United States Court of Appeals
For the First Circuit
No. 03-2112
THE PAUL REVERE LIFE INSURANCE COMPANY,
Plaintiff, Appellant,
v.
DANIEL E. BROMBERG,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Joseph M. Hamilton, with whom Kristina H. Allaire, and Mirick,
O'Connell, DeMallie & Lougee, LLP were on brief for appellant.
Ann L. Palmieri, with whom Law Office of Ann L. Palmieri was
on brief for appellee.
August 30, 2004
CYR, Senior Circuit Judge. The Paul Revere Life
Insurance Company (“Paul Revere”) appeals a district court order
which dismissed its declaratory judgment action against its
insured, Daniel E. Bromberg, due to lack of subject matter
jurisdiction. Bromberg was employed by Ascent Technologies
("Ascent") as a computer software engineer, from July 1999 to
November 2000, during which time he participated in the Employee
Security Plan (“Plan”) established by Ascent. Moreover, it is
undisputed that Paul Revere, pursuant to the Plan, issued
individual disability insurance policies to Ascent employees and
that the Plan was governed by the provisions of the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461.
On November 15, 2000, Bromberg resigned from Ascent due
to a job-related repetitive stress injury to his elbow, which
prevented him from performing the required job functions (e.g.,
typing). In January 2001, Bromberg began paying premiums to Paul
Revere in order to continue his insurance coverage under the Plan
policy. But Bromberg never applied to Paul Revere for a new non-
Plan policy. In May 2001, Bromberg submitted a claim to Paul
Revere, contending that the elbow injury had left him fully
disabled. Paul Revere denied coverage, maintaining that Bromberg
had made material misrepresentations in the July 1999 application
for coverage under the Plan.
Subsequently, Paul Revere lodged its complaint in the
-2-
United States District Court for the District of Massachusetts,
demanding a judicial declaration of non-coverage under the Plan.
In turn, Bromberg moved to dismiss the complaint for lack of
subject matter jurisdiction, on the ground that ERISA did not
govern the May 2001 disability claim, due to the fact that, by that
time, Bromberg was no longer covered by the Ascent Plan, but rather
by his individually-funded, post-termination policy with Paul
Revere. See Fed. R. Civ. P. 12(b)(1); 29 U.S.C. § 1132(e)(1).
The district court dismissed the complaint, and Paul
Revere now appeals. As the predicate jurisdictional facts are not
in dispute, the Rule 12(b)(1) dismissal for lack of subject matter
jurisdiction is reviewed de novo. See Skwira v. United States, 344
F.3d 64, 71-72 (1st Cir. 2003), cert. denied, 124 S. Ct. 2836
(2004). The Paul Revere complaint for a judicial declaration of
non-coverage invites a determination as to whether Bromberg was
insured under the policy in effect at the time of the alleged
injury.
The policies issued under the Plan constituted occurrence
policies, viz., policies which (i) define “injury” as any
“accidental bodily injury sustained after the date of issue and
while your policy is in force,” and (ii) provide that “[a]ll losses
must occur while your policy is in force.” See CPC Int’l, Inc. v.
Northbrook Excess & Surplus Ins. Co., 46 F.3d 1211, 1221 (1st Cir.
1995) (“[A]n occurrence policy provides coverage for any
-3-
‘occurrence’ which takes place during the policy period.”);
DiLuglio v. New England Ins. Co., 959 F.2d 355, 358 (1st Cir.
1992). Bromberg acknowledged, in writing, as follows: “I resigned
from Ascent on November 15th, 2000, and it was from this date
exactly that I am claiming disability.” As the job-related injury
sustained by Bromberg occurred under the Plan policy, which plainly
is governed by ERISA, see 29 U.S.C. § 1002(1) (defining “employee
welfare benefit plan”), the declaratory judgment action complaint
adequately pled "federal question" jurisdiction.
Furthermore, the fact that Bromberg submitted his claim
six months after resigning from Ascent, and after he had assumed
individual responsibility for the premium payments, does not alter
the fact that he was covered (if at all) only for an injury under
the policy in effect on or before November 15, 2000. See Leahy v.
Raytheon Co., 315 F.3d 11, 14 (1st Cir. 2002) (noting that former
employee filed claim under ERISA plan six months after job furlough
based on a pre-furlough injury); see also CPC Int’l, 46 F.3d at
1221 (“Under [an occurrence] policy it is irrelevant whether the
resulting claim is brought against the insured during or after the
policy period, as long as the injury-causing event happens during
the policy period.”). In fact, ERISA defines a Plan “participant”
as including such former employees. See 29 U.S.C. § 1002(7).
The district court premised its Rule 12(b)(1) dismissal
on our decision in Demars v. CIGNA Corp., 173 F.3d 443 (1st Cir.
-4-
1999). However, in Demars the issue was whether ERISA applies to
an individual policy to which the employee “converted” from the
ERISA group policy after quitting her job. Id. at 444. We
determined that ERISA was inapplicable to the individual policy
because the employer’s responsibility for administering and funding
her coverage ended once its employee obtained the conversion
policy. Id. at 446. However, unlike Bromberg, the injury for
which Demars claimed coverage did not take place while the ERISA
group plan policy remained in force, but after the conversion
policy had come into effect. See id. at 445 (“We review de novo
the legal question whether ERISA preemption applies to claims
arising from a conversion policy.”) (emphasis added).
In other words, in Demars the claimant was not disabled
at the time she quit CIGNA. Instead, she continued to work in her
own business for some three and one half years before filing a
disability claim presumably related to a recently occurring medical
condition. See id. (noting that Demars “stipulated to the
dismissal of her ERISA claim”). Therefore, Demars’ covered injury
plainly “arose from” (viz., during the term of) her individual
conversion policy, which we held was no longer part of the ERISA
plan coverage in effect before leaving CIGNA.
Indeed, the authorities cited by Demars involve cases –
unlike Bromberg’s – wherein the injuries giving rise to the
insurance claims occurred after the effective dates of the
-5-
respective policies. See Barringer-Willis v. Healthsource N.C.,
Inc., 14 F. Supp. 2d 780, 781 (E.D.N.C. 1998) (noting that covered
injury occurred five years after conversion); Mizrahi v. Provident
Life and Accident Ins. Co., 994 F. Supp. 1452, 1453 (S.D. Fla.
1998) (four months after conversion); Powers v. United Health Plans
of New England, Inc., 979 F. Supp. 64, 65 (D. Mass. 1997) (five
months after conversion); Mimbs v. Commercial Life Ins. Co., 818 F.
Supp. 1556, 1558 (S.D. Ga. 1993) (one month after conversion); see
also McCale v. Union Labor Life Ins. Co., 881 F. Supp. 233,
234(S.D. W. Va. 1995) (noting that insured’s death postdated
conversion of life insurance policy). Moreover, subsequent cases
which have adopted the Demars rationale all involve such post-
conversion injuries. See, e.g., Waks v. Empire Blue Cross/Blue
Shield, 263 F.3d 872, 874 (9th Cir. 2001) (three years after
conversion); Owen v. UNUM Life Ins. Co., 285 F. Supp. 2d 778, 780
(E.D. Tex. 2003) (eleven years after conversion).
As Demars is legally, as well as factually, inapposite to
the Paul Revere complaint for a declaration of non-coverage, the
district court erred in granting the Rule 12(b)(1) dismissal.
Reversed and remanded.
-6-