
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1065                                   PAUL FERRAGAMO,                                Plaintiff - Appellant,                                          v.                       CHUBB LIFE INSURANCE COMPANY OF AMERICA,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Morris E. Lasker, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                           and Barbadoro,* District Judge.                                           ______________                                _____________________               Maria  A.  Luise,  with whom  Frank  Mondano  and  Balliro &               ________________              ______________       _________          Mondano were on brief for appellant.          _______               Paul M. Sanford,  with whom Medeiros  Karmen & Sanford  Inc.               _______________             ________________________________          was on brief for appellee.                                 ____________________                                  September 3, 1996                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    Per  Curiam.   On  December  14,  1981, appellant  Paul                    Per  Curiam                    ___________          Ferragamo ("Ferragamo")  was insured by United  Life and Accident          Insurance  Company ("United  Life")  pursuant to  a policy  which          entitled  Ferragamo to benefit payments in the event of his total          disability.2   At  that time  he  owned and  operated  Northshore          Recycling, a scrap metal recycling business.  Shortly thereafter,          Ferragamo submitted  a claim for total  disability benefits based          on an  accident  suffered  while  at  work  which  caused  severe          injuries to his  left leg and ankle.  As  required by the policy,          he  proceeded  to  file  monthly reports  regarding  his  injury.          Relying on  these reports  and the information  contained therein          establishing that Ferragamo remained totally disabled and was not          working for pay  or profit, appellee Chubb Life Insurance Company          of  America ("Chubb"),  United Life's  successor,  paid Ferragamo          total  disability benefits  of $2,400  per month from  April 1982          until June 1993,3 as  well as social  insurance benefits of  $750          per month  over the initial five year period of his claim.  Chubb          also  waived the further payment of premiums pursuant to a policy          provision.                    Although   the   monthly  reports   requested  detailed          information  from  Ferragamo regarding  the  nature  of any  work                                        ____________________          2  We present the facts in the light most favorable to the jury's          verdict.  See,  e.g., Coastal  Fuels of P.R.,  Inc. v.  Caribbean                    ___   ____  _____________________________     _________          Petroleum Corp., 79 F.3d  182, 186, petition for cert.  filed, 65          _______________                     _________________________          U.S.L.W. 3034 (July 2, 1996).          3   The disputed period  is limited to  the period after  January          1988.                                         -2-          activities,4 he continuously represented  that he was not working          or earning  any income other  than "investment income."5   During          the course of Ferragamo's  eleven- year claimed disability, Chubb          attempted  to verify the nature of his disability in a variety of          ways including telephone contacts, personal interviews, reviewing          his income  tax returns, independent medical  evaluations, and by          "spot-checks" of Ferragamo's activities by private investigators.          These  efforts  eventually  revealed that,  while  Ferragamo  was          claiming total  disability, he was actually  engaging in numerous          and  varied  physical  and  work  activities,  including  playing          racquetball with  his trial lawyer, signing  public records under          oath  to the  effect that  he  was working  as a  builder, filing          federal income tax  returns where  he stated under  oath that  he          received  significant profits  from his  real  estate development          business,  operating a  construction company  known as  Ferragamo          Development which purchased, developed, and sold over $10,000,000          in  real estate, and disclosing to various persons, including his          doctors, creditors, banks and various  town officers, that he was          a  self-employed real  estate  developer, contractor  or  builder          earning from $100,000 to $250,000 per year.  To mention only some          of  the   discovered  evidence,   Ferragamo  fully  developed   a                                        ____________________          4  The inquiries included  questions regarding his occupation and          duties, whether he was self-employed, whether he  had returned to          work on either  a part-time  or full-time basis,  what his  daily          activities consisted  of, the amount  of his monthly  income, and          whether he was partially or totally disabled.          5   Ferragamo  signed each  report below  the statement  that: "I          certify that  the foregoing  statements and answers  are complete          and true to the best of my knowledge."                                         -3-          $6,000,000  condominium  complex  in  Swampscott,  Massachusetts,          where he would be  at the job site  almost continuously each  day          from 7:00-7:30 AM to 4:00-5:00 PM.  He not only drove his pick-up          truck  to  work, but  at times  operated  a front-end  loader and          climbed  down inside the newly dug foundation holes to check them          out.   He was also fully  active in all aspects  of the planning,          financing, supervision and sale of this project.                    In addition  to the Swampscott condominium,  during the          time of  his alleged total  disability Ferragamo also  engaged in          various land  transactions including  those involving a  340 acre          tract in  Littleton, New  Hampshire, two  lots in  North Andover,          Massachusetts, two  in Salem,  and others in  Lynnfield, Peabody,          Revere, and Swampscott, as well as at Chuebeque Island, Maine.                    