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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                       ____________________ <br> <br>No. 96-2255 <br> <br>                      DR. ISRAEL GANAPOLSKY, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>          BOSTON MUTUAL LIFE INSURANCE COMPANY, ET AL., <br> <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                    Cyr, Senior Circuit Judge, <br> <br>                      Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Kevin G. Little, with whom David Efrn and Law Offices David <br>Efrn, were on brief for appellant. <br>    Guillermo de Guzmn-Vendrell, with whom Victoria D. Pierce and <br>Cancio, Nadal, Rivera & Daz, were on brief for appellees. <br> <br> <br> <br>                       ____________________ <br> <br>                         March 17, 1998 <br>                      ____________________

          TORRUELLA, Chief Judge.  Israel Ganapolsky ("Ganapolsky"), a <br>medical doctor from Puerto Rico, filed this action against his <br>insurer, Boston Mutual Life Insurance Company ("Boston Mutual"), <br>to recover under an accidental death and dismemberment policy for <br>the partial amputation of his left foot.  Boston Mutual had <br>denied Ganapolsky's claim for the loss.  On a stipulated record, <br>the district court entered judgment in favor of Boston Mutual, <br>and Ganapolsky appeals.  We affirm. <br>          The following facts are essentially undisputed.  On June 5, 1992, <br>while in New York City, Ganapolsky accidentally injured his left <br>foot when he tripped on a two-inch step at the entrance to the <br>men's room of a theater.  The next day, Ganapolsky continued with <br>his planned trips to Turkey and Israel, but was forced to cut his <br>travel short and return to Puerto Rico after approximately two <br>weeks due to increasing problems with his foot.  At the hospital <br>in Puerto Rico where he was admitted, Ganapolsky was diagnosed <br>with gangrene in his left foot and a below-the-knee amputation <br>was recommended.  In addition, for the first time, it was <br>discovered that Ganapolsky had diabetes.  Ganapolsky travelled to <br>Union Memorial Hospital in Baltimore, Maryland to seek treatment <br>for his foot.  There, his doctor performed a "Chopart" <br>amputation, which, as the district court aptly observed, "can <br>best be visualized as a cut going from the point on top of the <br>foot approximately where a man's shoelace is knotted down to the <br>bottom of the foot, leaving the heel."  Ganapolsky v. Boston Mut. <br>Life Ins. Co., Civ. No. 94-2229, slip op. at 2 (D.P.R. July 3, <br>1996). <br> <br>          Thereafter, Ganapolsky filed a claim with Boston Mutual for <br>benefits under a group accidental death and dismemberment policy <br>(the "policy") for the Chopart amputation of his left foot.  <br>Boston Mutual denied the claim for the following reasons:  first, <br>the policy required that the loss of a foot be a complete <br>severance through or above the ankle joint, and Ganapolsky's <br>amputation was not one through or above the ankle joint; and <br>second, the policy excludes loss resulting from sickness, disease <br>or bodily infirmity, and in the instant case, diabetes and <br>diabetic neuropathy were instrumental causes of the eventual <br>amputation. <br>          We review a district court's factual determinations for clear <br>error, see Sullivan v. Young Bros. & Co., Inc., 91 F.3d 242, 246- <br>47 (1st Cir. 1996), and its legal determinations de novo, seeBercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 147 (1st Cir. <br>1998).  The insurance policy at issue provides in relevant part: <br>          We agree to pay benefits for loss from bodily injuries: <br>           <br>            a) caused by an accident which happens while an insured <br>               is covered by this policy; and <br> <br>            b) which, directly and from no other causes, result in a <br>               covered loss. <br> <br>(Emphasis added.)  The policy also excludes coverage for "loss <br>resulting from . . . [s]ickness, disease or bodily infirmity."  <br>Boston Mutual argues that this policy exclusion applies to the <br>instant case, and thus, that it properly denied coverage.  We <br>agree.  The trial judge concluded that the amputation did not <br>come from the foot injury within the meaning of the policy <br>language of 'directly and from no other causes.'" <br>          In this action based on diversity jurisdiction, the substantive <br>law of Puerto Rico governs.  See Erie R.R. Co. v. Tompkins, 304 <br>U.S. 64 (1938).  