Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

MEMORANDUM^* 

Uberuaga-Groshong appeals the district court's decisions that ERISA preempts her state law claims and that her deceased husband's accidental death insurance contract was not ambiguous. We affirm.

* The appellant's husband, Timothy Groshong, died at age 33 shortly after a tournament polo match. During the course of the game, Mr. Groshong had been hit several times with a mallet and once on his helmet by the polo ball. He also fell off his horse during the match. His death certificate, however, stated that he died of a heart attack caused by severe arteriosclerosis.

As part of a benefits package, Mr. Groshong's employer procured an accidental death insurance policy from Federal Insurance. The insurer denied benefits in this case because it believed that Mr. Groshong's death was due to arteriosclerosis and subject to a disease exclusion. Mr. Groshong's wife, Uberuaga-Groshong, then sued Federal Insurance.

The district judge granted partial summary judgment in favor of Federal Insurance on Uberuaga-Groshong's claims alleging bad faith and seeking punitive damages, because they were preempted by ERISA. In addition, the judge decided in a motion in limine that Federal Insurance's accidental death insurance contract was not ambiguous, even though it did not define "accident" or "disease."

At trial, the judge did not allow any evidence to define "accident" or "disease." He instructed the jury that "a death is caused by accidental bodily injury if the cause of death is sudden and unexpected and death is caused by physical forces outside the body of the decedent." In addition, he stated that "a 'disease' is a deviation from the health or normal condition of any of the bodily functions or tissue, or a change in the state of the body or some of its organs, interrupting or disturbing vital functions and causing or threatening pain and weakness." A jury determined in a special verdict that Mr. Groshong did not die by accident, but by disease.

Uberuaga-Groshong appeals the district judge's decisions on ERISA preemption and ambiguity. We have jurisdiction because the parties are citizens of different states, and because the amount in controversy exceeds the jurisdictional minimum. 28 U.S.C. § 1332.

II

We need not decide whether ERISA preempts state law because Uberuaga-Groshong's claim fails even under Idaho law, which she asks us to apply. Uberuaga-Groshong argues that the trial judge incorrectly ruled that Federal Insurance's accidental death policy was not ambiguous. She maintains that the words "accident" and "disease" are subject to different interpretations. Under Idaho law, when the language in an insurance contract can reasonably be interpreted either to allow or deny recovery, it should be construed in favor of the insured. Dunford v. United of Omaha, 95 Idaho 282, 506 P.2d 1355, 1357 (1973). Ambiguity determinations are questions of law subject to de novo review on appeal. Potter v. Ranger Insurance Co., 732 F.2d 742, 743 (9th Cir. 1984).

Viewed independently, the terms "accident" and "disease" may be ambiguous. However, when the contract is read as a whole, there is no ambiguity. Miller v. Farmers Insurance Co. of Idaho, 108 Idaho 896, 702 P.2d 1356, 1359 (1985) ("insurance contracts ... are to be construed as a whole"). We cannot accept Uberuaga-Groshong's definition of "accident" as "an unexpected, undesigned and unlooked for mishap" because that would render Federal Insurance's disease exclusion clause virtually meaningless.

We also reject Uberuaga-Groshong's argument that "disease" is ambiguous under Idaho law and that arteriosclerosis is not necessarily a disease. The Idaho Supreme Court implicitly rejected that argument in Erickson v. Nationwide Mutual Insurance Co., 97 Idaho 288, 543 P.2d 841 (1975), when it applied a disease exclusion clause to arteriosclerosis. Courts in other jurisdictions which have suggested that arteriosclerosis is not a disease note that as people age, their arteries become more sclerotic. These cases hold that arteriosclerosis is not a disease when the insured's sclerosis is within normal limits for a person of his or her age. See Annotation, What Conditions Constitute a "Disease" Within Terms of a Life, Accident, Disability or Hospitalization Insurance Policy, 61 A.L.R.3d 822, 847-852 (1975); but cf Erikson v. Nationwide Mutual Insurance Co., 97 Idaho 288, 543 P.2d 841 (1975) (applying a disease exclusion clause to a person with arteriosclerosis within normal limits for a person of the insured's age). In this case, however, Mr. Groshong's arteriosclerosis was not within normal limits.

Both parties have asked for attorneys' fees. We deny both requests.

AFFIRMED.