Murray v. United of Omaha Life Insurance ( 1998 )


Menu:
  •                                                                                                                            Opinions of the United
    1998 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-19-1998
    Murray v. United of Omaha Life
    Precedential or Non-Precedential:
    Docket 96-5685,96-5748,96-5747,96-5749
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998
    Recommended Citation
    "Murray v. United of Omaha Life" (1998). 1998 Decisions. Paper 114.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1998/114
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    Filed May 19, 1998
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NOS. 96-5685, 96-5747, 96-5748, 96-5749
    JOSEPHINE MURRAY,
    Appellant in No. 96-5685
    v.
    UNITED OF OMAHA LIFE INSURANCE COMPANY;
    MUTUAL OF OMAHA INSURANCE COMPANY;
    AMERICAN HOME ASSURANCE COMPANY;
    HARTFORD ACCIDENT AND INDEMNITY COMPANY;
    JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY;
    LEGIONNAIRE INSURANCE TRUST PROGRAM;
    INSURANCE COMPANY OF NORTH AMERICA
    JOSEPHINE MURRAY
    v.
    UNITED OF OMAHA LIFE INSURANCE COMPANY;
    MUTUAL OF OMAHA INSURANCE COMPANY;
    AMERICAN HOME ASSURANCE COMPANY;
    HARTFORD ACCIDENT AND INDEMNITY COMPANY;
    JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY;
    LEGIONNAIRE INSURANCE TRUST PROGRAM;
    INSURANCE COMPANY OF NORTH AMERICA
    Hartford Accident and Indemnity Company,
    Appellant in No. 96-5747
    American Home Assurance Company,
    Appellant in No. 96-5748
    Mutual of Omaha Insurance Company and
    United of Omaha Life Insurance Company,
    Appellants in No. 96-5749
    On Appeal From the United States District Court
    For the District of New Jersey
    (D.C. Civ. No. 94-cv-03150)
    Argued: January 21, 1998
    Before: BECKER, STAPLETON, Circuit Judges and
    FEIKENS, District Judge.*
    (Filed May 19, 1998)
    RALPH E. POLCARI, ESQUIRE
    (ARGUED)
    THOMAS J. DiCHIARA, ESQUIRE
    Drazin & Warshaw
    25 Reckless Place
    P.O. Box 8909
    Red Bank, NJ 07701-8909
    Counsel for Josephine Murray
    MICHAEL J. ZARETSKY, ESQUIRE
    (ARGUED)
    Chorpenning, Good, Carlet &
    Garrison
    1135 Clifton Avenue
    Clifton, NJ 07015
    Counsel for Hartford Accident &
    Indemnity Company
    B. JOHN PENDLETON, JR.,
    ESQUIRE (ARGUED)
    McCarter & English
    100 Mulberry Street
    Four Gateway Center
    Newark, NJ 07101-0652
    Counsel for United of Omaha Life
    Insurance Company and Mutual of
    Omaha Insurance Company
    _________________________________________________________________
    *Honorable John Feikens, United States District Judge for the Eastern
    District of Michigan, sitting by designation.
    2
    CHRIS E. PIASECKI, ESQUIRE
    Psak, Graziano, Piasecki & Whitelaw
    127 Union Avenue
    Middlesex, NJ 08846-1039
    Counsel for American Home
    Assurance Company
    JOSEPH J. GARVEY, ESQUIRE
    Kelaher, Garbey, Ballou, & VanDyke
    204 Courthouse Lane
    Toms River, NJ 08753
    Counsel for John Hancock Mutual
    Life Insurance Company
    OPINION OF THE COURT
    BECKER, Chief Circuit Judge.
    This appeal arises from a suit on five accidental death
    benefit (ADB) policies (with the five defendant insurance
    companies), each of which provides benefits for a death
    that is accidental and independent of all other causes. The
    plaintiff, Josephine Murray, is the widow of Arthur Murray
    who, having been admitted to a hospital for treatment of a
    serious ailment, died after his condition worsened following
    an accidental fall which resulted in a fractured hip. A jury
    found that Mr. Murray's death was within the scope and
    conditions of the policies, and returned a verdict in favor of
    the plaintiff. The district court, however, determined that,
    because Mr. Murray suffered from a number of diseases
    and medical conditions prior to the accident, his death was
    not independent of all other causes, and entered judgment
    as a matter of law in favor of the defendants.
    At bottom, this appeal forces us to decide whether, under
    New Jersey law, a jury could reasonably find that Mr.
    Murray's death was accidental and independent of all other
    causes. Unfortunately, New Jersey law is opaque on what is
    the critical question here: whether a plaintiff can prevail if
    she can prove (1) that the insured's pre-existing condition
    or disease, though active and symptomatic, was under
    3
    medical control, and that the insured was expected to live
    a productive life for the foreseeable future (measured in
    terms of years); and (2) that the accident was the direct,
    efficient, and predominant cause of his death. Lacking a
    procedure that would enable us to certify this question to
    the New Jersey Supreme Court, we are forced to predict
    how that court would decide the issue. We predict that the
    court would answer in the affirmative, and hence we
    conclude that the district court incorrectly interpreted New
    Jersey law. Because the evidence was sufficient to sustain
    a verdict under New Jersey law as we interpret it, the order
    of the district court rendering judgment as a matter of law
    in favor of the defendants must be vacated. Although the
    district court's charge to the jury was erroneous under the
    law as we now predict it, the findings necessarily implied by
    the jury's verdict under the incorrect instructions make
    clear that the jury would have reached the same conclusion
    under correct instructions, and thus we direct the district
    court to reinstate the original verdict in plaintiff 's favor.
