USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1065
PAUL FERRAGAMO,
Plaintiff - Appellant,
v.
CHUBB LIFE INSURANCE COMPANY OF AMERICA,
Defendant - Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin, Circuit Judge,
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and Barbadoro,* District Judge.
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Maria A. Luise, with whom Frank Mondano and Balliro &
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Mondano were on brief for appellant.
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Paul M. Sanford, with whom Medeiros Karmen & Sanford Inc.
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was on brief for appellee.
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September 3, 1996
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* Of the District of New Hampshire, sitting by designation.
Per Curiam. On December 14, 1981, appellant Paul
Per Curiam
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Ferragamo ("Ferragamo") was insured by United Life and Accident
Insurance Company ("United Life") pursuant to a policy which
entitled Ferragamo to benefit payments in the event of his total
disability.2 At that time he owned and operated Northshore
Recycling, a scrap metal recycling business. Shortly thereafter,
Ferragamo submitted a claim for total disability benefits based
on an accident suffered while at work which caused severe
injuries to his left leg and ankle. As required by the policy,
he proceeded to file monthly reports regarding his injury.
Relying on these reports and the information contained therein
establishing that Ferragamo remained totally disabled and was not
working for pay or profit, appellee Chubb Life Insurance Company
of America ("Chubb"), United Life's successor, paid Ferragamo
total disability benefits of $2,400 per month from April 1982
until June 1993,3 as well as social insurance benefits of $750
per month over the initial five year period of his claim. Chubb
also waived the further payment of premiums pursuant to a policy
provision.
Although the monthly reports requested detailed
information from Ferragamo regarding the nature of any work
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2 We present the facts in the light most favorable to the jury's
verdict. See, e.g., Coastal Fuels of P.R., Inc. v. Caribbean
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Petroleum Corp., 79 F.3d 182, 186, petition for cert. filed, 65
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U.S.L.W. 3034 (July 2, 1996).
3 The disputed period is limited to the period after January
1988.
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activities,4 he continuously represented that he was not working
or earning any income other than "investment income."5 During
the course of Ferragamo's eleven- year claimed disability, Chubb
attempted to verify the nature of his disability in a variety of
ways including telephone contacts, personal interviews, reviewing
his income tax returns, independent medical evaluations, and by
"spot-checks" of Ferragamo's activities by private investigators.
These efforts eventually revealed that, while Ferragamo was
claiming total disability, he was actually engaging in numerous
and varied physical and work activities, including playing
racquetball with his trial lawyer, signing public records under
oath to the effect that he was working as a builder, filing
federal income tax returns where he stated under oath that he
received significant profits from his real estate development
business, operating a construction company known as Ferragamo
Development which purchased, developed, and sold over $10,000,000
in real estate, and disclosing to various persons, including his
doctors, creditors, banks and various town officers, that he was
a self-employed real estate developer, contractor or builder
earning from $100,000 to $250,000 per year. To mention only some
of the discovered evidence, Ferragamo fully developed a
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4 The inquiries included questions regarding his occupation and
duties, whether he was self-employed, whether he had returned to
work on either a part-time or full-time basis, what his daily
activities consisted of, the amount of his monthly income, and
whether he was partially or totally disabled.
5 Ferragamo signed each report below the statement that: "I
certify that the foregoing statements and answers are complete
and true to the best of my knowledge."
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$6,000,000 condominium complex in Swampscott, Massachusetts,
where he would be at the job site almost continuously each day
from 7:00-7:30 AM to 4:00-5:00 PM. He not only drove his pick-up
truck to work, but at times operated a front-end loader and
climbed down inside the newly dug foundation holes to check them
out. He was also fully active in all aspects of the planning,
financing, supervision and sale of this project.
In addition to the Swampscott condominium, during the
time of his alleged total disability Ferragamo also engaged in
various land transactions including those involving a 340 acre
tract in Littleton, New Hampshire, two lots in North Andover,
Massachusetts, two in Salem, and others in Lynnfield, Peabody,
Revere, and Swampscott, as well as at Chuebeque Island, Maine.
