. A divided three judge panel affirmed the district court’s order. A majority of the non-recused active judges then voted to rehear this case en banc.

En banc argument will be confined to the question of whether or not a preliminary injunction should issue as to future elections. The en banc court will not consider whether or not out-of-precinct votes should be counted in the pending general election. Current Arizona election law, practices, and procedures as to out-of-precinct voting will be fully applicable to this election. The en banc court declines to issue any order that would potentially disrupt procedures in the upcoming election. Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam).

For further information or special requests regarding scheduling, please contact Deputy Clerk Paul Keller at pauL keller@ca9.uscourts.gov or (206).224-2236.

Within seven days from the date of this order, the parties shall forward to the Clerk of Court twenty-five additional paper copies of the original briefs and twelve additional paper copies of the excerpts of record. The paper copies must be accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. A sample certificate is available at http://www.ca9.uscourts.gov/datastore/ uploads/cmecf/Certificate-for-Brief-in Paper-Format.pdf. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF.

THOMAS, Chief Judge,

concurring in part, and dissenting in part, with whom W. FLETCHER, RAWLINSON, AND MURGUIA, Circuit Judges, join:

I agree that this appeal should be reheard en banc for the reasons stated in my dissent. Feldman v. Arizona Sec’y of State, 842 F.3d 613, 628-41, 2016 WL 6472060, at *10-21 (9th Cir. 2016) (Thomas, J., dissenting). The issues presented are important for both the present and future elections.

However, I would hold argument and decide the appeal prior to the certification of results for the present election. As I explained in my dissent, qualified voters have been, and will continue to be, disenfranchised by Arizona’s refusal to count legitimate ballots cast out-of-precinct. There is no reason why these legitimate votes should not be counted in this election, paiticularly when the votes are collected and available for election officials to tabulate.


author: KELLY, Circuit Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of New Frontier Bank, Greeley, Colorado, Plaintiff-Appellant, v. KANSAS BANKERS SURETY COMPANY, Defendant-Appellee.
    No. 15-1390
    United States Court of Appeals, Tenth Circuit.
    Filed November 1, 2016

      Joseph Brooks, Counsel (Colleen J. Boles, Assistant General Counsel, and Kathryn R. Norcross, Senior Counsel of Federal Deposit Insurance Corporation, with him on the briefs), Arlington, Virginia, for Plaintiff-Appellant.
    John R. Mann (Heather K. Kelly, with him on the brief) of Gordon & Rees, L.L.P, Denver, Colorado, for Defendant-Appellee.
    Before KELLY, McKAY, and McHUGH, Circuit Judges.
   KELLY, Circuit Judge.

Plaintiff-Appellant Federal Deposit Insurance Corporation (FDIC) sought to recover on a financial institution crime bond and appeals from the district court’s grant of summary judgment in favor of Defen-danb-Appellee Kansas Bankers Surety Co. (KBS), FDIC v. Kansas Banker Surety Co., 105 F.Supp.3d 1234 (D. Colo. 2015), and its subsequent denial of reconsideration, FDIC v. Kansas Bankers Surety Co., No. 13-cv-2344-WJM-MJW, 2015 WL 4882496 (D. Colo. Aug. 17, 2015). The district court held that the underlying bank, the New Frontier Bank of Greeley, Colorado, (Bank) had failed to submit a timely and complete proof of loss, thereby barring FDIC’s recovery on the bond. We have jurisdiction under 28 U.S.C; § 1291, and we affirm.

Background

In January 2009, one of the Bank’s clients, Johnson Dairy and its principal, filed for bankruptcy. In February 2009, an attorney for the Bank provided KBS with notice of a potential claim arising out of that relationship. Specifically, the Bank’s attorney furnished a letter in which Johnson Dairy complained of various improprieties in connection with the Bank lending $50 million to Johnson Dairy, including requiring cattle-lease agreements, breaching loan agreements, and not funding Johnson Dairy’s working capital arrangements. 2 Aplt. App. 240-43. The FDIC maintains that Johnson Dairy, in concert with one of the Bank’s loan officers participated in an unlawful scheme to circumvent the Bank’s lending limits; ultimately, the loan officer would plead guilty and was sentenced to thirty months’ imprisonment. The same day that the Bank provided KBS notice of the claim, KBS sent a reply letter, asking the Bank to inform KBS promptly if the Bank had reason to believe the allegations were accurate or that wrongful acts had occurred..

Thereafter, Johnson Dairy filed an adversary proceeding against the Bank, its loan officer, and others, alleging that the Bank’s loans and the conduct of its loan officer were coercive and intended to benefit the Bank at Johnson Dairy’s expense. The Bank’s general counsel then forwarded a copy of the complaint to KBS and requested coverage under the bond.

On March 30, 2009, KBS elected not to defend the Bank, thereby triggering a provision within General Agreement F of the bond that extended the Bank’s normal deadline to submit a complete proof of loss from six months from discovery to six months from settlement or the entry of judgment in the adversary proceeding. As the Bank’s position grew increasingly precarious, on April 2, 2009, KBS encouraged the Bank to meet the proof-of-loss requirements before takeover by any receiver. In so doing, KBS referred to Condition 14 of the bond, which provides, in pertinent part:

This bond terminates as an entirety upon occurrence of any of the following:
(c) immediately upon the taking over of the Insured by a receiver or other liquidator or by State or Federal officials .,.
After termination or cancellation, no ... Federal official ... acting in the capacity of ... receiver ... shall have or exercise any right to make any claim against [KBS], unless a Proof of Loss, duly sworn to, with full particulars and complete documentation has been received by [KBS] prior to the termination of cancellation of this bond.