    I. Facts and Procedural History
    On February 18, 1992, Mr. Murray, age 71, was admitted
    to the hospital due to swelling and pain in his foot. While
    hospitalized, he developed gangrene, and on March 2 his
    foot was amputated. For several weeks following the
    surgery, his temperature was high and he remained
    hospitalized. This fever broke on April 6, and he was
    scheduled to be discharged on April 11. On April 10,
    however, his temperature began to rise again, and when it
    continued to rise on the morning of April 11, the discharge
    plans were canceled. At approximately 11:45 p.m. on the
    evening of the 11th, Mr. Murray fell while walking from the
    bathroom to his hospital bed, resulting in a fractured hip.
    Mr. Murray's temperature continued to rise on April 12
    and he became gravely ill. Although he was a "high risk" for
    surgery due to pre-existing diabetic, heart, and liver
    conditions (described infra), Mr. Murray's attending
    physician determined that he "[would] be totally
    incapacitated and probably [would] not heal without
    surgical intervention" on the broken hip. Mr. Murray's
    condition apparently stabilized over the subsequent week,
    4
    and the hip surgery was performed on April 22. Following
    that surgery, his condition steadily worsened. He suffered
    acute respiratory distress, progressive sepsis, acute renal
    failure, and a cardiac arrest. In addition, he also
    experienced a left pleural effusion. This condition was
    caused primarily by heart failure and low protein, and only
    appeared after the hip fracture. Finally, Mr. Murray
    required an emergency hemodialysis because of
    hyperkalemia. He died on May 10, 1992. The death
    certificate listed the causes of death as renal failure, sepsis,
    and renal transplant.
    A. Mr. Murray's Prior Medical Condition
    Prior to his fall, Mr. Murray had been diagnosed with a
    significant number of medical problems; those from which
    he suffered at the time of his death are catalogued in the
    margin.1 He had coronary artery disease, a condition
    relatively common among older Americans, and suffered
    intermittently from atrial fibrillation. While Mr. Murray's
    heart was not fibrillating at the time he came into the
    hospital, he subsequently developed partial atrial
    fibrillation after the accident. He also had hypertension,
    which was elevated on the morning of April 11, prior to the
    accident. Still, Dr. Scotti, plaintiff 's expert, opined that
    there was no reason to believe that Mr. Murray was in any
    imminent danger of an acute heart attack. Moreover, the
    infarctions noted on his discharge summary, see n.1,
    supra, occurred after the accident, and, according to
    evidence adduced at trial, were caused by the fall.
    In addition, Mr. Murray suffered from renal disease,
    which had necessitated two earlier kidney transplants (the
    _________________________________________________________________
    1. The discharge summary prepared by the hospital after Mr. Murray's
    death lists fifteen conditions under the heading "Final Diagnoses." That
    list includes: uremia; cellulitis of the left foot with gangrene;
    intertrochanteric and subtrochanteric fracture, right hip; peripheral
    vascular disease, severe; diabetes mellitus; end-stage renal disease,
    secondary to autosomal dominant polycystic kidney disease; status post
    kidney transplant; acute renal failure, secondary to sepsis;
    atherosclerotic heart disease; fever of undetermined origin; left pleural
    effusion; hepatocellular necrosis, idiopathic; fat emboli syndrome;
    pneumonia; acute, non-Q wave myocardial infarction.
    5
    first in the 1970s and the second in the 1980s) and
    required continuous medication to suppress his immune
    system and to prevent his body from rejecting the
    transplanted organ. As a result, he had "some immune
    deficiency." Dr. Scotti testified, however, that Mr. Murray's
    kidney function was "fine" prior to the accident, and that he
    did not appear to be in any danger of imminent kidney
    failure at that time.
    Sometime after his second kidney transplant, Mr. Murray
    developed Diabetes Mellitus. According to Dr. Nasberg, an
    endocrinologist, this condition was also under control prior
    to the accident. Additionally, he suffered from peripheral
    vascular disease (i.e. the obstruction or narrowing of the
    blood vessels to the legs and feet), which led to the trans-
    metatarsal amputation of his foot. Dr. Scotti nonetheless
    testified that "there was no evidence that his foot was a
    problem" after the amputation. Although Mr. Murray still
    suffered from peripheral vascular disease after the
    amputation -- which could have lead to complications if he
    was to suffer another similar injury -- he did not have any
    active gangrene or any specific symptoms prior to his fall.
