Siguel v. Allstate

March 10, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1392

BERTA MAIDANIK SIGUEL AND EDWARD N. SIGUEL,

Plaintiffs, Appellants,

v.

ALLSTATE LIFE INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Boudin, Circuit Judges.

Edward N. Siguel on brief pro se.

Craig Browne, Daniel H. Conroy and Goldstein & Manello, P.C. on

brief for appellee.

Per Curiam. This appeal concerns an attempt by

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

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.

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.

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.

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

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

have been unintentional." Wickman v. Northwestern Nat'l Ins.

Co., 908 F.2d 1077, 1085 (1st Cir.) (emphasis added), cert.

denied, 498 U.S. 1013 (1990). A results approach focusses on

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

2d 41:29, at 44 (rev. ed. 1982).

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.

ed. 1981) (footnotes omitted); Couch on Insurance 41:12, at

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

Carlson v. New York Life Ins. Co., 76 Ill. App. 2d 187, 196,

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.

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

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

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.

It is obvious that the issue in Wickman was how to

determine when the result of an intentional act is

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

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

American Group, 44 Ill. App. 3d 716, 358 N.E.2d 893 (1976),

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

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

Wahls v. Aetna Life Ins. Co., 122 Ill. App. 3d 309, 461

N.E.2d 466 (1983); Carlson v. New York Life Ins. Co., supra,

76 Ill. App. 2d 187, 222 N.E.2d 363; Barnett v. John Hancock

Mut. Life Ins. Co., 304 Mass. 564, 24 N.E.2d 662 (1939);

Wrobel .v General Accident, Fire & Life Assurance Corp., 288

Mass. 206, 192 N.E. 498 (1934).

B. New Trial Motion.

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.

Equitable Life Assurance Soc'y of the United States, 610 F.2d

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.

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.

1994). Thus, Allstate is not required to show excusable

neglect. Id. (citation omitted). We review a decision to

allow withdrawal of admissions for abuse of discretion. Farr

Man & Co. v. M/V Rozita, 903 F.2d 871, 876 (1st Cir. 1990).

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

(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

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.

Associates v. General Elec. Co., 686 F.2d 66, 70 (1st Cir.

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.

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).

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

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.

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

Lapidus, Inc., 493 F. Supp. 1076, 1078 (D. Mass. 1980);

Serody v. Serody, 19 Mass. App. Ct. 411, 415, 474 N.E.2d

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,

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.

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

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.

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

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.

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

Corp., 859 F.2d 1000, 1006 (1st Cir. 1988) ("[t]rial courts

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

Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989).

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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