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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                 No. 16-20831                     FILED
                                                            March 22, 2018
                                                             Lyle W. Cayce
GLORIA WELLS,                                                     Clerk

             Plaintiff - Appellant

v.

MINNESOTA LIFE INSURANCE COMPANY,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      This appeal addresses coverage for a mosquito bite under an accidental-
death insurance policy. Melton Dean Wells was bitten by a mosquito carrying
West Nile Virus. Following complications, he died. Melton’s wife claimed
accidental-death benefits under a policy with Minnesota Life Insurance
Company, but Minnesota Life denied her claim. The district court dismissed
her suit on summary judgment. On appeal, the parties dispute the insuring
clause, i.e. whether Melton’s death was accidental, and an exclusion under the
policy, i.e. other causes of Melton’s death. Because we hold that there are
genuine disputes of material fact as to both, we reverse and remand for a
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                                      No. 16-20831
factfinder to decide determinative facts of the breach-of-contract claim. We
affirm the district court’s dismissal of the bad-faith tort claim.
                                             I.
       Melton Dean Wells, age 68, went to the hospital on August 21, 2013, with
a history of obesity, diabetes, and hypertension. 1 He was suffering from a
fever, headache, and altered mental status, and the doctors ultimately
diagnosed him with West Nile Encephalitis (“WNE”).                      West Nile Virus
(“WNV”), carried and transmitted to humans by the Culex mosquito, causes
WNE.       Over the next three weeks, Melton’s condition deteriorated as he
developed respiratory failure, multi system organ failure, and septic shock. He
died on September 17. The certified death certificate (“CDC”) reads:
       IMMEDIATE CAUSE (final
       disease or condition                      a. WESTNILE ENCEPHALITIS
       resulting in death)

       [C]onditions . . . leading to
       the cause listed on line a.               b. ACUTE RESPIRATORY FAILURE
       Enter the UNDERLYING
       CAUSE (disease or injury                  c. SEPTIC SHOCK
       that initiated the events
       resulting in death) LAST                  d. MULTI SYSTEM FAILURE
The certifying physician marked Melton’s death as “natural”, in contrast to an
“accident,” on the CDC.
       At all times relevant to this appeal, Melton had a Decreasing Term
Accidental Death Insurance Policy (“the policy”) from Minnesota Life
Insurance Company (“Minnesota Life”), which provides coverage
       only when your death results, directly and independently from all
       other causes, from an accidental bodily injury which was


       1 Hospital documentation shows Melton’s full medical history includes “Type 2
diabetes mellitus, no complications known, control uncertain, obesity, hyperlipidemia, benign
prostatic hypertrophy, chronic venous insufficiency/ankle edema . . . [p]olyarticular
osteoarthritis [and] lower extremity cellulitis.”
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                                  No. 16-20831
      unintended, unexpected and unforeseen. The bodily injury must be
      evidenced by a visible contusion or wound . . . . The bodily injury
      must be the sole cause of your death. . . . Your death must occur
      within 90 days after the date of the accidental injury.
But even if a death falls within that insuring clause, coverage may still be
excluded. Important here, Exclusion Four reads:
      In no event will we pay the accidental death benefit where your
      death is caused directly or indirectly by, results from, or there is
      contribution from . . . bodily or mental infirmity, illness or
      disease . . . .
The terms “accidental bodily injury,” “contusion,” “wound,” “infirmity,”
“illness,” and “disease” are not defined in the policy.
      Following Melton’s death, his wife, Gloria Wells, submitted a claim
under the policy for payment of accidental-death benefits. Over the phone, she
explained to a Minnesota Life representative that a mosquito bite caused
Melton’s death. Nevertheless, Minnesota Life denied her claim, explaining:
      We have received no information to support that [Melton’s] death
      resulted directly and independently from any accidental bodily
      injury sustained. Rather it appears the severe [WNE] was
      exacerbated by his diabetes, morbid obesity and his age.
      The claim is not payable as an accidental bodily injury did not
      cause [Melton’s] death, directly and independently from all other
      causes. Rather, his death was due or there were contributions from
      bodily or mental infirmity, illness or disease and this is specifically
      excluded under the terms of the policy.
                                        II.
      Unhappy with the denial of her insurance claim, Gloria filed this
diversity suit against Minnesota Life in Texas federal court, claiming breach
of contract, breach of good faith and fair dealing, violation of the Texas
Insurance Code, and violation of the Texas Deceptive Trade Practices Act. In
her complaint, she alleges that her insurance claim falls within the insuring
clause of the policy because Melton’s mosquito bite, a visible contusion/wound,

