                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 99-51002
                          _____________________



B. J. HALL,

                                                         Plaintiff-Appellant,

                                   versus

WHITE, GETGEY, MEYER & CO., LPA,

                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
              Western District of Texas, San Antonio
                       USDC No. SA-97-CV-320
_________________________________________________________________
                            February 20, 2001

Before JOLLY, JONES, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     In this legal malpractice case, B. J. Hall contends that the

law firm of White, Getgey, Meyer & Co., LPA (“White/Getgey”)

negligently   represented    him   in    a   suit   in    which   Hall    sought

disability benefits from an insurance company.             Hall alleges that

the firm’s failure to supplement interrogatory answers led to the

exclusion of Hall’s medical expert witnesses at trial.                   In this

ensuing   legal    malpractice   suit,   the   magistrate      judge     granted


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
White/Getgey’s motion for summary judgment and dismissed Hall’s

complaint because she concluded that the underlying lawsuit was

without merit and, consequently, that White/Getgey’s negligence

could not have been the proximate cause of Hall’s failure to

collect under the insurance policy.              Specifically, the magistrate

judge found that Hall could not have recovered on the disability

insurance policy because he had presented no evidence that he was

“totally disabled” during the time that he was covered by the

policy.     Hall argues that he had presented sufficient evidence of

his disability to withstand summary judgment.                       We agree.    We

therefore reverse the magistrate judge’s order and remand the case

for further proceedings.

                                           I

       B.   J.   Hall    was   the   executive       vice   president   and   chief

operating officer of Incarnate Word Health Services from July 5,

1989 to May 18, 1990.            The magistrate judge found that Hall’s

duties as Incarnate Word’s vice-president included developing long-

term   plans     and    preparing    reports,        coordinating    programs   and

services within Incarnate Word’s multi-hospital system, attending

all    corporate       board   meetings,       and   attending   “key    meetings,

institutes, etc., on local, state, and national levels to keep

abreast of various trends” in the health care industry.                         The

record indicates that Hall’s position required him to travel often

and to work up to ten to twelve hours a day.



                                           2
      As an employee of Incarnate Word, Hall was covered by a group

disability policy issued by Hartford Life & Accident Insurance

Company.    Under this policy, Hall was eligible for benefits if he

became “totally disabled” while employed at Incarnate Word.                      The

policy defines “totally disabled” as being “prevented by disability

from doing all the material and substantial duties of your own

occupation.” “Disability” includes accident, bodily injury, and

sickness.     The term “occupation” is not defined in the policy.

      Hall suffered from a pre-existing condition: He had contracted

polio as a child and suffered from “post-polio syndrome.” There is

undisputed medical testimony that Hall never fully recovered from

his   childhood   bout    with   polio,        that   his    level   of     physical

performance    ranged    from    25%   to      40%,   and    that    his    physical

performance was gradually deteriorating as he aged.

      On May 7, 1990, Hall was involved in an automobile accident.

As a result, he suffered whiplash, numbness in his extremities,

loss of balance, and fatigue.             After the accident, Hall attended

one staff meeting but did not otherwise return to work.                    On May 11,

1990, Incarnate Word notified Hall that his employment would be

terminated effective May 18, 1990.

      After   losing     his   job   at       Incarnate     Word,   Hall    searched

unsuccessfully for hospital management positions that required less

travel and physical exertion.          He worked for one month for a job

placement agency before resigning for health reasons.



                                          3
     During l990 and 1991, Hall consulted two physicians, Dr. Grimm

and Dr. Vallbona, both of whom “suggested” (as the magistrate judge

put it) that Hall had become totally disabled on May 7, 1990, as a

result of the automobile accident.          In April 1991, Hall submitted

a claim for disability benefits under the Hartford policy.

     The insurance company denied his claim. Hall then retained an

attorney to represent him against Hartford.            In early 1995, just a

few months before the trial date, Hall changed attorneys and

substituted the White/Getgey firm.1          Unfortunately, White/Getgey

failed to supplement their responses to interrogatories concerning

the identity of medical expert witnesses who would testify at

trial, and as a result, Hall’s expert witnesses were excluded.

