                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1651
                                     _____________

                       LIBERTY LIFE INSURANCE COMPANY

                                             v.

       VERONICA N. FIGUEROA, Administratrix of Estate of Ernesto Figueroa,
                      also known as Ernesto F. Carrion,
                                                Appellant
                              _____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Civil No. 5:09 -cv-03069)
                       District Judge: Hon. James Knoll Gardner
                                    _____________

                           Submitted Under Third Circuit LAR 34.1(a)
                                   December 15, 2011

         Before: SLOVITER, VANASKIE and GREENBERG, Circuit Judges

                                 (Filed: February 9, 2012)
                                      _____________

                                       OPINION
                                     _____________

VANASKIE, Circuit Judge.

       Liberty Life Insurance Company (“Liberty Life”) brought this action in the United

States District Court for the Eastern District of Pennsylvania against Victoria N.

Figueroa, the Administratrix of the estate of her late father, Ernesto Figueroa, seeking a
declaratory judgment that the company is not obligated to provide benefits under Mr.

Figueroa‟s accidental death insurance policy. The District Court entered summary

judgment in favor of Liberty Life, holding that there was no coverage under the policy

because Mr. Figueroa‟s death was not the result of an “accidental bodily injury.” We

disagree and will reverse.

I. Background

       Because we write primarily for the parties, we assume familiarity with the case

and discuss only those facts necessary to our decision. On the night of January 29, 2008,

Ernesto Figueroa went to the Lehigh Valley Hospital emergency room with complaints of

abdominal pain, nausea, and vomiting. After an initial examination, doctors ordered a

CT scan with contrast dye. On the morning of January 30, Mr. Figueroa received the

intravenous injection of contrast dye. Approximately one minute into the injection, Mr.

Figueroa became nauseous, vomited multiple times, became “diffusely erythematous,”

and began scratching himself. Mr. Figueroa began to seize as he was brought back to the

emergency room. He was administered epinephrine for apparent anaphylaxis, received

CPR, and was intubated. Mr. Figueroa subsequently developed ventricular fibrillation,

which did not respond to medication or defibrillation. He died at 7:37 a.m. on January

30, 2011. An autopsy confirmed Mr. Figueroa‟s cause of death as “acute anaphylaxis

following intravenous dye administration.” (A. 82.)

       Mr. Figueroa and his wife, Margarita Carrion, were insured under an accidental

death insurance policy issued by Liberty Life. The policy provided for an “Accidental

Death Benefit” in the amount of the unpaid balance of Mr. Figueroa‟s home mortgage

                                            2
upon “due proof [that the insured‟s] death occurred . . . as the direct and sole result of

accidental bodily injury.” (A. 22.)

       Ms. Carrion submitted a claim to Liberty Life for benefits under the policy.

Liberty Life denied the claim and subsequently initiated this action against Victoria N.

Figueroa, Mr. Figueroa‟s daughter and the Administratrix of his estate, seeking a

declaratory judgment that it is not obligated to pay benefits under the policy. The District

Court held oral argument on the parties‟ cross-motions for summary judgment and on

February 25, 2011, issued an opinion and order granting summary judgment in favor of

Liberty Life on the ground that Ms. Figueroa “had not met [her] initial burden of

establishing that Mr. Figueroa‟s death was an „accidental bodily injury‟ under the plain

language of the policy.” Liberty Life Ins. Co. v. Figueroa, No. 09-cv-03069, 2011 WL

835939, at *8 (E.D. Pa. Feb. 25, 2011). The District Court did not reach the separate

issue of whether the insurance policy‟s exclusion for death resulting “directly or

indirectly, in whole or in part, from . . . disease, illness or infirmity of the body or mind”

applies to preclude coverage. In her instant appeal, Ms. Figueroa maintains that Mr.

Figueroa‟s death resulted from an accidental bodily injury under the terms of the policy

and that his death does not fall within the policy‟s exclusion for death resulting “directly

or indirectly, in whole or in part, from disease, illness or infirmity.”

II. Jurisdiction and Standard of Review

       The District Court had diversity jurisdiction over this matter pursuant to 28 U.S.C.

§ 1332, and we have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary

review of a district court‟s order resolving cross-motions for summary judgment.

                                               3
Tristani ex rel. Karnes v. Richman, 652 F.3d 360, 366 (3d Cir. 2011). We also exercise

plenary review over a district court‟s interpretation of state law, as well as its conclusion

as to the legal operation of an insurance policy. Royal Ins. Co. of Am. v. KSI Trading

Corp., 563 F.3d 68, 73 (3d Cir. 2009). The parties do not dispute that Pennsylvania

substantive law governs this diversity matter.

III. Discussion

       A. Accidental Bodily Injury

       In holding that Mr. Figueroa‟s death was not the result of an “accidental bodily

injury,” the District Court relied on this Court‟s observation in State Farm Fire &

Casualty Co. v. Estate of Mehlman, 589 F.3d 105 (3d Cir. 2009), that “„[q]ualification of

a particular incident as an accident seems to depend on two criteria: 1. the degree of

foreseeability, and 2. the state of mind of the actor in intending or not intending the

result.‟” 1 Id. at 111 (quoting Black‟s Law Dictionary 16 (9th ed. 2009) (quoting John F.

Dobbyn, Insurance Law in a Nutshell 129 (3d ed. 1996)). The District Court stated that

because it was unable to conclude that Mr. Figueroa‟s death was unforeseeable, it could

not conclude that Ms. Figueroa had met her initial burden of showing that the death was


        1
          Liberty Life has argued that Mr. Figueroa did not suffer from an “accidental
bodily injury,” without specifically arguing that Mr. Figueroa did not suffer from a
“bodily injury.” We attribute the absence of any argument on the issue of whether Mr.
Figueroa‟s anaphylactic reaction constituted a “bodily injury” to the parties‟ recognition
that it was, without question, such an injury. See Beckham v. Travelers Ins. Co., 225
A.2d 532 (Pa. 1967) (holding that an insured‟s unintended fatal drug overdose
constituted a “bodily injury . . . effected . . . through accidental means” within the terms
of his life insurance policy).