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                                   No. 16-20831
was an unintended, unexpected, and unforeseen accidental bodily injury that
resulted in the WNE that was a “substantial factor in bringing about [Melton’s]
death.”
        Minnesota Life moved for summary judgment on all claims, and the
district court granted its motion.        The district court held that Gloria’s
insurance claim did not fall under the insuring clause for three reasons. First,
the court held that Gloria did not satisfy the “sole cause” requirement because
septic shock, acute respiratory failure, and multi system failure all contributed
to Melton’s death, in addition to the WNE. Second, the court held that Gloria
failed to introduce evidence showing that a mosquito bite is or should be
considered “accidental” under the policy. And finally, the court held that
Gloria offered no evidence of a visible wound or contusion in the form of a
mosquito bite.
        Then, turning to the policy exclusion, the district court held that, even if
Gloria’s insurance claim did fall under the insuring clause, benefits should not
be paid because her claim also fell under Exclusion Four of the policy. The
court     noted    Melton’s    “bodily   infirmities”—obesity,     diabetes,    and
hypertension—and his “conditions”—acute respiratory failure, septic shock,
and multi-system failure—then held Gloria’s claim excluded because she “did
not rebut evidence of multiple contributing causes” to Melton’s death. It is
unclear whether the court was referring to Melton’s infirmities, conditions, or
both.
        Following the district court’s judgment in favor of Minnesota Life, Gloria
moved for a new trial or, alternatively, to amend the judgment. The district
court denied that motion, and Gloria timely appealed. Specifically, she now
appeals the dismissal of her breach-of-contract and bad-faith claims and the
denial of her post-judgment motion.


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                                        III.
      We review a district court’s grant of summary judgment de novo. Crose
v. Humana Ins. Co., 823 F.3d 344, 347 (5th Cir. 2016). Summary judgment is
appropriate only where “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary
judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003). “We
resolve factual controversies in favor of the nonmoving party, but only
when . . . both parties have submitted evidence of contradictory facts.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).
When such contradictory facts exist, courts may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000).
                                        IV.
      We turn first to Gloria’s breach-of-contract claim. In this diversity suit,
“we are Erie bound to apply the underlying state law, that of the State of
Texas.” Messick v. Gen. Motors Corp., 460 F.2d 485, 486–87 (5th Cir. 1972).
      To establish a breach-of-contract-claim under Texas law, a plaintiff must
show: “(1) the existence of a valid contract; (2) performance or tendered
performance by the plaintiff; (3) breach of the contract by the defendant; and
(4) damages to the plaintiff resulting from that breach.” Hunn v. Dan Wilson
Homes, Inc., 789 F.3d 573, 579 (5th Cir. 2015). The only breach-of-contract
issue in this case is whether Minnesota Life breached the policy by denying
Gloria’s claim for benefits.      Texas law “places the burden of establishing
coverage upon the insured [and] the burden of establishing an exclusion upon
the insurer.” Century Sur. Co. v. Hardscape Const. Specialties Inc., 578 F.3d


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                                    No. 16-20831
262, 265 (5th Cir. 2009). Thus the burden is on Gloria to show coverage and
upon Minnesota Life to establish an exclusion.
      “Insurance policies are controlled by rules of interpretation and
construction which are applicable to contracts generally.” Nat’l Union Fire Ins.
Co. of Pittsburgh v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). “[T]he
courts have adopted the ordinary meaning of words and terms as they are
commonly understood by the average laymen in preference to a technical
meaning as understood by members of a profession . . . .”            Order of Ry.
Conductors of Am. v. Gregory, 91 S.W.2d 1139, 1141 (Tex. Civ. App. 1936); see
also Certain Underwriters at Lloyds, London v. Law, 570 F.3d 574, 577 (5th
Cir. 2009) (“Words not defined in a contract are to be understood ‘according to
their plain and ordinary meaning.’” (quoting Gray & Co. Realtors, Inc. v. Atl.
Hous. Found., Inc., 228 S.W.3d 431, 434 (Tex. App. 2007)).
      If, after applying those rules of contract interpretation, a contract
provision is “subject to two or more reasonable interpretations,” that provision
is ambiguous. Sekel v. Aetna Life Ins. Co., 704 F.2d 1335, 1337 (5th Cir. 1983)
(quoting Glover v. Nat’l Ins. Underwriters, 545 S.W.2d 755, 761 (Tex. 1977)).
We construe ambiguities in Texas insurance contracts against the insurer,
Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 866 (Tex. 2000), so
“if a contract of insurance is susceptible of more than one reasonable
interpretation, we must resolve the uncertainty by adopting the construction
that most favors the insured.”       Nat’l Union Fire Ins. Co. of Pittsburgh v.
Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991).                “In particular,
exceptions or limitations on liability are strictly construed against the insurer
and in favor of the insured.” Id.




