
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1820                                 CASCO INDEMNITY CO.,                                Plaintiff, Appellant,                                          v.                    RHODE ISLAND INTERLOCAL RISK MANAGEMENT TRUST,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Alice Olsen Mann with whom David E. Maglio and Morrison, Mahoney            ________________           _______________     _________________        & Miller were on brief for appellant.        ________            Rosemary Healey with whom James M. Green, Andrew M. Elmore and            _______________           ______________  ________________        Powers, Kinder & Keeney, Inc. were on brief for appellee, Rhode Island        _____________________________        Interlocal Risk Management Trust.                                 ____________________                                     May 12, 1997                                 ____________________                      CAMPBELL,   Senior  Circuit   Judge.     This  case                                  _______________________            primarily concerns a dispute between two insurance companies,            Casco Indemnity Company ("Casco") and Rhode Island Interlocal            Risk Management Trust  ("the Trust"), over  which of them  is            responsible  for  compensating  one Victor  Cipriano  for the            injuries  he  sustained in  an  automobile  accident with  an            uninsured  driver.  Because we  agree with the district court            that Exclusion 9 in the  Trust's policy applies to  uninsured            motorist insurance  and is not contrary to public policy, see                                                                      ___            Casco Indem. Co. v. Rhode Island  Interlocal Risk Mgt. Trust,            ________________    ________________________________________            929 F. Supp. 65  (D.R.I. 1996), we affirm on  these questions            without further comment.   See  In re San  Juan Dupont  Plaza                                       ___  _____________________________            Hotel Fire Litig., 989  F.2d 36, 38 (1st Cir.  1993) ("Where,            _________________            as  here,  a  trial  court has  produced  a  first-rate  work            product,  a  reviewing   tribunal  should  hesitate  to   wax            longiloquence [sic] simply to hear its own words resonate.").                      We  find it  was error,  however, for  the district            court  not   to  issue  a  declaratory   judgment,  as  Casco            requested, concerning  Casco's ability to deduct any workers'            compensation benefits received by  Cipriano already or in the            future from his damages.1                                              ____________________            1.  The district court's sole apparent reference to the issue            in its opinion was its statement, "With regard to the Casco            Policy, any coverage available to Cipriano is to be governed            by the terms of the agreement between the parties."  Casco,                                                                 _____            929 F. Supp. at 73.                                         -2-                                          2                      Casco contended below, and now  contends on appeal,            that  such benefits are excluded by a provision in its policy            stating:            B.   Any amounts  otherwise payable  for  damages under  this                 coverage shall be reduced by all sums . . .                  2.   Paid or payable because of the "bodily injury"                      under any of the following or similar law:                      a.   workers' compensation law; or                      b.   disability benefits law.                      Casco  asserts that  this  provision comports  with            Rhode Island's public policy against double recovery,  citing            Poulos v.  Aetna Cas.  & Sur.  Co., 379  A.2d 362,  365 (R.I.            ______     _______________________            1977)  (upholding  an  insurance policy  clause  reducing the            insurer's liability by the amount paid or payable "under  any            workmen's compensation  law, disability  benefits law  or any            similar  law" only to the extent  such benefits represented a            double recovery     thus mandating that the deduction be from            the insured's total damages, not the policy's face value).                      Casco included this claim in its amended complaint,            in its motion for  summary judgment below, and in  its appeal            brief.   The  Trust,  having no  stake  in this  debate,  has            provided no  response.  Cipriano, the  beneficiary of Casco's            policy,  was a  named  defendant in  this  suit and  filed  a            general answer  to Casco's complaint, but  insofar as appears            he did not file  an opposition to Casco's motion  for summary            judgment (which  sought  relief  on the  point)  nor  did  he                                         -3-                                          3            otherwise take part  in the proceeding  below.  Cipriano  has            neither argued nor filed any  brief on appeal.  As  a result,            we  are left to decide the matter with only Casco's arguments            to guide us.   See Allgeier  v. United States, 909  F.2d 869,                           ___ ________     _____________            871-72 n.3 (6th  Cir. 1990) (considering an  appeal solely on            the brief of the appellant when the appellee failed to file a            brief) (citing, inter alia, Fed. R. App. P. 31(c)'s statement                            __________            that  "[i]f an appellee fails  to file a  brief, the appellee            will  not be heard at  oral argument except  by permission of            the  court"); Instituto Nacional de Comercializacion Agricola                          _______________________________________________            (INDECA) v.  Continental Illinois  Nat'l Bank and  Trust Co.,            ________     _______________________________________________            858  F.2d 1264,  1270-71 (7th  Cir. 1988)  (same); Teamsters,                                                               __________            Chauffeurs,  Warehousemen  &  Helpers   Local  Union  524  v.            _________________________________________________________            Billington, 402  F.2d 510, 511  (9th Cir. 1968)  (deciding an            __________            appeal on the appellant's brief and the trial record when the            appellee failed to file an appeal brief).                      In the absence of any legal or factual arguments to            the  contrary, it is hard  to say that  Casco's arguments are            not persuasive on this point.  Nor can we say  that Casco has            failed to do all that might be expected  to pursue the issue.            We accordingly  remand to the district  court with directions            that  it  issue  a  declaratory  judgment  in  Casco's  favor            providing,  in  effect, that,  "The  policy  issued by  Casco            Indemnity Company provides  uninsured motorist coverage which            is  excess  to any  workers'  compensation  benefits paid  to                                         -4-                                          4            defendant  Cipriano  or received  by him  in the  future with            respect to the accident of November 20, 1993."                      Affirmed in part and reversed and remanded in part.                      __________________________________________________                                         -5-                                          5
