                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2002

Flemming v. Air Sunshine Inc
Precedential or Non-Precedential: Precedential

Docket No. 01-3183




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PRECEDENTIAL

       Filed November 19, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-3183/3396

SABINE FLEMMING, AS
PERSONAL REPRESENTATIVE OF
THE ESTATE OF JAMES S. FLEMMING,

v.

AIR SUNSHINE, INC., and GEORGE J. JAMES,

       Sabine Flemming, As Personal Representative Of
       the Estate of James S. Flemming,
       Appellant in No. 01-3183

       Air Sunshine Inc.; George J. James;
       National Union Fire Insurance Company Of
       Pittsburgh, PA.
       Appellants in No. 01-3396

On Appeal from the District Court
of the Virgin Islands, Division of St. Croix
District Court Judge: The Honorable Raymond L. Finch,
Chief Judge
(D.C. Civil No. 97-CV-00052)

Argued on May 15, 2002

Before: AMBRO, FUENTES, and GARTH, Circuit Jud ges

(Opinion Filed: November 19, 2002)




       Pamela Lynn Colon, Esq. [ARGUED]
       Law Offices of Lee J. Rohn
       1101 King Street, Suite 2
       Christiansted, St. Croix
       United States Virgin Islands 00820

        Counsel for Appellant/
       Cross-Appellee Sabine Flemming

       William G. Burd [ARGUED]
       Kenneth D. Murena
       Tew Cardenas Rebak Kellogg
        Lehman DeMaria Tague
        Raymond & Levine, LLP
       Miami Center, 26th Floor
       201 S. Biscayne Boulevard
       Miami, Florida 33131

        Counsel for Appellees/Cross-
       Appellants Air Sunshine, Inc. and
       George J. James

OPINION OF THE COURT

FUENTES, Circuit Judge:

This unusual case arises from the tragic death of James
S. Flemming, who died as a result of a plane crash off the
coast of St. Thomas in the United States Virgin Islands.
James Flemming survived the crash, but drowned when the
plane sank. James Flemming’s wife, Sabine Flemming, sued
the airline, Air Sunshine, Inc., and the pilot, George J.
James (collectively "Air Sunshine"). The parties entered into
settlement discussions during which the plaintiff contended
that the airplane’s crash into the water resulted only in
emotional distress to her husband and that his death by
drowning was a separate occurrence from the crash itself.
She thus claimed that her husband’s accident constituted
multiple occurrences under Air Sunshine’s insurance
policy.

The parties entered into a partial settlement under which
the defendants paid plaintiff $500,000. The settlement

                                2


order provided that the issue of multiple occurrences under
Air Sunshine’s insurance policy would be "non-jury" and
decided by the District Court. Following discovery, extensive
briefing, and the arguments of counsel, the court concluded
that Air Sunshine’s policy allowed recovery for multiple
occurrences, but that James Flemming’s death resulted
from a single occurrence.

On appeal, Sabine Flemming claims that although the
court correctly determined that the policy allowed for
multiple recoveries, "it should have left the factual
determination of the number of occurrences to the jury."
Flemming Br. at 27. We agree with the District Court that
the settlement authorized the court to decide the entire
issue of multiple occurrences. We also agree with the
court’s ultimate determination that, while Air Sunshine’s
policy allowed coverage for multiple occurrences, the events
that led to James Flemming’s death constituted a single
occurrence under that policy. We therefore affirm the
District Court’s final order in all respects.

I. Facts and Procedural Background

A. The Plane Crash and the Partial Settlement

James Flemming was a passenger on an Air Sunshine
flight from St. Croix to St. Thomas in the United States
Virgin Islands on February 8, 1997. The plane, piloted by
Defendant James, crashed into the ocean at night during
its approach to St. Thomas. The plane was not destroyed
on impact, but immediately began taking on water and
sinking. Pilot James and three of the four passengers
escaped from the plane before it sank, although one
passenger later drowned when he could no longer hold on
to a life vest he was sharing with another passenger.
According to deposition testimony and Sabine Flemming’s
biomechanics expert, James Flemming was still alive after
the plane crashed and was struggling with his seat belt as
the pilot and the other passengers exited the aircraft.
James Flemming did not escape from the sinking plane,
ultimately drowning.

                                3


The parties vigorously dispute the circumstances of the
plane crash and the alleged lack of precautions and rescue
efforts taken by pilot James. James testified in his
deposition that when the plane hit the water, he was
"scared to death" and "must have been knocked out." App.
at 169-70. James stated that, after hitting the water he
could not make radio contact because "the next thing [he]
remember[s] is the water being up about midway deep past
the tops of the seat cushion tops . . . and the plane from
that point in time sunk within 15 seconds." Id. at 172-73.
James said that, after impact, he swam through the cabin
and found a life jacket floating in the back. He heard
passengers yelling, and one passenger in front of him said
that he could not swim, so James gave him his life jacket.
He stated that it was very dark and that he wished he had
retrieved more life vests, but that "the plane was just about
ready to sink," and that he "really didn’t think [he] had the
time" to get more vests. Id. at 173-76. He stated that once
he emerged from the plane, he could not see any
passengers because it was "pitch black" and he was in
shock. Id. at 177, 196-97. James disputed the account of
other passengers that James Flemming was still in his seat
trying to remove his seatbelt when James swam through
the plane’s cabin. James explained that the cabin was very
small and that he would have brushed against James
Flemming if he was there. James eventually swam to some
nearby rocks for safety.

Two surviving passengers, Frankie Bellot and Eugene
Willett, both testified in depositions that, from the time they
got out of the plane, about three or four minutes passed
before the plane sank. They testified that the pilot left the
plane first. They also stated that it was very dark and that
they could not remember every detail because the events
were so chaotic. Willett stated that he saw James Flemming
alive and still in his seat trying to detach his seatbelt while
he was exiting the plane.