Without medical experts, Hall had no possibility of winning his

case and settled with Hartford for a nominal amount.

                                      II

     Thus, we come to this legal malpractice suit, which Hall has

filed   against    White/Getgey,      alleging   the    firm’s    failure     to

supplement its responses to interrogatories. To prevail, Hall must

prove   by   a   preponderance   of   the   evidence    that,    but   for   the

negligence of his attorneys, he would have recovered damages from

Hartford on the disability insurance claim.            See, e.g., Mackie v.

McKenzie, 900 S.W.2d 445, 448-49 (Tex.App.–Texarkana 1995).



    1
     At the time, an attorney from the White/Getgey firm estimated
that Hall’s suit had a settlement value of $300,000 to $500,000.

                                       4
     The case involves a procedural snag or two.    The defendant,

White/Getgey, an Ohio-based law firm, removed the case to federal

court based on diversity jurisdiction.    The case was assigned to

the United States District Court for the Western District of Texas,

which denied the firm’s first motion for summary judgment.      The

parties then consented to magistrate jurisdiction pursuant to 28

U.S.C. § 636(c):     “Upon the consent of the parties, . . . [a

magistrate] may conduct any or all proceedings in a jury or nonjury

civil matter and order the entry of judgment in the case, when

specially designated to exercise such jurisdiction by the district

court or courts he serves.”   The district judge randomly assigned

the case to a magistrate judge.   White/Getgey then filed a second

motion for summary judgment.      Although the second motion was

substantially the same motion that the district judge had denied,

the magistrate judge concluded that she was not bound by the

district judge’s denial of the first motion.      On September 13,

1999, the magistrate judge issued an order granting White/Getgey’s

motion for summary judgment and dismissing Hall’s claims.       The

magistrate judge concluded that Hall had “failed to submit evidence

creating a fact issue” that he was “totally disabled,” as defined

by the policy, prior to May 18, 1990.    Because Hall had failed to

create a fact issue regarding the merit of his underlying lawsuit,

he thus could not show that White/Getgey’s negligence was the

proximate cause of his failure to collect under the Hartford

disability policy.

                                  5
                                              III

       Hall raises two issues on appeal.                       The first issue concerns

the scope    of     a        magistrate    judge’s     authority      under   28   U.S.C.

§ 636(c). The second issue concerns the sufficiency of Hall’s

summary judgment evidence on the question whether, prior to the

termination of his employment with Incarnate Word, he was “totally

disabled”   within           the    meaning   of    his    insurance    policy.     Both

questions are reviewed de novo.                     See generally CHILDRESS & DAVIS,

FEDERAL STANDARDS       OF    REVIEW § 2.13 (3d ed. 1999) (“purely legal”

conclusions,      such         as    the   meaning        of    a   statute   conferring

jurisdiction, are reviewed de novo); Horton v. City of Houston, 179

F.3d 188, 191 (5th Cir. 1999) (explaining that this court reviews

a district court’s grant of summary judgment de novo, applying the

same substantive test set forth in Federal Rule of Civil Procedure

56).

                                               A

       Hall contends that under 28 U.S.C. § 636(c), a magistrate

judge does not have the authority to grant a motion for summary

judgment if a district judge has already denied a substantially

equivalent motion.                 We conclude that this argument, that the

magistrate judge improperly “overruled” the district judge’s prior

order, is without merit.               As we have stated before,

       when (1) both parties consent to the jurisdiction of the
       magistrate judge and (2) the district judge specifically
       designates the magistrate judge to conduct civil
       proceedings, the magistrate judge "may act in the


                                               6
     capacity of a district court judge" and is not bound by
     prior opinions expressed by the district judge.

Cooper v. Brookshire, 70 F.3d 377, 378 n.6 (5th Cir. 1995);

see also W RIGHT, MILLER, & MARCUS, FEDERAL PRACTICE   AND   PROCEDURE: CIVIL 2D

§ 3072.

                                     B

     We now turn to the second issue: whether the magistrate judge

erred in granting White/Getgey’s motion for summary judgment.