1 Aplt, App. 52. On April 10, 2009, the Colorado State Banking Commissioner closed the Bank and appointed the FDIC as receiver. The FDIC then settled ffie adversary proceeding,' though it did not recover the entire amount the Bank had loaned to Johnson Dairy. The FDIC sought the difference between the amount recovered and the full amount as a “loss” under the bond. KBS, however, refused to pay the difference, stating that it had not received a proof of loss before the FDIC’s appointment as receiver. The FDIC then filed suit against KBS.

The district court'held that Condition 14 controlled over General Agreement F; thus, the Bank needed to submit a proof of loss, duly sworn, with full particulars and complete documentation prior to takeover by the FDIC. The district court-found that the Bank had failed to comply with these requirements and further held that its interpretation of Condition 14 did not violate public policy.

Discussion

On appeal, the FDIC raises three main contentions. First, the FDIC argues thát the district court erred in holding that Condition 14 controlled over General Agreement F, because Condition 14 is ambiguous and contains non-standard fidelity bond language that should be construed against the drafter, KBS, in favor of coverage. Aplt. Br. at 3, 29-38. Second, even if Condition 14 controls, the FDIC contends that Colorado law only requires “substantial compliance” with proof-of-loss requirements and that the Bank, indeed, substantially complied with such requirements. Id. at 3-4, 38-44. Third, the FDIC argues that the district court’s interpretation of Condition 14 violates public policy. Id at 4, 44-50. The FDIC’s arguments pertaining to non-standard fidelity bond language and substantial compliance are forfeited, and the FDIC’s argument regarding public policy is without merit.

A. Non-Standard Language and Substantial Compliance

The parties dispute whether the FDIC raised its arguments regarding nonstandard bond language requiring a different outcome and substantial compliance with the proof-of-loss provision before the district court. Compare Aplt. Reply Br. at 5-12, 20-21, with Aplee. Br. at 20-21, 36-38. Because failure to raise an argument before the district court typically results in forfeiture of that argument on appeal, see, e.g., United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007), we must first address whether the FDIC raised its arguments below.

For several reasons, the FDIC argues that it has not forfeited its first argument. Specifically, the FDIC states that it raised this issue in its opposition to KBS’s motion for summary judgment, Aplt. Br, at 6, and argued generally that ambiguous provisions must be construed against the drafter. Aplt. Reply Br. at 6-7. The FDIC further argues that because KBS argued in favor of an exception to the general rule, the burden fell on KBS. to establish that the language of the bond was standard. Id. at 7 (citing Metro Fed. Credit Union v. Fed. Ins. Co., 607 F.Supp.2d 870, 874 n.1 (N.D. Ill. 2009)). The FDIC also states that KBS’s lack of assistance in resolving the bond language issue militates against forfeiture. Id. at 10. Alternatively, even if the argument was not preserved, the FDIC argues that exception to the general rule of forfeiture applies, namely that arguments involving a pure matter of law for which the proper resolution is certain should still be heard, and also contends that it has satisfied the plain-error standard to avoid forfeiture. Id. at 9-11.

Our review of the record leads us to conclude that the FDIC has forfeited its argument regarding non-standard language. As the district court stated in its order denying reconsideration, the FDIC never previously presented the court with the argument that the proof-of-loss provision was ambiguous. FDIC, 2016 WL 4882496, at *3, *4 n.4. Because the FDIC’s argument regarding non-standard language hinges on a determination that the proof-of-loss- provision is ambiguous, see Aplt. Br. at 29-34, it follows that this argument is new on appeal. Simply put, the FDIC did not argue below that the bond contained non-standard or unique language that was unilaterally added by KBS. On appeal, the FDIC refers us to its brief in opposition to KBS’s motion for summary judgment, in which the FDIC argued that any ambiguity in the language of Condition 14 should be resolved in its favor. Id. at 34; Aplt. Reply Br. at 5-6 & n.ll. But this is a far cry from arguing that one provision of the bond contains unique, nonstandard language and therefore should be construed in favor of coverage. Indeed, nowhere in its opposition to summary judgment, or even in its motion for reconsideration, did the FDIC cite the principal cases upon which it now relies, namely First National Bank of Manitowoc v. Cincinnati Insurance Co., 485 F.3d 971 (7th Cir. 2007), and Metro Federal Credit Union, 607 F.Supp.2d at 874 n.1.

The FDIC’s references (on appeal) to the district court’s order granting summary judgment, see Aplt. Br. at 6 & n.12, 29-32, 34 & n.116; Aplt. Reply Br. at 6 n.ll, further demonstrate that the district court was never fairly presented with this issue. There is simply no discussion of “unique” or “non-standard” language. Moreover, although the district court provided a general discussion about the construction of ambiguous provisions, it is clear from the district court’s discussion of Condition 14 vs. General Agreement F that the court did not arrive at the proper interpretation of the bond based on ambiguity. See FDIC, 105 F.Supp.3d at 1243-45; see also FDIC, 2015 WL 4882496, at *3 n.2 (explaining that the court did not find that Condition 14 was ambiguous). The excerpts of the district court decision the FDIC now relies upon, when viewed in context, simply do not show that the district court ruled on the issue the FDIC now raises.