Predictably upon learning the above, Chubb stopped
disability payments under the policy, and incredibly, Ferragamo
sued seeking damages for breach of contract, negligence, unfair
and deceptive trade practices pursuant to Mass. Gen. L. ch. 93,
negligent infliction of emotional distress, and intentional
infliction of emotional distress. Chubb denied these allegations
and counterclaimed alleging fraud, deceit and negligent
misrepresentation.
A trial was held at which the above facts were
presented to the jury. At the close of plaintiff's case Chubb
moved for judgment pursuant to Fed. R. Civ. P. 50, which motion
was denied by the district court on all counts except regarding
Chapter 93A, on which ruling was reserved. Thereafter, at the
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close of the evidence, Chubb renewed the Rule 50 motion, with
similar results. The jury found for Chubb on all counts
including on Chubb's counterclaim in the amount of $192,401.71.
Pursuant to special interrogatories the jury ruled that Chubb had
not breached the policy contract, that Ferragamo engaged in
misrepresentations regarding his claim, and that after January
1988, he engaged in fraud in this respect. The district court
then dismissed Ferragamo's chapter 93A claim.
Ferragamo raised three issues on appeal which under the
circumstances of this case border on the frivolous: (1) the
admission into evidence of the investigator's reports which Chubb
relied on in suspending Ferragamo's benefits; (2) the limiting of
the cross-examination of Chubb's expert; and (3) the instructions
given to the jury regarding the deceit count of Chubb's
counterclaim.
The challenged reports were clearly admissible within
the discretion of the trial court, see Sinai v. New England Tel &
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Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993), cert. denied, ___ U.S.
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___, 115 S. Ct. 597 (1994), because they were relevant to the
issue of whether Chubb had reasonably investigated Ferragamo's
eligibility for benefits before terminating them. See Teishing
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v. SER-Jobs For Progress, Inc., 19 F.3d 755, 762 (1st Cir. 1994).
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This question was put at issue not only by the nature of
Ferragamo's claim, but also by the door that was opened by his
counsel in the direct examination of his own expert witness.
Sinai, 3 F.3d at 475-76. Furthermore, considering the copious
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independent evidence heard by the jury regarding Ferragamo's
activities, any error committed is at best harmless. See Almonte
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v. National Union Fire Ins. Co., 787 F.2d 763, 771 (1st Cir.
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1986).
A trial court's discretion in limiting the conduct of a
trial, although not limitless, is certainly ample enough to allow
the curbing of the cross-examination of Chubb's expert under the
circumstances of this trial. See Fed. R. Evid. 611(b) (noting
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that "cross examination should be limited to the subject matter
of direct examination"). On direct examination Chubb's expert
testified regarding its insurance practices in August 1993, when
Chubb suspended Ferragamo's insurance benefits. He also
testified regarding the reasonableness of Chubb's actions as to
the period of time that lapsed from the time the investigative
reports were received to the suspension of the benefits.
Ferragamo's lawyer extensively fished outside these waters before
the trial court properly ended the expedition.
Finally, in regard to the claim that the district court
erred in its jury instructions, it is beyond reasonable dispute
that Ferragamo did not make these objections after the charge was
given but before the jury retired to deliberate. It is
elementary that the failure to object to a jury charge after it
is given and before the jury retires to deliberate, is fatal to
any claim of error on appeal. Fed. R. Civ. P. 51; Scarfo v.
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Cabletron Sys., Inc., 54 F.3d 931, 940 (1st Cir. 1995). While
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there are extraordinary exceptions to this black-letter rule,
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see, e.g., id., such is not the present case. Thus, we dwell no
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longer on this or any other alleged error.
We can perceive no appealable error by the district
court. In fact the record shows actions by appellant for which
he could very well be held accountable before another forum.
Considering the totally meritless nature of this appeal,
appellant is hereby ordered to show cause within 10 days from the
issuance of this decision why he should not be held to pay double
costs and attorney's fees on appeal. See 28 U.S.C. 1919
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(1994); Fed. R. App. P. 38; Cronin v. Town of Amesbury, 81 F.3d
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257, 261 (1st Cir. 1996).
The decision of the district court is affirmed.
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