                                   (1)

     In its second motion for summary judgment, White/Getgey argued

that Hall had not presented evidence that, on or before May 18,

1990, he had been prevented by injury and sickness from performing

all the material duties of his occupation.             The firm focused on

Hall’s behavior following his automobile accident.             The firm noted

that Hall could have performed at least some of his duties, that he

continued to seek employment after May 1990, and that he did not

file for disability benefits until April 1991. Hall could not have

been totally disabled, the firm seems to argue, because Hall did

not consider himself totally disabled in May 1990, the point at

which his relationship to Incarnate Word was severed.

     In the magistrate judge’s opinion and order granting the

motion for summary judgment, the magistrate judge relied on two

arguments that had not been advanced before.             First, she stated

that Hall had not produced necessary evidence of his occupational

duties.   Her explanation is as follows:


                                     7
     To establish a fact issue that he should have prevailed
     in the underlying lawsuit and was totally disabled under
     the terms of the policy, plaintiff must produce evidence
     that he was “prevented by disability from doing all the
     material and substantial duties of [his] occupation.”
     Plaintiff has failed to introduce any evidence relating
     to his occupation and what the material and substantial
     duties actually were. Instead, he produced the job
     requirements for his specific position as the Executive
     Vice President and Chief Operating Officer of Incarnate
     Word Health Services. However, nowhere in the record
     does plaintiff discuss his occupation generally.

     Second, the magistrate judge concluded that Hall’s medical

expert testimony was “not sufficient to even establish that [he]

was disabled for his position at Incarnate Word, much less his

occupation, because there is no evidence that Dr. Grimm was aware

of plaintiff’s job responsibilities.”

     In sum, these are the three principal arguments supporting

summary   judgment   for   White/Getgey:   Hall’s   behavior   after   the

accident, the lack of evidence regarding his general occupation,

and the insufficiency of the medical testimony.         For the reasons

set forth below, we do not find any of these arguments persuasive.

                                  (2)

     As the magistrate judge recognized, however, before we may

address any of these arguments, we must ascertain the meaning of

several terms in the insurance policy.       We begin with the meaning

of “occupation,” a term not defined in the Hartford policy.

     The magistrate judge’s order granting summary judgment for

White/Getgey is predicated on a sharp distinction between Hall’s

general “occupation” and his “specific position” at Incarnate Word.


                                   8
We find this distinction problematic here because the court’s order

cites no language from the Hartford policy and no relevant legal

authority    that   would    support   the    distinction   between   Hall’s

occupation and the particular position that he occupied when the

policy was in force.2        And in the course of this appeal, neither

White/Getgey nor this court has uncovered any precedent supporting

the distinction. We can only assume, then, that the district court

applied     the   accepted    rules    of    contract   interpretation   and

construction and found the meaning of the term “occupation” to be

unambiguous.

     Whether a contract term is ambiguous is a question of law that

appellate courts review de novo.           See National Union Fire Ins. Co.

v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex. 1995).                When

deciding whether a contract term is ambiguous, a court is not

confined to the four corners of the instrument: “Evidence of

surrounding circumstances may be consulted . . . . to determine

whether or not the contract is ambiguous.”          Sun Oil v. Madeley, 626

S.W.2d 726, 731 (Tex. 1981).3          These “surrounding circumstances”

      2
       Because White/Getgey had not raised this argument in its
motion for summary judgment, the precise meaning of “occupation”
had not been argued by the parties in the district court.
      3
       See also Columbia Gas Transmission Corp. v. New Ulm Gas,
Ltd., 940 S.W.2d 587, 591 (Tex. 1996); City of Pinehurst v. Spooner
Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968)(“Where a
question relating to the construction of a contract is presented,
. . . we are to take the wording of the instrument, considering the
same in the light of the surrounding circumstances, and apply the
pertinent rules of construction thereto and thus settle the meaning
of the contract.”)(emphasis added). Thus, the general rule is that

