                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-1031
                                     ___________

James M. Kolb, Jr., M.D.,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      vs.                                 * District Court for the
                                          * Eastern District of Arkansas.
The Paul Revere Life Insurance            *
Company,                                  *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: September 8, 2003

                                   Filed: January 28, 2004
                                    ___________

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
                        ___________
RILEY, Circuit Judge.

      This case involves the interpretation of the phrase “accidental bodily injury”
contained in two disability insurance policies issued by The Paul Revere Life
Insurance Company (Paul Revere) in the State of Arkansas. Dr. James M. Kolb, Jr.
(Dr. Kolb), an orthopedic surgeon, underwent two elective surgeries on his right eye,
after which he sustained known, albeit rare, complications following the second
surgery, resulting in substantial loss of vision and rendering Dr. Kolb totally disabled.
Paul Revere paid Dr. Kolb total disability benefits to age 65, but thereafter terminated
benefits, contending Dr. Kolb’s total disability resulted from “sickness,” for which
benefits are payable to age 65, as opposed to total disability resulting from “injury,”
for which benefits are payable for life. Dr. Kolb filed a declaratory judgment action
against Paul Revere. The district court1 ruled the complications following surgery,
resulting in Dr. Kolb’s total disability, constituted “accidental bodily injury” rather
than “sickness” under the facts and the plain language of the two disability policies.
We agree and affirm.

I.     BACKGROUND
       Paul Revere issued Dr. Kolb two disability income policies (policies) that
provided Paul Revere would pay Dr. Kolb monthly sums for the remainder of his life
in the event he sustained a total disability caused by an “injury,” defined as
“accidental bodily injury” sustained after the policy issue date and while the policy
is in force. Alternatively, both policies provided Paul Revere would pay Dr. Kolb
monthly sums to age 65 if he sustained total disability caused by “sickness,” defined
as “sickness or disease which first manifests itself” after the policy issue date and
while the policy is in force.

       On May 25, 1995, Dr. Kolb underwent two elective surgeries performed by
different surgeons on his right eye.2 The following morning, Dr. Kolb suffered
substantial loss of vision in his right eye due to complications from hemorrhaging.
No medical negligence is alleged, and, as we discuss in detail below, neither surgeon
could identify the cause or causes of the complications. Thereafter, Dr. Kolb could
no longer perform the material and substantial duties of an orthopedic surgeon and
ceased practicing medicine. Dr. Kolb applied for total disability benefits, and Paul



      1
       The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
      2
       The first surgical procedure was an aborted repositioning of a lens implant
over the pupil, and the second procedure was a pars plana vitrectomy.

                                         -2-
Revere paid benefits until Dr. Kolb reached age 65. Thereafter, Paul Revere
discontinued benefits.

      Dr. Kolb brought a declaratory judgment action against Paul Revere, claiming
Paul Revere breached the policies by not construing his total disability as resulting
from an “injury” and by not awarding him lifetime benefits. Because no factual
disputes exist and the case involves purely a legal question of contract interpretation,
the parties stipulated to a joint statement of facts, with related deposition excerpts,
and each submitted a memorandum of law.

      In granting judgment in favor of Dr. Kolb, the district court discussed Duvall
v. Massachusetts Indemnity and Life Insurance Company, 748 S.W.2d 650 (Ark.
1988), the most recent Arkansas Supreme Court case involving an action to recover
benefits under an accidental death and injury policy. Relying on Duvall, the district
court anticipated the Arkansas Supreme Court would not adopt the distinction
between accidental means and accidental results. Based on the Arkansas Supreme
Court’s quotation and application of Justice Cardozo’s dissenting remarks in
Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 498-501 (1934),3 the


      3
          Dissenting, Justice Cardozo wrote:

      The attempted distinction between accidental results and accidental
      means will plunge this branch of the law into a Serbonian Bog.
      “Probably it is true to say that in the strictest sense and dealing with the
      region of physical nature there is no such thing as an accident.” On the
      other hand, the average man is convinced that there is, and so certainly
      is the man who takes out a policy of accident insurance. It is his reading
      of the policy that is to be accepted as our guide, with the help of the
      established rule that ambiguities and uncertainties are to be resolved
      against the company.

Id. at 499 (citations omitted); see Duvall, 748 S.W.2d at 653.