    As noted supra, Mr. Murray also suffered from a fever of
    unknown origin while in the hospital for treatment of his
    foot. Although the defendant offered testimony at trial that
    this fever was indicative of pneumonia, and that it was that
    pneumonia that lead to Mr. Murray's death, Dr. Scotti
    testified to the contrary. In his opinion, Mr. Murray's clear
    chest and lack of cough prior to the accident would make
    the possibility of pneumonia highly unlikely. Furthermore,
    he had suffered from hepatitis for the fifteen-year period
    prior to 1992, and Dr. Scotti hypothesized that the most
    likely cause of the pre-accident fever was chronic active
    liver disease.
    B. Dr. Scotti's Theory
    It was not disputed by Dr. Scotti at trial that had Mr.
    Murray been a perfectly healthy seventy-one year old man
    at the time of the accident, he would probably not have
    died as a result thereof. Yet, it was Dr. Scotti's testimony
    that the accident caused Mr. Murray's death. In sum, Dr.
    Scotti opined that the hip fracture triggered a"cascade of
    6
    events" that directly lead to Mr. Murray's death-- and that
    had it not been for the fracture, Mr. Murray would not have
    died on April 11.
    Briefly put, the "cascade" theory works as follows.
    According to Dr. Scotti, all of Mr. Murray's pre-existing
    conditions (heart problems, kidney disease, etc.) were under
    control at the time he went into the hospital for treatment
    of his foot. The fall and subsequent hip fracture either
    aggravated the pre-existing conditions out of their
    controlled state, or caused new conditions (such as the
    Non-Q-wave infarction) to arise, which ultimately lead to
    death. For example, Dr. Scotti testified that the Fat Emboli
    Syndrome noted on Mr. Murray's discharge summary was
    specifically caused by the fractured hip.2 It was this
    condition which most likely caused his temperature to rise
    significantly after the accident. Moreover, it was Dr. Scotti's
    opinion that the fall ultimately spurred on Mr. Murray's
    liver disease (i.e. hepatitis B).
    As for Mr. Murray's renal failure, it too appears that the
    jury could have reasonably inferred from the testimony that
    this problem also was triggered by the accident. Dr. Scotti
    testified that "the end stage renal failure was certainly a
    result of the cascade effect" caused by the fall. Indeed, Dr.
    Genovese-Stone, defendants' expert at trial, conceded that
    Mr. Murray was not in kidney failure the day before he fell,
    that there was nothing in the medical records to indicate
    that his kidney was about to fail, and that, with his
    medication, Mr. Murray's kidney condition was under
    control prior to the fall.
    C. Mr. Murray's Insurance and the Litigation Thereon
    At the time of Mr. Murray's death, he owned accidental
    death benefit policies worth various amounts from the five
    defendant insurance companies.3 Plaintiff Josephine
    _________________________________________________________________
    2. Dr. Scotti described Fat Emboli Syndrome as a condition in which the
    fatty materials from the patient's bone marrow escape into the
    bloodstream. These materials can then form small clots in the patient's
    lung and block the lung vessels. App. at 72A.
    3. Those policies (and their values) are the following: United of Omaha
    Life Insurance Company ($3,995.00); Mutual of Omaha Insurance
    7
    Murray was the named beneficiary under each of these
    policies, and after Mr. Murray died, she filed claims for
    benefits pursuant to them. Each of the insurance
    companies independently reviewed Mrs. Murray's claim,
    determined that Mr. Murray's death was not accidental,
    and refused to pay benefits.
    On May 10, 1994, Mrs. Murray filed a complaint in
    Superior Court, Monmouth County, New Jersey, against the
    insurance companies, who removed the case to the District
    Court for the District of New Jersey. On September 13,
    1996, a jury returned a verdict in Mrs. Murray's favor. After
    the jury was excused, the district court granted the
    insurance companies' renewed motion for judgment as a
    matter of law, and dismissed the complaint with prejudice.
    Mrs. Murray appeals.4 The insurance companies cross-
    appeal, contending that the district court erred in charging
    the jury.
    II. The District Court's Opinion
    The parties have stipulated that Mrs. Murray is entitled
    to recover benefits under the present ADB policies only if
    her husband's death "was the result of bodily injury directly
    from an accident and independent of all other causes."
    _________________________________________________________________
    Company ($80,200.00); American Home Assurance Company
    ($25,000.00); Hartford Life Insurance Company ($75,000.00); John
    Hancock Mutual Life Insurance Company ($26,250.00). Mr. Murray also
    owned accidental death policies from Legionnaire Insurance Trust
    Program and the Insurance Company of North America. Although these
    latter two companies were named in the complaint, they settled with
    Mrs. Murray and are not parties to this appeal.
    4. Removal of this action from state court to the district court was
    appropriate under 28 U.S.C. S 1441(a), as the district court had original
    jurisdiction pursuant to 28 U.S.C. S 1332. We have jurisdiction over this
    appeal under 28 U.S.C. S 1291. Our review is plenary, and we will
    sustain the district court's entry of judgment as a matter of law if
    "there
    is no legally sufficient evidentiary basis for a reasonable jury" to
    return
    a verdict in favor of Mrs. Murray. Rhone Poulenc Rorer Pharmaceuticals
    Inc. v. Newman Glass Works, 
    112 F.3d 695
    , 696 (3d Cir. 1997). The
    evidence must be viewed in a light most favorable to the non-moving
    party. See Mosley v. Wilson, 
    102 F.3d 85
    , 89 (3d Cir. 1996).
