USCA1 Opinion
March 10, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1392
BERTA MAIDANIK SIGUEL AND EDWARD N. SIGUEL,
Plaintiffs, Appellants,
v.
ALLSTATE LIFE INSURANCE COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Edward N. Siguel on brief pro se.
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Craig Browne, Daniel H. Conroy and Goldstein & Manello, P.C. on
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brief for appellee.
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Per Curiam. This appeal concerns an attempt by
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appellant Edward Siguel to collect benefits under an
accidental death and dismemberment insurance policy issued by
appellee Allstate Life Insurance Co. to Siguel's father. The
district court entered judgment for Allstate under Fed. R.
Civ. P. 52(c) after Siguel presented his evidence at a non-
jury trial.1
I.
_
In 1986 Siguel obtained the insurance policy from
Allstate; he listed his father, Isidoro Siguel, as the
insured and his mother, Berta Siguel, as the beneficiary.
According to Siguel the insured, while in Argentina,
sustained an injury to his left forearm from a blow he
received while getting off a public bus. This accident
occurred sometime in January 1988. On February 10, 1988, the
insured went to a hospital out-patient clinic where a
physician, Dr. Pattin, drained an abscess on the insured's
left forearm. Later that same day, the insured died.
Siguel filed a claim in June 1988 on behalf of his
mother for benefits under the policy. As proof of loss,
Siguel submitted a death certificate which listed the cause
of death as cardiorespiratory arrest; he also submitted two
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1. Rule 52(c) provides that "[i]f during a trial without a
jury a party has been fully heard on an issue and the court
finds against the party on that issue, the court may enter
judgment as a matter of law against that party . . . ."
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reports prepared by Dr. Pattin which stated that the
insured's death was accidental. Allstate denied the claim on
December 27, 1989. It had conducted an investigation and
concluded that the cause of death was not the result of an
accident as defined in the insurance policy. On March 28,
1991, Siguel filed an action in federal district court on
behalf of his mother as the beneficiary.2
The parties engaged in discovery and the case was
tried in January 1994. The district court first heard
Siguel's evidence and argument that his father's death was
accidental. It then made Rule 52(c) findings concerning the
cause of death. The court initially determined that an
accident had occurred on the bus. However, the court found
that Siguel had not demonstrated by a preponderance of the
evidence that the accident had resulted in the insured's
death. Specifically, the court concluded there were no
causal connections, first, between the accident on the bus
and the abscess and, second, between the abscess and the
death. The court further stated that the existence of the
link was not a matter that could be proved without the aid of
expert testimony.
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2. At this time, Berta Siguel was represented by her son and
another attorney. For ease of reference, Siguel will be
treated as the plaintiff except where his status as both an
attorney and party is the issue.
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The court then rejected Siguel's theory that the
medical treatment of the abscess itself was faulty, thereby
constituting an accident which caused the death. The court
stated that there was insufficient evidence from which it
could find that the draining of the abscess was an accident.
Again, the court opined that it required expert testimony to
establish that there was something wrong with the treatment
and that this error was responsible for the insured's death.
The court also rejected Siguel's argument that because his
father did not expect to die, his death was accidental; the
court described this legal theory as incorrect and without
any support in the caselaw.
II.
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On appeal, Siguel claims that the district court
erred by (A) ruling on the merits in favor of Allstate; (B)
denying Siguel's motion for a new trial; (C) permitting
Allstate to file late responses to Siguel's request for
admissions; (D) disqualifying Siguel from representing his
mother; (E) denying Siguel (who the court allowed to appear
pro se after his mother assigned her claims to him) the right
to have a lawyer assist him at trial; and (F) refusing to
assess costs or sanctions against Allstate.
A. The Merits.
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As with any case involving questions of insurance
coverage, we start with the language of the policy. It
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provides benefits if the person insured is injured in an
accident. Injury or injured is defined as meaning
bodily injury caused by an accident
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occurring while the insurance is in force
and which injury results within 365 days
after the date of the accident, directly
and independently of all other causes, in
death or any other "Loss" covered by the
Policy. (emphasiss added).
If an individual is injured while a passenger on a public
conveyance the benefit is $200,000. In other cases the
benefit is $60,000.
Siguel first argues that the district court should
have used the "accidental results" approach to interpreting
this kind of insurance contract and that it instead
erroneously used an "accidental means" test.3 Under the
latter test, "the means which produced death or injury must
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have been unintentional." Wickman v. Northwestern Nat'l Ins.
