Vickers v. Boston Mutual

• Court: Court of Appeals for the First Circuit
• Decided: February 4, 1998
• Docket: 97-1949
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit



                                 ____________________



        No. 97-1949



                           CECILE E. VICKERS, INDIVIDUALLY

                               AND AS EXECUTRIX OF THE

                          ESTATE OF CHARLES E. VICKERS, JR.,



                                 Plaintiff, Appellee,



                                          v.



                        BOSTON MUTUAL LIFE INSURANCE COMPANY,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Zachary R. Karol, U.S. Magistrate Judge]
                                            _____________________

                   [Hon. Reginald C. Lindsay, U.S. District Judge]
                                              ___________________

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Lynch, Circuit Judge.
                                         _____________



                                 ____________________


Ralph C. Copeland  with whom Copeland &  Hession was on brief  for
            _________________            ___________________

        appellant.

            John A.  Mavricos with  whom Christopher, Hays, Wojcik  & Mavricos
            _________________            _____________________________________

        was on brief for appellee.



                                 ____________________



                                   February 2, 1998

                                 ____________________



ALDRICH, Senior Circuit Judge.  In   August,  1992,
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            Charles E. Vickers, Jr., (Vickers), an employee insured under



            an ERISA,  29 U.S.C.    1001 et seq.,  group policy covering,



            within limits,  accidental death,  was fatally  injured in  a



            one-car automobile  crash in  Arizona.   Plaintiff  executrix



            sued in the United States  District Court for the District of



            Massachusetts  and   was  awarded   the  death   benefit  and



            attorney's fees  on a motion for summary judgment.  Defendant



            Boston Mutual Life Insurance Company  (Company), claiming the



            death was not covered by the policy, appeals.  We affirm.



                                      The Facts
                                      _________



                      Vickers, a 55 year old male, was driving alone when



            his car went off the road on a curve, vaulted over a 15  foot



            drop, and struck a tree with  great force.  He died within  a



            half hour.  The Arizona Medical Examiner performed an autopsy



            the following day and listed a number of diagnoses, including



            "coronary  arteriosclerosis,  occlusive,  severe,"  and  much



            physical trauma.  He gave as the "Cause of Death:"



                      Multiple blunt  force traumatic  injuries

                      secondary  to   motor  vehicle   accident

                      precipitated     by    acute     coronary

                      insufficiency.



            For  "Manner  of  Death,"  choosing  between  "Natural"   and



            "Accident,"  he  chose  "Accident."    Whether  this  was  an



            accident within the  policy terms, however, depends  upon the



            policy terms.   The undisputed  facts are that the  crash was



            caused by Vicker's  heart attack, but the  sole physiological


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cause of  death  was the  physical  injury sustained  in  the



            crash.  The heart attack alone would not have been fatal.



                      We quote from the policy terms.



                                      THE POLICY



                           We agree  to pay  benefits for  loss

                      from bodily injuries:



                           a) caused by an accident . . . ; and



                           b) which, directly and from no other

                      causes, result in a covered loss.



                           We will not pay benefits if the loss

                      was caused by:



                           a)  sickness,  disease,   or  bodily

                      infirmity; or



                           b) any of  the Exclusions listed  on

                      Page (sic) 2-3.



                                       . . . .



                          THIS IS A LIMITED ACCIDENT POLICY

                  WHICH DOES NOT PAY BENEFITS FOR LOSS FROM SICKNESS



                                       . . . .



                                      EXCLUSIONS
                                      __________



                           No benefit will be paid for loss

                      resulting from:



                                       . . . .



                           6.  Sickness, disease or bodily

                      infirmity.



                      The  basic arguments are these:  Plaintiff says the



            policy pays  for "loss,"  viz., death,  from bodily  injuries



            that were caused  by an accident, and the  exclusion does not



            apply because  the heart  attack caused  the accident  rather


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than the  death.   The  Company  says the  crash  was not  an



            accident, and that  even if it was, the  bodily injuries that



            caused the loss resulted from an accident caused by the heart



            attack,  so that the basic cause of the loss was the diseased



            heart.