Sabine Flemming filed a wrongful death action against
the airline and the plane’s pilot in the District Court of the
Virgin Islands, Division of St. Croix. She sued individually
and in her capacity as personal representative of the estate
of her late husband, asserting claims of negligence,

                                4
negligent infliction of emotional distress, and intentional
infliction of emotional distress. Thereafter, the parties
entered into settlement negotiations, with a Magistrate
Judge facilitating the discussions. Eventually, the parties
agreed to a partial settlement, which the Magistrate Judge
memorialized in an order dated March 3, 1998.

Under the partial settlement set forth in the Magistrate
Judge’s order, Air Sunshine agreed to pay Sabine Flemming
$500,000 for the release of all claims regarding the death of
James Flemming. Air Sunshine’s insurer was allowed to
"intervene . . . on a complaint for declaratory judgment." Id.
at 12. The settlement order states that, presumably for
purposes of the declaratory judgment motion, " [t]he issues
to be considered (non-jury) are federal preemption through
Warsaw Convention ["Warsaw"] and Death on the High Seas
Act ["DOHSA"], and multiple occurrences as they relate to
insurance coverage herein." Id. at 12 (emphasis added). The
order provided that Sabine Flemming would file "a
statement of multiple occurrences claimed (that have
reasonably been pled in plaintiff ’s amended complaint)
within twenty (20) days," and that Air Sunshine could
"specify its DOHSA defense claim" in response to this
statement. Id.

The settlement order then laid out a series of additional
situations under which Sabine Flemming could recover
more than the $500,000 base settlement amount. These
additional recoveries depended on the court’s resolution of
the Warsaw/DOHSA and multiple occurrence issues. Under
these settlement provisions, if Sabine Flemming did not
prevail on the multiple occurrences issue, she could not
recover any amount beyond the initial $500,000 payment.1
_________________________________________________________________

1. With regard to these potential additional recoveries, the settlement
order states:

       (c) If the plaintiff does not prevail on multiple occurrences or if the
       insurer prevails on Warsaw, the plaintiff gets nothing additional.

       (d) If the plaintiff prevails on multiple occurrences and the insurer
       does not prevail on Warsaw and DOHSA, the plaintiff gets
       $450,000.00 additional.

       (e) If the plaintiff prevails on multiple occurrences and the insurer
       prevails on DOHSA, the parties will then litigate the plaintiff ’s

                                5


The order specified that "whether the plaintiff is entitled to
a jury trial on such issue of damages shall be decided at
such time upon briefs." Id. at 13.

Along with the settlement order, the court issued a
separate scheduling order detailing a discovery and briefing
schedule solely on the "plaintiff ’s claim for multiple
occurrences." Id. at 1061. That scheduling order stated
that, following discovery, Sabine Flemming would file a
"motion and memorandum regarding multiple occurrences"
with the District Court, and all further action would be
stayed pending its decision. Id. at 1062. Under the
settlement order, discovery relating to other issues would
be allowed only if Sabine Flemming prevailed on her claim
for multiple occurrences. Id. at 13.

The record does not reveal that Air Sunshine’s insurer
ever intervened by seeking a declaratory judgment action.
However, the case nonetheless proceeded along the route
contemplated by the settlement and scheduling orders, with
Air Sunshine effectively asserting the positions of its
insurer. Pursuant to the settlement order, Sabine Flemming
filed a notice of occurrences in March 1998. She identified
four separate "occurrences": 1) the crash of the plane and
the negligent operation of the plane; 2) the failure to
provide a pre-flight safety briefing; 3) the failure to notify
passengers of the impending crash and failure to provide
emergency safety instructions; and 4) after the crash, the
failure to provide James Flemming with a life vest or other
safety equipment, the failure to provide him any aid or
assistance in exiting the plane or in any other fashion, and
the pilot’s "taking the life jackets and swimming off instead
_________________________________________________________________

       DOHSA allowed damages to a maximum of $450,000.00 additional,
       e.g.

       (i) If the plaintiff shows total $400,000.00 economic, plaintiff gets
       no additional.

       (ii) If the plaintiff shows total $650,000.00 economic, plaintiff gets
       $150,000.00 more.

       (iii) If the plaintiff shows total $1,000,000.00 economic, plaintiff
       gets $450,000.00 additional.

App. at 12-13.

                                6


of providing assistance (i.e., the Captain failing to go down
with the ship)." Id. at 56-57.

In April 1998, the parties entered into a release of claims
as contemplated by the partial settlement agreement. The
release waived claims in exchange for $500,000 from Air
Sunshine, "subject to the reservation that Plaintiff ’s estate
may be entitled to additional sums if it is successful in its
claim of ‘multiple occurrences’ " under the settlement
agreement and order. Id. at 436.

B. Air Sunshine’s Insurance Policy

Resolution of this appeal requires us to construe both the
partial settlement agreement and the terms of Air
Sunshine’s insurance policy with regard to the issue of
"multiple occurrences." Some of the relevant terms are
found in Liability Coverage D of the policy, entitled "Single
Limit Bodily Injury and Property Damage Liability." Under
Coverage D, the insurer agrees

       to pay on behalf of the Insured all sums which the
       insured shall become legally obligated to pay as
       damages because of bodily injury sustained by any
       person (excluding any passenger unless the words
       "including passengers" appear in item 3 of the
       Declarations) and property damage, caused by an
       occurrence and arising out of the ownership,
       maintenance or use of the aircraft . . .