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Co., 908 F.2d 1077, 1085 (1st Cir.) (emphasis added), cert.
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denied, 498 U.S. 1013 (1990). A results approach focusses on
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the unexpected nature of the injury or death itself; thus,
"where the death is not designed and not anticipated by the
deceased, though it is in consequence of some act voluntarily
done by him, it is accidental death." 10 Couch on Insurance
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2d 41:29, at 44 (rev. ed. 1982).
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3. The district court, with the consent of the parties,
applied Illinois and Massachusetts law to this insurance
contract, finding that there was no difference between the
law of the two jurisdictions.
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Under both approaches, however, an accident must be
the proximate cause of the harm or loss.
Irrespective of whether or not it is
required that the means, as well as the
result, be accidental in origin, it has
been held that in determining whether or
not a recovery will be allowed . . . a
court may require that the accident be a
proximate cause of the injury or death,
regardless of the fact that the policy
may not set up this requirement.
1A Appleman, Insurance Law and Practice 362, at 482 (rev.
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ed. 1981) (footnotes omitted); Couch on Insurance 41:12, at
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16 ("In order to bring the harm sustained within the coverage
of an accident policy, it is necessary that the accident be
the proximate cause of the harm sustained.") (footnote
omitted).
We first note that the insurance policy in this
case in fact requires that death be "caused by an accident."
Second, the courts of both Illinois and Massachusetts have
held that to obtain benefits under this kind of insurance, an
accident must be the proximate cause of death or injury. See
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Carlson v. New York Life Ins. Co., 76 Ill. App. 2d 187, 196,
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222 N.E.2d 363, 368 (1966) (where there is both a preexisting
illness and an accidental injury, "the pivotal issue is
whether the accidental injury was the proximate cause of the
resulting loss"); Coleman v. American Casualty Co., 354 Mass.
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762, 762, 237 N.E.2d 22, 22 (1968) (where the insurance
policy provides recovery for "loss resulting directly and
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independently of all other causes from accidental bodily
injury," there must be evidence that but for the insured's
accidental fall, the loss would not have occurred). Thus,
the district court did not err in determining that Siguel
must show that his father's death was precipitated by an
accident.
This also takes care of Siguel's argument that for
death to be accidental all that is required is that it be
unexpected from the insured's point of view. While the
results approach speaks of an unexpected and unforeseen
result, there is no indication in the case law or
commentaries that the unexpected nature of the loss is
sufficient, without more, to trigger coverage. Indeed,
Siguel does not cite any cases so holding. Wickman, on which
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Siguel primarily relies, is distinguishable. There the
deceased was observed standing outside of a guardrail on an
overpass section of an interstate highway. Immediately
before the deceased fell to his death, he was holding on to
the guardrail with only one hand.
To determine whether this death was accidental, we
held that a factfinder must begin with the "reasonable
expectations" of the insured. 908 F.2d at 1088. If there is
insufficient evidence of the insured's point of view, the
finder of fact then should then ask whether a reasonable
person in the insured's position "would have viewed the
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injury as highly likely to occur as a result of the insured's
intentional conduct." Id. Based on these principles, we
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upheld the magistrate's finding that the deceased knew or
should have known that death was a likely consequence of his
intentional act in standing on the outside of the guardrail
and holding on with one hand. Id. at 1088-89.
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It is obvious that the issue in Wickman was how to
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determine when the result of an intentional act is
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inadvertent. Focussing on the insured's expectations
regarding the outcome of his or her behavior makes sense in
this context. Here, though, there is no allegation that the
insured's conduct contributed in any way to his death. Thus,
his expectations regarding when he would die are immaterial.
Siguel similarly argues that his father did not
expect to die after having the abscess on his left arm
drained. Thus, he asserts, when death unexpectedly occurs
during a medical procedure, it should be viewed as
accidental. However, where medical treatment is not sought
for an accident, the "mere fact that the insured dies . . .
as a result of such treatment does not constitute an accident
. . . ." Couch on Insurance 41:113, at 187. There is no
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evidence that, first, the accident on the bus resulted in the
abscess (the reason treatment was sought) or, second, that
there was anything wrong with the way in which the draining
procedure was performed.
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Siguel next asserts that because his father did not
expect to suffer cardiorespiratory failure, the illness
itself was accidental. Siguel then posits that if the
cardiorespiratory failure was an accident, his father's death
was accidental. Siguel first set forth this theory in his
motion for reconsideration filed after trial ended. In any
event, Siguel again ignores the requirement of causation.