                      We  can  easily  dispose  of  the  Company's  first



            argument.     In  its   view,  and  relying   on  Wickman  v.
                                                              _______



            Northwestern  National  Insurance  Co., 908  F.2d  1077  (1st
            ______________________________________



            Cir.), cert. denied, 498 U.S.  1013 (1990), the crash was not
                   ____________



            an  "accident," as  "a reasonable  person  in the  decedent's



            shoes should have foreseen that if one suffers a heart attack



            while driving and becomes unconscious, loss of control of the



            vehicle  is inevitable  and would  likely  result in  serious



            bodily  injury  and  possibly  death."    Perhaps,  but  some



            subjective expectation of  a heart attack would  be required,



            and there was  none here.  The Company's  argument that there



            was no accident is patently frivolous.



                      Otherwise,   to   a   degree,   overlooking   legal



            precedents,  we can understand both parties.  Surely Vickers'



            family thinks of  him as having been killed  in an automobile



            accident.  But the Company says, on plaintiff's theory,  what



            is the  point of the  two policy provisions  denying coverage



            for  and  excluding  loss "caused  by"  and  "resulting from"



            "disease or bodily  infirmity"?  There was no  need for those



            disclaimers   in  an   accident   policy  unless   there  was


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contemplated  a  disease-connected  accident to  begin  with.



            Manifestly  there would  have been  no accident  and no  loss



            here, were it not for the insured's diseased heart.



                      On reflection,  as a  matter of  pure logic,  quite



            possibly this issue could be answered in the Company's favor.



            But,  if so,  this  raises  another question.    Why did  the



            Company  write a  policy that  called for  the services  of a



            logician  instead of relying  on "plain meanings  . . . which



            comport  with  the  interpretations  given   by  the  average



            person"?  Wickman, 908 F.2d at 1084.  We suggest two reasons.
                      _______



            (1) Inefficiency;  poor, ill-informed, draftsmanship.   (2) A



            well-advised drafter,  persuaded by  the sales-department  to



            simplify and not use intimidating language.1  Neither reflect



            well on the Company.



                                       The Law
                                       _______



                      We held  in  Wickman that  the  terms of  an  ERISA
                                   _______



            policy  are to  be interpreted  under  principles of  federal


____________________



            1.  We can  understand that sales  agents might not  like the

            policy wording in Sekel v. Aetna Life Insurance Co., 704 F.2d
                              _____    ________________________

            1335,  1336-37  (5th  Cir.  1983)  (applying  Texas  law  and

            reversing an award to the insured),



                      The insurance  provided under  this Title

                      does not include, and no payment shall be

                      made  for, any  loss  resulting from  any

                      injury caused or contributed to by, or as

                      a consequence  of, any  of the  following

                      excluded risks, even though the proximate

                      or   precipitating  cause   of  loss   is

                      accidental bodily injury:  (a) bodily  or

                      mental infirmity; or (b) disease . . . .



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substantive law.  908 F.2d at 1084; see also Pilot Life  Ins.
                                                ________ ________________



            Co. v. Dedeaux, 481 U.S. 41, 56 (1987).  In view of the still
            ___    _______



            "formative  stage" of federal law here we apply "common-sense



            canons  of  contract  interpretation"  and  borrow  the "best



            reasoned" concepts  from state law.   908  F.2d at 1084.   If



            this  Massachusetts   insurer's  draftsman   had  looked   to



            Massachusetts law, he should have found the following:



                      In Bohaker v. Travelers Insurance Co., 215 Mass. 32
                         _______    _______________________