App. at 354 (emphasis added).2 Because the words
"including passengers" appear in item 3 of the declarations
page for the Air Sunshine policy, this coverage extends to
passengers. The policy limits liability under Coverage D
regardless of the number of persons injured or the number
of claims brought. The limitation begins:

       The total liability of the [insurance] Company for all
       damages, including damages for care and loss of
       services, because of bodily injury or property damage
_________________________________________________________________

2. In the "Definitions" section of the policy, words with specific
definitions are printed in boldface type. We omit these emphases from
our quotations of the policy language.

                                7


       sustained by one or more persons . . . as the result of
       any one occurrence shall not exceed the limit of liability
       stated in the Declarations as applicable to "each
       occurrence."

Id. at 357 (emphasis added).3 The declarations page for
Coverage D limits liability for "each occurrence" to
$10,000,000. Id. at 362. Coverage D is subject to further
limitations as follows:

       And further provided that if the Declarations are
       completed to show "passenger liability Limited
       internally to", the total liability of the Company for all
       damages, including damages for care and loss of
       service, because of bodily injury to passengers shall
       not exceed:

       (a) as respect any one passenger, the amount stated in
       the Declarations as applicable to "each person" . . .

Id. at 357. The declarations page for Coverage D lists
"Single Limit - including passengers with passenger liability
limited internally to" and limits liability for"each person" to
$500,000. Id. at 362.

The parties dispute the effect of these limits, and
specifically contest the extent of a person’s coverage for
"multiple occurrences." Coverage for multiple occurrences
may also be referred to as "policy stacking" because Sabine
Flemming seeks to aggregate or "stack" coverages and
coverage limits for each occurrence under the policy. See,
e.g., Rupert v. Liberty Mut. Ins. Co., 291 F.3d 243, 244 n.1
(3d Cir. 2002) (defining "stacking" in context of automobile
insurance policy). Under the settlement, Sabine Flemming
has received $500,000, the limit of coverage for one
occurrence under the policy. Her claim for the additional
recovery contemplated by the partial settlement therefore
depends first on whether she can stack multiple coverage
limits for more than one occurrence.

The meaning of "occurrence" is thus central to this case.
"Occurrence" is defined under the policy as"an accident,
_________________________________________________________________

3. "Bodily injury" is defined under the policy as "bodily injury, sickness,
disease or mental anguish . . . including death." App. at 358.

                                8


including continuous or repeated exposure to conditions,
which results in bodily injury or property damage during
the policy period neither expected or intended from the
standpoint of the Insured . . ." App. at 359. Coverage D
further defines the scope of an "occurrence":

       For the purpose of determining the limit of the
       Company’s liability, all bodily injury and property
       damage arising out of continuous or repeated exposure
       to substantially the same general conditions shall be
       considered as arising out of one occurrence.

Id. at 357 (emphasis added).

To address the "multiple occurrences" issue under the
policy, Sabine Flemming submitted the opinions of three
expert witnesses. Her biomechanics expert stated that
multiple occurrences of negligence caused James
Flemming’s injuries and death, and her aviation expert
opined that the pilot committed several negligent acts and
violated federal regulations. A third expert, an insurance
advisor, concluded that the policy, interpreted in light of
industry custom and usage, permitted stacking and that
there were two insured occurrences in this case-- the
crash and the pilot’s neglect to instruct or assist James
Flemming.

Air Sunshine submitted the opinion of an insurance
consultant, Charles A. Tarpley, who concluded that the
crash and subsequent death of James Flemming comprised
only one occurrence under the policy and industry custom
and practice. Tarpley opined that to find multiple
occurrences under common insurance industry usage and
the specific policy language, "it is necessary to identify
multiple separate accidents, each resulting in bodily
injury," and that the "crash into the ocean is the accident
that gave rise to Mr. Flemming’s injury." Id. at 427.

C. District Court Decisions
After discovery and a hearing on multiple occurrences,
the District Court issued an opinion on January 14, 2000,
holding that the policy permits stacking but that there was
only one occurrence, and, therefore, Sabine Flemming

                                9


could not recover any additional amount under the
settlement. The court concluded that, under the policy, "an
individual may not recover more than $500,000 from Air
Sunshine in the event of bodily injury during a flight
arising from one accident." App. at 23. In a subsequent
opinion on a motion for reconsideration, the court noted
that even though an individual could recover a maximum of
$500,000 for bodily injury resulting from one occurrence or
accident, an additional award could be recovered if Sabine
Flemming could prove a second occurrence caused the
death of her husband.

In its initial opinion, the court construed "occurrence" to
be synonymous with "accident" and then decided whether
there was more than one "accident" or "occurrence" in this
case. The District Court relied on the "cause" theory
adopted by this Court, under which "a court asks if there
was one proximate, uninterrupted cause which resulted in
all of the injuries and damage." Id. at 23 (citation omitted).
The court found that "the proximate cause of Flemming’s
death is indisputably the plane crash," that none of the
other alleged negligent acts "standing on their own would
have led to Flemming’s demise absent the crash," that
these other negligent acts do not meet the definition of
"accident," and that "[p]laintiffs do not assert that at any
point Flemming was out of danger and then placed back
into harm’s way by Air Sunshine or its employees." Id. The
court therefore concluded that because the plane crash "led
to a continuous chain of events culminating in Flemming’s
death," it was the proximate cause of his death. Id. The
court also denied Sabine Flemming’s motion to strike
Tarpley’s expert opinion. Because, under the settlement
order, Sabine Flemming gets no additional award if she
does not "prevail on multiple occurrences," the court’s
ruling effectively disposed of the entire case.

Sabine Flemming filed a motion for reconsideration,
which the court granted on April 6, 2000. After explaining
that it had held that the policy allowed recovery for multiple
occurrences, the court vacated its initial finding that only
one occurrence took place. It reinterpreted the Magistrate
Judge’s settlement order to mean that "this Court was only
to decide the legal question of whether multiple occurrences

                                10


are contemplated by the insurance policy" and that the
issue of whether there was more than one occurrence was
a jury issue. Id. at 29. The court held that it should have
ended its analysis once it determined that the policy allows
recovery for multiple occurrences.