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                                        No. 16-20831
                                               A.
       To carry her burden of establishing coverage, Gloria must show that her
claim for benefits falls within the insuring clause of the policy. 2 She says that
her claim is covered because Melton’s mosquito bite (1) was a visible
contusion/wound, (2) was an unintended, unexpected, and unforeseen
accidental bodily injury, and (3) directly and independently was the sole cause
of his death. Minnesota Life, like the district court, focuses on three portions
of the insuring clause to argue that Gloria’s claim is not covered: accidental
bodily injury, sole cause, and wound/contusion.                    We take each in turn,
beginning with accidental bodily injury.
                                               1.
                                 Accidental Bodily Injury
       The foundation of the insuring clause, and the policy itself, is an
“accidental bodily injury which was unintended, unexpected, and unforeseen.”
Gloria says the accidental bodily injury in this case is the bite from a WNV-
infected Culex mosquito. The policy does not explicitly define “accidental
bodily injury,” but the parties focus on whether Melton’s injury was
“unintended, unexpected, and unforeseen;” and so do we. 3 The dispute is
whether Melton’s injury fits that description.


       2   We repeat, the insuring clause reads:
                [C]overage under this policy will provide benefits only when your death
                results, directly and independently from all other causes, from an
                accidental bodily injury which was unintended, unexpected and
                unforeseen. The bodily injury must be evidenced by a visible contusion
                or wound . . . . The bodily injury must be the sole cause of your
                death. . . . Your death must occur within 90 days after the date of the
                accidental injury.
       3  Black’s Law Dictionary defines “accident” as “[a]n unintended and unforeseen
injurious occurrence; something that does not occur in the usual course of events or that could
not be reasonably anticipated; any unwanted or harmful event occurring suddenly, as a
collision, spill, fall, or the like, irrespective of cause or blame . . . .” ACCIDENT, Black’s Law
Dictionary (10th ed. 2014).
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                                     No. 16-20831
      Gloria argues that Melton did not intend, expect, or foresee that a WNV-
infected Culex mosquito would bite him, an obvious bodily injury. 4 In support,
she points to the testimony of Matthew Virnig, Minnesota Life claims
examiner, who testified that there was no question in his mind “initially” that
the cause of Melton’s death was unintended, unexpected, and unforeseen. And
we find no direct evidence in the record that Melton intended, expected, or
foresaw that such a perilous bite would befall him. Instead, Gloria expressed
her view that the WNV-infected bite was unexpected, explaining that she was
“having [her] doubts about God right now because . . . a mosquito got him out
there and killed him a month later.”
      Minnesota Life, on the other hand, would define Melton’s alleged
accidental bodily injury more broadly to show that it does not fit the definition
in the policy. Instead of focusing on Melton’s bite from a WNV-infected Culex
mosquito, Minnesota Life argues that a mosquito bite generally is not
unexpected and unforeseen in Texas. But a bite by a generic mosquito is not
the accidental injury Gloria pleaded in her complaint; instead, she says it is
the bite by a WNV-infected Culex mosquito that triggers coverage. Without
guidance from the policy as to how broadly or narrowly an “accidental bodily
injury” is to be defined, we take the facts of the alleged accidental injury as
Gloria contends.
      Minnesota Life then expands its argument to say that WNV is most
commonly transmitted to humans through WNV-infected Culex mosquito
bites, and when a virus is contracted through “normal means brought about by
everyday life,” it cannot be deemed an unexpected or unforeseen accident.


      4  In 2013, accidents accounted for 5.2% of deaths in Texas. Leading Causes of Death
by Race Ethnicity Texas 2013, TEX. HEALTH & HUM. SERVS. (Sept. 14, 2015),
https://www.dshs.texas.gov/chs/vstat/vs13/t16.aspx. West Nile Virus accounted for .0078%.
West Nile Virus Disease Cases and Presumptive Viremic Blood Donors by State, 2013, CDC,
https://www.cdc.gov/westnile/resources/pdfs/data/2013WNVHumanInfectionsbyState.pdf.
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Svensson v. Securian Life Ins. Co., 706 F. Supp. 2d 521, 532 (S.D.N.Y. 2010).
But the case Minnesota Life cites for that proposition is inapposite.            In
Svensson v. Securian Life Insurance Co., an insured died of a “respiratory
illness which she developed after inhaling a community-spread bacterial
pathogen.” Id. at 523. In affirming the denial of accidental-death benefits, the
New York district court quoted then-Judge Cardozo’s “common sense
approach” to accidental injury:
      Germs may indeed be inhaled through the nose or mouth, or
      absorbed into the system through normal channels of entry. In
      such cases their inroads will seldom, if ever, be assignable to a
      determinate or single act, identified in space or time. For this as
      well as for the reason that the absorption is incidental to a bodily
      process both natural and normal, their action presents itself to the
      mind as a disease and not an accident.
Id. at 528 (quoting Connelly v. Hunt Furniture Co., 147 N.E. 366, 367 (1925)).
Here, however, there was a determinate, single act—the bite—that is not
incidental to a bodily process. The mosquito, an external “physical” force,
affirmatively acted to cause Melton harm and produce an unforeseen result.
We find that inhaling a community-spread pathogen and being bitten by a
mosquito can be thinly sliced so as to be distinguishable.
      The only record evidence that Minnesota Life offers to rebut the
accidental nature of Melton’s death is the death certificate. To be sure, the
CDC lists Melton’s death as “natural,” which the district court relied on in
arriving at its conclusion that coverage should be denied. But “[t]he recitation
in the death certificate is at best prima facie evidence” that a death is or is not
covered under an insurance policy. Stroburg v. Ins. Co. of N. Am., 464 S.W.2d
827, 829 (Tex. 1971). And here, Gloria’s testimony regarding her shock at
Melton’s bite, Virnig’s testimony that he initially believed “the cause of
Melton’s death” was an accidental bodily injury, and the fact that Melton’s
WNV is assignable to an unnatural, determinate act allows a factfinder to
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                                         No. 16-20831
conclude that Melton’s mosquito bite was unintended, unexpected, and
unforeseen and, consequently, an accidental bodily injury under the policy. 5
Therefore, the district court erred in relying solely on the CDC to conclude that
there is no issue of material fact as to whether Melton’s mosquito bite was an
“accidental bodily injury.” It is a question for a factfinder.
                                                2.
                                          Sole Cause
       Next, we consider whether Gloria has created a genuine dispute
regarding the “sole cause” of Melton’s death. We turn first to the relevant
words of the insuring clause:
       [C]overage under this policy will provide benefits only when your
       death results, directly and independently from all other
       causes . . . . The bodily injury must be the sole cause of your death.
       We find a guide path in Mutual Benefit Health & Accident Association v.
Hudman. 398 S.W.2d 110 (Tex. 1965). The Texas Supreme Court held that,
to recover benefits under an accidental-death policy that limits coverage to
death from an accidental injury “independently of other causes,” the accident
must be the “sole proximate cause” of death. 6 Id. at 112–13; see Sekel, 704 F.2d