The FDIC’s argument that KBS had the burden of establishing whether the bond contained standard or non-standard bond language will not excuse its forfeiture. To the extent Metro Federal Credit Union suggests that a party advocating for an exception to the general rule of construing language against the drafter bears the burden of differentiating between standard and non-standard bond language under Illinois law (and we are not so sure it does), see 607 F.Supp.2d at 874 n.1, we are not bound by a decision of the Northern District of Illinois, nor do we find it persuasive. Absent clear authority from this circuit or the Colorado courts, KBS was not required to demonstrate that the bond contains only standard language, otherwise all language would be construed against it. As the district court noted, KBS argued in favor of the exception to the general rule of construing ambiguous provisions against the drafter in its motion for summary judgment, and the FDIC raised counterarguments in response. FDIC, 2015 WL 4882496, at *4 n.4. Thus, the FDIC had ample opportunity to present its non-standard language argument then, as it directly pertains to KBS’s argument, but the FDIC failed to do so.

We are not persuaded by the FDIC’s argument that this court should nevertheless hear its argument because it is a question of law and the proper resolution of the issue is certain. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); United States v. Gould, 672 F.3d 930, 938 (10th Cir. 2012). Neither factor here is met. The FDIC’s argument is that “ambiguities must be construed to provide coverage ... where, as here, an insurer adds unique language to á standard bond form.” Aplt. Br. at 29. This is not a pure issue of law, because whether KBS unilaterally added unique language to the bond is a question of fact, and one that was not presented to the district court. See FDIC, 105 F.Supp.3d at 1241-42 (characterizing the bond as “a heavily negotiated agreement between sophisticated parties”). While the FDIC did assert in its motion for reconsideration that Condition 14 was not negotiated between the parties, see 1 Aplt. App. 130 & n.4, the argument was madé too late, and the district court was well" within its discretion not to address it. See FDIC, 2015 WL 4882496, at *4 & n.4; see also Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Additionally, the proper resolution of the issue is not certain. Neither the Supreme Court, nor this court, nor the Colorado courts have addressed whether non-standard bond language must be construed against the drafter. The FDIC’s reliance on non-binding authority from the Seventh Circuit and the Northern District of Illinois, see Aplt. Reply Br. at 10 & n.21 (citing First Nat’l Bank of Manitowoc, 485 F.3d at 977, 979 n.8; Metro Fed. Credit Union, 607 F.Supp.2d at 874 n.1), cannot overcome this hurdle. And while Hoang v. Assurance Co. of America, 149 P.3d 798, 802 (Colo. 2007), does indicate that Colorado courts will construe in favor of coverage an ambiguity in a homeowner’s insurance policy offered on a take-it-or-leave-it basis, it is not clear that the Colorado courts would extend this holding to banks, nor is it clear that the provisions at issue here were imposed on a “take-it-or-leave-it” basis, as discussed above.

This same analysis demonstrates why the FDIC’s plain-error argument also fails. Generally, a forfeited argument will serve as the basis for reversal in a civil matter only if the district court’s judgment was plainly, erroneous. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). In civil cases, the burden of establishing plain error lies with the appellant and is “ ‘nearly insurmountable.’ ” Somerlott v. Cherokee Nation Distribs., Inc., 686

F.3d 1144, 1151 (10th Cir. 2012) (quoting Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 802 (10th Cir. 2001)). “To show plain error, a party must establish the presence of (1) error, (2) that, is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity or public reputation of judicial proceedings.” Richison, 634 F.3d at 1128; see also United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (discussing the plain-error standard for appellate review in a criminal case). To be plain, the error must be clear or obvious under current, well-settled law of either the Supreme Court or this court. United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012). Assuming it is not too late to argue for plain error in a reply brief, see Aplt. Reply Br. at 11, we do not find that the FDIC has met its burden to show an error that is clear or obvious under current, well-settled law issued by the Supreme Court or this court, or that the district court’s decision is clearly erroneous under Colorado law.

As to its substantial compliance argument, the FDIC provides three bases for contending that it = raised the argument before the district court. First, the FDIC argues that it raised the issue in its opposition -to KBS’s motion for summary judgment. Aplt. Br.: at 7. The FDIC asserts that it argued that proof-of-loss requirements must be “construed reasonably,” and that “the substantial compliance standard and the reasonable construction rule are two sides of the same coin.” Aplt. Reply Br. at 21. Second, the FDIC argues that it raised the issue in its motion for reconsideration. Aplt. Br. at 7; The FDIC relies on the district court’s order denying the FDIC’s motion for reconsideration, in which the district court noted that - the FDIC used the phrase “substantially complied” in its briefing. See Aplt. Reply Br. at 20 (quoting FDIC, 2015 WL 4882496, at *3). According to the FDIC, this demonstrates that the district court understood the FDIC to have made its substantial compliance argument. Id. Third, the FDIC asserts that its argument should not be forfeited because the substantial compliance issue involves a pure matter of law for which the proper resolution is certain. Id. at 21. The FDIC’s contentions, however, are without merit.