Air Sunshine then filed another motion for
reconsideration in June 2000, arguing both that the policy
does not permit stacking and that the court had the power
under the settlement order to decide whether there actually
were multiple occurrences under the policy on these facts.
On July 17, 2001, the court granted the motion for
reconsideration, and reversed itself for the second time by
vacating the April 6, 2000 decision and reinstating its
original January 14, 2000 opinion, which held that only
one occurrence led to James Flemming’s death.4 The court
forthrightly admitted that it had erred in the April 6 opinion
"because it did not properly consider the Agreement as a
whole." Id. at 33. After assessing the settlement order, the
documents referenced in that order, the transcript of the
settlement conference, and the scheduling order, the court
concluded that it "was to determine the entire issue of
liability as it relates to multiple occurrences" and that
Sabine Flemming had waived her right to a jury trial on
this entire issue. Id. at 37. On September 6, 2001, the
court declared its judgment final. Id. at 40.

Sabine Flemming and Air Sunshine both timely appeal. 5
The District Court had diversity jurisdiction over this case
under 28 U.S.C. S 1332. We have jurisdiction over the
District Court’s final order pursuant to 28 U.S.C.S 1291.
_________________________________________________________________

4. The record does not reveal why there was over a year-long delay
between the filing of the second motion for reconsideration and the
court’s decision.

5. Sabine Flemming filed her appeal before the District Court entered
final judgment in this case, and in response, Air Sunshine filed a
protective cross-appeal and a notice to dismiss the appeal. After the
court issued a final judgment dismissing the case, Air Sunshine
withdrew its motion to dismiss the appeal.

                                11


II. Waiver of Right to Jury Trial

Sabine Flemming contends on appeal that the settlement
only authorized the court to resolve the question of whether
the policy allowed for the stacking of coverage, and that she
never waived the right to have a jury decide whether the
events which led to James Flemming’s death constituted
multiple occurrences. In the alternative, Sabine Flemming
argues that even if the court could decide whether there
were multiple occurrences, it erred in holding that the
events resulting in James Flemming’s death constituted a
single occurrence under the policy. Finally, Sabine
Flemming claims that the District Court erred in denying
her motion to strike the expert opinion of Charles A.
Tarpley. On cross-appeal, Air Sunshine argues that the
District Court erred in concluding that the policy allows
stacked coverage for multiple occurrences.
We first consider whether the settlement allowed the
court to decide whether multiple occurrences may be found
in this case. Basic contract principles apply to the review of
settlement agreements. See In re Cendant Corp. Prides
Litig., 233 F.3d 188, 193 (3d Cir. 2000). We exercise
plenary review over the District Court’s legal construction of
the settlement agreement. See Coltec Industries, Inc. v.
Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). We also have
plenary review over application of the construction of an
agreement to the facts of a case. See STV Engineers, Inc. v.
Greiner Engineering, Inc., 861 F.2d 784, 787 (3d Cir. 1988)

The District Court read the terms of the settlement to
entail a waiver of Sabine Flemming’s Seventh Amendment
right to a jury trial on the entire issue of multiple
occurrences. In her first amended complaint, she
demanded a jury trial. We have joined other courts of
appeals in establishing that an intentional relinquishment
of the right to a jury trial is not required for waiver. See,
e.g., In re City of Philadelphia Litig., 158 F.3d 723, 726 (3d
Cir. 1998) (holding that right to jury trial may be waived by
"inaction or acquiescence"); Wilcher v. City of Wilmington,
139 F.3d 366, 379 (3d Cir. 1998) (noting that "once a party
makes a timely demand for a jury trial, that party
subsequently waives that right when it participates in a
bench trial without objection").

                                12


Air Sunshine argues that Sabine Flemming waived her
right to a jury trial expressly and impliedly in the
settlement, and confirmed this waiver in numerous other
statements made by her counsel in written submissions to
the court and during various oral arguments. We begin
with the settlement order and the documents referenced by
that order.

The sparse language of the settlement order provides at
least some support for Sabine Flemming’s arguments. The
operative language of the order states that "[t]he issues to
be considered (non-jury) are . . . multiple occurrences as
they relate to insurance coverage herein." App. at 12. One
could plausibly read this language in isolation to mean that
the non-jury issue is limited to whether the policy allows
coverage for multiple occurrences. Counsel for Sabine
Flemming suggested at oral argument that the phrase"as
they relate to insurance coverage" would be superfluous if
the court was also to decide whether there were multiple
occurrences on the facts of this case. This Court concludes
that the phrase "as they relate to insurance coverage"
simply frames the multiple occurrences issue as a matter of
insurance coverage and grounds the issue in Air Sunshine’s
insurance policy. Whether the events which led to James
Flemming’s death constituted multiple occurrences under
the policy logically "relate[s] to insurance coverage."

Other provisions of the settlement order strongly support
the District Court’s ultimate ruling. The order’s only
reference to further litigation beyond the court’s"non-jury"
determination of the issues of Warsaw/DOHSA and
multiple occurrences is found in paragraph (e). This
paragraph states: "If the plaintiff prevails on multiple
occurrences and the insurer prevails on DOHSA, the
parties will then litigate the plaintiff ’s DOHSA allowed
damages to a maximum of $450,000.00 additional. . . ." Id.
at 12-13. As the District Court observed in its July 17,
2001 opinion granting the second motion for
reconsideration, if the parties intended to reserve the
factual issue of the existence of multiple occurrences for a
jury, then this paragraph "would have provided additional
language to the effect that should Plaintiffs prevail on the
legal issue of multiple occurrences, then the parties shall

                                13


litigate the factual issue of whether Flemming’s death was
the result of one or more occurrences." Id. at 35.
Furthermore, paragraph (g) of the settlement order states
that "[a] separate scheduling order shall be entered
regarding the plaintiff ’s claim for multiple occurrences. If
plaintiff prevails on such claim, additional discovery will be
allowed concerning the remaining issues." Id. at 13. We
believe that the phrase "multiple occurrences" in the
settlement order encompasses one entire issue, and that
the phrase "remaining issues" refers to all other disputes,
such as damages.

