United States Court of Appeals
For the First Circuit
No. 00-1679
TINA L. MAURICE, ETC.,
Plaintiff, Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Selya and Stahl, Circuit Judges,
and Lisi,* District Judge.
Fernand A. Martineau and Richard D. Hewes, with whom Hewes
& Hewes was on brief, for appellant.
William D. Hewitt, with whom Catherine R. Connors and Pierce
Atwood were on brief, for appellee.
December 21, 2000
____________
*Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. This appeal evolves from a
tragic highway accident in which a motorcycle driven by David M.
Maurice collided with an automobile operated by Bonnie Pike.
Maurice was killed. After securing an appointment as the
personal representative of his estate, his widow, plaintiff-
appellant Tina L. Maurice, asserted a variety of claims arising
out of her husband's death.
Pike had only modest insurance. Her carrier paid the
appellant its policy limit: $50,000. The appellant then turned
to defendant-appellee State Farm Mutual Automobile Insurance
Company (State Farm). At the time of the accident, the Maurices
owned three vehicles (including the motorcycle). Each was
covered by a separate State Farm policy. The appellant tried to
"stack" the policies, demanding payment of the policy limits for
uninsured/underinsured motorist (UM) coverage under all three
polices. As regards the non-motorcycle policies, State Farm
refused, citing the so-called other owned vehicle exclusion (the
OOV exclusion) that appeared in each of those policies.1 That
exclusion reads:
1State Farm did, however, pay for property damage to the
motorcycle as provided under the motorcycle policy. It also
paid an accidental death benefit of $5,000 under one of the
other policies. Neither of those payments is in dispute in this
appeal, nor is the availability of UM coverage under the
motorcycle policy.
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THERE IS NO COVERAGE
* * *
2. FOR BODILY INJURY TO AN INSURED:
a. WHILE OCCUPYING A MOTOR
VEHICLE OWNED BY YOU, YOUR
SPOUSE OR ANY RELATIVE IF IT
IS NOT INSURED FOR THIS
COVERAGE UNDER THIS POLICY . .
. .
(Emphasis omitted).
Undaunted by the plain language of the OOV exclusion,
the appellant sued. Acting on her own behalf and on behalf of
her late husband's estate, she brought an action for damages
against State Farm in a Maine court. She cited State Farm's
refusal to pay under the UM coverages and alleged, inter alia,
breach of contract and breach of the duty of good faith and fair
dealing. State Farm removed the action to the United States
District Court for the District of Maine. See 28 U.S.C. §§
1332(a), 1441. In due course, it moved for dismissal. Fed. R.
Civ. P. 12(b)(6). In an unpublished memorandum, Magistrate
Judge Cohen recommended granting the motion. At the same time,
he recommended denying the appellant's motion for leave to file
an amended complaint (the ostensible purpose of which was to add
a count for respondeat superior liability based on certain
actions of the insurance agent who had handled the Maurices'
account).
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The appellant objected to the recommended rulings.2
The district court nonetheless adopted them in toto and entered
judgment for State Farm. This appeal followed.
In adjudicating this dispute, Magistrate Judge Cohen
wrote a thoughtful, meticulously reasoned rescript, dated
February 24, 2000, in which he concluded that the OOV exclusion
was valid and foreclosed the appellant's claims. Having
entertained oral argument, perused the record, and carefully
considered the parties' briefs, we find no principled basis for
disagreement. To the contrary, we regard this as a near-perfect
situation in which to put into practice our previous
pronouncement that "when a lower court produces a comprehensive,
well-reasoned decision, an appellate court should refrain from
writing at length to no other end than to hear its own words
resonate." Lawton v. State Mut. Life Assur. Co., 101 F.3d 218,
220 (1st Cir. 1996); accord Ayala v. Union de Tronquistas, 74
F.3d 344, 345 (1st Cir. 1996); In re San Juan Dupont Plaza Hotel
Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993). Consequently, we
2
The magistrate judge had the authority to decide the motion
to amend outright. See 28 U.S.C. § 636(b)(1)(A) (empowering
magistrate judges to rule on non-dispositive motions); Fed. R.
Civ. P. 72(a) (same). Here, however, the magistrate chose
merely to make a recommendation to the district court. We
descry no error and, in all events, neither party has complained
about this procedure.
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affirm the judgment for substantially the reasons elucidated in
the decision below. We add only six brief comments.