    8
    They also agree that this language must be interpreted
    according to the law of New Jersey. Sitting in diversity, we
    must predict how the highest court of New Jersey would
    rule. See Robertson v. Allied Signal, Inc., 
    914 F.2d 360
    , 378
    (3d Cir. 1990). We begin by reviewing the district court's
    interpretation and application of New Jersey's law in this
    matter.
    In its opinion granting judgment as a matter of law to the
    defendants, the district court read New Jersey law to
    require a case by case evaluation which takes into account
    both the mechanism by which death occurs and the
    "nature and severity of the underlying conditions or
    diseases." (See Amended Transcript of Trial, Sept. 13, 1996
    at 12-13 [hereinafter "Transcript"].) The "telling rule" derived
    from the New Jersey cases, according to the district court,
    is that:
    where the medical proofs establish affirmatively that
    the active disease, with which the insured was afflicted
    and for which he was being treated, not only was
    competent to contribute to his death, but in the
    opinion of his own physician, did in fact operate in
    conjunction with an accidental injury to produce the
    demise, the Court has no alternative but to take the
    case from the jury.
    From this, the district court found New Jersey to prescribe
    a two-pronged test. First, in order to recover, the insured
    must show that his pre-existing conditions were "inactive
    and under control, and were not sufficient to cause death."
    In the district court's view, if any pre-existing condition was
    "active, known, symptomatic, or progressive, and of such a
    nature and severity in and of itself so as to be capable of
    contributing to death," this first element would not be met.
    Second, the district court held that the insured must show
    that the accidental injury was the "direct, efficient and
    predominant cause of death, in that it set in progress the
    chain of events leading directly to death by exciting or
    triggering the pre-existing conditions into activity, and
    thereby hastened death so as to cause it to occur at an
    earlier period than it would have occurred but for the
    accident."
    9
    The district court then reviewed the evidence. Most
    notably, the district court referenced Dr. Scotti's testimony
    that all of Mr. Murray's conditions were controlled at the
    time of the fall; that these conditions were not likely to
    cause death at the time death occurred; and that, in Dr.
    Scotti's opinion, the fall was the proximate cause of Mr.
    Murray's decline, which led to his death. Indeed, according
    to Dr. Scotti, Mr. Murray would have lived for several more
    years but for the accident.5 Based on these facts, the
    district court concluded that judgment as a matter of law
    was not warranted on prong two of the New Jersey test (i.e.
    causation).
    Nonetheless, the district court found that Dr. Scotti's
    testimony did not provide sufficient evidentiary support for
    plaintiff to meet her burden on the first prong of the test.
    This was because several of the diseases and conditions
    from which Mr. Murray was suffering, including
    arteriosclerotic heart disease, peripheral vascular disease,
    diabetes, hepatitis B, and renal failure, were "active" and
    because they, singularly or in combination, together with
    the accidental injury, in some manner were contributing
    causes of Mr. Murray's death. Moreover, the district court
    relied upon Dr. Scotti's testimony that if Mr. Murray had
    been a "perfectly healthy 71 year old," then it was much
    less likely that he would have died from the hip fracture,
    that his death was made "much more likely" by his
    combination of existing medical problems at the time of the
    accident, and that in Dr. Scotti's opinion there was "no way
    that the fall was the sole cause of death." While Dr. Scotti
    testified that all of Mr. Murray's pre-existing conditions
    were under control at the time of the accident, the district
    court found that
    the particulars, the specifics of Dr. Scotti's testimony
    _________________________________________________________________
    5. For example, Dr. Scotti testified that
    "...about five percent of people with hepatitis will go on to have
    chronic active liver disease but they will live for years and
    years. He
    was not in hepatic failure and was not -- did not have cirrhosis,
    so
    that again before the fracture, his liver disease did not pose an
    immediate threat of death or death within a year or two or three or
    four."
    10
    make it clear that he acknowledged that several of Mr.
    Murray's conditions were, in fact, not under control at
    the time of the accident, and that these conditions
    were among the conditions which contributed to his
    ultimate demise.
    On this basis, the court found for defendants.
    The New Jersey Supreme Court has never addressed the
    ultimate question before us, and there are conflicting
    strains in New Jersey law. Nonetheless, we predict that
    under these circumstances, the New Jersey Supreme
    Court's approach to resolving this dispute would differ from
    the approach utilized by the district court.
    III. The New Jersey Jurisprudence on the Interpretation
    of Accidental Death Benefit Clauses
    The question before us is whether the district court
    correctly predicted how the New Jersey Supreme Court
    would rule on the present facts. The district court deduced
    its two-pronged test from three cases dealing with the
    construction of ADB clauses in New Jersey: Runyon v.
    Commonwealth Casualty Co., 
    160 A. 402
     (N.J. 1932)
    ("Runyon II"); Kievit v. Loyal Protective Life Ins. Co., 
    170 A.2d 22
     (N.J. 1961); and Tomaiuoli v. United States Fidelity
    and Guaranty Co., 
    182 A.2d 582
     (N.J. Super. Ct. App. Div.