Statements made by the Magistrate Judge and the
parties during the settlement conference support the
conclusion that the settlement agreement limited possible
jury involvement to consideration of damages, rather than
consideration of any issues regarding Sabine Flemming’s
multiple occurrence theory. Sabine Flemming’s attorney
stated to the court that "as soon as you say I don’t prevail
on multiple occurrences nothing ever happens after that."
Id. at 36. The Magistrate Judge’s response reveals that,
even if Sabine Flemming prevailed under her theory of
multiple occurrences, she would be limited to pursuing
DOHSA damages, potentially before a jury:

       That’s correct. If Defendant does not prevail on Warsaw
       and if Plaintiff does prevail on multiple occurrences,
       and if defendant prevails on DOHSA [sic], then we are
       left with the matter of setting what Plaintiff ’s pecuniary
       or DOHSA [sic] allowed claims are, and that matter
       would then have to go to trial. By agreement . .. all of
       the prior matters will have been determined by the
       judge without a jury. However, with regard to whether
       or not plaintiff is entitled to a jury in actually
       determining the amount of her DOHSA [sic] allowed . . .
       damages . . . to the extent the Plaintiff is allowed a jury
       by law, Plaintiff would ask for that jury. A Defendant
       would contest that and the court would decide at that
       time whether or not the Plaintiff was entitled to a jury
       as to some or all of the claims allowable under DOHSA
       [sic].

Id. (emphasis added).
                                14


Sabine Flemming’s counsel objected to this
characterization, arguing that his client had demanded a
jury trial in her complaint and that "[t]he issue of whether
or not plaintiff is entitled to a jury trial appears to be a
legal issue which would be decided by the court." Id. Yet
the court then clarified its view of the jury trial issue,
responding that whether Sabine Flemming would be
entitled to a jury trial "would be reserved until the time that
situation 5 occurs." Id. Sabine Flemming’s counsel
answered, "Correct," and the court clarified that the jury
trial issue would arise only when it would be "applicable"
under "situation 5" and that it would not be
"predetermined." Id. at 68. "Situation 5" refers to a
provision in a letter the Magistrate Judge sent to counsel
suggesting settlement terms, and that provision became
paragraph (e) in the final settlement order.6 Id. at 1049. The
settlement language, supplemented by the settlement
conference and the Magistrate’s letter that set the terms of
the settlement, demonstrates that the only possible jury
issue involves damages, and that this issue would arise
only after the court decided the multiple occurrence issue.7

Finally, any doubt we might have is assuaged by our
review of Sabine Flemming’s numerous submissions and
briefings to the District Court. She argued at length in her
various district court submissions not just that the policy
allowed stacking, but also that the facts of this case
amount to multiple occurrences under the policy. For
example, on the first page of her Memorandum Regarding
_________________________________________________________________

6. The letter fails to mention any role for a jury regarding any element of
the multiple occurrence issue. It simply states that"[i]f insurer prevails
on Warsaw and/or no multiple occurrences, plaintiff gets nothing
additional" and "[i]f plaintiff prevails on Warsaw and multiple occurrence
and defendant prevails on DOHSA -- litigate plaintiff ’s economic damage
. . . ." App. at 1049 (emphasis added).

7. The Magistrate Judge strongly suggested, in a status conference after
the District Court granted the first motion for reconsideration, that the
settlement left the entire multiple occurrences issue to the court. The
Magistrate Judge stated that he was "surprised" with the District Court’s
reading of the settlement, and he declared some of Sabine Flemming’s
arguments "inconsistent with the language of the order." App. at 91-92,
96.

                                15


Multiple Occurrences, she stated that "[t]he point at issue
here is whether Mr. Flemming was subjected to more than
one ‘occurrence’ or act of negligence which resulted in his
injury and death." Id. at 868. In her Reply Memorandum
Regarding Multiple Occurrences, she wrote that "[t]he
Defendant is to assume the additional events occurred as
stated by Plaintiff, and if so, does that constitute multiple
occurrences." Id. at 977 (citations omitted) (emphasis
added). Later, in the conclusion to this Reply
Memorandum, Sabine Flemming again seemed to contend
that the court should decide both the legal issue (whether
the policy permits stacking) and the factual issue (whether
there are multiple occurrences in this case):

       Accordingly, this Court should make a decision, as
       noted in the settlement entered into before the
       Magistrate, and as reflected in his Order, and render a
       decision holding that there were ‘multiple occurrences’
       in this case.

Id. at 990.

Furthermore, Air Sunshine rightly notes that in Sabine
Flemming’s Memorandum Regarding Multiple Occurrences,
the entire fact section and much of the argument section
address whether the events leading to James Flemming’s
death constitute multiple occurrences, and not simply
whether the policy allows stacking. Her briefs leading up to
the District Court’s first opinion on January 14 extensively
argue the facts of the case and whether they establish
multiple occurrences. Although she now argues that she
did not waive her right to a jury trial on some elements of
the multiple occurrences issue, in her prior submissions to
the court before its first opinion was issued, not to mention
in the settlement itself, Sabine Flemming acquiesced to the
court reaching this issue.8
_________________________________________________________________

8. In her reply brief to this Court, Sabine Flemming further undercuts
her own argument. She states that "the issue at hand was not what
actually happened, but whether Flemming’s versions of the events, if
proven, would support multiple occurrences under the policy resulting in
policy stacking." Flemming Rep. Br. at 3. The District Court in fact
decided whether her version of events "would support multiple
occurrences under the policy resulting in policy stacking," and nothing
more.

