Benante v. Allstate Insurance Company, 72-3648. Summary Calendar.
Citation | 477 F.2d 553 |
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. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
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.
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:
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...
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