Cunninghame v. Equitable Life Assur. Soc. of the U.S.

• Citation: 652 F.2d 306
• Decision Date: 29 June 1981
• Docket Number: D,No. 1309,1309
• Parties: Andrew L. CUNNINGHAME, Plaintiff-Appellee, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant-Appellant. ocket 81-7076.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 306

652 F.2d 306 Andrew L. CUNNINGHAME, Plaintiff-Appellee,
v.
The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES,
Defendant-Appellant. No. 1309, Docket 81-7076. United States Court of Appeals,
Second Circuit. Argued April 22, 1981.
Decided June 29, 1981.

Page 307

Michael W. Brody, New York City (Werner Weinstock, New York City, Marsh, Day & Calhoun, Bridgeport, Conn., of counsel), for defendant-appellant.

Eric J. Lieberman, Chicago, Ill. (William L. Arnold, Arnold & Hennessy, Chicago, Ill., Regnier, Taylor, Curran & Langenbach, Hartford, Conn., of counsel), for plaintiff-appellee.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

PER CURIAM:

This diversity case requires us to determine how the courts of Connecticut would interpret the terms of a group accidental death and dismemberment insurance policy under which appellee Andrew L. Cunninghame brought suit to collect damages for an injury to his spinal cord. Even if we view this insurance policy as a contract of adhesion and, therefore, construe it in a manner most favorable to Cunninghame, the policy simply does not cover Cunninghame's tragic injury. Accordingly, we must reverse the judgment of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, Civ. No. B-77-124 (D.Conn. Jan. 7, 1981).

BACKGROUND

Cunninghame was insured under a group accidental death and dismemberment policy issued by appellant, The Equitable Life Assurance Society of the United States, to the Raytheon Company, Cunninghame's employer. On December 3, 1972, Cunninghame fell from a ladder and sustained a compression fracture of his spine resulting in what is commonly called a "severed" spinal cord. This is a permanent injury which has resulted in the total loss of motor control and sensation in both legs. There are no prospects that Cunninghame will ever regain the use of either of his legs.

The Equitable insurance policy covered losses of "life," "two hands," "two feet," "sight of two eyes," and certain other injuries, each in the principal sum of $100,000. But the policy specifically provided that:

With regard to hands and feet, loss shall mean dismemberment by severance at or above wrist or ankle joints respectively; with regard to eyes, total and irrecoverable loss of sight.

Thus, when Cunninghame demanded payment of accidental dismemberment benefits, Equitable refused, contending that the policy only covered actual, physical separation of limb from body, rather than functional or practical loss of use. Cunninghame then commenced this action in Illinois state court to recover damages under the insurance policy. The case was removed to the federal forum on diversity grounds, see 28

Page 308

U.S.C. §§ 1332, 1441, and thereafter transferred at the request of Equitable to the district court in Connecticut, see 28 U.S.C. § 1404(a), the state where Cunninghame resides, works, and suffered the accident at issue. ¹

The district court first pointed out that there were no dispositive decisions by the highest court in Connecticut relating to the scope of coverage of a policy such as this. The court then relied upon an intermediate appellate case in Connecticut sustaining an insurance claim for the functional loss of vision in one eye within 365 days after the date of the accident, Roy v. Allstate Insurance Co., 34 Conn.Supp. 650, 383 A.2d 637 (Super.Ct.1978). In the Roy case, the policy at issue had provided for the payment of $2500 for the loss of the sight of one eye and the policy had defined "loss" to mean the "total and irrecoverable loss of (the) entire sight of (an) eye" within that time period. 383 A.2d at 638. The Connecticut court had held that the insured should recover under the policy because he had "lost the practical use of an eye which he will never be able to regain or recapture." Id. at 639. On this basis, Judge Eginton in the case at bar concluded that the highest Connecticut court would adopt a practical as opposed to a literal interpretation of the Equitable insurance policy. On the theory that the severance of Cunninghame's spinal cord was, for all practical purposes, equivalent to the severance of his feet, the court below entered judgment in Cunninghame's favor. Equitable challenges this position on appeal,...