                                16


We conclude that Sabine Flemming effectively waived her
right to a jury trial on the entire issue of multiple
occurrences by entering into the partial settlement and by
later acquiescing to the court deciding the multiple
occurrence issue "non-jury." The court did not exceed the
scope of its authority under the settlement in reaching the
factual question of whether the events leading to James
Flemming’s death constituted multiple occurrences as that
term is defined under the policy.

III. Policy Stacking

Before turning to the factual question, we consider Air
Sunshine’s contention on cross-appeal that the policy does
not allow for the stacking of coverage for multiple
occurrences under any facts.
We exercise plenary review over the District Court’s legal
determination regarding the scope of coverage under the
policy. See On Air Entertainment Corp. v. National Indem.
Co., 210 F.3d 146, 150 (3d Cir. 2000). Because this case
arose under diversity jurisdiction, we must apply the law of
the Virgin Islands. The Virgin Islands Code provides that
"[e]very insurance contract shall be construed according to
the entirety of the terms and conditions as set forth in the
policy and as amplified, extended or modified by any rider,
endorsement, or application attached to and made a part of
the policy." 22 V.I.C. S 846. Further, under Virgin Islands
law, "in the absence of express local laws to the contrary,
the ‘rules of the common law, as expressed in the
restatements of law approved by the American Law
Institute, and to the extent not so expressed, as generally
understood and applied in the United States, shall be the
rules of decision in the courts of the Virgin Islands . . . .’ "
Buntin v. Continental Ins. Co., 583 F.2d 1201, 1204 n.3 (3d
Cir. 1978) (quoting 1 V.I.C. S 4).

A court " ‘should read policy provisions to avoid
ambiguities, if possible, and not torture the language to
create them.’ " Coakley Bay Condo. Ass’n v. Continental Ins.
Co., 770 F.Supp. 1046, 1051 (D.V.I. 1991) (quoting
Northbrook Ins. Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d
Cir. 1982)). "[A]n insurer’s failure to ‘express clearly and

                                17


unequivocally its intent’ to exclude when it could have done
so easily supports a conclusion that the relevant language
is ambiguous." Id. at 1050 (quoting Buntin, 583 F.2d at
1206).

The District Court, in its initial January 14 opinion,
stated that the policy "caps the amount of recovery for
bodily injury or property damage for all claims arising from
one occurrence at $10,000,000" and that the policy also
"further limits recovery per passenger to $500,000 for
bodily injury, but it does not indicate that this sum is
dependent on the number of occurrences." App. at 22-23.
The court concluded that under the policy, "an individual
may not recover more than $500,000 from Air Sunshine in
the event of bodily injury during a flight arising from one
accident." Id. at 23. The court clarified this statement from
its April 6 opinion, which has been vacated but still
explains the holding on stacking that was never reversed:
"[i]f Plaintiffs were able to prove that a second occurrence
was responsible for the death of Flemming, Plaintiffs could
recover an additional $500,000 for the second occurrence."
Id. at 29.

We agree that the policy allows coverage to be stacked.
The policy states that liability for bodily injury"as the
result of any one occurrence shall not exceed" $10,000,000,
which is "the limit of liability stated in the Declarations as
applicable to ‘each occurrence.’ " Id. at 357, 362. Because
the Declarations include the phrase "passenger liability
limited internally to," the policy further limits liability "as
respect any one passenger" to $500,000, which is"the
amount stated in the Declarations as applicable to‘each
person.’ " Id.9
_________________________________________________________________

9. In a footnote discussing this policy limitation, the District Court
stated:

       The policy provides that "if the Declarations are completed to show
       ‘passenger liability limited internally to’, the total liability of the
       Company for all damages, including damages for care and loss of
       service, because of bodily injury or property damage to passengers
       shall not exceed . . . as respect to any one passenger, the amount
       stated in the Declarations as applicable to ‘each person.’ " The
       Declarations do not contain such a phrase and limit individual
       recovery to $500,000.

                                18


This language could be read to mean, as Air Sunshine
argues, that the policy "delineates distinct liability limits for
each person as opposed to the $10 million total limit for
each occurrence" and therefore the court impermissibly
inserted unstated terms into the policy to conclude that it
allowed stacking. Air Sunshine Br. at 57. However, no clear
policy language prevents stacking. The policy language fails
to state clearly that the "each person" limitation is an
independent cap that works separately from the "each
occurrence" limitation. The policy may be reasonably
interpreted to mean that coverage for one occurrence may
not exceed $10,000,000 total, and, within that cap, liability
per passenger is "limited internally to" $500,000 under the
"each person" limit. The language is at best ambiguous as
to whether the $500,000 "each person" cap applies to a
single passenger regardless of the number of occurrences to
which that passenger is subjected.

No clear policy language excludes policy stacking, and
any ambiguity in the policy should be interpreted in favor
of Sabine Flemming. See C.H. Heist Caribe Corp. v.
American Home Assur. Co., 640 F.2d 479, 481 (3d Cir.
1981) ("All ambiguities must be resolved against the insurer
and in favor of coverage."). We find that the policy allows
stacking of the $500,000 "each passenger" coverages for
multiple occurrences. Therefore, we must now consider
whether the circumstances surrounding James Flemming’s
death constituted multiple occurrences under the policy.