       5  We think it is possible, under this policy, for a factfinder to come down on either side
of whether a mosquito bite is an “accidental bodily injury.” This is to say that a mosquito
bite is not categorically covered (or not covered) under accidental-death policies generally or
even under this particular policy. To be sure, we hold in this case that the factual
circumstances make it a disputed issue. As Lambrecht & Associates, Inc. v. State Farm
Lloyds reminds us, Texas “[c]ourts determine whether certain conduct constitutes an
‘accident’ for purposes of insurance coverage on a case-by-case basis.” 119 S.W.3d 16, 21 (Tex.
App. 2003) (analyzing “accidental loss” in business insurance policy).
        6 The Texas Supreme Court was careful to distinguish between the sole-cause test

applicable here and a but-for test, explaining:
       It solves nothing when applying a sole-cause test, to resort to a but-for test . . . .
       When we have two concurring factors which produce death, one within and the
       other without the policy coverage, results under such a test would depend upon
       the factor to which the test is applied. It is a true statement that Hudman’s
       death would not have occurred but for his overexertion, the bodily injury and
       accidental cause. It is also true that his death would not have occurred but for
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at 1337 (“In Texas and most other jurisdictions [“directly and independently”]
clauses have been construed to preclude recovery where disease or bodily
infirmity is a concurrent proximate cause of death.”); Stroburg, 464 S.W.2d at
829. Texas courts define “proximate cause” as “that cause, unbroken by any
new and independent cause, that produces injury and without which the injury
would not have occurred.” Tex. Campaign for the Env’t v. Partners Dewatering
Int’l, LLC, 485 S.W.3d 184, 197 (Tex. App. 2016); see Stroburg, 464 S.W.2d at
831 (“‘[P]roximate cause’ as applied in insurance cases has essentially the same
meaning as that applied by our own courts in negligence cases . . . .”). So in
order to recover benefits, the mosquito bite must be the sole proximate cause
of Melton’s death, with no concurrent proximate causes acting alongside it. 7
       With that theory of causation in mind, we turn to this case. Minnesota
Life argues that “sole cause” should be interpreted to mean that the accidental
bodily injury must be the only proximate cause of death, regardless of how any
such concurrent proximate causes may have originated.                        As discussed
previously, the CDC lists acute respiratory failure, septic shock, and multi
system failure, as “diseases, injuries, or complications that directly caused the




       the pre-existing heart disease, the non-accidental cause. If we apply the but-
       for test to the accidental bodily injury, we can say that the death would not
       have occurred but for the overexertion and the plaintiff would win. When we
       apply the same test to the other concurring cause, the non-accidental heart
       disease, we get an opposite result. This is so because the death would not have
       occurred but for the non-accidental heart disease, and the plaintiff would lose.
Hudman, 398 S.W.2d at 113.
       7 We note that Minnesota Life says that Gloria must show “[WNE] was the sole cause