    1962). We will look to these cases and others to determine
    how the New Jersey courts have treated the construction of
    ADB limited coverage clauses in the past. Since, as we
    discuss infra, the holdings of these cases are largely
    dependent upon their particular facts, we will also make
    reference to modern intrajurisdictional trends and scholarly
    opinions on how these clauses should be construed.
    A. The Strict Construction Model -- Runyon I & II
    The first major New Jersey opinions treating issues
    similar to those before us were the related cases of Runyon
    v. Monarch Accident Ins. Co., 
    158 A. 530
     (N.J. 1932)
    ("Runyon I") and Runyon II, supra. Both cases dealt with the
    same accident, in which the insured slipped on an icy
    pavement, broke his hip, and died about five weeks later.
    The evidence showed that the insured had suffered for
    11
    eleven years prior to the accident from a condition then
    known as "paralysis agitans" (known more commonly now
    as Parkinson's Disease), and the death certificate listed the
    cause of death as "fractured left hip from slipping on ice;
    contributory paralysis agitans (secondary) duration 11
    years." Runyon I, 158 A. at 532. The insured's physician
    testified at trial that his use of the word "contributory"
    meant that if the insured had been in normal health, he
    would have "stood a much better chance" to recover from
    the shock of the hip fracture. See id.
    The ADB policy in Runyon I provided that the defendant
    was liable only if death resulted "exclusively from bodily
    injuries caused solely by external, violent and accidental
    means." Id. at 531. The court held that"under such a
    policy, if the insured, at the time of the accidental injury,
    was also suffering from a disease, and the disease
    aggravated the effects of the accident, and actively
    contributed to the death occasioned thereby, there can be
    no recovery upon the policy." Id. On this basis, the court
    upheld the verdict for the defendant.
    Runyon II involved the same facts, though construed
    under a different insurance policy. The relevant policy
    language in that case provided for benefits so long as death
    or bodily injury was caused:
    directly and independently of all other causes by
    external, violent, and accidental means, which bodily
    injuries, or their effects, shall not be caused wholly or
    in part, directly or indirectly, by any bodily or mental
    disease, defect or infirmity.
    Runyon II, 160 A. at 403. The trial court denied the
    defendant's motion for a nonsuit, and the jury returned a
    verdict for the plaintiff. The New Jersey high court reversed.6
    Since it was uncontroverted that the insured's pre-existing
    condition had, to some extent, caused the death of the
    insured, the court held that the case fell squarely within
    the exempting condition of the policy -- i.e. that the death
    was not caused directly and independently of all causes
    other than the accident. See id.
    _________________________________________________________________
    6. The court was then known as the Court of Errors and Appeals.
    12
    B. The Modern Model -- Mahon and Kievit
    About thirty years after Runyon II, the New Jersey
    Superior Court Appellate Division broke from Runyon's
    apparently strict dictates in Mahon v. American Casualty
    Co. of Reading, 
    167 A.2d 191
     (N.J. Super. Ct. App. Div.
    1961). The facts of Mahon can be simply stated. The
    deceased, a nine year old boy who appeared to be in good
    health, was playing in his schoolyard during recess when
    he accidentally bumped his head against the head of a
    schoolmate. Soon thereafter, the boy developed symptoms
    prompting a medical examination. That examination and
    subsequent diagnostic operations revealed that the boy had
    a condition known as the Arnold-Chiari malformation.
    According to expert testimony at trial, the malformation
    was caused by a tumor deep within the boy's brain; while
    the tumor and the malformation existed prior to the head
    injury, they were in a "quiescent" state and it took the
    trauma of the head injury to cause the boy's acute
    symptoms. See 
    id. at 194-95
    . Moreover, the expert testified
    that but for the tumor, the acute symptoms would not have
    occurred; yet, but for the head trauma, the tumor would
    not have caused the malformation to become acute"for a
    further interval of time." See 
    id. at 195
    .
    The court recognized that cases like Runyon II reflected a
    "pronounced tendency" in the law "to hold for the insurer
    as a matter of law, if there is uncontroverted evidence of
    causal contribution by disease or abnormality to the loss."
    
    Id. at 198
    . At the same time, the court noted a "not
    inconsiderable number of decisions" which held that such
    evidence could still support a verdict for the insured if the
    jury was to find that the accident operated as the proximate
    or predominant cause of the loss. See 
    id.
     The court also
    distinguished between two types of limitation clauses found
    in ADB policies. The first (found in Mahon and in the
    stipulation here), known as a "limited coverage clause," is
    typically of the form: "loss resulting directly and
    independently of all other causes from injury caused by
    accident." 
    Id. at 196
    . The second (found in Runyon II) is
    known as an "exclusionary clause," and is of the form:
    "which bodily injuries, or their effects, shall not be caused
    wholly or in part, directly or indirectly, by any bodily or
    13
    mental disease, defect, or infirmity." 
    Id.
     Examining cases
    from several jurisdictions, the court concluded that the
    exclusionary clause constitutes a significantly more
    restrictive contract than the limited coverage clause. See 
    id. at 199
    .
