    12-2040-cv
    Corbeil v. Blood

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007,
is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic
database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st
    day of February, two thousand thirteen.

    PRESENT:

          DEBRA ANN LIVINGSTON,
          RAYMOND J. LOHIER, JR.,
                             Circuit Judges,
          LEWIS A. KAPLAN,
                             District Judge.*
    _______________________________________________

    KELLI L. CORBEIL,
                                      Plaintiff – Appellant,

                       -v.-                                                      No. 12-2040-cv

    PRUCO LIFE INSURANCE COMPANY,
                            Defendant – Cross Claimant – Cross Defendant – Appellee,
    CLINTON H. BLOOD,
                                      Defendant – Cross Defendant – Cross Claimant – Appellee.


    _______________________________________________




            *
             The Honorable Lewis A. Kaplan, of the United States District Court for the Southern
    District of New York, sitting by designation.

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                               THOMAS W. COSTELLO, Costello, Valente & Gentry, P.C.,
                               Brattleboro, Vermont, for Plaintiff-Appellant.

                               KAVEH S. SHAHI, Cleary Shahi & Aicher, P.C., Rutland, Vermont;
                               STEPHEN L. BRACY, Alston & Bird LLP, Atlanta, Georgia, for
                               Defendant – Cross Claimant – Cross Defendant – Appellee Pruco
                               Life Insurance Co.

                               LUIGI SPADAFORA, JODY N. CAPPELLO, Winget, Spadafora &
                               Schwartzberg, LLP, Stamford, Connecticut, for Defendant – Cross
                               Defendant – Cross Claimant – Appellee Clinton H. Blood.

       Appeal from the judgment of the United States District Court for the District of Vermont

(Christina Reiss, C.J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

that the judgment of the District Court entered April 17, 2012 is AFFIRMED.

       Plaintiff-Appellant Kelli L. Corbeil (“Plaintiff”) appeals from a judgment granting

Defendants-Appellees summary judgment in this diversity action on all claims. On appeal, Plaintiff

argues that pursuant to Vermont law (which all parties agree is applicable) a reasonable jury could

conclude: (1) that Defendant-Appellee Clinton H. Blood’s (“Blood”) negligence in securing a life

insurance policy (the “Policy”) for her late husband William Corbeil (“Corbeil”) caused her harm;

(2) that Blood also breached a verbal contract with Corbeil to use reasonable skill, care, and

diligence to procure the Policy, resulting in liability; (3) that Blood served as an agent for

Defendant-Appellee Pruco Life Insurance Company (“Pruco”) throughout the application process;

and (4) that as a result of Blood’s conduct as its agent, Pruco was estopped from rescinding the

Policy after Corbeil’s death. Because Plaintiff does not press any of her other claims on appeal, she

has waived those claims. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) (holding

issues not raised in appellate brief are abandoned).


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       We review a district court’s award of summary judgment de novo, “resolving all ambiguities

and drawing all permissible factual inferences in favor of the party against whom summary judgment

is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d

255, 266 (2d Cir. 2009)). Summary judgment is appropriate where “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).

We assume the parties’ familiarity with the underlying facts, procedural history of the case, and

issues on appeal, which we reference only as necessary to explain our decision to affirm.

1. The Tort Claim

       Plaintiff first contends that Blood breached his duty of reasonable care in preparing a 2007

life insurance application for Corbeil and that, contrary to the District Court’s determination,

Blood’s negligence directly and proximately caused Plaintiff’s injury when Pruco rescinded the

Policy following Corbeil’s death in 2009. We disagree.

       Under Vermont law, a common law negligence cause of action includes four elements: “(1)

the defendant must owe a legal duty to conform to a certain standard of conduct so as to protect the

plaintiff from an unreasonable risk of harm; (2) the defendant must have committed a breach of this

duty by failing to conform to the standard of conduct required; (3) the defendant’s conduct must be

the proximate cause of the plaintiff’s injury; and (4) the plaintiff must have suffered actual loss or

damage.” Langle v. Kurkul, 510 A.2d 1301, 1304 (Vt. 1986) (citing W. Prosser & W. Keeton, The

Law of Torts § 30, at 164–65 (5th ed. 1984)).