Our review of the FDIC’s opposition to KBS’s motion for summary judgment reveals that the FDIC did not raise its “substantial compliance” argument. The FDIC’s citations to the record pertain to other arguments regarding the timeliness of the Bank’s claim, not substantial compliance. See Aplt. Br. at 7 n.13 & n.15 (citing 2 Aplt. App. 306-10). Indeed, the phrases “substantial compliance” and “substantially complied” do not appear in the FDIC’s opposition to summary judgment, nor do the principal cases upon which the FDIC now relies, namely Hartford Fire Insurance Co. v. Smith, 3 Colo. 422 (Colo. 1877) and Wells Fargo Business Credit v. American Bank of Commerce, 780 F.2d 871 (10th Cir. 1985). While the FDIC did argue that proof-of-loss requirements should be construed reasonably, see 2 Aplt. App. 313-14, this is distinct from arguing that only substantial compliance is required under Colorado law. The district court was never fairly presented with this issue. Further, it does not follow that a reasonable construction of proof-of-loss requirements obviates the need for full compliance, or that strict compliance is inherently unreasonable.

An examination of the record also demonstrates that the FDIC did not preserve its substantial compliance argument in its motion for reconsideration. The citations that the FDIC provides, again, pertain to other arguments, such as its contention that Condition 14 is ambiguous and the Bank’s compliance with the provision is an issue of fact. See Aplt. Br. at 7 & n.14 (citing 1 Aplt. App. 125-29). Although the district court noted that the FDIC argued in passing “the Bank’s proof of loss not only substantially complied, but also strictly complied under any fair and reasonable construction,” the district court characterized the argument as one that the bond granted too much discretion to KBS. FDIC, 2015 WL 4882496, at *8. The record confirms that the FDIC did not raise any discussion about substantial compliance until its reply brief in its motion for reconsideration. See 1 Aplt. App. 151. Even if this brief reference, is sufficient to preserve the argument for appeal, the argument was raised too late. See M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 768 n.7 (10th Cir. 2009).

The FDIC also, has not demonstrated that its substantial compliance argument is a pure matter of law for which the proper resolution is certain. The FDIC .asserts that Colorado law is clear that only substantial compliance is required. Aplt. Reply Br. at 21 (citing Hartford Fire Ins. Co., 3 Colo. at 425). Although the Colorado Supreme Court stated in an 1877 decision that “there must be a substantial compliance with the terms of the policy in furnishing the preliminary proofs before the assured are entitled to any indemnity in case of loss” in a dispute arising from loss from a fire, Hartford Fire Ins. Co., 3 Colo. at 425, more recent authority from the Colorado courts suggests that strict compliance with a contractual provision is required if time is of the essence. See, e.g., Hopkins v. Underwood, 126 Colo. 224, 247 P.2d 1000, 1002 (1952) (“Where time is the essence of a contract, it means that the provision in the contract which fixes the time of performance is to be regarded as a vital term of the contract.... ”); Sports Premiums, Inc. v. Kaemmer, 42 Colo.App. 172, 595 P.2d 696, 699 (1979); see also Ranta Constr., Inc. v. Anderson, 190 P.3d 835, 841 (Colo. App. 2008) (indicating that where time is of the essence in a contract, one party’s failure to timely perform discharges .the other party of the duty to perform). While we are mindful of our decision in Wells Fargo Business Credit, 780 F.2d at 871, in which we determined that substantial compliance with notice and proof-of-loss requirements of an insurance policy was sufficient under New Mexico law, in a prior case between FDIC and KBS we held that “where time is of the essence substantial compliance with a specific time requirement is insufficient.” FDIC v. Kansas Bankers Sur. Co., 963 F.2d 289, 294 (10th Cir. 1992) (applying Oklahoma law). In that case, we considered a provision that is analogous to Condition 14 at issue here, and concluded that the provision explicitly demonstrated that the parties intended to make time of the essence. Id. at 292, 294. The FDIC fails to distinguish this precedent in either of its briefs. While we need not decide the issue, its resolution is not obvious.

B. Public Policy

The FDIC did, however, raise its public policy argument below. To support its argument on appeal that the district court’s interpretation of Condition 14 violates public policy, the FDIC turns to the Financial Institutions Reform,' Recovery, and Enforcement Act of 1989 (FIRREA), which provides, in pertinent part, that when the FDIC is appointed as the receiver of a failed bank, it “succeed[s] to—all rights, titles, powers, and privileges of the insured depository institution ... with respect to the institution and the assets of the institution.” 12 U.S.C. § 1821(d)(2)(A)(i); see also Aplt. Br. at 45. This statutory provision indicates that the FDIC “steps into the shoes” of the failed bank and inherits the rights of the bank prior to receivership. O’Melveny & Myers v. FDIC, 512 U.S. 79, 86, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994).