    In light of these considerations, Mahon held that the
    "mere conjunction of disease or abnormality and accident,
    each ``but for' causes of the resulting disability, and neither
    alone efficient to produce it" does not necessarily bar
    recovery as a matter of law in a limited coverage case. See
    
    id. at 200
    . The court opined:
    In what seems to us a preponderance of American
    jurisdictions, the test is whether the accidental injury
    as contrasted with the contributing disease or bodily
    condition, is the proximate cause of the disability or
    loss. . . . Pervading such cases is the philosophy that
    if the accident is a more substantial contributing cause
    of the resultant disability or death than the disease,
    the latter merely being a condition thereof, recovery is
    allowed.
    
    Id. at 201
    . The court held that this result was not
    foreclosed by Runyon I. Although Runyon I mentioned a
    "general rule" that recovery should be barred if a pre-
    existing disease aggravated the accident and "actively
    contributed" to the death occasioned by the accident,
    Mahon's review of the case law suggested that Runyon I's
    statement could not reflect the "general rule" unless "active
    contribution" was understood to mean "predominant
    cause." Mahon, 
    167 A.2d at 205
    . The court also
    distinguished Runyon II on the basis that the policy in that
    case involved an exclusionary clause, whereas the policy in
    Mahon only involved a limited coverage clause. We do not
    rely on this distinction, however, because, as we note
    below, the modern trend (at least in New Jersey) is to treat
    both clauses the same. See infra at n. 7.
    The New Jersey Supreme Court evinced an intent to
    follow the modern liberal trend outlined in Mahon in Kievit
    v. Loyal Protective Life Ins. Co., 
    170 A.2d 22
     (N.J. 1961), the
    court's most recent treatment of the issue at hand. The
    insured in Kievit was a forty-seven year old carpenter, who
    14
    appeared to be in perfectly good health, without any
    diagnosed diseases or conditions, and with no symptoms.
    The accident occurred when the insured was struck over
    the left eye by a two-by-four, after which he developed
    "tremors" and became totally disabled. Kievit, 170 A.2d at
    24. Testimony at trial indicated that the insured actually
    had (although asymptomatic) Parkinson's Disease prior to
    the accident, which the accident had aggravated. See id. at
    25.
    The trial   court entered judgment for the defendant
    insurance   company and the Supreme Court reversed. This
    case, the   court held, was distinguishable from both Runyon
    opinions.   In those cases:
    a patent, active disease was found to have contributed
    with the accident to the resulting death of the insured.
    We are here concerned with a latent, inactive condition
    or disease which was not accompanied by any
    symptoms and which was precipitated or activated by
    the accident into a resulting disability.
    Id. at 27. Although the policy held by the insured in Kievit
    contained an exclusionary clause, the court did notfind
    that Mahon was distinguishable on this basis.7 Rather, the
    Kievit court held that the key was the reasonable
    expectations of the insured. See id. at 30 ("[T]he court's goal
    in construing an accident insurance policy is to effectuate
    the reasonable expectations of the average member of the
    public who buys it.").
    In what we consider the most critical passage of the
    opinion, the court held:
    When the Company issued its accident policy to Mr.
    Kievit it knew that, although he was then about 48 and
    in good health, he could and presumably would keep
    the policy in force until he was 65 and that in the
    course of time he would undoubtedly be subjected to
    bodily conditions and diseases incident to the aging
    _________________________________________________________________
    7. "In the instant matter we attach little significance to the presence of
    the exclusionary clause in view of the primary provision limiting coverage
    to loss from accidental bodily injuries, directly and independently of all
    other causes." Kievit, 170 A.2d at 30.
    15
    process. If the terms of the policy were read literally,
    the policy would be of little value to him since disability
    or death resulting from accidental injury would in all
    probability be in some sense contributed to by the
    infirmities of age. . . . Such literal reading was never
    contemplated and it may fairly and justly be concluded
    that it also was never contemplated that indemnity
    would be unavailable where a condition or disease
    which was wholly dormant was activated and became
    disabling as the result of an accidental injury.
    Id. at 30 (emphasis added). The court then further clarified
    its position by quoting the following passage from United
    States Fidelity & Guarantee Co. v. Hood, 
    87 So. 115
    , 120
    (Miss. Sup. Ct. 1921):
    It is not sufficient to defeat the policy that the accident
    may have made some latent disease active, which
    disease contributed in some degree to the death. If the
    disease was active and of such character and virulence
    as to endanger life apart from the accident, but might
    not have done so had the accident not happened, then
    that may be said to be a proximate contributing cause.
    Kievit, 170 A.2d at 30. Based on this rationale, the court
    held that the accident was the proximate cause of the
    insured's disability, and that his pre-existing disease,
    "activated by the accident into an incapacitating condition,"
    was not a disqualifying contributing cause. Id. at 31.
    Thus, Kievit and Mahon can be read most plausibly to
    hold that the construction of limited coverage clauses in
    ADB policies depends upon some form of proximate
    causation analysis in order to fairly represent the
    reasonable expectations of the insured. At the very least, if
    the pre-existing condition is found to have been"active" (as
    opposed to the "latent" condition at issue in Kievit), these
    cases would appear to require a factual determination
    whether the condition was "of such character and virulence
    as to endanger life apart from the accident" in some
    relevant medical sense, or whether the accident precipitated
    the condition into a resulting disability. See Kievit, 170
    A.2d at 27, 30.