            (1913),  the  insured,  delirious  from  typhoid  fever,  was



            temporarily  left  alone in  an  upstairs  bedroom.   He  was



            thereafter found, fatally  injured, on the ground  outside an



            open  window.  The  policy insured against  "bodily injuries,



            effected  directly or  independently  of  all  other  causes,
                      __________________________________________________



            through  external, violent and accidental means."   Id. at 32
                                                                ___



            (emphasis added).  The court said,



                      A  sick  man  may be  the  subject  of an

                      accident,  which  but  for  his  sickness

                      would not  have  befallen him.   One  may

                      meet his  death by falling  into imminent

                      danger  in a  faint or  in  an attack  of

                      epilepsy.  But such an event commonly has

                      been  held to  be the result  of accident

                      rather than of disease.



            Id. at  34.  The  court held  for the  insured.   To look  at
            ___



            common understanding is a fundamental principle.



                      In Vahey v. John Hancock Mutual Life Insurance Co.,
                         _____    ______________________________________



            355 Mass.  421  (1969), the  insured,  while walking  on  the



            street, had a major epileptic seizure, causing him to fall to


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the pavement, striking his head.  Death came from a fractured



            skull and cranial bleeding.  The policy provided:



                      No  benefit  will  be  payable under  the

                      "Accidental Death  Benefit" provision  if

                      the Insured's death  results, directly or
                                                    ___________

                      indirectly, or wholly or partially, from:
                      __________

                      (1)  any infection  or  bodily or  mental

                      infirmity or  disease existing  before or

                      commencing  after  the  accidental injury

                      . . . .



            Id. at  422 n.1  (emphasis added).   The  court held for  the
            ___



            defendant.  Thus two, more exactly, one little word.



                      Defendant  would have it that "directly and from no



            other causes" is  "not only analogous to 'indirect' (sic) but
                                                     __________



            is  broader and more  extensive."  Our  logician might agree.



            But why  analogies?  Why overlook Bohaker, and neglect Vahey?
                                              _______              _____



            Defendant gains nothing by saying, broadly,



                      [P]roximate  cause . . .  focuses on  the

                      foreseeability between the  event and the

                      injury  caused as  a result of  the event

                      and does not require a direct connection.



                                      . . . . .



                      [T]he nexus between the  heart attack and

                      the  bodily  injuries suffered  from  the

                      crash was immediate  and should be viewed

                      as one entire event even though the heart

                      attack was not the physiological cause of

                      the decedent's death.



            This is no  answer when we are interpreting  the word "cause"



            in a layman's insurance policy.



                                   Attorney's Fees
                                   _______________



                      We have gone to this length, in what would normally



            call  for a short  and routine affirmance,  because defendant


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appeals from  the court's  awarding prejudgment  interest and



            attorney's  fees.    We  review   this  award  for  abuse  of



            discretion.   See  Cottrill v.  Sparrow,  Johnson &  Ursillo,
                          ___  ________     _____________________________



            Inc.,  100 F.3d  220,  223 (1st  Cir.  1996).   This  being a
            ____



            contract action,  with liquidated  damages, defendant  cannot



            object to  interest:  it  has had the use  of promised money.



            Cf. id.  at 224.   As  to fees, should  defendant have  known
            ___ ___



            there was no merit  in its defense?   See id.  at 225.   Even
                                                  ___ ___



            now, as against the  exhaustive list of opposing  state cases



            cited  in the  diligent magistrate  judge's  opinion, not  to



            mention  the Massachusetts cases, defendant has found no case



            directly in its favor.   We cannot fault the district court's



            award  of  attorney's fees  under  Cottrill  as an  abuse  of
                                               ________



            discretion.



                      The $20,000 fee, which at, say, $200 an hour, comes



            to  100 hours, possibly suggests the standard contingency fee



            figure2 rather  than the  actual time  needfully  spent.   We



            approve it, but  shall add nothing  for the further  briefing



            needed for this court.



                      Affirmed, with double costs.
                      ____________________________


____________________



            2.  The death benefit was $50,000.



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