
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1949                           CECILE E. VICKERS, INDIVIDUALLY                               AND AS EXECUTRIX OF THE                          ESTATE OF CHARLES E. VICKERS, JR.,                                 Plaintiff, Appellee,                                          v.                        BOSTON MUTUAL LIFE INSURANCE COMPANY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Zachary R. Karol, U.S. Magistrate Judge]                                            _____________________                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Ralph C. Copeland  with whom Copeland &  Hession was on brief  for            _________________            ___________________        appellant.            John A.  Mavricos with  whom Christopher, Hays, Wojcik  & Mavricos            _________________            _____________________________________        was on brief for appellee.                                 ____________________                                   February 2, 1998                                 ____________________                      ALDRICH, Senior Circuit Judge.  In   August,  1992,                               ____________________            Charles E. Vickers, Jr., (Vickers), an employee insured under            an ERISA,  29 U.S.C.    1001 et seq.,  group policy covering,            within limits,  accidental death,  was fatally  injured in  a            one-car automobile  crash in  Arizona.   Plaintiff  executrix            sued in the United States  District Court for the District of            Massachusetts  and   was  awarded   the  death   benefit  and            attorney's fees  on a motion for summary judgment.  Defendant            Boston Mutual Life Insurance Company  (Company), claiming the            death was not covered by the policy, appeals.  We affirm.                                      The Facts                                      _________                      Vickers, a 55 year old male, was driving alone when            his car went off the road on a curve, vaulted over a 15  foot            drop, and struck a tree with  great force.  He died within  a            half hour.  The Arizona Medical Examiner performed an autopsy            the following day and listed a number of diagnoses, including            "coronary  arteriosclerosis,  occlusive,  severe,"  and  much            physical trauma.  He gave as the "Cause of Death:"                      Multiple blunt  force traumatic  injuries                      secondary  to   motor  vehicle   accident                      precipitated     by    acute     coronary                      insufficiency.            For  "Manner  of  Death,"  choosing  between  "Natural"   and            "Accident,"  he  chose  "Accident."    Whether  this  was  an            accident within the  policy terms, however, depends  upon the            policy terms.   The undisputed  facts are that the  crash was            caused by Vicker's  heart attack, but the  sole physiological                                         -2-            cause of  death  was the  physical  injury sustained  in  the            crash.  The heart attack alone would not have been fatal.                      We quote from the policy terms.                                      THE POLICY                           We agree  to pay  benefits for  loss                      from bodily injuries:                           a) caused by an accident . . . ; and                           b) which, directly and from no other                      causes, result in a covered loss.                           We will not pay benefits if the loss                      was caused by:                           a)  sickness,  disease,   or  bodily                      infirmity; or                           b) any of  the Exclusions listed  on                      Page (sic) 2-3.                                       . . . .                          THIS IS A LIMITED ACCIDENT POLICY                  WHICH DOES NOT PAY BENEFITS FOR LOSS FROM SICKNESS                                       . . . .                                      EXCLUSIONS                                      __________                           No benefit will be paid for loss                      resulting from:                                       . . . .                           6.  Sickness, disease or bodily                      infirmity.                      The  basic arguments are these:  Plaintiff says the            policy pays  for "loss,"  viz., death,  from bodily  injuries            that were caused  by an accident, and the  exclusion does not            apply because  the heart  attack caused  the accident  rather                                         -3-            than the  death.   The  Company  says the  crash  was not  an            accident, and that  even if it was, the  bodily injuries that            caused the loss resulted from an accident caused by the heart            attack,  so that the basic cause of the loss was the diseased            heart.                      We  can  easily  dispose  of  the  Company's  first            argument.     In  its   view,  and  relying   on  Wickman  v.                                                              _______            Northwestern  National  Insurance  Co., 908  F.2d  1077  (1st            ______________________________________            Cir.), cert. denied, 498 U.S.  1013 (1990), the crash was not                   ____________            an  "accident," as  "a reasonable  person  in the  decedent's            shoes should have foreseen that if one suffers a heart attack            while driving and becomes unconscious, loss of control of the            vehicle  is inevitable  and would  likely  result in  serious            bodily  injury  and  possibly  death."    Perhaps,  but  some            subjective expectation of  a heart attack would  be required,            and there was  none here.  The Company's  argument that there            was no accident is patently frivolous.                      Otherwise,   to   a   degree,   overlooking   legal            precedents,  we can understand both parties.  Surely Vickers'            family thinks of  him as having been killed  in an automobile            accident.  But the Company says, on plaintiff's theory,  what            is the  point of the  two policy provisions  denying coverage            for  and  excluding  loss "caused  by"  and  "resulting from"            "disease or bodily  infirmity"?  There was no  need for those            disclaimers   in  an   accident   policy  unless   there  was                                         -4-            contemplated  a  disease-connected  accident to  begin  with.            Manifestly  there would  have been  no accident  and no  loss            here, were it not for the insured's diseased heart.                      On reflection,  as a  matter of  pure logic,  quite            possibly this issue could be answered in the Company's favor.            But,  if so,  this  raises  another question.    Why did  the            Company  write a  policy that  called for  the services  of a            logician  instead of relying  on "plain meanings  . . . which            comport  with  the  interpretations  given   by  the  average            person"?  Wickman, 908 F.2d at 1084.  We suggest two reasons.                      _______            (1) Inefficiency;  poor, ill-informed, draftsmanship.   (2) A            well-advised drafter,  persuaded by  the sales-department  to            simplify and not use intimidating language.1  Neither reflect            well on the Company.                                       