UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50509
Summary Calendar
BEULAH E. DOWNS, as representative of the
Estate of Lynn Downs, deceased,
Plaintiff-Appellant,
VERSUS
HARTFORD LIFE INSURANCE COMPANIES,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(A-94-CV-526)
April 23, 1996
Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Mrs. Downs sued to recover proceeds on an accidental death
policy issued by Hartford on the life of her husband. The
magistrate judge issued a report and recommendation wherein he
recommended granting Hartford’s motion for summary judgment. The
district court adopted the recommendation and granted Hartford’s
motion dismissing the claim. We affirm.
1
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
The policy clearly requires that the injury result “directly
from accident and independently of all other causes....” Injuries
resulting from sickness or disease are specifically excluded. All
evidence in the case shows that, although death occurred shortly
after the deceased suffered a fall, the cause of death was long-
standing arteriosclerotic disease. It was the sole cause of death
on the amended death certificate and a contributing cause on the
original certificate, and was confirmed by autopsy. There is no
issue as to this material fact, therefore the district court was
correct in granting the motion for summary judgment.
We note the following statement in the magistrate judges’s
report and recommendation: “The Plaintiff has failed to establish
by a preponderance of the evidence that Downs’ death resulted
solely from accidental means independent of all other causes.”
While this is a correct statement of what is in the record, it is
not the applicable standard. At the summary judgment stage the
question is simply whether the non-movant has created an issue of
material fact. Despite this error, we affirm because our review of
the record makes clear that no issue of material fact was created.
AFFIRMED.
2