Vickers v. Boston Mutual Life Insurance

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,

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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