of [Melton’s] death, exclusive of any other contributing cause.” But that misstates Gloria’s
burden; she must show WNE was the sole cause of Melton’s death, exclusive of any other
proximate cause. See Sekel, 704 F.2d at 1337 (distinguishing between a “contributing factor”
and “concurrent proximate” cause).
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death.” Thus, Minnesota Life says that, if we accept its construction, then the
mosquito bite would not be the sole proximate cause of Melton’s death. 8
       Gloria, however, interprets “sole cause” differently. She argues that
ancillary complications stemming from an accidental bodily injury cannot
themselves serve as concurrent proximate causes of an accidental death where
those complications arose directly from, and only because of, the accident. It
follows, she further argues, that acute respiratory failure, septic shock, and
multi system failure cannot be considered concurrent proximate causes of
Melton’s death. In support, she cites the declaration of Dr. Paul Radelat, which
states:
       [I]t is misleading to characterize Acute Respiratory Failure, Septic
       Shock and Multisystem Acute Respiratory Failure as conditions
       leading to [Melton’s] death by [WNE] since these conditions are
       more accurately characterized as conditions resulting from his
       [WNE] and secondary thereto. Put another way, but for the
       [WNE], the latter three conditions would not have developed.
If, after giving the contract terms their plain and ordinary meaning, Gloria’s
construction is reasonable, under Texas law we must accept her construction.
We now turn to our analysis of the policy term “sole cause.”
       We begin with the observation that accepting Minnesota Life’s
construction of the causation requirement would seem to create illusory
coverage. Indeed, if accidental-death coverage could be precluded by later
incidents directly related to and arising solely from the accident, one could
reasonably conclude that an insured must die almost immediately after the



       8 We make special note that Minnesota Life does not cite to any expert testimony or
other record evidence tending to show that acute respiratory failure, septic shock, and multi
system failure were proximate causes of Melton’s death. To be sure, the CDC says that those
complications were direct causes of death. But the relevant question is whether, “without
[each complication,] the [death] would not have occurred.” Tex. Campaign for the Env’t, 485
S.W.3d at 197. But we need not address that absence of record evidence further because we
focus instead on the ambiguity of the provision.
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accident in order to recover benefits under the policy. Yet the policy is written
to cover deaths that “occur within 90 days after the date of the accidental
injury,” a time period that appears hollow under Minnesota Life’s construction.
See Gregory, 91 S.W.2d at 1141 (“It is difficult to imagine a death six months
after such an injury in which infection or disease had not set up as a result of
the injury and finally produced death.”).
      Furthermore,    Minnesota     Life’s   argument      is    belied   by    Texas
jurisprudence. In articulating the “sole proximate cause” theory of causation
in Hudman, the Texas Supreme Court cited a leading Texas insurance
authority, which “cogently summarized” the rule as follows:
      As a general rule, it has been stated that if there is a pre-existing
      disorder or illness at the time an injury is received, recovery may
      still be had if the injury was severe enough to have caused the
      entire damage or considerable damage, but not if the disease was
      the proximate cause or principal cause thereof.
398 S.W.2d at 114 (quoting 1A Appleman, Insurance Law and Practice, § 403);
see also Simpson v. Travelers Ins. Co, 121 F.2d 683, 684 (2d Cir. 1941) (“It has
been held in similar circumstances that the event inducing the disease, not the
disease itself, was the proximate cause of death.”).
      Minnesota Life does not point us to any authority in rebuttal to suggest
that Texas courts would interpret “sole cause” to mean that complications
arising solely from and dependent upon the accidental injury itself are to be
considered concurrent proximate causes of an accidental death. Indeed, the
cases it cites address a seizure disorder, heart disease, diabetes, coronary
disease, and heart complications, all of which predated the accident at issue in
each case.
      In sum, we conclude that Gloria’s construction of the “sole cause”
provision is reasonable.      So accepting her construction, as we must,
complications arising directly from, solely because of, and dependent upon the

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                                       No. 16-20831
accidental injury may not be concurrent proximate causes of an accidental
death sufficient to strip the accident of its “sole proximate cause” status. In so
holding, we do not disparage or exalt either party’s position. A factfinder may
find that the mosquito bite was the sole proximate cause of Melton’s death in
the light of Dr. Radelat’s declaration that “it is misleading to characterize
Acute Respiratory Failure, Septic Shock and Multisystem Acute Respiratory
Failure as conditions leading to death by [WNE] since these conditions are
more accurately characterized as conditions resulting from his [WNE] and
secondary thereto.”       Or, on the other hand, the factfinder may choose to
disbelieve Dr. Radelet in the light of other evidence and find that Melton’s
complications did not arise directly from and solely because of the WNE. In
any event, we hold there is a genuine dispute of material fact as to whether the
mosquito bite was the sole cause of Melton’s death. 9
                                              3.
                                  Wound or Contusion
       Finally, we consider whether there is evidence of a visible wound or
contusion. The policy, in relevant part, reads
       The bodily injury must be evidenced by a visible contusion or
       wound, except in the case of accidental drowning.
Minnesota Life contends that Melton’s claim is not covered under the insuring
clause because Melton’s accidental injury, the bite, was not “evidenced by a
visible contusion or wound,” and the district court agreed. To be sure, there is