The Law                                       _______                      We held  in  Wickman that  the  terms of  an  ERISA                                   _______            policy  are to  be interpreted  under  principles of  federal                                            ____________________            1.  We can  understand that sales  agents might not  like the            policy wording in Sekel v. Aetna Life Insurance Co., 704 F.2d                              _____    ________________________            1335,  1336-37  (5th  Cir.  1983)  (applying  Texas  law  and            reversing an award to the insured),                      The insurance  provided under  this Title                      does not include, and no payment shall be                      made  for, any  loss  resulting from  any                      injury caused or contributed to by, or as                      a consequence  of, any  of the  following                      excluded risks, even though the proximate                      or   precipitating  cause   of  loss   is                      accidental bodily injury:  (a) bodily  or                      mental infirmity; or (b) disease . . . .                                         -5-            substantive law.  908 F.2d at 1084; see also Pilot Life  Ins.                                                ________ ________________            Co. v. Dedeaux, 481 U.S. 41, 56 (1987).  In view of the still            ___    _______            "formative  stage" of federal law here we apply "common-sense            canons  of  contract  interpretation"  and  borrow  the "best            reasoned" concepts  from state law.   908  F.2d at 1084.   If            this  Massachusetts   insurer's  draftsman   had  looked   to            Massachusetts law, he should have found the following:                      In Bohaker v. Travelers Insurance Co., 215 Mass. 32                         _______    _______________________            (1913),  the  insured,  delirious  from  typhoid  fever,  was            temporarily  left  alone in  an  upstairs  bedroom.   He  was            thereafter found, fatally  injured, on the ground  outside an            open  window.  The  policy insured against  "bodily injuries,            effected  directly or  independently  of  all  other  causes,                      __________________________________________________            through  external, violent and accidental means."   Id. at 32                                                                ___            (emphasis added).  The court said,                      A  sick  man  may be  the  subject  of an                      accident,  which  but  for  his  sickness                      would not  have  befallen him.   One  may                      meet his  death by falling  into imminent                      danger  in a  faint or  in  an attack  of                      epilepsy.  But such an event commonly has                      been  held to  be the result  of accident                      rather than of disease.            Id. at  34.  The  court held  for the  insured.   To look  at            ___            common understanding is a fundamental principle.                      In Vahey v. John Hancock Mutual Life Insurance Co.,                         _____    ______________________________________            355 Mass.  421  (1969), the  insured,  while walking  on  the            street, had a major epileptic seizure, causing him to fall to                                         -6-            the pavement, striking his head.  Death came from a fractured            skull and cranial bleeding.  The policy provided:                      No  benefit  will  be  payable under  the                      "Accidental Death  Benefit" provision  if                      the Insured's death  results, directly or                                                    ___________                      indirectly, or wholly or partially, from:                      __________                      (1)  any infection  or  bodily or  mental                      infirmity or  disease existing  before or                      commencing  after  the  accidental injury                      . . . .            Id. at  422 n.1  (emphasis added).   The  court held for  the            ___            defendant.  Thus two, more exactly, one little word.                      Defendant  would have it that "directly and from no            other causes" is  "not only analogous to 'indirect' (sic) but                                                     __________            is  broader and more  extensive."  Our  logician might agree.            But why  analogies?  Why overlook Bohaker, and neglect Vahey?                                              _______              _____            Defendant gains nothing by saying, broadly,                      [P]roximate  cause . . .  focuses on  the                      foreseeability between the  event and the                      injury  caused as  a result of  the event                      and does not require a direct connection.                                      . . . . .                      [T]he nexus between the  heart attack and                      the  bodily  injuries suffered  from  the                      crash was immediate  and should be viewed                      as one entire event even though the heart                      attack was not the physiological cause of                      the decedent's death.            This is no  answer when we are interpreting  the word "cause"            in a layman's insurance policy.                                   Attorney's Fees                                   _______________                      We have gone to this length, in what would normally            call  for a short  and routine affirmance,  because defendant                                         -7-            appeals from  the court's  awarding prejudgment  interest and            attorney's  fees.    We  review   this  award  for  abuse  of            discretion.   See  Cottrill v.  Sparrow,  Johnson &  Ursillo,                          ___  ________     _____________________________            Inc.,  100 F.3d  220,  223 (1st  Cir.  1996).   This  being a            ____            contract action,  with liquidated  damages, defendant  cannot            object to  interest:  it  has had the use  of promised money.            Cf. id.  at 224.   As  to fees, should  defendant have  known            ___ ___            there was no merit  in its defense?   See id.  at 225.   Even                                                  ___ ___            now, as against the  exhaustive list of opposing  state cases            cited  in the  diligent magistrate  judge's  opinion, not  to            mention  the Massachusetts cases, defendant has found no case            directly in its favor.   We cannot fault the district court's            award  of  attorney's fees  under  Cottrill  as an  abuse  of                                               ________            discretion.                      The $20,000 fee, which at, say, $200 an hour, comes            to  100 hours, possibly suggests the standard contingency fee            figure2 rather  than the  actual time  needfully  spent.   We            approve it, but  shall add nothing  for the further  briefing            needed for this court.                      Affirmed, with double costs.                      ____________________________                                            ____________________            2.  The death benefit was $50,000.                                         -8-
