
    Cynthia ALLOCCO, Plaintiff-Appellant, and Ralph Allocco, Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY, a foreign corporation, Defendant-Appellee. Cynthia Allocco, wife, Plaintiff-Appellant, v. Metropolitan Life Insurance Company, a foreign corporation, Defendant-Appellee.
    Nos. 09-16021, 09-17609.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 18, 2011.
    Filed March 29, 2011.
    Willie Jordan-Curtis, The University of Arizona James E. Rogers College of Law, Tucson, AZ, for Plaintiff-Appellant.
    Cynthia Allocco, Yuma, AZ, pro se.
    Scott Michael Bennett, Esquire, Stephen M. Bressler, Esquire, Partner, Lewis and Roca LLP, Phoenix, AZ, for Defendant-Appellee.
    Before: HUG, REAVLEY , and W. FLETCHER, Circuit Judges.
    
      
       The Honorable Thomas M. Reavley, Senior Circuit Judge for the Fifth Circuit, sitting by designation.
    
   MEMORANDUM

This case involves two consolidated appeals by plaintiff-appellant Cynthia Allocco stemming from her diversity suit against defendant-appellee Metropolitan Life Insurance Company (“Met Life”). First, Al-locco appeals the district court’s decision granting summary judgment to Met Life on her bad faith tort claim. Second, she appeals the district court’s order granting Met Life $30,928.40 in attorneys’ fees under Ariz.Rev.Stat. § 12-341.01. Because the parties are familiar with the factual and procedural history of this case, we do not recount additional facts except as necessary to explain the decision.

We review the district court’s grant of summary judgment de novo. Broussard v. Univ. of Cal., 192 F.3d 1252, 1255 (9th Cir.1999). We review the award of attorneys’ fees for abuse of discretion. Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1318 (9th Cir.1997). Jurisdiction is proper pursuant to 28 U.S.C. § 1291 and we affirm the district court’s grant of summary judgment on the bad faith claim and reverse the award of attorneys’ fees.

1. The bad faith tort claim

We affirm the district court’s grant of summary judgment to Met Life on Allocco’s bad faith claim. Under Arizona law, the tort of bad faith requires both a contract and a “special relationship” between the parties. Burkons v. Ticor Title Ins. Co., 168 Ariz. 345, 813 P.2d 710, 720 (1991). However, contractual privity is not required if the defendant is a third-party administrator of an insurance contract. See Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127, 1137-38 (1982); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 699 P.2d 376, 386 (1984).

Here, there is no contractual relationship between Allocco and Met Life because Met Life is the third-party administrator of her employer’s salary continuation plan. Moreover, we cannot accept Alloeco’s argument that contractual privity is unnecessary because the record does not support her assertion that the salary continuation plan is an insurance contract. See Guaranteed Warranty Corp. v. State ex. rel Humphrey, 23 Ariz.App. 327, 533 P.2d 87, 90 (1975) (establishing a five-factor test for analyzing whether a contract is insurance).

2. Attorneys’ fees

We reverse the district court’s award of attorneys’ fees to Met Life. The court made several errors in its analysis of the factors trial courts should consider in deciding whether to award fees under Ariz.Rev.Stat. § 12-341.01. See Assoc. Indemnity Corp. v. Warner, 143 Ariz. 567, 694 P.2d 1181, 1184 (1985).

The district court drew unreasonably negative conclusions about merits of Alloc-co’s claim in its discussion of the first Associated Indemnity factor. The fact that Allocco prevailed in the first trial and the fact that her employer eventually paid her the disputed benefits weigh against granting attorneys’ fees.

In its discussion of the third factor, the court elected to give “very little weight” to Alloceo’s financial circumstances because “[pjlaintiffs without significant resources must not be free to pursue frivolous contract litigation.” This rationale, however, is inapplicable to Allocco because her suit was not frivolous.

Additionally, in considering the fourth factor, the district court concluded that Met Life had prevailed on all issues, relying in part on American Express’s decision to pay Allocco salary continuation benefits. This reasoning improperly penalizes Alloc-co for her success in obtaining the disputed benefits.

Finally, the district court’s conclusion that the novelty of Allocco’s claim weighed in favor of granting fees is contrary to Arizona precedent. See Rowland v. Great States Ins. Co., 199 Ariz. 577, 20 P.3d 1158, 1168 (2001); Scottsdale Mem’l Health Sys., Inc. v. Clark, 164 Ariz. 211, 791 P.2d 1094, 1099 (1990). A court “by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

Judgment Affirmed but Modified by Vacating the Attorneys’ Fees Award. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     