In light of this, the FDIC argues that it succeeded to all rights the Bank possessed under the bond at the time of the Bank’s failure. This includes the right' to pursue the Bank’s coverage claim against KBS, because the Bank would have had the right to enforce the coverage claim after termination of the bond had it not failed. Aplt. Br. at 45-47. The FDIC relies on FDIC v. St. Paul Companies, 634 F.Supp.2d 1213 (D. Colo. 2008), where the court determined that the termination of a bond resulting from takeover by the FDIC did not terminate liability because the insured bank need only have discovered the loss prior to the takeover for the right to enforce the coverage claim to vest. Aplt. Br. at 47-50. Accordingly, the FDIC contends that it similarly possesses the right to pursue the Bank’s coverage claim because the Bank discovered the loss prior to takeover by the FDIC and would have been able to submit the proof of loss after the pending third-party action against the Bank was resolved. Id. at 7, 47-50. Therefore, the FDIC argues, denying the FDIC the ability to enforce coverage runs counter to public policy because it restricts the exercise of the Bank’s rights by the FDIG. Id.

The FDIC’s arguments fail for two reasons. First, both federal and Colorado law expressly permit provisions like Condition 14 to limit the otherwise broad powers of receivers like the FDIC. See 12 U.S.C. § 1821 (e)(13)(A); Colo. Rev. Stat. § 11-103—601(4)(a)(H). Second, while the FDIC now stands in the shoes of the Bank, the FDIC has no right to enforce a coverage claim against KBS that the Bank did not have. As the district court correctly found, a proof of loss, duly sworn, with full particulars and complete documentation was a condition precedent to coverage pursuant to Condition 14, and such proof was never furnished to KBS prior to the FDIC’s takeover. FDIC, 105 F.Supp.3d at 1243-45. Because coverage never vested before the FDIC took over, the Bank, and consequently the FDIC, never acquired the right to enforce the bond.

Further, the FDIC’s reliance on FDIC v. St. Paul Companies, 634 F.Supp.2d at 1213, is unavailing. There, a proof of loss was not a condition precedent to coverage. This court has emphasized the difference between bonds that contain express language making strict compliance with notice requirements a condition precedent to recovery and those that do not. See FDIC v. Oldenburg, 34 F.3d 1529, 1546 (10th Cir. 1994). It follows that there is also a distinction between bonds that contain express language making a proof of loss a condition precedent to coverage and those that do not. Because Condition 14 of the bond at issue here made proof of loss a condition precedent to recovery, and the bond in St. Paul Companies, 634 F.Supp.2d at 1219, did not, the district court’s decision in St. Paul Companies is inapposite.

AFFIRMED.

      . "The conservator or receiver may enforce any contract, other than a director’s or officer's liability insurance contract or a depository institution bond, entered into by the depository institution notwithstanding any provision of the contract providing for termination, default, acceleration, or exercise of rights upon, or solely by reason of, insolvency or the appointment of or the exercise of rights or powers by a conservator or receiver.” 12 U.S.C. § 1821(e)(13)(A)..

      . "The general assembly hereby finds, determines, and declares that the following is enforceable and in conformity with the public policy of this state ...: Any fidelity bond, financial institution bond, or depository institution bond in effect or issued on or after April 30, 1993, that provides for termination of such bond upon the taking over of the bank by a receiver or other liquidator or by state or federal officials.” Colo. Rev. Stat. § 11-103-601(4)(a)(II).


text:
    CENTURY SURETY COMPANY, Plaintiff-Appellee, v. SHAYONA INVESTMENT, LLC, Defendant-Appellant.
    No. 15-6083
    United States Court of Appeals, Tenth Circuit.
    Filed November 1, 2016
    S.Corey Stone, Pettis & Stone, Shawnee, Oklahoma, for Defendant-Appellant.
    Phil R. Richards, (Randy Lewin, and Brett E. Gray of Richards & Connor, on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
    Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
   KELLY, Circuit Judge.

Plaintiff-Appellee Century Surety Company (“Century”) issued a commercial lines policy to Defendant-Appellant Shayona Investment, LLC (“Shayona”) covering commercial property and business income coverage. Shayona submitted claims, Century paid .them, and then Century sought a declaratory judgment in the district court as to whether the claims were fraudulent. At trial, the jury found in favor of Century, awarding it both the amount the company paid Shayona under the policy and the sum it spent investigating the claims. Shayona appeals from the district court’s entry of judgment on that verdict, arguing that the standard of proof the court instructed the jury to use was wrong. Exercising jurisdiction pursuant to 28 U.S.C, § 1291, we affirm.

Background

Century issued the policy to Shayona on October 19, 2011, for one year of coverage on the Cinderella Inn in Shawnee, Oklahoma, 2 Aplt. App. 201. The policy included a provision that expressly voided coverage “in any case of fraud” by the insured, including intentional concealment or misrepresentation of any material fact relating to the covered property or claim for coverage. 1 Aplee. Supp. App. 16. Such a provision is commonly referred to as a “fraud and false swearing” provision. The provision is consistent with the requirements of Oklahoma law. See Okla. Stat. tit. 36, § 4803(G).

Over the course of the next year, Shayo-na submitted multiple claims. First, it claimed property and business income loss from vandalism and theft to the Inn’s bar, which allegedly occurred in October 2011. Second, it claimed damages from a hail storm that occurred in May 2012. Century paid the claims in the combined amount of $777,885.41. 2 Aplt. App. 202-06. After Shayona submitted additional related claims, Century became suspicious and conducted further investigation, eventually concluding that at least some of the submissions by Shayona were fraudulent.' It then filed its complaint for declaratory judgment for a determination of rights and obligations under the contract, including whether Shayona had committed fraud such that the policy was void and Century was due back the money it had paid out. 1 Aplt. App. 11,16-17.