For example, in Scholle v. Continental Nat'l
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American Group, 44 Ill. App. 3d 716, 358 N.E.2d 893 (1976),
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the insured fell and subsequently died of a ruptured
aneurysm. The court held that to recover, plaintiff was
required to produce direct or circumstantial evidence to show
that there was a "causal relationship" between the fall and
the burst aneurysm. 44 Ill. App. 3d at 721, 358 N.E.2d at
897. Thus, "[w]here there is no occurrence which may be
deemed an accident, it necessarily follows that the harm
sustained as the consequence of a disease is not within the
coverage of an accident policy." 10 Couch on Insurance
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41:70, at 105 (footnotes omitted).
Siguel finally avers that the district court erred
by requiring expert medical testimony to link the accident on
the bus, or the draining of the abscess, to his father's
death. He argues that because the insurance contract did not
require expert testimony, the court could not demand it.
Siguel fails to cite any law in support of this proposition.
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Further, cases from both Illinois and Massachusetts reveal
that experts routinely testify concerning this issue. See
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Wahls v. Aetna Life Ins. Co., 122 Ill. App. 3d 309, 461
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N.E.2d 466 (1983); Carlson v. New York Life Ins. Co., supra,
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76 Ill. App. 2d 187, 222 N.E.2d 363; Barnett v. John Hancock
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Mut. Life Ins. Co., 304 Mass. 564, 24 N.E.2d 662 (1939);
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Wrobel .v General Accident, Fire & Life Assurance Corp., 288
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Mass. 206, 192 N.E. 498 (1934).
B. New Trial Motion.
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Siguel requested a new trial based on his assertion
that the district court had misunderstood the law concerning
accidental death insurance contracts and because Allstate had
refused to turn over to Siguel the transcript of the
deposition of Dr. Pinto, the physician who had investigated
the claim for Allstate in Argentina. We review the denial of
a motion for a new trial for abuse of discretion. deMars v.
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Equitable Life Assurance Soc'y of the United States, 610 F.2d
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55, 64 (1st Cir. 1979).
Based on our discussion of the merits of Siguel's
claim, we find that the court was fully justified in
rejecting the motion for a new trial. As for the transcript
of Dr. Pinto's deposition, we make only two observations.
First, Siguel does not specify what information provided by
Dr. Pinto would have helped him in establishing that the
insured's death was accidental. Second, Siguel was present
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at the deposition and obtained a transcript of Dr. Pinto's
testimony prior to the end of trial. Thus, there is no
excuse for Siguel's failure so to specify.
C. Request for Admissions.
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On March 28, 1991, Siguel filed the complaint in
this case. At the same time, he served a request for
admissions, interrogatories, and a request for documents.
Allstate and Siguel agreed to extend the time for the filing
of the answers to the interrogatories and the responses to
the document request. Allstate states that it believed that
the parties also had agreed to extend the time for it to
answer the request for admissions. Siguel claims that the
agreement never applied to the request for admissions.
Therefore, on June 24, 1991, Allstate filed a motion to
withdraw the matters deemed admitted by its failure to file
timely responses and a motion to extend the time for
responding to the admissions request. Siguel opposed the
motions and, on July 3, 1991, filed a motion for summary
judgment based on the factual issues "admitted" by Allstate.
On September 18, a magistrate judge granted Allstate's
motions.
Fed. R. Civ. P. 36(a) provides that a matter is
deemed admitted unless a response is filed "within 30 days
after service of the request, or within such shorter or
longer time as the court may allow . . . ." The district
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court may not only extend the time for filing answers to
requests for admissions, but also may permit withdrawal of an
admission "when the presentation of the merits of the action
will be subserved thereby and the party who obtained the
admission fails to satisfy the court that withdrawal . . .
will prejudice that party in maintaining the action or
defense on the merits." Fed. R. Civ. P. 36(b). Contrary to
Siguel's assertion, the focus under Rule 36(b) is not on the
moving party's explanations for its non-complaince with the
Rule. See F.D.I.C. v. Prusia, 18 F.3d 637, 640 (8th Cir.
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1994). Thus, Allstate is not required to show excusable
neglect. Id. (citation omitted). We review a decision to
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allow withdrawal of admissions for abuse of discretion. Farr
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Man & Co. v. M/V Rozita, 903 F.2d 871, 876 (1st Cir. 1990).