    16
    This approach suggests what scholars have deemed the
    modern tendency of courts dealing with limited coverage
    clauses like these:
    It has thus been the tendency to hold that where the
    disease was not a direct, proximate, or concurring
    cause of the loss recovery would be allowed, regardless
    of the existence of such condition. . . . Other courts
    have taken a still broader view, consistent with that
    which the authors urge herein as being the better
    approach, that recovery may still be had where the
    diseased condition appeared actually to contribute to
    cause the death, where the accident was the prime or
    moving cause. This has come to be the more modern
    rule, irrespective of the stringencies of policy language,
    where injury is a proximate cause of death or
    disability, even though the result for which claim is
    made would, perhaps, not have occurred except for the
    preexisting condition.
    John Alan Appleman & Jean Appleman, Insurance Law and
    Practice S 393 at 81, 85-90 (1981); see also Robert E.
    Keeton & Alan I. Widiss, Insurance Law S 5.4(b)(2) at 502
    (1988) (stating that in ADB cases, "courts tend to interpret
    the coverage provisions and limitations so as to favor the
    interests of the beneficiaries when the evidence indicates
    the death or injury was essentially fortuitous."). For the
    reasons discussed infra, we believe that the New Jersey
    Supreme Court would follow this modern approach in the
    present case.
    C. The Appellate Division Returns to Runyon-- Tomaiuoli
    Shortly after Kievit was handed down, the Appellate
    Division revisited the Runyon approach in Tomaiuoli v.
    United States Fidelity & Guaranty Co., 
    182 A.2d 582
     (N.J.
    Super. Ct. App. Div. 1962). In that case, the insured, a
    seventy-two year old man who had a history of
    arteriosclerotic heart disease and diabetes, was involved in
    a minor traffic accident, from which he suffered no bodily
    injuries. Shortly thereafter, while still at the accident scene,
    the insured collapsed on the sidewalk from a heart attack,
    and died before an ambulance could arrive. The plaintiff,
    relying upon expert medical testimony, claimed that the car
    17
    accident led to a "chain of events" that caused the insured's
    death. See 
    id. at 586
    . The court ultimately found that the
    accident was "the precipitating cause of exciting the
    decedent to a degree greater than he was able to withstand
    physically by reason of the underlying systemic maladies
    with which he was afflicted, with the consequence that he
    collapsed." 
    Id. at 587
    . The insurance policy, as in Runyon
    II, provided for the payment of benefits for accidental
    injuries resulting in death only if the loss resulted "directly
    and independently of all other causes." Tomaiuoli, 
    182 A.2d at 588
    .
    The appellate division found this case to be factually and
    legally indistinguishable from Runyon II, and affirmed the
    trial court's judgment notwithstanding a verdict in favor of
    the defendant. The court found that in both cases:
    the insured persons were, and had been, suffering from
    active diseases, progressive in nature, capable of
    producing fatality, and presenting symptoms which
    brought home to the victims and their respective
    doctors knowledge of their existence. Moreover, in both
    cases the treating physicians confessed inability to
    separate the effects of the bodily injury from the effects
    of the pre-existing active disease, and felt obliged to
    conclude that the total of such effects in combination
    produced the death.
    
    182 A.2d at 588
    . In this light, the court held that:
    Where, as here, his medical proofs establish
    affirmatively that the active disease with which he was
    afflicted, and for which he was being treated, not only
    was competent to contribute to his death, but in the
    opinion of his own physician, did in fact operate in
    conjunction with an accidental injury to produce his
    demise, the court has no alternative but to take the
    case from the jury.
    
    Id. at 590
    .
    Thus, in the view of the Tomaiuoli court, Runyon I and
    Runyon II do not permit recovery when the pre-existing
    condition is an "[a]ctive, patent progressive disease which
    in its very nature is competent to contribute to death." 
    Id.
    18
    While the court recognized that Kievit and Mahon "stand
    strongly for liberality of construction," it found that those
    cases only compelled a departure from the Runyon
    approach when the pre-existing condition was "[l]atent or
    [d]ormant, [a] symptom-free condition, possibly aggravated
    or exacerbated by bodily injury." 
    Id.
    D. Application to the Present Case
    Not surprisingly, defendants contend that our disposition
    of this case should be controlled by Runyon II and
    Tomaiuoli. They submit that the New Jersey Supreme Court
    would follow Tomaiuoli's reading of the Runyon cases,
    Kievit, and Mahon and hold that, if a known and active pre-
    existing condition, capable in itself of producing fatality,
    actively contributes to the insured's death, recovery under
    the applicable ADB policies would not be permitted.