First: The OOV exclusion that appears in the two State
Farm policies is nose-on-the-face plain. Since the motorcycle
which the decedent was driving at the time of the accident was
owned by him but insured under a separate policy, this
exclusion, by its terms, avoids coverage for the appellant's
claims.
Second: We reject the appellant's argument that a
state statute, 24-A M.R.S.A. § 2902-D, renders the OOV exclusion
void. That statute provides:
An insurer may not sell or renew a
motor vehicle liability insurance policy on
or after January 1, 1994 with a provision
that excludes coverage for injury to the
insured or any family member of the insured.
24-A M.R.S.A. § 2902-D. The statute's reference to liability
insurance is not a mere fortuity. Maine's highest court has
authoritatively interpreted the statute, albeit in an earlier
iteration, to apply only to third-party liability coverages.
Cash v. Green Mountain Ins. Co., 644 A.2d 456, 457-58 (Me.
1994). In so holding, Cash explicitly rejected the same
argument that the appellant advances here. Id. at 457. To
cinch matters, Cash is merely one in a long line of Maine cases
that have upheld substantially similar exclusions to UM
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coverage. E.g., Daigle v. Hartford Cas. Ins. Co., 573 A.2d 791,
792 (Me. 1990); Bear v. United States Fid. & Guar. Co., 519 A.2d
180, 182 (Me. 1986); Gross v. Green Mountain Ins. Co., 506 A.2d
1139, 1142 (Me. 1986); Brackett v. Middlesex Ins. Co., 486 A.2d
1188, 1191 (Me. 1985); Hare v. Lumbermens Mut. Cas. Co., 471
A.2d 1041, 1043 (Me. 1984).
Third: The appellant's effort to undermine Cash
because that case dealt with an earlier version of the Maine
statute is unavailing. We have carefully examined the statutory
amendment, effected in 1993, and find it to be inconsequential
for present purposes. The recodification of the statute, in
itself, proves nothing. Moreover, the only substantive import
of the amendment relates to interspousal immunity. The
amendment does not in any way implicate UM coverages. Thus, the
distinction that the appellant suggests is a distinction that
makes no difference.
Fourth: The appellant asks that we certify the
coverage question to the Maine Supreme Judicial Court. Our
practice, however, has been to refrain from certification of
state-law issues when we can discern without difficulty the
course that the state's highest court likely would follow.
Porter v. Nutter, 913 F.2d 37, 41 n.4 (1st Cir. 1990). Given
the telling precedent of Cash, we think that certification of
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the coverage question that the appellant seeks to raise would be
an empty exercise.
Fifth: The appellant's attempt to fashion a new
argument for invalidation of the OOV exclusion based on the
public policy of Maine, as expressed in the state's wrongful
death statute, 18-A M.R.S.A. § 2-804, is procedurally defaulted.
The law is clear that when a dispositive motion is heard before
a magistrate judge, the movant must make all her arguments then
and there, and cannot later add new arguments at subsequent
stages of the proceeding. Maine Green Party v. Maine Sec'y of
State, 173 F.3d 1, 4-5 (1st Cir. 1999) (refusing to review, as
unpreserved, an argument not seasonably presented to the
magistrate judge); Paterson-Leitch Co. v. Massachusetts Mun.
Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988)
(similar). Because the appellant did not make this argument to
the magistrate judge, she cannot make it here.3
Sixth: The appellant's challenge to the denial of her
motion for leave to amend is meritless. For one thing, the
proposed amendment fails to allege any "special relationship"
between the insurance agent and State Farm — and such a special
3 In all events, we find the argument unpersuasive on the
merits.
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relationship is a necessary concomitant of respondeat superior
liability in insurance cases under Maine law. Szelenyi v.
Morse, Payson & Noyes Ins., 594 A.2d 1092, 1095 (Me. 1991); Ghiz
v. Richard S. Bradford, Inc., 573 A.2d 379, 380-81 (Me. 1990).
For that reason, we concur with Magistrate Judge Cohen's
characterization of the proposed amendment as futile. See
generally Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.
1988) (discussing pleader's burden to allege "each material
element necessary to sustain recovery").
For another thing, not only had the time for amendments
stipulated in the district court's scheduling order expired by
the time that the appellant filed her motion, but State Farm's
motion for brevis disposition already was pending. Under these
circumstances, the appellant's motion for leave to amend was
untimely. E.g., RTC v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).
We need go no further. For the reasons stated, we
affirm the judgment below.
Affirmed.
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