The parties disagreed as to what evidentiary standard should govern. Shay-ona argued that a clear and convincing standard was appropriate because it viewed Century’s claim as a fraud action. 3 Aplt. App. 642. The district court disagreed; it accepted Century’s characterization of the action as one for declaratory judgment, and instructed the jury that Century need only prove breach of the contract by a preponderance of the evidence. 3 Aplt. App. 710-11. The jury found that Shayona had indeed submitted false or fraudulent information that voided the policy, and that judgment should be entered against Shayona for $855,057.91. Id. at 192, 741. The district court entered judgment on the verdict, 1 Aplt. App. 193, and this appeal followed.

Discussion

We review jury instructions de novo. Pratt v. Petelin, 733 F.3d 1006, 1009 (10th Cir. 2013). Shayona argues that the district court erred by instructing the jury that Century only had to' prové its case by a preponderance of the evidence. The standard should have been clear and convincing, Shayona says, because Century’s claim was, in fact, a fraud claim: Century was not merely raising fraud as an affirmative defense to deny payment under the contract (in which case Shayona agrees that preponderance of the evidence would be the correct standard),.but rather Century was bringing the claim outright to reclaim the money it had paid out under the contract and to recover the investigative expenses. Aplt. Br. at 5-15. Thus, Shayona contends, even though Century strategically characterized its claim as a declaratory judgment action to gain the benefit of the lower standard, in reality the claim was for fraud, and as such it should be treated as a claim for fraud—and this requires use of the clear and convincing standard. Id. at 9; see also Funnell v. Jones, 737 P.2d 105, 108 (Okla. 1985).

We are not convinced, having previously held that, under Oklahoma law, an insurer claiming that the insured violated a fraud and false swearing provision in an insurance policy must prove it by “a fair preponderance of the evidence.” Transp. Ins. Co. v. Hamilton, 316 F.2d 294, 296 (10th Cir. 1963).

Though Shayona blends its arguments' to assert that the clear and convincing standard should apply to the entirety of Century’s action, there are three possible reasons that might support such a conclusion. The first is that when an insurer seeks to deny payment on the contract for reason of fraud, preponderance is the right standard, but when it seeks restitution of money already paid, then clear and convincing is the standard. Second is that even though preponderance might be correct as to money paid out under the contract, the clear and convincing standard is required to recoup any additional costs not directly covered by the contract—here, Century’s investigative expenses. And third is that regardless of what would happen in the first two scenarios, the combination of (1) and (2) transforms the entire claim to one governed by the higher evi-dentiary standard. This is the argument most clearly presented by Shayona.

As to the first reason—setting aside for the moment the issue of extra-contractual expenses—this is a distinction without a difference. In civil actions involving private disputes, the general standard of proof is preponderance of the evidence. Johnson v. Bd. of Governors of Registered Dentists of State of Okla., 913 P.2d 1339, 1345 (Okla. 1996). Though the clear and convincing standard is typically used in civil cases “involving allegations or fraud or some other.quasi-criminal wrongdoing,” this is because the interests at stake involve more than the “mere loss of money.” Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60, L.Ed.2d 323 (1979). But in a breach-of-contract insurance action, what is at stake, is precisely the “mere loss of money,” and so Oklahoma courts have long used the preponderance standard, in such actions. See Gourley v. Nw. Nat’l Life Ins. Co., 94 Okla. 46, 220 P. 645, 647 (1923). The same is true, as Shayona admits, if the insurer raises breach of a fraud provision as an affirmative defense. Transp. Ins. Co., 316 F.2d at 296. We simply fail to see why a different standard would apply to a party asserting the same argument as a claim instead of as a defense. See Lederman v. Frontier Fire Protection, Inc., 685 F.3d 1151, 1154 (10th Cir. 2012) (approving jury instruction stating that “[t]he party asserting a claim or an affirmative defense has the burden of proving [it] ... by a preponderance of the evidence.”).

Nor has Shayona pointed to any cases that make a distinction as to the burden of proof based upon whether a theory is asserted as a claim or defense. Relying upon United Services Automobile Ass’n v. McCants, 944 P.2d 298 (Okla. 1997), Shay-ona contends that there cannot be an affirmative claim of fraud that breaches the contract because Oklahoma already recognizes the difference between fraud as a tort claim and fraud as an affirmative defense in a breach-of-contract action. Aplt. Br. at 9. But McCants does not-support such a proposition.

In McCants, the insurer sought recovery of investigative expenses and of money it paid out to the mortgagee on account of arson by the insured mortgagor. See 944 P.2d at 299-301. But unlike the present case, the insurer in McCants sought this recovery through a tort action for fraud, not through an action on the contract. Id. at 301. As explained by the state court: “USAA’s action was a tort action for fraud. It was not based on the contract provision which allows USAA to deny the claim in cases of concealment or fraud.” Id. Thus, McCants illustrates that an insurer can choose to bring a fraud action in tort to recover damages caused by the fraud. It does not require that the insurer do so instead of seeking recovery from the contract itself.

