Best Life Assurance Company of California - Page 12




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            had the same meaning as unpaid losses in former section 806.  The                          
            Court of Appeals for the Ninth Circuit reached its ultimate                                
            conclusion on the meaning of unpaid losses under former section                            
            806 and construed the language of section 801 merely as support.                           
            Making clear its marginal reliance on its interpretation of the                            
            language of section 801, the Court of Appeals for the Ninth                                
            Circuit in Occidental Life Ins. Co. stated as follows:                                     

                  Although an examination of section 801 along these                                   
                  comparative lines is not required for a conclusion as                                
                  to the meaning of “unpaid losses” in section 806, our                                
                  interpretation of section 801 [now section 816] is                                   
                  nevertheless persuasive in support of the result                                     
                  which we reach.  [United States v. Occidental Life                                   
                  Ins. Co., supra at 5-6.]                                                             

                  The Court of Appeals for the Ninth Circuit has traditionally                         
            accorded statements not necessary to its decision little                                   
            precedential weight.  See, e.g., Export Group v. Reef Indus.,                              
            Inc., 54 F.3d 1466, 1471-1472 (9th Cir. 1995) (“statements not                             
            necessary to the decision” reflect dicta and not binding                                   
            precedent).  The Court of Appeals for the Ninth Circuit's                                  
            statements and analysis in Occidental Life Ins. Co. do not                                 
            clearly establish a position on the meaning of the term “unpaid                            
            losses” under current section 816 that signals to us an                                    
            inevitable reversal upon appeal.  Therefore, the Golsen rule is                            
            not applicable to our resolution of the issue in this case.                                








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