Predictably  upon  learning  the  above,  Chubb stopped          disability payments  under the policy, and  incredibly, Ferragamo          sued seeking  damages for breach of  contract, negligence, unfair          and deceptive trade practices  pursuant to Mass. Gen. L.  ch. 93,          negligent  infliction  of  emotional  distress,  and  intentional          infliction of emotional distress.  Chubb denied these allegations          and  counterclaimed   alleging   fraud,  deceit   and   negligent          misrepresentation.                    A  trial  was  held  at  which  the  above  facts  were          presented to the jury.   At the  close of plaintiff's case  Chubb          moved  for judgment pursuant to Fed. R.  Civ. P. 50, which motion          was denied by the  district court on all counts  except regarding          Chapter 93A, on   which ruling was reserved.   Thereafter, at the                                         -4-          close of the  evidence, Chubb  renewed the Rule  50 motion,  with          similar  results.   The  jury  found  for  Chubb  on  all  counts          including on  Chubb's counterclaim in the  amount of $192,401.71.          Pursuant to special interrogatories the jury ruled that Chubb had          not  breached  the policy  contract,  that  Ferragamo engaged  in          misrepresentations  regarding his  claim, and that  after January          1988, he  engaged in fraud in  this respect.   The district court          then dismissed Ferragamo's chapter 93A claim.                    Ferragamo raised three issues on appeal which under the          circumstances  of this  case border  on the  frivolous:   (1) the          admission into evidence of the investigator's reports which Chubb          relied on in suspending Ferragamo's benefits; (2) the limiting of          the cross-examination of Chubb's expert; and (3) the instructions          given  to  the  jury  regarding  the  deceit   count  of  Chubb's          counterclaim.                    The challenged reports  were clearly admissible  within          the discretion of the trial court, see Sinai v. New England Tel &                                             ___ _____    _________________          Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993), cert. denied, ___ U.S.          ________                                   ____________          ___, 115  S. Ct. 597  (1994), because  they were relevant  to the          issue  of whether  Chubb had reasonably  investigated Ferragamo's          eligibility for  benefits before terminating them.   See Teishing                                                               ___ ________          v. SER-Jobs For Progress, Inc., 19 F.3d 755, 762 (1st Cir. 1994).             ___________________________          This  question  was put  at  issue  not  only by  the  nature  of          Ferragamo's claim, but also  by the door that  was opened by  his          counsel  in  the direct  examination of  his own  expert witness.          Sinai,  3 F.3d at  475-76.  Furthermore,  considering the copious          _____                                         -5-          independent  evidence heard  by  the  jury regarding  Ferragamo's          activities, any error committed is at best harmless.  See Almonte                                                                ___ _______          v.  National Union Fire  Ins. Co.,  787 F.2d  763, 771  (1st Cir.              _____________________________          1986).                    A trial court's discretion in limiting the conduct of a          trial, although not limitless, is certainly ample enough to allow          the curbing of the cross-examination of  Chubb's expert under the          circumstances  of this trial.   See Fed. R.  Evid. 611(b) (noting                                          ___          that "cross examination  should be limited to  the subject matter          of direct  examination").   On direct examination  Chubb's expert          testified regarding its insurance  practices in August 1993, when          Chubb  suspended   Ferragamo's  insurance  benefits.     He  also          testified regarding  the reasonableness of Chubb's  actions as to          the  period of time that  lapsed from the  time the investigative          reports  were  received  to   the  suspension  of  the  benefits.          Ferragamo's lawyer extensively fished outside these waters before          the trial court properly ended the expedition.                    Finally, in regard to the claim that the district court          erred in  its jury instructions, it is  beyond reasonable dispute          that Ferragamo did not make these objections after the charge was          given  but  before  the  jury  retired  to  deliberate.    It  is          elementary that the failure  to object to a jury charge  after it          is given and  before the jury retires to  deliberate, is fatal to          any claim of  error on  appeal.  Fed.  R. Civ.  P. 51; Scarfo  v.                                                                 ______          Cabletron  Sys., Inc., 54  F.3d 931, 940 (1st  Cir. 1995).  While          _____________________          there  are extraordinary  exceptions  to this  black-letter rule,                                         -6-          see, e.g., id., such  is not the present case.  Thus, we dwell no          ___  ____  ___          longer on this or any other alleged error.                    We  can perceive  no appealable  error by  the district          court.  In fact  the record shows actions by  appellant for which          he could very well be held accountable before another forum.          Considering  the  totally   meritless  nature  of   this  appeal,          appellant is hereby ordered to show cause within 10 days from the          issuance of this decision why he should not be held to pay double          costs  and  attorney's fees  on  appeal.   See  28 U.S.C.    1919                                                     ___          (1994);  Fed. R. App. P. 38; Cronin  v. Town of Amesbury, 81 F.3d                                       ______     ________________          257, 261 (1st Cir. 1996).                    The decision of the district court is affirmed.                                                          ________                                         -7-