                                          -3-
district court concluded the majority in Duvall signaled its rejection of the accidental
means–accidental results distinction. Duvall, 748 S.W.2d at 653. The district court
construed the prevailing rule in Arkansas to be that the policies at issue should be
interpreted “by construing the words in a plain and ordinary manner.” Id. at 652.
Applying the terms “injury” and “sickness” to the facts of the case, the district court
determined “the complications from Kolb’s surgery were accidental bodily injury,”
based on undisputed testimony that Dr. Kolb’s loss of vision in his right eye was
neither intended nor expected, and its occurrence was “a rare complication of the
surgeries.”

II.    DISCUSSION
        The construction and the legal effect of these policies are governed by
Arkansas law. Smith v. Prudential Prop. & Cas. Ins. Co.,10 S.W.3d 846, 850 (Ark.
2000) (“The construction and legal effect of written contracts are matters to be
determined by the court, . . . except when the meaning of the language depends upon
disputed extrinsic evidence.”) (quoting Southall v. Farm Bureau Mut. Ins. Co., 632
S.W.2d 420, 421 (Ark. 1982)). We review de novo the district court’s interpretation
of state law. Columbia Ins. Co. v. Baker, 108 F.3d 148, 149 (8th Cir. 1997). The
parties stipulated to the facts as well as to the contract definitions of “injury” and
“sickness.” The parties also agreed to the judicial construction of “accidental” as
“something happening by chance, unexpectedly taking place, not according to the
usual course of things, or not as expected.” Duvall, 748 S.W.2d at 652 (citations
omitted).

       What the parties dispute is the proper application of the contract definitions
and the judicial construction to the facts. Paul Revere argues Dr. Kolb knowingly
consented in May 1995 to two elective surgical procedures on his right eye after
being fully informed by his surgeons of possible surgical complications, including
loss of vision. Known surgical complications arising from voluntary surgical
procedures, Paul Revere contends, do not constitute accidental bodily injury within

                                          -4-
the meaning of the policies. Conversely, Dr. Kolb argues his complications, resulting
in total disability, constituted an “injury,” not “sickness.”

       On the morning following his eye surgeries, Dr. Kolb was without sight in his
right eye. Dr. David Bradford (Dr. Bradford), who performed the second procedure
(vitrectomy), testified Dr. Kolb had a “hyphema,” which Dr. Bradford described as
“blood up in the front of the eye, he had low pressure in his eye, and he had what is
called a hemorrhagic choroidal detachment, by ultrasound.” Explaining the possible
causes of the hyphema, Dr. Bradford testified:

      Now, eyes can just have those things happen after surgery, and really
      have no reason for it. It could be because he coughed after surgery and
      had coughed hard enough that it induced a hemorrhage. You can have
      these things just spontaneously occur and have no good reason for it. It
      just happens. It happened–it is a very rare problem outside of the
      operating room.

       Neither surgeon who operated on Dr. Kolb knew or could identify the cause or
causes of Dr. Kolb’s complications. Dr. Richard Harper (Dr. Harper), who performed
the earlier aborted lens repositioning procedure, testified the complications Dr. Kolb
experienced, including low eye pressure, hemorrhaging, choroidal effusions, and
retinal detachment, were known risks associated with both surgical procedures.
Although Dr. Harper could testify with medical certainty that Dr. Kolb sustained
known complications of surgery, Dr. Harper could not determine which surgical
procedure caused the complications.

       Dr. Bradford, who performed the vitrectomy, testified Dr. Kolb did not exhibit
hemorrhaging or other complications during the second procedure. Dr. Bradford’s
operative summary reflects the surgical wound made during the first surgery to the
front of Dr. Kolb’s eye was closed and not leaking when Dr. Bradford completed the
second surgery. Based on his operative summary, Dr. Bradford concluded “something


                                         -5-
happened overnight that caused that wound to start leaking.” However, Dr. Bradford
did not know what caused the hemorrhaging in Dr. Kolb’s right eye and was unable
to determine whether the hemorrhaging caused the low pressure which, in turn,
caused the wound leaking, or whether the wound leaked first, causing low pressure
in Dr. Kolb’s right eye, and in turn, causing the hemorrhaging. Dr. Bradford
concluded, based on what he saw the morning following surgery, “there is no way of
knowing what started it.” Dr. Bradford agreed with deposing counsel’s depiction of
causation as a “chicken and egg thing.”

