Casco Indemnity Co. v. Rhode Island Interlocal Risk Management Trust

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1820

CASCO INDEMNITY CO.,

Plaintiff, Appellant,

v.

RHODE ISLAND INTERLOCAL RISK MANAGEMENT TRUST,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Cyr, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Alice Olsen Mann with whom David E. Maglio and Morrison, Mahoney

& Miller were on brief for appellant.

Rosemary Healey with whom James M. Green, Andrew M. Elmore and

Powers, Kinder & Keeney, Inc. were on brief for appellee, Rhode Island

Interlocal Risk Management Trust.

May 12, 1997

CAMPBELL, Senior Circuit Judge. This case

primarily concerns a dispute between two insurance companies,

Casco Indemnity Company ("Casco") and Rhode Island Interlocal

Risk Management Trust ("the Trust"), over which of them is

responsible for compensating one Victor Cipriano for the

injuries he sustained in an automobile accident with an

uninsured driver. Because we agree with the district court

that Exclusion 9 in the Trust's policy applies to uninsured

motorist insurance and is not contrary to public policy, see

Casco Indem. Co. v. Rhode Island Interlocal Risk Mgt. Trust,

929 F. Supp. 65 (D.R.I. 1996), we affirm on these questions

without further comment. See In re San Juan Dupont Plaza

Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993) ("Where,

as here, a trial court has produced a first-rate work

product, a reviewing tribunal should hesitate to wax

longiloquence [sic] simply to hear its own words resonate.").

We find it was error, however, for the district

court not to issue a declaratory judgment, as Casco

requested, concerning Casco's ability to deduct any workers'

compensation benefits received by Cipriano already or in the

future from his damages.1

1. The district court's sole apparent reference to the issue
in its opinion was its statement, "With regard to the Casco
Policy, any coverage available to Cipriano is to be governed
by the terms of the agreement between the parties." Casco,

929 F. Supp. at 73.

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Casco contended below, and now contends on appeal,

that such benefits are excluded by a provision in its policy

stating:

B. Any amounts otherwise payable for damages under this
coverage shall be reduced by all sums . . .

2. Paid or payable because of the "bodily injury"
under any of the following or similar law:

a. workers' compensation law; or

b. disability benefits law.

Casco asserts that this provision comports with

Rhode Island's public policy against double recovery, citing

Poulos v. Aetna Cas. & Sur. Co., 379 A.2d 362, 365 (R.I.

1977) (upholding an insurance policy clause reducing the

insurer's liability by the amount paid or payable "under any

workmen's compensation law, disability benefits law or any

similar law" only to the extent such benefits represented a

double recovery thus mandating that the deduction be from

the insured's total damages, not the policy's face value).

Casco included this claim in its amended complaint,

in its motion for summary judgment below, and in its appeal

brief. The Trust, having no stake in this debate, has

provided no response. Cipriano, the beneficiary of Casco's

policy, was a named defendant in this suit and filed a

general answer to Casco's complaint, but insofar as appears

he did not file an opposition to Casco's motion for summary

judgment (which sought relief on the point) nor did he

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otherwise take part in the proceeding below. Cipriano has

neither argued nor filed any brief on appeal. As a result,

we are left to decide the matter with only Casco's arguments

to guide us. See Allgeier v. United States, 909 F.2d 869,

871-72 n.3 (6th Cir. 1990) (considering an appeal solely on

the brief of the appellant when the appellee failed to file a

brief) (citing, inter alia, Fed. R. App. P. 31(c)'s statement

that "[i]f an appellee fails to file a brief, the appellee

will not be heard at oral argument except by permission of

the court"); Instituto Nacional de Comercializacion Agricola

(INDECA) v. Continental Illinois Nat'l Bank and Trust Co.,

858 F.2d 1264, 1270-71 (7th Cir. 1988) (same); Teamsters,

Chauffeurs, Warehousemen & Helpers Local Union 524 v.

Billington, 402 F.2d 510, 511 (9th Cir. 1968) (deciding an

appeal on the appellant's brief and the trial record when the

appellee failed to file an appeal brief).

In the absence of any legal or factual arguments to

the contrary, it is hard to say that Casco's arguments are

not persuasive on this point. Nor can we say that Casco has

failed to do all that might be expected to pursue the issue.

We accordingly remand to the district court with directions

that it issue a declaratory judgment in Casco's favor

providing, in effect, that, "The policy issued by Casco

Indemnity Company provides uninsured motorist coverage which

is excess to any workers' compensation benefits paid to

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defendant Cipriano or received by him in the future with

respect to the accident of November 20, 1993."

Affirmed in part and reversed and remanded in part.

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