Dartmouth-Hitchcock Clinic v. United States Life Insurance Company in the City of New York ( 2002 )

[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
_________________
No. 02-1097
DARTMOUTH-HITCHCOCK CLINIC AND
HITCHCOCK CLINIC, INC.,
Plaintiffs, Appellants,
v.
UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
____________________
Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.
____________________
Ronald L., Snow, with whom Jennifer A. Eber was on brief, for
appellants.
William C. Nystrom, with whom Irwin B. Schwartz, Robert R.
Lucic and Elizabeth A. Bailey were on brief for appellee.
____________________
July 29, 2002
____________________
*
The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California, sitting by
designation.
Per Curiam.
I.
Dartmouth-Hitchcock Clinic and Hitchcock Clinic, Inc.
(Hitchcock) brought this action against United States Life
Insurance Company (USLife) for injunctive and other relief against
cancellation by USLife of two insurance policies covering
Hitchcock’s employees.1 USLife moved for summary judgment on three
grounds: that the policy gave USLife the absolute right to cancel
the policy on any anniversary date after the first, that it was
undisputed that USLife gave Hitchcock no assurances to the
contrary, and that the policy prohibited the agents of USLife from
changing the terms of the policy without written authorization from
USLife and none had been given.
Hitchcock opposed the summary judgment motion on three
grounds: that whether USLife's agents had authority to vary the
terms of the policy raised triable issues of fact, that as a matter
of law the three-year rate guarantee from one such agent gave
Hitchcock coverage for that period of time, and that as a matter of
law the request for change of plan (extending the three-year rate
guarantee) was binding on USLife.
The district court granted USLife’s motion on the ground
that the policy unambiguously reserved to USLife the right to
1
Because both policies contain identical terms and the
district court and the parties treat them as a single policy, we do
the same.
-2-
cancel the policy on any anniversary date after the first
notwithstanding the extension of a rate guarantee to Hitchcock.
Hitchcock then moved for reconsideration under Federal Rule of
Civil Procedure 59 on various grounds, none of which included an
assertion that ambiguity in the policy raised a triable issue of
fact. The court denied the motion.
Hitchcock now appeals from the judgment, contending for
the first time that ambiguities in the policy raised disputed
issues of fact entitling it to trial. Hitchcock did not advance
this contention in its opposition to USLife’s motion for summary
judgment or in its motion for reconsideration. Because of this
failure and the absence of "extraordinary circumstances," which
Hitchcock does not claim to exist, we affirm. Clauson v. Smith,
823 F.2d 660, 666 (1st Cir. 1987); see also Landrau-Romero v. Banco
Popular de Puerto Rico, 212 F.3d 607, 612 (1st Cir. 2000); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).2
II.
Our affirmance on the basis of our long-standing
forfeiture doctrine visits no prejudice on Hitchcock because its
position is wholly without merit. USLife issued a group disability
2
Hitchcock also appeals from the district court’s denial of
its Rule 56(f) motion. Fed. R. Civ. P. 56(f). It asserts error
because of ambiguities in the policy. We reject the assertion both
because it is barred by waiver, as noted above, and because
Hitchcock cites us to no abuse of discretion. Pub. Serv. Co. of
N.H. v. Hudson Light & Power, 938 F.2d 338, 346 (1st Cir. 1991).
-3-
insurance policy to the University Physicians Trust (Trust).
Hitchcock was one of a number of participating employers who had
entered into agreements with the Trust, entitling it to selected
coverage provided by the policy. The policy described available
benefits and options, setting out general provisions, exclusions,
and means by which coverage could be terminated. With respect to
the latter, the policy provided that “USLife reserves the right to
end this policy on any policy anniversary after the first.” The
rights under the policy of each participating employer such as
Hitchcock were further defined in discrete plans of insurance by
which that employer obtained coverage under the policy. The
particular employer’s plan specifies the premium for that
employer’s coverage and varies with the coverages elected.
Hitchcock’s dealings with respect to its plan of
insurance were entirely with Medical Group Financial Services, Inc.
(MGFS), the settlor and Trust administrator. It had no direct
contact with USLife. In December 1997, MGFS offered Hitchcock a
new premium rate under its plan of insurance “guaranteed for three
years,” to end on December 31, 2000. On December 21, 1998, USLife
notified MGFS that the policy would be canceled on the next
anniversary date, July 1, 1999.
We agree with the district court that the policy
unambiguously gave USLife the right to cancel the policy on any
anniversary date after the first. The rate guarantee, on which
-4-
Hitchcock would hang its hat, was the product of a wholly unrelated
transaction, to wit, MGFS’s negotiation of rates with Hitchcock
under the particular plan of insurance by which it secured coverage
under the policy. The policy deals specifically with the effect of
rate guarantees on USLife’s rights under the policy. It provides
that USLife may change a premium on the day following the rate
guarantee date specified in an employer’s plan of insurance. Thus,
the policy unambiguously spells out USLife’s obligation under the
policy: it must provide coverage at the agreed-upon rate for the
period of the rate guarantee unless it cancels the (entire) policy
at the next anniversary date. Given these specific provisions,
nothing in the policy gives rise to an issue whether Hitchcock’s
rate guarantee under its plan modified USLife’s right to terminate
the policy.
Affirmed.
-5-