IV. Multiple Occurrences

A. Accepting Flemming’s Allegations

Sabine Flemming suggested in her briefing to the District
Court that "[d]efendant is to assume the additional events
_________________________________________________________________

App. at 23 n.3 (emphasis added) (citations omitted). The court’s
statement that the declarations page "do[es] not contain such a phrase"
is in error, as the declarations page clearly includes the relevant words
and thus the "internal limitation" applies. Id. at 362. However, since our
review is plenary, this error does not prevent us from affirming the
court’s ultimate conclusion, no matter if its reasoning was flawed. See
Klein v. General Nutrition Co., Inc., 186 F.3d 338, 342 (3d Cir. 1999).

                                19


occurred as stated by Plaintiff, and if so, [whether they]
constitute multiple occurrences." Id. at 977. In oral
argument before the District Court on the first motion for
reconsideration, Sabine Flemming’s counsel suggested that
the court was to accept her allegations as true for purposes
of its ruling. Id. at 1357-58; 1363-64. Air Sunshine never
objected to this assessment. Her counsel made the same
assertion at oral argument before this Court, and Air
Sunshine’s counsel again failed to disagree.

However, while the parties appear to be under the
impression that the settlement establishes this procedure,
the settlement and its supporting documents in no way set
forth such a process. It simply declares that "the issues to
be considered (non-jury) are . . . multiple occurrences as
they relate to insurance coverage herein." Id. at 12. In the
absence of any agreed instructions to the contrary, the
District Court should have made explicit findings of fact
based on the evidence before it, and then applied these
facts to the policy language and relevant caselaw. However,
the District Court failed to provide any guidance as to the
nature of its consideration of the facts in its opinion. It did
not make clear whether it was accepting Sabine Flemming’s
allegations as true.

We express our frustration with the ad hoc, imprecise
procedures followed by the parties and hence by the
District Court. For purposes of these appeals, however, we
will accept Sabine Flemming’s allegations as true. Under
any review of the facts, the events which led to James
Flemming’s death did not constitute multiple occurrences
under the policy.

B. Multiple Occurrences under Air Sunshine’s
Insurance Policy

This Court has adopted the "cause theory" to determine
the number of occurrences under an insurance policy.
Under the cause theory, "[t]he general rule is that an
occurrence is determined by the cause or causes of the
resulting injury. . . . Using this analysis, the court asks if
‘(t)here was but one proximate, uninterrupted, and
continuing cause which resulted in all of the injuries and

                                20


damage.’ " Appalachian Ins. Co. v. Liberty Mutual Ins. Co.,
676 F.2d 56, 61 (3d Cir. 1982) (citations and quotations
omitted). Air Sunshine’s insurance policy also contains a
specific policy definition of "occurrence:"
       an accident, including continuous or repeated
       exposure to conditions, which results in bodily injury
       or property damage during the policy period neither
       expected or intended from the standpoint of the
       insured . . . .

App. at 359. The policy further narrows the scope of
"occurrence" in discussing limitations on liability:

       For the purpose of determining the limit of the
       Company’s liability, all bodily injury and property
       damage arising out of continuous or repeated exposure
       to substantially the same general conditions shall be
       considered as arising out of one occurrence.

Id. at 357 (emphasis added). The policy therefore explicitly
defines "occurrence" to mean an "accident."

As we already noted, in her notice of occurrences, Sabine
Flemming specified four separate alleged occurrences: 1)
the plane crash itself; 2) the failure to provide a pre-flight
safety briefing; 3) the failure to notify passengers of the
impending crash and failure to provide emergency safety
instructions; and 4) after the crash, the failure to provide
any aid to James Flemming. Because the District Court
failed to find facts with regard to these allegations, we
assume each allegation of negligence to be true for
purposes of this opinion. Even so, we find that all of these
allegedly negligent acts constitute a single occurrence
under the terms of the insurance policy.

Sabine Flemming’s allegations of pre-crash negligence,
including failure to provide a safety briefing and failure to
provide warning of the crash, do not meet the policy
definition of "occurrence" because they simply cannot be
seen as "accidents" independent from the crash itself. Any
pre-crash acts of negligence cannot be termed proximate
causes of James Flemming’s death because the crash
intervened and the pre-crash negligence would not have
caused any injury absent the crash.

                                21


While it is true that James Flemming did not die upon
impact of the plane on the water, this fact alone does not
mean that the proximate cause of his death was the failure
of the pilot to aid passengers after the crash. Under both
the policy definition and our cause theory, the plane crash
was one "constant, uninterrupted cause" that subjected
James Flemming to "continuous or repeated exposure to
substantially the same general conditions" and led to his
death. The danger that resulted from the plane crashing
into the ocean at night was not interrupted or suspended
by any intervening event. Any post-crash incidents
stemmed from the extreme risk and disorder resulting from
the collision. The short time frame between the crash and
any subsequent negligent acts, while not dispositive, is
relevant when considered in the context of the confusion
and disorientation caused by the accident.
The cases on which Sabine Flemming relies either
concern different definitions of "occurrence" or can be
distinguished factually from this case. For example, in
Wiltshire v. Government of Virgin Islands, 893 F.2d 629 (3d
Cir. 1990), this Court found that a premature baby had
suffered three distinct occurrences of medical malpractice
during a single hospital stay. Id. at 634. Each of these
negligent acts -- negligent placement of a catheter tube,
negligent administration of CPR, and negligent placement of
a second catheter tube into the infant’s scalp -- each
caused distinct injuries and were separated in time from
one another. The Virgin Islands Malpractice Act, which
controlled in Wiltshire, provides that "injury arising out of
continuous or repeated exposure to substantially the same
conditions shall be considered as arising out of a single
occurrence." Id. (quoting 27 V.I.C. S 166b(e)). We held that
under this standard, the infant’s injuries "did not come
about as a result of extended exposure to the same basic
condition." Id.

