USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1820
CASCO INDEMNITY CO.,
Plaintiff, Appellant,
v.
RHODE ISLAND INTERLOCAL RISK MANAGEMENT TRUST,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Alice Olsen Mann with whom David E. Maglio and Morrison, Mahoney
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& Miller were on brief for appellant.
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Rosemary Healey with whom James M. Green, Andrew M. Elmore and
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Powers, Kinder & Keeney, Inc. were on brief for appellee, Rhode Island
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Interlocal Risk Management Trust.
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May 12, 1997
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CAMPBELL, Senior Circuit Judge. This case
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primarily concerns a dispute between two insurance companies,
Casco Indemnity Company ("Casco") and Rhode Island Interlocal
Risk Management Trust ("the Trust"), over which of them is
responsible for compensating one Victor Cipriano for the
injuries he sustained in an automobile accident with an
uninsured driver. Because we agree with the district court
that Exclusion 9 in the Trust's policy applies to uninsured
motorist insurance and is not contrary to public policy, see
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Casco Indem. Co. v. Rhode Island Interlocal Risk Mgt. Trust,
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929 F. Supp. 65 (D.R.I. 1996), we affirm on these questions
without further comment. See In re San Juan Dupont Plaza
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Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993) ("Where,
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as here, a trial court has produced a first-rate work
product, a reviewing tribunal should hesitate to wax
longiloquence [sic] simply to hear its own words resonate.").
We find it was error, however, for the district
court not to issue a declaratory judgment, as Casco
requested, concerning Casco's ability to deduct any workers'
compensation benefits received by Cipriano already or in the
future from his damages.1
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1. The district court's sole apparent reference to the issue
in its opinion was its statement, "With regard to the Casco
Policy, any coverage available to Cipriano is to be governed
by the terms of the agreement between the parties." Casco,
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929 F. Supp. at 73.
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Casco contended below, and now contends on appeal,
that such benefits are excluded by a provision in its policy
stating:
B. Any amounts otherwise payable for damages under this
coverage shall be reduced by all sums . . .
2. Paid or payable because of the "bodily injury"
under any of the following or similar law:
a. workers' compensation law; or
b. disability benefits law.
Casco asserts that this provision comports with
Rhode Island's public policy against double recovery, citing
Poulos v. Aetna Cas. & Sur. Co., 379 A.2d 362, 365 (R.I.
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1977) (upholding an insurance policy clause reducing the
insurer's liability by the amount paid or payable "under any
workmen's compensation law, disability benefits law or any
similar law" only to the extent such benefits represented a
double recovery thus mandating that the deduction be from
the insured's total damages, not the policy's face value).
Casco included this claim in its amended complaint,
in its motion for summary judgment below, and in its appeal
brief. The Trust, having no stake in this debate, has
provided no response. Cipriano, the beneficiary of Casco's
policy, was a named defendant in this suit and filed a
general answer to Casco's complaint, but insofar as appears
he did not file an opposition to Casco's motion for summary
judgment (which sought relief on the point) nor did he
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otherwise take part in the proceeding below. Cipriano has
neither argued nor filed any brief on appeal. As a result,
we are left to decide the matter with only Casco's arguments
to guide us. See Allgeier v. United States, 909 F.2d 869,
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871-72 n.3 (6th Cir. 1990) (considering an appeal solely on
the brief of the appellant when the appellee failed to file a
brief) (citing, inter alia, Fed. R. App. P. 31(c)'s statement
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that "[i]f an appellee fails to file a brief, the appellee
will not be heard at oral argument except by permission of
the court"); Instituto Nacional de Comercializacion Agricola
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(INDECA) v. Continental Illinois Nat'l Bank and Trust Co.,
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858 F.2d 1264, 1270-71 (7th Cir. 1988) (same); Teamsters,
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Chauffeurs, Warehousemen & Helpers Local Union 524 v.
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Billington, 402 F.2d 510, 511 (9th Cir. 1968) (deciding an
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appeal on the appellant's brief and the trial record when the
appellee failed to file an appeal brief).
In the absence of any legal or factual arguments to
the contrary, it is hard to say that Casco's arguments are
not persuasive on this point. Nor can we say that Casco has
failed to do all that might be expected to pursue the issue.
We accordingly remand to the district court with directions
that it issue a declaratory judgment in Casco's favor
providing, in effect, that, "The policy issued by Casco
Indemnity Company provides uninsured motorist coverage which
is excess to any workers' compensation benefits paid to
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defendant Cipriano or received by him in the future with
respect to the accident of November 20, 1993."
Affirmed in part and reversed and remanded in part.
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