       Assuming arguendo that Blood did breach his duty to use reasonable care when he recorded

inaccurate answers on Corbeil’s May 2007 life insurance application to Pruco and did not review

the answers with Corbeil in July 2007, see Booska v. Hubbard Ins. Agency, Inc., 627 A.2d 333, 335


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(Vt. 1993) (noting that an insurance agent has a duty “to use reasonable care and diligence to

procure insurance that will meet the needs and wishes of the prospective insured, as stated by the

insured” (internal quotation marks and citation omitted)), and that the Plaintiff has suffered some

harm, we agree with the District Court that Plaintiff’s claim fails because she has not adduced

sufficient evidence to permit a reasonable jury to conclude that it was Blood’s purported negligence

– and not the independent omissions of Corbeil in signing the July 2007 Good Health Statement –

that directly and proximately caused Plaintiff’s harm. Pruco rescinded the Policy following

Corbeil’s death, citing not Blood’s conduct in limiting the questions on the May 2007 application

to events that had occurred in the past two months, but Corbeil’s failure to notify Pruco of several

medical events – including a CT scan that revealed a “1-cm spiculated lesion” in Corbeil’s lung –

occurring after the initial May application and before Corbeil signed the Good Health Statement on

July 21, 2007. Plaintiff does not contend otherwise.

       Plaintiff argues instead that Blood’s purported negligence nevertheless caused her harm on

the theory that, but for Blood’s negligence in not thoroughly reviewing the May application with

Corbeil (including its Certification Clause requiring Corbeil to “inform [Pruco] of any changes in

[his] health, [or] mental or physical condition”) in either May or June, Corbeil would have

completed the July Good Health Statement accurately and the Policy would never have issued.

Plaintiff, aware that her husband had no life insurance, would as a result have refrained from

securing a loan that she contends she cannot now pay off. We agree with the District Court,

however, that even assuming arguendo that but for causation could be established in this way,

Corbeil’s omissions on the July Good Health Statement constituted an intervening event that broke

the causal chain. See Collins v. Thomas, 938 A.2d 1208, 1211 (Vt. 2007) (holding that proximate


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cause does not exist where “the injurious consequences that flow [from the defendant’s negligence]

[are] diverted by the intervention of some efficient cause that makes the injury its own” (first

alteration in original) (internal quotation marks and citation omitted)). Accordingly, Plaintiff is

unable to establish causation as a matter of law. See Roberts v. State, 514 A.2d 694, 696 (Vt. 1986)

(“Proximate cause is ordinarily an issue to be resolved by the jury unless the proof is so clear that

reasonable minds cannot draw different conclusions or where all reasonable minds would construe

the facts and circumstances one way.” (internal quotation marks and citation omitted)).

2. The Contract Claims

         Plaintiff next contends that sufficient evidence exists for a jury to find that Blood entered into

a verbal contract with Corbeil to use reasonable care to secure a life insurance policy and that Blood

breached that contract. However, we agree with the District Court that no reasonable jury could find

in favor of Plaintiff as to this contract claim. Even assuming arguendo that such a verbal contract

existed, there is no evidence that any contractual breach by Blood caused the damages that Plaintiff

now claims. See Smith v. Country Vill. Int’l, Inc., 944 A.2d 240, 243–44 (Vt. 2007) (noting that a

breach of contract claim fails unless the plaintiff can show either “direct damages that naturally and

usually flow from the breach itself, [or] special or consequential damages, which must pass the tests

of causation, certainty and foreseeability” (internal quotation marks and citation omitted)).

Accordingly, we affirm the District Court’s award of summary judgment in favor of Blood on this

claim.

         As to Pruco Life Insurance Company, Plaintiff asserts, relying on Middlebrook v. Banker’s

Life & Casualty Co., 234 A.2d 346 (Vt. 1967), that Pruco was estopped from rescinding the Policy

on the basis of Corbeil’s material omissions because Corbeil acted in good faith and his omissions


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on the July Good Health Statement were caused by Blood’s misconduct at a time when Blood was

serving as Pruco’s agent. Pruco counters that Blood was not acting as its agent, that Corbeil did not

fill out the application in good faith, and that Middlebrook’s common law rule has been superseded

by 8 V.S.A. § 3736, which permits rescission of an insurance policy because of a material

misrepresentation by the insured, irrespective of the insured’s good faith.

       Assuming arguendo that a reasonable jury could find that Blood served as Pruco’s agent and

that Corbeil acted in good faith, we nonetheless conclude that Plaintiff’s claim against Pruco fails

because Middlebrook does not apply here. In Middlebrook, the insurance company was estopped

from rescinding a policy on the basis of false answers supplied by the insurance agent without the

insured’s knowledge. 234 A.2d at 347–48; see also Whitmore v. Mut. Life Ins. Co. of N.Y., 173 A.2d

584, 588–90 (Vt. 1961) (applying rule later adopted in Middlebrook to situation where rescission

was based on false statements provided by underwriter without the insured’s knowledge). Here,

rescission was based on Corbeil’s material omissions on the July Good Health Statement and not

on Blood’s alleged misconduct. Middlebrook is therefore inapposite on its own terms, and we need

not address any inconsistency between it and 8 V.S.A. § 3736.

       All arguments not otherwise discussed in this summary order are found to be moot or without

merit. Accordingly, for the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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