       9  In its briefing, Minnesota Life seems to reference, by name, only Melton’s
complications—acute respiratory failure, septic shock, and multi system failure—not his
preexisting conditions. But even if Minnesota Life did intend to argue that Melton’s
preexisting conditions were concurrent proximate causes of his death, we would hold that
there is a genuine dispute of this material fact in the light of Dr. Radelat’s declaration that
none of those conditions “w[ere] a contributing factor in [Melton’s] demise.” See Hudman,
398 S.W.2d at 114 (“Recovery is not defeated when a preexisting condition or disorder is so
remote in the scale of causation, so dormant and insubstantial, or so temporary and transient
that it does not materially contribute to the death or injury.”).
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                                  No. 16-20831
no direct evidence in the record that Melton exhibited a wound or contusion
from a mosquito bite.
      Gloria responds, however, that a jury reasonably could infer that a
mosquito bit Melton and that the bite formed a wound or contusion. In the
light of the undisputed fact that Melton had WNE and the following record
evidence, we agree; Dr. Dennis Lee, Minnesota Life’s expert, declared that
WNE “is commonly due to a bite from a mosquito infected with [WNV];”
Dr. Joseph Kass, Minnesota Life’s expert, declared “WNV is a mosquito-borne
illness and/or disease most commonly spread by infected mosquitoes” and also
wrote in a report that “[WNV is] a virus transmitted by the bite of a mosquito;”
and Gloria stated to a Minnesota Life representative that “a mosquito got
[Melton].” A reasonable jury could infer that, based on the circumstantial
evidence, a mosquito bit Melton, causing a wound or contusion. Cf. Carnes v.
Cont’l Cas. Co., 212 So. 2d 441, 443 (La. Ct. App. 1968) (“While no one saw the
spider bite [the insured] nor were any of the experts able to testify with
absolute certainty that the ‘staph’ infection entered the body through the
spider bite, the circumstantial evidence is so strong as to preclude any other
reasonable hypotheses.”).
      We acknowledge that there are other means, besides a mosquito bite, by
which a person may contract WNV. But at the summary-judgment stage,
Gloria need only present sufficient evidence to show “a reasonable jury could
return a verdict for [her].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). There is competent circumstantial evidence from which a jury could
reasonably find that a mosquito bit Melton, creating a visible wound or
contusion on his body.
                                       4.
      In sum, we hold that there is a genuine dispute of material fact as to
whether Gloria’s claim falls within the insuring clause. It is undisputed that
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                                 No. 16-20831
Melton had WNE and that WNE develops from WNV, which is most commonly
contracted from mosquito bites. As for the bite itself, the policy explains that
an accidental bodily injury is unintended, unexpected and unforeseen; and
there is evidence that Melton did not intend, expect, or foresee that he would
be bitten by a WNV-infected Culex mosquito. Moreover, there is evidence that
all of the complications that befell Melton in the hospital resulted solely from
WNV, and under Gloria’s construction of “sole cause,” which we accept as
reasonable, such complications should not be considered proximate causes of
death alongside the WNV. Finally, as a general matter, a factfinder could find
a mosquito bite is a wound or contusion, each of which is an undefined term in
the policy; and there is circumstantial evidence that a mosquito did bite
Melton. Therefore, we hold that this appeal presents the following disputed
issues of fact as to coverage: (1) whether a mosquito bit Melton, (2) whether
Melton’s alleged mosquito bite was an “accidental bodily injury,” and (3)
whether WNV from an alleged mosquito bite was the sole proximate cause of
Melton’s death.
                                      B.
      Although we hold that there is a genuine dispute of material fact as to
whether the insuring clause covers Gloria’s claim, there remains the question
whether an exclusion under the policy bars coverage.            The burden of
establishing an exclusion rests on Minnesota Life who argues that Gloria’s
claim should be denied based on Exclusion Four:
      In no event will we pay the accidental death benefit where your
      death is caused directly or indirectly by, results from, or there is
      contribution from . . . bodily or mental infirmity, illness or
      disease . . . .




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                                        No. 16-20831
As noted, the terms “infirmity,” “illness,” and “disease” are not defined in the
policy.
       Our prior reasoning finding the “sole cause” provision ambiguous applies
equally to Exclusion Four. 10           Gloria argues that a proper construction of
Exclusion Four is the exclusion applies only “to conditions existing when the
accident happened” and does not apply to “a condition caused by the accidental
injury;” and we find that construction reasonable for purposes of this appeal. 11
Having accepted Gloria’s construction, we turn to the facts.
       Minnesota Life attempts to carry its burden of establishing an exclusion
by   arguing      that     Melton’s     preexisting      conditions      and     post-accident
complications exclude coverage. As explained, there is a genuine dispute, when
applying Gloria’s construction of the exclusion, whether Melton’s post-accident
complications fall under Exclusion Four. With respect to Melton’s preexisting
conditions, we find that Gloria has presented some evidence from her expert
that neither Melton’s obesity, diabetes, age, nor hypertension “was a
contributing factor in his demise.” Because the exclusion requires that the
infirmity, illness, or disease cause or contribute to Melton’s death, a dispute of
material fact arises as to whether his preexisting conditions exclude coverage.
The district court erred in dismissing the breach-of-contract claim on summary
judgment.