       The Arkansas courts have not ruled on the issue of whether complications
arising from surgical procedures constitute an “accident” in life or disability policies.
The district court’s conclusion that Dr. Kolb sustained accidental bodily injury
entitling him to judgment is consistent with Arkansas precedent. Although Dr. Kolb
was fully informed of the potential risks associated with the eye surgeries, we are
convinced the average person would regard this occurrence of rare complications as
accidental. Landress, 291 U.S. at 499 (Cardozo, J., dissenting). Dr. Kolb’s vision
loss was not expected,4 proceeded from an unidentified cause, and occurred only by
chance. Unlike the decedent in Duvall who died from Marfan’s syndrome, some
unknown, unidentifiable cause “out of the ordinary [] intervened” resulting in Dr.
Kolb’s loss of vision. Duvall, 748 S.W.2d at 653. Therefore, we agree with the
district court that Dr. Kolb’s loss of vision constituted “accidental bodily injury”
under both policies.

      Our conclusion is reinforced by two findings. First, Paul Revere failed to
persuade the district court, and fails to persuade us, that these facts, as applied to the

      4
        At the risk of descending into the Serbonian Bog (see footnote 3, supra), we
present this analogy: The average person traveling by automobile, airplane, boat, or
train recognizes personal injury is a risk of transportation. If personal injury does
occur, the average person would still reasonably say the injury was unexpected and
occurred as the result of an accident.

                                           -6-
“plain and ordinary” meanings of “sickness,” “disease,” and “accidental bodily
injury,” establish Dr. Kolb is totally disabled as a result of some sickness or disease,
rather than as a result of an accidental bodily injury. Dr. Kolb did not have surgery
necessitated by any particular sickness or disease, and the surgeons could not identify
any known sickness, disease, or other similar condition which might have caused the
hemorrhaging.

       Second, the policies contain no specific medical or surgical treatment exclusion
for known risks or complications of surgery. An insurer may reasonably limit or
restrict policy coverage. Indeed, Paul Revere expressly limited coverage for total
disability resulting from either cosmetic or transplant surgery, deeming such total
disability to have resulted from “sickness.” Had Paul Revere intended to exclude all
surgical complications from “injury” coverage, Paul Revere could have restricted
coverage by including a medical or surgical treatment exclusion in its policies,
thereby providing insureds with clear notice of the exclusion.5

       Under Arkansas law, “[a]n insurance policy is to be construed strictly against
the insurer, who chooses its language,” Southall, 632 S.W.2d at 421, “and if a
reasonable construction may be given to the contract which would justify recovery,
it would be the duty of the court to do so.” Smith,10 S.W.2d at 850. We believe this
judicial directive requires us to affirm the judgment below.6


      5
       “Generally, accident policies should be so interpreted that provisions of the
policies effectuate the reasonable expectations of the purchaser. An average person
buying a personal accident policy assumes he is covered for any fortuitous and
undesigned injury.” 1A J. Appleman & J. Appleman, Insurance Law and Practice
§ 360 (1981).
      6
        Reasonable jurists can and do disagree whether injury or death incurred as a
result of medical or surgical complications can be construed as “accidental” in life
and disability policies. See Senkier v. Hartford Life & Acc. Ins. Co., 948 F.2d 1050,
1053 (7th Cir. 1991) (declaring “[m]edical treatment is often risky and when the risk

                                          -7-
III.  CONCLUSION
      Guided by (1) the plain and ordinary meaning of “accidental” as construed by
the Arkansas Supreme Court; (2) the specific facts of this case, including the
unknown cause of Dr. Kolb’s rare, post-surgery complications; (3) the absence of a
medical or surgical treatment clause in the policies excluding or restricting such
coverage; and (4) the reasonable expectations of the average purchaser of disability
insurance, we affirm the well reasoned opinion and judgment of the district court.
                       ______________________________




materializes and the patient dies we do not call it dying in or because of an accident;
it is death from sickness”). We also recognize our decision today is not necessarily
in accord with decisions from other jurisdictions. See, e.g., Penn. Life Ins. Co. v.
Aron, 739 So.2d 1171, 1171 (Fla. Dist. Ct. App. 1999) (holding “occurrence of a
known surgical complication, in the absence of a medical mishap, cannot be deemed
an accident for purposes of the policy.”); Bathony v. Transamerica Occidental Life
Ins. Co., 795 F. Supp. 296, 300 (D. Alaska 1992) (ruling “when one undertakes an
activity in which there is a substantial risk and is aware of that risk and, if that result
occurs, it cannot be called an accident”) (citing INA Life Ins. Co. v. Brundin, 533
P.2d 236 (Alaska 1975)).

                                           -8-
