     Case: 10-50723 Document: 00511417327 Page: 1 Date Filed: 03/18/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 18, 2011

                                     No. 10-50723                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



BRENDA LEMEILLEUR,

                                                   Plaintiff-Appellant
v.

MONUMENTAL LIFE INSURANCE COMPANY; TRUSTEES OF THE
NATIONAL HOMEOWNERS GROUP INSURANCE TRUST, c/o
Countrywide Insurance Services, Incorporated,

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:08-CV-701


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Brenda LeMeilleur (“Mrs. LeMeilleur”) appeals the
district court’s order of summary judgment in favor of Defendant-Appellee
Monumental Life Insurance Company (“Monumental”). Mrs. LeMeilleur sued
the insurance company to recover an accidental death benefit from a Group
Mortgage Accidental Death Policy (“Policy”) which her deceased husband held.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 10-50723

We AFFIRM the district court because that court properly determined that Mrs.
LeMeilleur’s claim fails as a matter of law.
      Mrs. LeMeilleur and her husband purchased the insurance policy from
Monumental. If Mr. or Mrs. LeMeilleur suffered an accidental death, the Policy
states it would pay for the balance of the couple’s home mortgage. The Policy
also states that Monumental will pay the accidental death benefit when they
“receive proof that the Insured died as a result of an Injury.” The Policy defines
an “Injury” as a “bodily Injury caused by an accident, independently of all other
causes” and further stipulates that the “Injury must be the sole and direct cause
of death.” In September 2005, Mr. LeMeilleur fell and broke his hip, which
required surgery. In July 2006, he died. According to Mr. LeMeilleur’s death
certificate, his death was due to a heart attack with hypertension as an
underlying cause. Mrs. LeMeilleur submitted a claim for a death benefit for Mr.
LeMeilleur’s death, which Monumental denied. Subsequently, Mrs. LeMeilleur
sued Monumental in Texas state court, seeking to recover the death benefit
under the Policy. Monumental removed the case to federal court on the basis of
diversity jurisdiction.   Then, Monumental moved for summary judgment,
arguing that the insurance claim failed as a matter of law because Mr.
LeMeilleur’s death was not solely caused by an accidental “Injury.” Before the
district court, Mrs. LeMeilleur argued that she was entitled to the death benefit
because her husband’s death was due to an insured accident – the fall. Mrs.
LeMeilleur supported her assertion with testimony from Dr. Milton Shaw, Mr.
LeMeilleur’s attending physician.      The district court disagreed with Mrs.
LeMeilleur’s assertions and granted summary judgment in favor of Monumental.
      We review a summary judgment order de novo, applying the same
standard as the district court. United States v. Lawrence, 276 F.3d 193, 195
(5th Cir. 2001). “Summary judgment is proper when no issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Questions

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                                      No. 10-50723

of fact are viewed in the light most favorable to the nonmovant and questions of
law are reviewed de novo.” Deas v. River West, L.P., 152 F.3d 471, 475 (5th Cir.
1998).     When a case is removed to federal court on the basis of diversity
jurisdiction, the Erie doctrine requires federal courts to apply substantive state
law when adjudicating state law claims. Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78 (1938); see also Universal Underwriters Ins. Co. v. Pan Am. Ins. Co., 450 F.2d
1050, 1052 (5th Cir. 1971). Here, Texas contract law applies to LeMeilleur’s
claim. Id.
       In Texas, “all parts of the contract are to be taken together, and such
meaning shall be given to them as will carry out and effectuate to the fullest
extent the intention of the parties.” Gen. Am. Indem. Co. v. Pepper, 339 S.W.2d
660, 661 (Tex. 1960). “It is well established that a contract is to be construed in
accordance with its plain language.” Id. Policy language that is susceptible to
more than one construction should be interpreted strictly against the insurer
and liberally in favor of the insured. Kelly Assocs., Ltd. v. Aetna Cas. & Sur. Co.,
681 S.W.2d 593, 596 (Tex. 1984). But a court may only apply the rules of
construction when the meaning of a contract is uncertain. Gen. Am. Indem. Co.,
339 S.W.2d at 661. In an accidental death benefit claim, the combination of an
accident and pre-existing conditions are insufficient for recovery. Mutual Benefit
Heath & Accident Ass’n v. Hudman, 398 S.W.2d 110, 112 (Tex. 1965). Instead,
an accident must be more than a “proximate cause” of death, it must be the “sole
proximate cause.” Id.
       Mrs. LeMeilleur argues that the district court erred by failing to consider
the Policy’s language concerning pre-existing conditions.1               Mrs. LeMeilleur


       1
         LeMeilleur also submits that the Policy is ambiguous, but she failed to allege this
argument before the trial court. Thus, she has waived the argument on appeal. LeMaire v.
Louisiana, 480 F.3d 383, 387 (5th Cir. 2007). Plain language rules in this case because under
Texas law, mere disagreement over the extent of coverage does not create ambiguity.
Travelers Lloyds Ins. Co. v. Pacific Employers Ins. Co., 602 F.3d 677, 681 (5th Cir. 2010).

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                                       No. 10-50723

alleges that her husband’s death was caused by pre-existing medical conditions.2
Under Mrs. LeMeilleur’s interpretation, this means Monumental is barred from
denying Mrs. LeMeilleur’s claim due to her husband’s pre-existing heart and
lung problems. Indeed, the Policy prohibits denial of a claim due to pre-existing
conditions under certain conditions.              But, contrary to Mrs. LeMeilleur’s
assertions, Monumental did not deny the claim because of pre-existing illnesses
or conditions. Monumental denied the claim because the accident in question,
Mr. LeMeilleur’s fall, was not the sole cause of death. Rather, Mr. LeMeilleur
died due to heart failure and hypertension.
       Additionally, the district court did not err by concluding that the evidence
failed to create a material question of fact as to whether the fall was the sole
cause of death. Mr. LeMeilleur’s death certificate does not reference the fall and
lists a heart attack as the immediate cause of death. And, Mrs. LeMeilleur’s
own expert, Dr. Shaw, testified that the fall was merely a contributing factor to
Mr. LeMeilleur’s death, not the sole cause of death. The connection between the
fall and Mr. LeMeilleur’s death more than nine months later is too attenuated.
Mrs. LeMeilleur’s claim fails because there is no evidence to support her
contention that the fall was the sole cause of death. Accordingly, the district
court did not err by concluding that as a matter of law, Mr. LeMeilleur’s death
was not covered under the Policy’s terms.
       We AFFIRM district court’s summary judgment order in favor of
Monumental.




       2
        Prior to the Policy’s issuance in 2003, doctors diagnosed Mr. LeMeilleur with coronary
artery disease, congestive heart failure, hypertension, obesity, diabetes, chronic obstructive
pulmonary disease, and obstructive sleep apnea.

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