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The magistrate judge found that the matters deemed
admitted were determinative of all the material facts in
issue. As a result, "[t]he first half of the test is clearly
satisfied since the effect of upholding the admissions would
be to practically eliminate any presentation of the merits."
Westmoreland v. Triumph Motorcycle Corp., 71 F.R.D. 192, 193
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(D. Conn. 1976). We thus turn to whether Siguel satisfied
his burden of demonstrating prejudice to his ability to
maintain the action.
Siguel claims that Allstate's "delaying tactics"
held up the proceedings and prevented him from conducting
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discovery for almost one year. Specifically, Siguel asserts
that during this time he refrained from searching for
witnesses who might have had knowledge concerning the
circumstances of the insured's death. Siguel also complains
that he was unable to conduct discovery prior to the district
court's decision allowing withdrawal of the admissions
because he did not know what facts were in dispute. These
claims are unavailing. Siguel knew from the time Allstate
denied coverage in 1989 that it was alleging that his
father's death was not an accident and that this would be the
major issue in the case.
Further, prejudice under Rule 36(b) "relates to the
difficulty a party may face in proving its case, e.g., caused
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by the unavailability of key witnesses, because of the sudden
need to obtain evidence with respect to the questions
previously answered by the admissions." Brook Village N.
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Associates v. General Elec. Co., 686 F.2d 66, 70 (1st Cir.
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1982). There was no "sudden need" for Siguel to obtain
evidence here. He was on notice as of June 24, 1991 that
Allstate was attempting to withdraw its admissions. This was
soon after the case was initiated and quite a while before a
trial likely would occur. Finally, that Siguel filed a
motion for summary judgment shortly after Allstate requested
withdrawal of the admissions does not constitute prejudice.
See F.D.I.C. v. Prusia, 18 F.3d at 640. Given our finding,
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we do not think that the district court erred in refusing to
award costs to Siguel.
D. Disqualification.
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In February 1992, Allstate moved to have Siguel
disqualified from representing his mother on the ground that
he would be a witness in the case. On March 23, 1992, a
magistrate judge denied the motion without prejudice to its
renewal. She acknowledged the financial hardship attendant
upon securing new counsel and recognized that the proceedings
still were in the discovery stage. However, she ordered
Siguel's mother to obtain co-counsel by May 18, 1992.
Siguel then moved for an extension of time and
Allstate sought reconsideration of the denial of the
disqualification motion. The magistrate judge gave Siguel
until September 30 to secure co-counsel. Instead of
complying with the magistrate judge's directive, Siguel filed
a motion to permit him to substitute himself as the plaintiff
in the case. In January 1993, and without ruling on this
motion, the magistrate judge recommended disqualification.
She found that Siguel's role as a witness would conflict with
his duty to his mother effectively to represent her. The
district court agreed and adopted her recommendation.
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We review a decision disqualifying an attorney from
representing his or her client for abuse of discretion.4
Fiandaca v. Cunningham, 827 F.2d 825, 828 (1st Cir. 1987).
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Disciplinary Rule 5-102(A), 359 Mass. 796 (1972), provides
that an attorney who learns that he "ought to be called as a
witness on behalf of his client . . . shall withdraw from the
conduct of the trial . . . ." One of the reasons for this
rule is that if a lawyer appears both as an advocate and
witness, "he becomes more easily impeachable for interest and
thus may be a less effective witness." Borman v. Borman, 378
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Mass. 775, 786, 393 N.E.2d 847, 855 (1979) (internal
quotation marks and citation omitted).
The magistrate judge found that Siguel, as a
physician, had been involved in his father's health care from
1982 through 1987. He had discussed with Dr. Pattin the
events that led to the draining of the abscess and typed a
report from Dr. Pattin's handwritten notes. This report
concluded that the accident on the bus had caused the
insured's death. Dr. Pattin signed the report before he (Dr.
Pattin) died. Further, Siguel was an active (if not the
sole) participant in the attempt to gain benefits under the
insurance policy.
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4. Allstate argues that Siguel has no standing to raise this
claim as his mother no longer is a party. Because we find
that his claim fails on the merits, we do not address the
standing question.
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Disqualification is appropriate where an attorney
is intimately involved in the events that form the subject
matter of the action. American Hosp. Supply Corp. v. Roy
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Lapidus, Inc., 493 F. Supp. 1076, 1078 (D. Mass. 1980);
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Serody v. Serody, 19 Mass. App. Ct. 411, 415, 474 N.E.2d
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1171, 1174 (1985). It is apparent from the foregoing that
Siguel's familiarity with most of the facts underlying this
action makes it almost certain that he will be called as a
witness. Also of relevance is that the information about
which Siguel probably would testify is not readily obtainable
from other sources. See Serody, 19 Mass. App. Ct. at 414,
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474 N.E.2d at 1174.