                                       9
include trade usage and the course of the parties’ performance of

the contract.4

     In this case, the most compelling evidence of “surrounding

circumstances” is the Hartford insurance company’s claim form,

which both parties submitted as an exhibit.                 The claim form

includes sections to be filled out by the employer, the employee,

and the employee’s physician.        Both Incarnate Word and Hall listed

his “occupation” as “Executive Vice-President.”         More importantly,

one part of the claim form instructs the employer to “Describe

exact duties     of   Employee’s   Occupation   or   attach    copy   of   job

description.”     Incarnate Word complied by attaching a document

entitled “position analysis” that listed Hall’s duties as the

company’s executive vice-president.5        From a review of the claim

form, we believe it is clear that Hall, Incarnate Word, and

Hartford   all   treated    Hall’s    “occupation”    and     his   “specific

position” at Incarnate Word as interchangeable or synonymous terms.

This is the meaning that we must assign to “occupation,” inasmuch



a court “may (1) hear and consider evidence of the circumstances
surrounding the formation and execution of the contract and (2)
apply the rules of construction whenever the parties disagree as to
the proper construction of a writing. Neither a pleading nor a
finding of ambiguity is required.”     Mark K. Glasser & Keith A.
Rowley, On Parol: The Construction and Interpretation of Written
Agreements and the Role of Extrinsic Evidence in Contract
Litigation, 49 BAYLOR L. REV. 657, 701 (1997).
     4
      See Glasser & Rowley, 49 BAYLOR L. REV. at 667.
     5
      Incidentally, the magistrate judge relied on this “position
analysis” in her description of Hall’s job duties.

                                      10
as the court’s duty is to give effect to the intent of the

contracting parties.    See Lenape Resources Corp. v. Tennessee Gas

Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996).

     Considering the circumstances surrounding the formation and

execution of this insurance contract, we conclude that there is

only one reasonable interpretation of the term “occupation.” Thus,

Hall’s evidence of his duties as executive vice-president of

Incarnate Word is sufficient evidence of his occupation, as that

term is used in the insurance policy.

                                 (3)

     We now turn to the meaning of “totally disabled,” another

disputed contract term.   As noted above, Hall could recover on the

Hartford policy only if he had suffered a “total disability,” that

is, if he had been “prevented by disability from doing all the

material and substantial duties of [his] own occupation.”

     The magistrate judge found that Hall’s duties at Incarnate

Word required him to develop plans, prepare reports, and coordinate

programs and services within the company’s multi-hospital system,

and to attend corporate board meetings and conferences in order to

“keep abreast of various trends” in the health care industry.   At

least some of these duties required Hall to travel extensively and

work long hours.       The scope and nature of Hall’s duties at

Incarnate Word are not in dispute.

     The parties do disagree, however, on the meaning of the phrase

“all the material and substantial duties.”   Hall argues that he is

                                 11
totally disabled because he was unable to perform “every aspect of

[his]       principal   work”   as    Incarnate       Word’s        vice-president.

White/Getgey argues that Hall was not “totally disabled” because he

could still “perform some of his duties as an executive vice-

president.”

       We have considered the arguments of both parties and have

reviewed all the disability clauses in the insurance policy.

However, we have been unable to determine the precise meaning of

the disputed phrase.        We therefore conclude that the phrase “all

the material and substantial duties” is ambiguous in the sense that

it     is    “reasonably   susceptible”     to    either       of    the     proposed

interpretations.        Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979).

       In a typical contract case, ambiguity creates a fact question

as to the parties’ intent.           See Lenape Resources, 925 S.W.2d at

574.        Here, however, the parties have offered no evidence that

creates a dispute of fact on this question. And, more importantly,

in the specific context of insurance contract cases, Texas courts

resolve ambiguities        against   the    carrier    and     in    favor    of   the

insured.6      See State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698,

701 (Tex. 1993) (“Based upon an examination of the text . . . and

considering other possible reasonable interpretations, we conclude


        6
       This rule governing insurance contracts is a more specific
application of the rule contra proferentem: Under Texas law, “a
writing is generally construed most strictly against its author.”
Addison Bank v. Temple-Eastex, Inc., 672 S.W.2d 793, 798 (Tex.
1984).

