Benante v. Allstate Insurance Company, 72-3648. Summary Calendar.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: PER CURIAM
• Citation: Benante v. Allstate Insurance Company, 477 F.2d 553 (5th Cir. 1973)
• Decision Date: 11 June 1973
• Docket Number: No. 72-3648. Summary Calendar.,72-3648. Summary Calendar.
• Parties: Estelle BENANTE, As Surviving Wife of Carl Benante, Deceased, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, etc., Defendant-Appellee.

477 F.2d 553 (1973)

Estelle BENANTE, As Surviving Wife of Carl Benante, Deceased, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, etc., Defendant-Appellee.

No. 72-3648. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

May 2, 1973.

Rehearing Denied June 11, 1973.

Richard I. Kroop, Miami Beach, Fla., for plaintiff-appellant.

Anthony Reinert, David L. Willing, Miami, Fla., for defendant-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

PER CURIAM:

This Florida diversity case turns on the construction of the term "injury" as employed in a policy of accidental death and dismemberment insurance. The District Court held that, under the controlling Florida case law, the heart attack suffered by plaintiff's decedent after running to catch a scheduled airplane flight did not constitute "bodily injury caused by an accident" within the meaning of the policy and therefore denied recovery. We affirm.

The case was submitted to the District Court upon these stipulated facts:

1. The Decedent, CARL BENANTE, was a policy holder of ALLSTATE INSURANCE COMPANY Certificate No. 386 421 150, which policy was in force on July 20, 1971. Said policy is an accidental death and dismemberment insurance and a true copy of same is attached to the Complaint.

2. That on July 20, 1971, CARL BENANTE, now deceased, and his sister ANTONINA QUARTUCCIO, were in the Rome Airport awaiting their flight to New York. Both passengers had their tickets validated and were told by an Alitalia attendant to go to Gate 6 to catch their plane.

3. CARL BENANTE, now deceased, was carrying two handbags weighing approximately five pounds each.

4. Upon their arrival at Gate 6, both passengers were told by the attendant there that their Flight No. 610 was not at Gate 6, but at Gate 1, and that they should hurry to Gate 1 to catch the plane because the plane was about to depart.

5. Both passengers ran very fast to Gate 1 in order not to miss their flight. Upon their arrival at Gate 1, both were out of breath and exhausted. Upon their arrival at the gate, they were driven by bus to the aircraft. Both passengers were out of breath as they alighted from the bus and started climbing the steps from the ground to the entrance of the plane.

6. Both passengers proceeded to go down the aisle to their seats and approximately half the length of the plane, CARL BENANTE, now deceased, started to fall backwards. He was caught by the stewards and placed in the nearest seat. As soon as he was seated, he died instantly.

Under the terms of the Certificate of Insurance, Allstate Insurance Company promised to pay the insured's beneficiary $125,000 if the insured died as a result of an accidental injury. According to the certificate,

"Injury" means bodily injury caused by an accident occurring while the insurance is in force and which injury results, within 365 days after the date of the accident, directly and independently of all other causes, in any of the losses to which the insurance applies.

Phrased most precisely, the question upon which recovery depends is whether a heart attack that follows voluntary physical exertion constitutes an accidental bodily injury.

Under Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts in diversity of citizenship cases must apply the law of the state in which they sit. Moreover, a federal court must follow the decision of an intermediate appellate state court in the absence of other persuasive indications that the highest court of the state would decide otherwise. Six Companies of California v. Joint Highway District, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114 (1940) ; West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940) ; Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940) ; Fuchs v. Harbor Island Spa, Inc., 420 F.2d 1100 (5th Cir. 1970) ; 1A J. Moore's Federal Practice ¶ .307 1 (2d ed. 1965). Only where no state court has decided the point in issue may a federal court make an educated guess as to how that state's supreme court would rule. See Trail Builders Supply Co. v. Reagan, 409 F.2d 1059 (5th Cir. 1969).

In the case before us, the District Court concluded, and we agree, that a Florida court of appeal has decided the question in favor of the appellee insurance company. In Goldstein...