Under Puerto Rico law, an exclusion clause in an <br>insurance contract is strictly construed and any ambiguity is <br>resolved in favor of the insured.  See Pagn Caraballo v. Silva <br>Delgado, 122 P.R. Dec. 105, 110-11 (1988).  However, where the <br>language of the exclusion unambiguously supports the insurer, the <br>court need not strain to find a construction favoring the <br>insured.  See Marn v. American Int'l Ins. Co. of P.R., 137 P.R. <br>Dec. __, 94 J.T.S. 132 (Oct. 28, 1994). <br>          Under the policy, as we previously noted, covered losses are only <br>those resulting directly from accidents and "from no other <br>causes."  The exclusion clause specifically bars coverage for <br>losses resulting from sickness, disease or bodily infirmity.  <br>According to Couch on Insurance 2d  41:74, at 112 (Rev. ed. <br>1982), <br>          If a disease or bodily condition exists and an accident <br>          occurs, . . . it is sufficient if the accidental means <br>          would have solely caused some considerable injury had <br>          the disease or bodily condition not existed.  But if no <br>          considerable injury at all would have resulted had the <br>          insured not been afflicted with the existing disease or <br>          condition, the accidental means are not the sole cause <br>          of the injury. <br> <br>Id.  Here, we find that the worst possible injury Ganapolsky <br>would have sustained from the accident, if he had not been a <br>diabetic, was a fracture and dislocation of the foot.  However, <br>because of his disease, Ganapolsky's initial trauma to the foot <br>progressed to gangrene, requiring the Chopart amputation of his <br>foot.  The record reflects that gangrene in the lower extremities <br>is one hundred times more common in diabetics than in non- <br>diabetics.  Ganapolsky cannot escape the fact that his diabetes <br>substantially contributed to his loss. <br>          As the district court observed, Ganapolsky's argument that "but <br>for" the accident, he would not have suffered the loss of his <br>foot is unconvincing because, if that were the rule, "there could <br>never be a causal contribution to injury by preexisting <br>diseases."  Ganapolsky, Civ. No. 94-2229, slip op. at 3.  We <br>apply instead Puerto Rico's concept of adequate causation.  <br>"Under Puerto Rico law, the Insurance Code of Puerto Rico, 26 <br>L.P.R.A.  101, et seq., controls the interpretation of <br>insurance contracts."  Nieves v. Intercontinental Life Ins. Co., <br>964 F.2d 60, 63 (1st Cir. 1992).  However, since the Insurance <br>Code fails to provide a causation test, we turn to the Civil Code <br>for guidance.  See id. (observing that when Insurance Code fails <br>to provide an interpretative approach for particular situation, <br>Civil Code supplements it).  Under the Civil Code, the concept of <br>adequate causation is applicable to Puerto Rico tort law.  SeeSoto Cabral v. Commonwealth of Puerto Rico, 138 P.R. Dec. __, 95 <br>J.T.S. 49 (April 21, 1995).  A condition is an adequate cause if <br>it ordinarily can be expected to produce the result at issue.  <br>See id.  Ganapolsky's accident was not an adequate cause of his <br>gangrene, since such an infection normally does not arise from <br>tripping on a step. <br>          For the first time on appeal, Ganapolsky contends that the <br>exception to the sickness, disease or bodily infirmity exclusion <br>applies.  That exception states that "[b]acterial infection <br>resulting from an accidental cut or wound . . . are not <br>excluded."  Ganapolsky's argument is that the general exclusion <br>did not apply because of the exception to it for bacterial <br>infections; his accident, he says, caused a bacterial infection <br>which caused the gangrene, which led to the amputation.  However, <br>"[i]f any principle is settled in this circuit, it is that, <br>absent the most extraordinary circumstances, legal theories not <br>raised squarely in the lower court cannot be broached for the <br>first time on appeal."  Teamsters, Local No. 59 v. Superline <br>Transp. Co., Inc., 953 F.2d 17, 21 (1st Cir. 1992).  Therefore, <br>we decline to address this argument. <br>          In addition, having found that Ganapolsky's loss is not covered <br>under the terms of the insurance contract, we need not discuss <br>whether the Chopart amputation of his foot constituted a loss <br>under the policy.  <br>          For the foregoing reasons, the district court's opinion <br>and judgment is affirmed. <br>          Costs to be assessed against appellant. <br></pre>

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