                                       12
that the provision is ambiguous.           Therefore, strictly construing

the   policy    language   against    the    insurer     and   adopting     the

interpretation most favorable to the insured, we hold that coverage

exists under the policy. . . .”).           Thus, if both the insurer and

the insured offer reasonable interpretations of an ambiguous term

in the policy, we resolve the ambiguity in favor of the insured.

See Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.

1987).

      In the light of this presumption in favor of coverage, Hall’s

interpretation of “all the material and substantial duties” must be

favored. Therefore, under this policy, an employee such as Hall is

deemed “totally disabled” if he is unable to perform the entire set

of his material duties.

                                     (4)

      The next step is to determine whether, in order to survive

summary judgment, Hall presented sufficient medical testimony of

total disability at the time he left Incarnate Word in May 1990.

      In 1990 and 1991, Hall was examined by two physicians: Dr.

Grimm, a neurologist; and Dr. Vallbona, a specialist in post-polio

syndrome.      In their depositions, both doctors described Hall’s

physical    condition   and   his   deterioration      after   the   May   1990

accident.      And, as the magistrate judge correctly observed, both

doctors concluded that Hall probably became disabled on May 7,

1990, as a result of the automobile accident that aggravated the

symptoms of his post-polio syndrome.            Dr. Grimm stated in his

                                     13
deposition that Hall’s “motor vehicle accident added enough to his

difficulties that [it] really disabled him for the kind of work

that he was doing.”           Dr. Vallbona declined to set the date of

disability with certainty, but he said that “May 1990 may have been

the   date    when    I    would     consider    him    likely    to   have    become

permanently disabled.”

      The    magistrate      judge    found     the    expert   medical   testimony

unsatisfactory for the sole reason that neither physician was fully

aware   of   Hall’s       occupational    duties.         Consequently,       neither

physician could definitively say that Hall was “totally disabled”

within the meaning of the insurance policy.                     However, we see no

reason to disregard the medical testimony merely because the

physicians had not been made fully aware of Hall’s specific duties

at Incarnate Word.           The ultimate issue, of course, is whether

Hall’s medical condition on May 18, 1990, prevented him from

performing all the material duties of his occupation.                     And while

Federal Rule of Evidence 704 permits the medical expert to offer

his opinion on the ultimate issue, Rule 704 does not require the

expert to do so.          As long as (a) the physicians testify to Hall’s

medical condition in May 1990 (including their estimation of Hall’s

capacity to work long hours and to travel), and (b) Hall presents

evidence of his occupational duties at Incarnate Word, the trier of

fact may determine the ultimate issue.

                                         (5)



                                          14
     Our final consideration is White/Getgey’s principal argument

that Hall’s behavior after the May 1990 accident proves that he was

not totally disabled during the relevant time period. White/Getgey

points to the facts that Hall traveled during the summer of 1990

and even took a family vacation to Europe, that Hall continued to

search for similar employment, and that Hall did not believe he was

totally disabled until sometime in 1991.         These facts are indeed

relevant to the question of Hall’s disability, and the trier of

fact will need to weigh this evidence against the testimony of Hall

and his medical expert witnesses. Even so, this evidence of Hall’s

subsequent behavior is clearly insufficient to warrant summary

judgment for White/Getgey under Rule 56 of the Federal Rules of

Civil Procedure.

                                    IV

     Considering   all   of   the   evidence   in   the     record,   a   jury

reasonably could conclude, first, that Hall’s duties at Incarnate

Word Health Services (such as attending national conferences and

coordinating activities in a multi-hospital system) demanded a high

tolerance for stress, long and uninterrupted working hours, and

considerable   travel;   and,   second,   that      after    his   May    1990

automobile accident that aggravated his post-polio syndrome, Hall

was no longer capable of performing those occupational duties.

     We conclude that the magistrate judge erred in concluding that

the underlying lawsuit is without merit.       The summary judgment for



                                    15
White/Getgey is therefore REVERSED, and the case is REMANDED for

proceedings not inconsistent with this opinion.

                                           REVERSED and REMANDED.




                               16