We turn next to the second reason that might support Shayona’s position, that extra-contractual expenses caused by the insured’s fraud can only be recovered through a fraud action. The jury awarded Century $77,172.50 for its investigative expenses. But Shayona forfeited challenging this award by not objecting to the court’s jury instruction on damages. See 3 Aplt. App. 642, 718; Oral Argument at 1:16-2:50; see also Fed. R. Civ. P. 51(c)(1), (d)(2); United States ex rel. Bahrani v. ConAgra, Inc., 624 F.3d 1275, 1284 (10th Cir. 2010).

Finally, we turn to the third reason that might support Shayona’s position: that the inclusion of investigatory expenses supports viewing the entire claim as one for fraud. Shayona’s reliance upon McCants is unavailing here also. There simply is no reason to believe that a higher evidentiary standard should apply when an insurer brings a declaratory judgment action regarding its rights under the contract because of an insured’s fraudulent behavior. The inclusion of other damages resulting from the breach does not change this, and it does not transform this contract action into one of tort. Rather, damages from breach of contract includes those damages which are the “natural and proximate consequence of a breach.” See Chorn v. Williams, 186 Okla. 646, 99 P.2d 1036, 1037 (1940).

AFFIRMED.

      . This is the amount Century asked for in closing argument, which combines the $777,885.41 it paid out under the policy with the ’ $77,172.50 it spent investigating the claims. 3 Aplt. App. 737, 540-48; Aplee. Br. at 9.


text:
    GENERAL STEEL DOMESTIC SALES, L.L.C., d/b/a General Steel Corporation, a Colorado limited liability company, Plaintiff-Appellee, v. Ethan Daniel CHUMLEY, individually; Atlantic Building Systems, L.L.C., a Delaware corporation, d/b/a Armstrong Steel Corporation, Defendants-Appellants.
    No. 15-1293
    United States Court of Appeals, Tenth Circuit.
    Filed November 1, 2016

      David S. Gingras of Gingras Law Office, Phoenix, Arizona (Craig R. May and Kenneth E. Stalzer of Wheeler, Trigg, O’Donnell, L.L.P., with him on the briefs, Denver, Colorado), for Defendants-Appellants.
    David S. Fein (Patrick D. Frye, with him on the brief) of Building Services Group, L.L.C., Littleton, Colorado, for Plaintiff-Appellee.
    Before KELLY, McKAY, and McHUGH, Circuit Judges.
   KELLY, Circuit Judge.

Defendants-Appellants Atlantic Building Systems, LLC d/b/a Armstrong Steel Corporation and its CEO, Ethan Chumley (collectively, “Armstrong Steel”), appeal from the district court’s denial of immunity under the Communications Decency Act (“CDA”). Gen. Steel Domestic Sales, Inc. v. Chumley, No. 14-cv-01932-REB-CBS, 2015 WL 4911585, at *5-9 (D. Colo. Aug. 18, 2015). We dismiss this appeal for lack of jurisdiction. We conclude that the CDA provides immunity from liability, not suit, and the district court’s order does not qualify under the collateral order doctrine.

Background

This case involves a dispute between two competing prefabricated steel building companies in Colorado. General Steel employed Mr. Chumley until 2005, when he left to start his own competing steel building company, Armstrong Steel. The parties have been engaged in numerous legal disputes ever since.

The underlying dispute involves Armstrong Steel’s negative online advertising campaign against General Steel. When internet users searched for “General Steel,” negative advertisements from Armstrong Steel would appear on the results page. 1 Aplt. App. 28-29. Clicking on the advertisements would direct users to Armstrong Steel’s web page entitled, “Industry Related Legal Matters” (“IRLM Page”).

The IRLM Page contained thirty-seven posts, twenty of which form the basis of General Steel’s complaint. 3 Aplt. App. 387-488. To varying degrees, the twenty posts summarize, quote, and reference lawsuits involving General Steel. Each lawsuit is listed with a title, a brief description of the case, and a link, by which the reader could access the accompanying court document. The majority of the case descriptions contained quotes that were selectively copied and pasted from the underlying legal documents.

General Steel brought four claims: (1) unfair competition and unfair trade practices under the Lanham Act, (2) libel and libel per se, (3) intentional interference with prospective business advantage, and (4) civil conspiracy. Armstrong Steel sought summary judgment, claiming immunity from suit and liability under Section 230 of the CD A.

' The district court found that Armstrong Steel was entitled to immunity for three posts because those posts simply contained links to content created by third parties. The court refused, however, to extend CDA immunity to the remaining seventeen posts and the internet search ads. The court found that the “defendants created and developed the content of those ads,” and were therefore not entitled to immunity. Gen. Steel, 2015 WL 4911585, at *7. With respect to the remaining seventeen posts, the court found that the defendants developed the content by selectively quoting and summarizing court documents in a deceiving way. Id. at *8. It also held that the CDA’s immunity provision does not apply to the Lanham Act. Id. at *9. Armstrong Steel appeals from the denial of immunity and claims appellate jurisdiction under the collateral order doctrine.