       10 Minnesota Life cites Sekel v. Aetna Life Insurance Co. to argue that Exclusion Four
is not ambiguous. But the Sekel court held that a similarly worded exclusion was not
ambiguous on the question whether a provision excluded diseases that were contributing
causes to death or only diseases that were proximate causes to death. 704 F.2d at 1337. The
issue in Sekel was not, as it is here, whether the provision excluded coverage based on an
infirmity, illness, or disease that resulted only because of the accident. Id. at 1338 (explaining
the insured’s preexisting illness, a heart condition, caused the insured’s “accident”).
       11 Gloria does not address whether, under her construction, Exclusion Four applies to

conditions that onset after accident but are completely unrelated to the accident itself.
Because we are not presented with such facts, we need not decide the reasonableness of her
construction in that situation for purposes of this appeal.
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                                 No. 16-20831
                                       V.
      Finally, we address Gloria’s tort claim for bad-faith investigation. She
argues that Minnesota Life breached its duty of good faith and fair dealing by
not adequately investigating her claim for benefits. Specifically, she contends
that Minnesota Life relied solely on the CDC’s characterization of Melton’s
death as “natural” and Dr. Lee’s conclusory medical opinion instead of
investigating the claim thoroughly. Of course, Minnesota Life denies any bad
faith and says, in any event, Gloria cannot have a claim for bad faith without
“the complete absence of a reasonable basis for the denial of [her] claim.” Bates
v. Jackson Nat’l Life Ins. Co., 927 F. Supp. 1015, 1024 (S.D. Tex. 1996). The
district court held that Minnesota Life did not demonstrate bad faith because
it reasonably denied coverage based on the CDC and Dr. Lee’s medical review.
      We summarize the principles that guide our review: “An insurance
company may . . . breach its duty of good faith and fair dealing by failing to
reasonably investigate a claim.” Thompson v. Zurich Am. Ins. Co., 664 F.3d
62, 69 (5th Cir. 2011) (citation and internal punctuation omitted).        “[A]n
insurer cannot insulate itself from bad faith liability by investigating a claim
in a manner calculated to construct a pretextual basis for denial.” State Farm
Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex. 1998). “Similarly, an
insurer cannot escape liability by failing to investigate a claim so that it can
contend that liability was never reasonably clear.” Nunn v. State Farm Mut.
Auto. Ins. Co., 729 F. Supp. 2d 801, 808 (N.D. Tex. 2010) (internal quotation
marks omitted). But “Texas courts have clarified that the insurer does not
have a duty to leave no stone unturned.”        Id. (internal quotation marks
omitted). And Texas courts “agree[ ] that an insurer only breaches its duty of
good faith and fair dealing when it lacks a reasonable basis for denying or
delaying payment of the claim or when it should have known that no such basis


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                                   No. 16-20831
existed.” Thrash v. State Farm Fire & Cas. Co., 992 F.2d 1354, 1358 (5th Cir.
1993).
        The record shows that from October 17, 2013, when Gloria submitted her
claim with Minnesota Life, to April 9, 2014, Minnesota Life requested the CDC,
Melton’s medical records, and a “Health Information Request” form.             The
claims examiner assigned to Gloria’s case then “forwarded the records to
Minnesota Life’s medical department for review asking for a medical opinion
on the cause and manner of the Insured’s death.” Dr. Lee responded, “[T]he
fact [that Melton] was diabetic, morbidly obese and 68 may have increased his
risk of [WNV] to lead to such severe [WNE].” And thus, after the evidence
submitted was reviewed by a claim manager, Minnesota Life determined that
it “received no information to support that [Melton’s] death resulted directly
and independently from any accidental bodily injury sustained.”
        As our opinion has made clear, this case is close with supporting evidence
on both sides of the claim. We are aware that courts have held that “an
insurer’s reliance upon an expert report, standing alone, will not necessarily
shield the carrier if there is evidence that the report was not objectively
prepared or the insurer’s reliance on the report was unreasonable.” Douglas
v. State Farm Lloyds, 37 F. Supp. 2d 532, 541 (S.D. Tex. 1999). But Dr. Lee’s
medical opinion was not the only evidence that Minnesota Life had to stand
on.    In the light of Melton’s medical record and the CDC, we hold that
Minnesota Life had a reasonable basis for denying Gloria’s claim and,
consequently, the district court did not err in granting summary judgment as
to Gloria’s bad-faith claim.