In his role as a witness, Siguel's credibility will
be an issue. For example, the parties contest the
admissability of Dr. Pattin's report; Siguel's part in
creating that report will not aid his mother's case. As the
Supreme Judicial Court pointed out, the need for
disqualification is the greatest where the outcome of the
case likely will turn on the lawyer's credibility as a
witness. Borman, 378 Mass. at 786-87, 393 N.E.2d at 855.
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Siguel argues that DR 5-102(A) only applies to
trial and not to discovery proceedings. He cites no cases
for this proposition. It seems to us that if new counsel is
to take over at trial, the sooner he or she is involved in
the case the better for the client. To wait until the eve of
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trial would hamper the presentation of the case -- not a
result, we think, contemplated by the disciplinary rules.
Siguel also posits that since there was a non-jury trial in
this case, there was no chance of the judge being confused
over his appearance as both witness and lawyer. This
argument misses the mark. The concern is over the
credibility of a lawyer who also appears as a witness and a
judge assesses credibility just as the jury does.
Finally, Siguel maintains that requiring his
withdrawal worked a "substantial hardship" on his mother.
See DR 5-101(B)(4), 359 Mass. 796 (1972). Specifically, he
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alleges that she did not have the financial wherewithal to
hire another attorney. We do not agree. As the magistrate
judge pointed out, the case is not especially complex and
another attorney could master the facts and the issues in a
comparatively short period of time. In any event, this
problem was solved when the district court permitted Siguel
to accept the assignment of the claim from his mother and
granted Siguel's motion to appear pro se.
E. Assistance of Counsel.
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Once the court granted Siguel leave to appear pro
se, Siguel requested that he be allowed to hire counsel to
assist him in trying the case. He argued that just as
Allstate had hired local counsel, he too should be allowed
the same opportunity. The court denied the motion, stating
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that it did not "permit a combination of a lawyer and a pro
se." Siguel argues that by so holding, the court improperly
created a new local rule. Siguel's claim lacks merit.
28 U.S.C. 1654 provides that "[i]n all courts
of the United States the parties may plead and conduct their
own cases personally or by counsel . . . ." Siguel admits
that he could not find any cases in support of his
interpretation of 1654. The reason, we think, is plain.
"Section 1654 does not itself confer any right to `hybrid
representation.'" O'Reilly v. New York Times Co., 692 F.2d
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863, 868 (2d Cir. 1982) (to claim the right to self-
representation, a party must "clearly and unequivocally
discharge any lawyer"). Thus, the district court's denial of
Siguel's request to employ a lawyer to aid him was not in
error.
F. Costs and Sanctions.
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Siguel appeals from the denial by the district
court of a motion for sanctions (docket # 188) filed shortly
before trial commenced. Siguel sought sanctions for
Allstate's alleged (1) failure to comply with deadlines for
filing pleadings and responding to discovery requests, (2)
failure to prepare a joint stipulation concerning procedures
for the taking of depositions in Argentina, (3) failure to
file a joint statement of undisputed facts, (4) failure to
prepare a list of documents it considered privileged, and (5)
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failure to serve subpoenas in compliance with Fed. R. Civ. P.
45. Siguel also claims that the district court erred in
granting an extension of time to Allstate to file its answer
to an amended complaint; Siguel asserts that the court
granted this motion on the mistaken assumption that Siguel
had not filed an opposition to an extension of time.
We have reviewed the record and the parties' briefs and
cannot find that the district court abused the broad
discretion it has in these areas. See In re Recticel Foam
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Corp., 859 F.2d 1000, 1006 (1st Cir. 1988) ("[t]rial courts
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enjoy a broad measure of discretion in managing pretrial
affairs, including the conduct of discovery"). Consequently,
"[w]e will intervene in such matters only upon a clear
showing of manifest injustice, that is, where the lower
court's discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved party." Mack v. Great
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Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989).
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Essentially, we agree with the district court's conclusion
that Siguel failed to show how he was prejudiced by either
the way in which the court managed the pretrial proceedings
in this case or by Allstate's alleged failure to comply with
the Federal Rules or court orders concerning discovery.
The judgment of the district court is affirmed.
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