                                              4
the result of an “accidental bodily injury.” In the District Court‟s view, Mr. Figueroa‟s

death was foreseeable because it was a possible, albeit remote, consequence of being

injected with contrast dye.

       “Foreseeable,” however, often means more than that which is merely “possible.”

Indeed, the term is defined in the dictionary as “being such as may be reasonably

anticipated.” Webster‟s Third New International Dictionary 890 (1993). Under that

definition, to the extent Mr. Figueroa‟s death was not “reasonably anticipated,” it was not

foreseeable. While we think a better view of “foreseeability” in this context would be the

degree to which an event is reasonably anticipated or expected, we will refrain from

analyzing the “foreseeability” of Mr. Figueroa‟s death because the “foreseeability” of an

event does not control whether it qualifies as an accident under Pennsylvania law.2

       In Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union

Insurance Co., 908 A.2d 888 (Pa. 2006), the Pennsylvania Supreme Court, relying on the

dictionary definition of “accident” as “[a]n unexpected and undesirable event,” or

“something that occurs unexpectedly or unintentionally,” stated that “[t]he key term in

the ordinary definition of „accident‟ is „unexpected,‟” which, the Court explained,

“implies a degree of fortuity.” Id. at 897-98 (citing Webster‟s II New College Dictionary


       2
         It bears noting that notwithstanding our reference in Mehlman to foreseeability,
the holding in Mehlman that an insured‟s conduct in attempting to shoot another was not
“accidental” under Pennsylvania law did not at all turn on foreseeability, but rather on
our determination that the insured, despite his intoxication, had intended his actions. See
Mehlman, 589 F.3d at 111-14. Moreover, we explicitly stated that the Pennsylvania
Supreme Court “has emphasized that the fortuity of the events in question is the key
factor to consider in making [the] determination [of whether there has been an
accident].” Id. at 111 (emphasis added).
                                             5
6 (2001)). The Pennsylvania Supreme Court has further explained that “„the test of

whether injury is a result of an accident is to be determined from the viewpoint of the

insured and not from the viewpoint of the one that committed the act causing the injury.‟”

Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286, 292 (Pa. 2007) (quoting Mohn v.

Am. Cas. Co. of Reading, 326 A.2d 346, 348 (Pa. 1974)). Thus, under Pennsylvania

precedent, “we are required to determine whether, from the perspective of the insured, the

claim[] asserted by [Ms. Figueroa] present[s] the degree of fortuity contemplated by the

ordinary definition of „accident.‟” Id. at 293. We believe that from Mr. Figueroa‟s

perspective, the fatal anaphylactic reaction was an exceedingly unexpected consequence

of receiving the contrast dye injection. 3 Consequently, we hold that under Pennsylvania

law, Mr. Figueroa‟s death was the result of an “accidental bodily injury” within the

meaning of the policy.

       B. “Disease, Illness or Infirmity” Exclusion

       Because the District Court held that Mr. Figueroa‟s death was not covered under

the policy as a death resulting from an “accidental bodily injury,” it did not reach Liberty

Life‟s alternative argument that coverage was precluded under the policy‟s exclusion for

“death which results directly or indirectly, in whole or in part, from . . . disease, illness or



        3
         Although the record indicates that an “[a]llergic reaction warning was given”
(A. 55), it is not clear whether Mr. Figueroa was specifically warned about the risk of a
fatal reaction. Regardless, in light of the very low risk of severe or fatal anaphylaxis, the
warning does not render Mr. Figueroa‟s injury the “the natural and expected result” of
his receiving the contrast dye. See Baumhammers, 938 A.2d at 292 (“An injury . . . is
not „accidental‟ if the injury was the natural and expected result of the insured‟s
actions.”).

                                               6
infirmity of the body or mind.” (A. 22.) Liberty Life argued below and maintains on

appeal that this exclusionary clause applies because Mr. Figueroa‟s gastrointestinal

illness, which the autopsy revealed to be caused by “[n]umerous diverticula . . . present in

the descending colon” (A. 87), “precipitated [the] chain of events” that resulted in Mr.

Figueroa receiving the intravenous injection of contrast dye. (Liberty Life‟s Br. at 23.)

       In Shiffler v. Equitable Life Assurance Society of the United States, 838 F.2d 78

(3d Cir. 1988), this Court, applying Pennsylvania law, held that when an insurance

“policy contains a . . . clause precluding recovery if the death was caused directly or

indirectly by disease, there can be no recovery if the preexisting disease contributed to

the death.” Id. at 84 (emphasis added). It is clear that Mr. Figueroa‟s illness was not a

contributing factor in his death, it being undisputed that the sole cause of death was

“acute anaphylaxis.” (A. 82.) See Speer v. W. & S. Life Ins. Co., 43 A.2d 562, 566 (Pa.

Super. Ct. 1945) (holding that because it was an admitted fact that the insured‟s death

was due solely to a skull fracture from falling on a concrete floor, “death could not have

been due, even partially, to a preexisting disease or infirmity”). We accordingly hold that

Mr. Figueroa‟s death does not fall within the policy‟s exclusion for death “result[ing]

directly or indirectly, in whole or in part, from . . . disease, illness or infirmity of the body

or mind.”

IV. Conclusion

       For the foregoing reasons, we will reverse the District Court‟s grant of summary

judgment in favor of Liberty Life, and remand with instructions for the District Court to

enter judgment in favor of Ms. Figueroa.

                                               7