This case is governed by the definition of occurrence
found in Air Sunshine’s insurance policy, which differs
from the controlling standard in Wiltshire because the
insurance policy here explicitly defines an occurrence as an
accident. Common sense dictates that only one "accident"
occurred here: the plane crash. Not only does this narrower

                                22


definition undermine any application Wiltshire might have
to this case, but in Wiltshire three separate acts of
negligence occurred, each of which standing alone caused
a separate injury. The three distinct acts could not be said
to create "continuous or repeated exposure to substantially
the same conditions" but instead created separate, distinct
conditions. Here, however, the plane crash exposed James
Flemming to "substantially the same conditions" (namely a
sinking plane and the severe risk of drowning) that caused
his death, and any alleged pilot negligence after the crash
failed to change, suspend, or alter these conditions.

We agree with Air Sunshine that the Wisconsin Court of
Appeals opinion in Welter v. Singer, 376 N.W.2d 84 (Wis.
Ct. App. 1985), is more analogous. The court described the
facts in Welter as follows:

       Bruce Welter was riding his bicycle into a Janesville
       intersection when he was struck and seriously injured
       by a car driven by defendant Garland Singer. Welter’s
       cycling companion, John Ihle, Jr., was also hit by the
       Singer car, but was not seriously injured. Singer
       stopped after the collision but then drove clear of the
       intersection, dragging Welter beneath the car, before
       stopping again. In an apparent attempt to find reverse
       gear, Singer again moved the car forward about a foot.
       He then got out of the car and Ihle got in. Ihle backed
       up about ten feet in an attempt to free Welter. Welter
       suffered permanent paraplegia from the trauma.
Id. at 84. Welter brought suit, arguing that under the
defendant’s auto insurance policy, plaintiff suffered four
separate accidents or occurrences. The policy limited
liability for "each person" for "any one accident." Id. at 85
n.1. This policy definition is similar to Air Sunshine’s policy
definition in this case, as both define "occurrence" in terms
of an "accident."

The court in Welter quoted our opinion in Appalachian
Ins. Co. and applied the "cause theory" to determine
whether to affirm the trial court’s ruling that there was only
one "occurrence." The court reasoned:

       If cause and result are so simultaneous or so closely
       linked in time and space as to be considered by the

                                23


       average person as one event, courts adopting the
       "cause" analysis uniformly find a single occurrence or
       accident . . . . [I]t was the initial collision which created
       the occasion and circumstances for any subsequent
       injuries. There is no assertion that the last three
       operations of Singer’s car would have inflicted any
       injury or would have occurred at all in the absence of
       the initial impact . . . . The entire incident lasted
       approximately one minute . . . . The proximity in both
       time and space of these events, and their direct
       interdependence, convince us that the average lay
       person would view the circumstances as a singular
       "accident" or "occurrence."

Id. at 87-88. Furthermore, the court rejected plaintiff ’s
argument that each of the driver’s acts constituted separate
accidents or occurrences because the driver regained
control of the car between each act. The court held that
"[w]hile Singer may have regained full control of his car
each time he stopped, Welter was still trapped beneath it.
Hence, Singer never regained a full measure of control over
either the car’s injury - inflicting potential or the situation
in general." Id. at 88.

In this case, the plane crash and the subsequent
allegedly negligent acts are so "closely linked in time and
space as to be considered by the average person as one
event." Id. at 87. The initial plane crash "created the
occasion and circumstances" for James Flemming’s
subsequent death, and as the District Court concluded, the
post-crash acts of the pilot would not have been injurious
absent the crash. The failure to assist James Flemming
medically, to provide him with emergency life vests, or
otherwise to help him exit the plane all fall under the
"substantially the same general conditions" created by the
single accident -- the plane crash. These alleged post-crash
negligent acts by the pilot were interdependent with, not
independent of, the plane crash. Viewed in the light most
favorable to Sabine Flemming, these facts do not support
the claim that the pilot regained control of the situation in
the crazed minutes following the crash such that the pilot’s
post-crash actions amounted to an intervening cause or
exposed James Flemming to a different set of conditions.

                                24


Just as the court in Welter concluded, a"common sense
view of the facts" shows that James Flemming’s death
resulted from "causes acting concurrently with and directly
attributable to" to the plane crash, and, therefore, the crash
was the "predominant, active and continuing cause." Id. at
87.

As a result, we conclude that the plane crash and the
events stemming from the crash all constituted a single
"accident" and subjected James Flemming and the other
passengers to "continuous or repeated exposure to
substantially the same general conditions." James
Flemming’s death is tragic, but it was caused by only one
occurrence under the terms of the policy. Thus, Sabine
Flemming does not "prevail on multiple occurrences" and
may not recover any additional money under the partial
settlement.10

V. Conclusion

We hold that, under the partial settlement in this case,
Sabine Flemming waived a jury trial on the entire issue of
multiple occurrences, and reserved that entire issue for the
District Court to decide. The court did not err in ultimately
concluding that Air Sunshine’s insurance policy allowed for
the stacking of coverages for multiple occurrences but that,
even accepting Sabine Flemming’s allegations as true, only
one occurrence resulted in James Flemming’s death.

For the foregoing reasons, the final judgment of the
District Court is AFFIRMED.
_________________________________________________________________

10. Finally, we consider Sabine Flemming’s appeal of the District Court’s
denial of her motion to strike Air Sunshine’s amended expert opinion of
Charles A. Tarpley. We review a district court’s decision to admit or
exclude an expert opinion for abuse of discretion. See Pearson v.
Component Technology Corp., 247 F.3d 471, 506 n.11 (3d Cir. 2001). We
agree with the District Court that the expert’s opinion as to the custom
and usage of the term "occurrence" in the insurance industry did not
constitute an impermissible legal conclusion. We find no abuse of
discretion in the court’s refusal to exclude this opinion.

                                25


A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                26
