dissenting:
The majority opinion holds that the Behavioral Health Plan that Timothy Dupree purchased “unambiguously does not” cover non-emergency treatment at non-contracted provider Residential Treatment Centers. I respectfully disagreé. I believe the plain text of the Behavioral Health Plan’s Group Contract and Benefits Schedule is ambiguous with regard to non-contracted provider Residential Treatment Centers. I believe the Behavioral Health Plan’s Schedule of Benefits can be interpreted to cover Residential Treatment Center services from both non-contracted and contracted providers because the Schedule of Benefits does not clearly distinguish between non-contracted provider Residential Treatment Centers and contracted provider Residential Treatment Centers.
If an employee benefit plan is ambiguous, it must be “construed against the drafter and in favor of the insured.” Barnes v. Indep. Auto. Dealers Assoc, of Cal. Health and Welfare Benefit, 64 F.3d 1389, 1393 (9th Cir.1995) (citing Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 942 (9th Cir. 1995)). The majority opinion states that the Dupree’s Behavioral Health Plan “unambiguously does not” cover non-emergency treatment at non-contracted Residential Treatment Centers. Indeed, the majority opinion’s interpretation of the plan is reasonable. I believe, however, that there is another reasonable interpretation.
As the majority opinion notes, the Behavioral Health Plan’s Group Contract repeatedly states that non-contracted provider services are not usually covered except in cases of emergency or “as otherwise provided in this Group Plan Contract.” * *1100(Emphasis added.) The “as otherwise provided” language suggests that non-emergency services by non-contracted providers may be covered under the Behavioral Health Plan. At the very least, this language is ambiguous as to what “as otherwise provided” might refer to, and gives no indication of the intended meaning of the “clear intent of the parties.” See Gilliam v. Nevada Power Co., 488 F.3d 1189, 1194 (9th Cir.2007) (stating that “the terms in an ERISA plan should be interpreted in an ordinary and popular sense as would a[person] of average intelligence and experience” and “courts should first look to explicit language of the agreement to determine, if possible, the clear intent of the parties.”).
The majority opinion argues that the “as otherwise provided” language refers only to non-contracted provider services that are specifically listed as a covered benefits. In particular, the majority opinion states this language exists because it is possible to “contract with Holman Centers to provide additional non-contracted provider services.” The majority opinion then lists “several places where non-emergency, non-contracted services might have been covered.” There is, however, no language in the Behavioral Health Plan that states that the purpose of the “as otherwise provided” language is to allow individuals to purchase additional non-contracted provider services. Additionally, the provisions the majority opinion cites as examples were specifically identified as “NOT A COVERED BENEFIT.” This was not the case with respect to non-contracted provider Residential Treatment Centers.
Indeed, the Behavioral Health Plan’s Schedule of Benefits is ambiguous with respect to whether non-contracted provider Residential Treatment Center services are a covered benefit. Category III, Section C of the Behavioral Health Plan’s Schedule of Benefits addresses coverage at Residential Treatment Centers.1 But that section does not distinguish between contracted providers and non-contracted providers when discussing Residential Treatment Centers. In contrast, other sections in Category III make clear whether they refer to non-contracted provider benefits or contracted-provider benefits. For example, Category III includes separate sections with separate titles for non-contracted provider inpatient services (Section D— “N on-Contracted Providers-Inpatient Hospital”) and contracted provided inpatient services (Section B — “Contracted Providers-Inpatient Hospital”). It also includes separate sections for non-contracted provider outpatient services (Section E— “N on-Contracted Providers-Outpatient Services”) and contracted provided outpatient services (Section A — “Outpatient”). Category III includes, however, only one section for Residential Treatment (Section C — “Residential Treatment, Transitional Care, Day Treatment, Partial Hospitalization”). Moreover, non-contracted provider outpatient services are explicitly listed as “NOT A COVERED BENEFIT” in Category III, whereas Category III does not state that non-contracted provider Resi*1101dential Treatment is not a covered benefit. I therefore believe that it is reasonable to interpret the Schedule of Benefits as covering Resident Treatment Center services from both non-contracted and contracted providers.
Accordingly, I dissent and would hold that the treatment Dupree’s daughter, Alexandra Martini, received at Visions Residential Treatment Center should have been covered under Dupree’s Behavioral Health Plan.
There are multiple provisions in the Group Contract which suggest non-contracted provider services may be covered. The following provisions contain such language:
• Section 1.32 of the Group Contract, which defines "Non-Contracted Provider,” states that 'Enrollees may be liable for cost of non-emergency services provided by Non-Contracted Providers.”
• Section 3.1 of the Group Contract, "Provisions of Services” states that "[i]f the Enrollee wishes to use Non-Contracted Provider, Enrollee would so at his or her own expense, except as otherwise provided in this Group Plan Contract.”
• Section 4.6 of the Group Contract, "Choice of Providers,” states that "Holman shall not reimburse Enrollees who secure services from licensed Non-Contracted Providers, except in emergency circumstances or as outlined in this Group Plan Contract.”
• Section 4.10 of the Group Contract, "Emergency Behavioral Health Treatment,” states that Holman will not cover non-emergency behavioral health treatment provided by Non-Contracted Providers and Hospitals unless otherwise stated in this agreement.”
• Section 5.1 of the Group Contract excludes "[s]ervices provided by Non-Contracted Providers except for those that qualify as *1100emergency behavioral health treatment hospital admissions or are authorized, by the Plan."
(Emphasis added.)
. Category III of the Behavioral Health Plan's Schedule of Benefits includes six sections:
A. "Outpatient”
B. "Contracted Providers-Inpatient Hospital”
C. "Residential Treatment, Transitional Care, Day Treatment, Partial Hospitalization”
D. "Non-Contracted Providers-Inpatient Hospital”
E. "Non-Contracted Providers-Outpatient Services” (listed as "NOT A COVERED BENEFIT”)
F. "Ambulance”