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                                       No. 16-20831
                                             VI.
       We reverse the district court and hold that genuine disputes of material
fact preclude summary judgment on the breach-of-contract claim. We affirm
the district court’s dismissal of the tort claim. 12            We remand for further
proceedings not inconsistent with this opinion. The judgment of the district
court, therefore, is
                                            AFFIRMED in part, REVERSED in part,
                                                          and the case is REMANDED.




       12Gloria’s argument on appeal as to whether the district court erred in denying her
motion for new trial or, alternatively, motion to amend the judgment, goes only to the breach-
of-contract claim. Because we remand, her argument is moot.

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                                       No. 16-20831
OWEN, Circuit Judge, concurring in part and dissenting in part:
       The district court’s disposition of Gloria Wells’s tort claim was correct,
and I therefore concur in affirming the district court’s judgment in that regard.
However, because Exclusion Four of the accidental-death policy bars coverage,
the district court also correctly held that there was no breach of the insurance
policy. I therefore respectfully dissent from the reversal of the district court’s
judgment as to the breach of contract claim.
       The policy provides that there is coverage:
       only when . . . death results, directly and independently from all
       other causes, from an accidental bodily injury which was
       unintended, unexpected and unforeseen. The bodily injury must
       be evidenced by a visible contusion or wound . . . . [and] [t]he
       bodily injury must be the sole cause of . . . death.
       Exclusion Four provides that there is no coverage if “death is caused
directly or indirectly by, results from, or there is contribution from . . . bodily
or mental infirmity, illness or disease.” We should interpret this provision by
adopting the policy’s plain and ordinary meaning. Black’s Law Dictionary
defines “disease” as “[a] deviation from the healthy and normal functioning of
the body” or “[a]ny disorder; any depraved condition.” 1 It defines “illness” as
“[t]he quality, state, or condition of being sick; bodily or mental indisposition”
or “[a] disease of the body or mind; disorder of health.” 2 West Nile encephalitis,
a life-threatening inflammation of the brain, 3 is plainly a “disease” or “illness”


       1  BLACK’S LAW DICTIONARY 567 (10th ed. 2014); see also Disease, OXFORD ENGLISH
DICTIONARY 763 (2d ed. 1989) (“A condition of the body, or of some part or organ of the body,
in which its functions are disturbed or deranged; a morbid physical condition; ‘a departure
from the state of health, especially when caused by structural change.’”).
        2 BLACK’S LAW DICTIONARY 865 (10th ed. 2014); see also Illness, OXFORD ENGLISH

DICTIONARY 656 (2d ed. 1989) (“Bad or unhealthy condition of the body . . . ; the condition of
being ill . . . ; disease, ailment, sickness, malady.”).
        3 See West Nile Virus, CENTERS FOR DISEASE CONTROL & PREVENTION (Aug. 2, 2017),

https://www.cdc.gov/westnile/symptoms/index.html.
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                                         No. 16-20831
as those terms are commonly understood. Major health organizations agree.
They too describe West Nile encephalitis as a disease or illness. 4 Because the
condition is an “illness” or “disease” under the policy, and because there is no
dispute that West Nile encephalitis contributed to Melton Wells’s death,
Exclusion Four applies.
       The majority opinion concludes that Exclusion Four applies only to an
illness or diseased that the insured had at the time of the accident and not to
an illness or disease that resulted from the accident. But Exclusion Four
contains no such limitation. Exclusion Four applies when “death is caused
directly or indirectly by, results from, or there is contribution from . . . bodily
or mental infirmity, illness or disease.” Generally, “[w]ithout some indication
to the contrary . . . [words] are to be afforded their full and fair scope . . . [and]
are not to be arbitrarily limited.” 5 Exclusion Four provides no indication that
it is limited to conditions that pre-date the accident. Without that contrary
indication, we should afford those terms their full scope.
       It is rare that “accidental bodily injury” will result in an “illness” or
“disease,” as is the case here, assuming that a bite from a mosquito carrying
the West Nile virus constitutes “accidental bodily injury.” The far more typical
cases are where an accidental injury results in trauma to the body that
ultimately leads, or contributes, to death. But the policy only covers what it
says it covers. Courts should not ignore the plain language of the policy when
atypical facts result in a death or injury that is not covered under the policy’s
express terms, however unfortunate the lack of coverage is for those who were
accidentally injured.


       4  See id. (describing West Nile encephalitis as a “severe illness”); West Nile virus, Signs
and        symptoms,          WORLD        HEALTH          ORGANIZATION           (Jul.       2011)
http://www.who.int/mediacentre/factsheets/fs354/en/ (explaining that West Nile virus can
cause “severe disease,” including encephalitis).
        5 ANTONIN SCALIA & BRYAN GARNER, READING LAW 101 (2012).

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                                  No. 16-20831
      Based on straightforward principles of construction, Minnesota Life has
established that Exclusion Four bars coverage for Melton Wells’s death. I
respectfully dissent.




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