Discussion

This court has jurisdiction over “final decisions” made by district courts. 28 U.S.C. § 1291. Under the collateral order doctrine, we may exercise jurisdiction over non-final decisions if the appellant shows that the district court’s order “[1] conclusively determine[d] the disputed question, [2] resolve[d] an important issue completely separate from the merits of the action, and [3] [is] effectively unreviewable on appeal from a final judgment.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (internal quotations omitted). See generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Thus, we lack jurisdiction over non-final orders unless these three requirements are met. United States v. Copar Pumice Co., 714 F.3d 1197, 1204 (10th Cir. 2013). Because we find that Armstrong Steel cannot meet the third factor, it is unnecessary to address the first two. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987).

We apply the collateral order doctrine narrowly so as not to undercut the final-judgment rule. Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). The requirements for collateral-order appeal are stringent. Id. Although the Supreme Court “has been asked many times to expand the ‘small class’ of collaterally appealable orders, [it has] instead kept it narrow and selective in its membership.” Will v. Hallock, 546 U.S. 345, 350, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). Indeed, this court has recognized the Supreme Court’s “increasingly emphatic instructions that the class of cases capable of satisfying this ‘stringent’ test should be understood as ‘small,’ ‘modest,’ and ‘narrow.’ ” United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir. 2010) (quoting Dig. Equip. Corp., 511 U.S. at 868, 878, 114 S.Ct. 1992; Will, 546 U.S. at 350, 126 S.Ct. 952).

Armstrong Steel argues that Section 230 of the CDA bars not just liability, but also suit. Aplt. Br. at 55-58. A district court order denying immunity from suit is effectively Unreviewable because immunity from suit “is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, the Supreme Court has “repeatedly ... stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). If, however, Section 230 of the CDA only protects against liability, then we lack jurisdiction because a district court order denying liability is certainly reviewable on appeal. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 500, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989). For the following reasons, we conclude that Section 230 of the CDA provides immunity only from liability, not suit.

Congress passed the CDA to “protect children from sexually explicit internet content.” FTC v. LeadClick Media, LLC, No. 15-1009-cv, 838 F.3d 158, 173, 2016 WL 5338081, at *11 (2d Cir. Sept. 23, 2016). Congress later added Section 230 because it “recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). It is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” 47 U.S.C. § 230(b)(2). The immunity provision of Section 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

Whether Section 230 provides immunity from suit or liability such that a denial would permit an interlocutory appeal is an issue of first impression for this court. To find that the CDA bars suit, the CDA must contain “an explicit statutory or constitutional guarantee that trial will not occur.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989); Decker v. IHC Hosps., Inc., 982 F.2d 433 (10th Cir. 1992) (dismissing appeal because the statutes did not expressly provide protection from suit). The CDA does not contain such language.

Armstrong Steel argues that 47 U.S.C. § 230(e)(3) contains plain language barring suit, not just liability. Aplt. Br. at 56. Section 230(e)(3) states: “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). Armstrong Steel asserts that the phrase “[n]o cause of action may be brought,” id. indicates that CDA immunity bars suit. Aplt. Br. at 56. However, reading the text in its entirety reveals that 47 U.S.C. § 230(e)(3) is merely a preemption provision. That Congress added § 230(e)(3) to the CDA later is of no moment because the provision does not contain an explicit bar to suit.

Armstrong Steel also argues that we should construe Section 230 as a bar against suit because doing so would fulfill Congress’s intent. Aplt. Reply Br. at 6. But the best indicator of intent is the statutory language. When deciding whether a class of people qualify for immunity from suit, we look for that intent to be expressed in an explicit statutory or constitutional guarantee of immunity. See Szehinskyj v. Attorney Gen., 432 F.3d 253, 256 (3d Cir. 2005) (“The law is what Congress enacts, not what its members say on the floor.”).

Furthermore, we are hesitant to extend immunity from suit to a private party without a statutory basis. Immunity from suit is a benefit typically only reserved for governmental officials. Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (qualified immunity); see Farmer v. Perrill, 275 F.3d 958, 961 (10th Cir. 2001) (limited waiver of immunity under Federal Tort Claims Act). There are three instances when courts may extend qualified immunity to private parties. First, if the private parties are “closely supervised by the government.” Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005); see also DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 722 (10th Cir. 1988). Second, if there is a historical basis for providing immunity to that type of private entity. Richardson v. McKnight, 521 U.S. 399, 404, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997). Third, if extending immunity implicates “special policy concerns involved in suing government officials.” Wyatt, 504 U.S. at 167, 112 S.Ct. 1827. We need not delve into this analysis because this suit in no'way involves the government, and Armstrong Steel has not identified a historical basis for providing private parties immunity from suit under the CDA.

Given that Section 230 does not contain the grant of immunity from suit contended for, it is unnecessary to discuss its applicability to the Lanham Act false advertising claims.

APPEAL DISMISSED. As we have decided this case after full briefing and oral argument, General Steel’s emergency motion seeking more prompt relief is denied.

      . The posts that General Steel asserts are improper are posts 1, 5, 6, 9, 11, 13, 14, 17, 20, 22, 23, 25, 26, 27, 29, 32, 33, 35, 36, and 37.

      . Our description of the CDA as providing immunity from suit in our case of Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 983 (10th Cir. 2000), did not resolve this question, as this issue was not before us in that case.