    Accordingly, they would have us affirm the district court's
    determination that the fact finder must determine as a
    threshold matter whether the pre-existing disease falls into
    one of two categories: either the disease is (1) an active,
    patent, progressive disease that by its very nature is
    competent to contribute to death; or it is (2) latent or
    dormant and symptom free. Under this test, if the condition
    falls within category (1), there can be no liability. According
    to the defendants, the facts of the present case, unlike
    Kievit, could not fall within category (2). To the contrary,
    they contend that this case is factually indistinguishable
    from Runyon II and Tomaiuoli, placing it squarely within
    category (1).
    Although Tomaiuoli clearly suggests that we should
    construe Runyon broadly and find no recovery any time the
    pre-existing condition is active and symptomatic, see 
    182 A.2d at 588-89
    , we predict that the New Jersey Supreme
    Court would reject this view in light of Kievit's emphasis on
    the reasonable expectations of the insureds. Tomaiuoli, to
    be sure, recognizes the reasonable expectations doctrine,
    and the "liberality of construction" for which Kievit and
    Mahon stand. See Tomaiuoli, 
    182 A.2d at 590
    . We believe,
    however, that Tomaiuoli unduly limits the reach of both of
    these principles. Accordingly, we predict that the New
    Jersey Supreme Court, if faced with the present facts,
    would not adopt Tomaiuoli. See generally Nationwide
    19
    Mutual Fire Ins. Co. v. Pipher, ___ F.3d ___, 
    1998 WL 113933
     (3d Cir. 1998) (predicting that Pennsylvania
    Supreme Court would not extend holding of its earlier
    decision as suggested by intervening decisions of other
    courts).
    We observe first that Kievit clearly rejected the
    proposition that there can be no liability if any known pre
    existing condition at all contributed to the insured's death.
    If that was the case, then an insured could only recover if
    he or she was in perfect health at the time of the accident.
    As another court, interpreting Kievit and other similar
    cases, has eloquently stated:
    If the phrase is given literal effect, only the healthiest
    of individuals would be given the protection of their
    policies. Those suffering from even the slightest pre-
    existing medical condition would be precluded from
    benefits--the purchased coverage would be illusory.
    The court will not construe the contract to defeat,
    rather than promote, the purpose of accident
    insurance. The court therefore concludes that literal
    application of the phrase "direct result, independent of
    all other causes" defeats the reasonable expectations of
    insureds.
    Henry v. Home Ins. Co., 
    907 F. Supp. 1392
    , 1397 (C.D. Cal.
    1995). Such a result could not be consistent with the
    reasonable expectations of the insured. See Kievit, 170 A.2d
    at 26, 30; see also Sparks v. St. Paul Ins. Co., 
    495 A.2d 406
    , 414 (N.J. 1985) ("The interpretation of insurance
    contracts to accord with the reasonable expectations of the
    insured, regardless of the existence of any ambiguity in the
    policy, constitutes judicial recognition of the unique nature
    of contracts of insurance.").
    We recognize that this observation may be in tension with
    a literal reading of the Runyon decisions. However, those
    cases were based upon a strict construction approach to
    limited coverage and exclusionary clauses which we do not
    believe is tenable after Kievit specifically applied the
    reasonable expectations doctrine to this area of New Jersey
    insurance law. See, e.g., Werner Industries, Inc. v. First
    State Ins. Co., 
    548 A.2d 188
    , 191 (N.J. 1988) ("At times,
    20
    even an unambiguous contract has been interpreted
    contrary to its plain meaning so as to fulfill the reasonable
    expectations of the insured."); Kievit, 170 A.2d at 30
    (rejecting literal interpretation of limited coverage clause).8
    Accordingly, we predict that the Supreme Court of New
    Jersey would not apply a literal reading of the Runyon
    opinions to this case.
    The question remains, however, whether that court would
    agree with Tomaiuoli that recovery can only be had if the
    pre-existing condition was latent, dormant, and symptom-
    free. We predict not. Consider, for example, a situation in
    which an individual has been diagnosed with a slow-moving
    cancer that is likely to cause his death in ten or fifteen
    years and which is thus, by definition, not inactive. Let us
    further assume: (1) the disease carries with it certain
    symptoms, all of which are presently controlled by
    medication and treatment; and (2) the individual has been
    living a normal and productive life and is expected to do so
    until the cancer finally progresses to its terminal stage (i.e.
    in ten to fifteen years). Assume also that the individual
    suffers an entirely fortuitous accident and, due to serious
    injuries suffered in that accident, his previously controlled
    condition is aggravated, resulting in death. We doubt that,
    in light of the reasonable expectations doctrine, New Jersey
    would hold that his beneficiaries should be deprived of
    accidental death benefits just because his pre-existing
    disease, which acted in combination with the accidental
    injury to cause his untimely death, was not "inactive and
    symptom free."
    What this hypothetical points out, we believe, is that the
    patent/latent categorization scheme suggested in Tomaiuoli
    is too simplistic, and yields results inconsistent with the
    reasonable expectations of insureds. As Appleman &
    Appleman, supra, have noted, while a move away from this
    _________________________________________________________________
    8. We have on several occasions recognized and applied New Jersey's
    adoption of the reasonable expectations doctrine. See, e.g., Oritani
    Savings & Loan Ass'n v. Fidelity & Deposit Co. of Md., 
    989 F.2d 635
    , 638
    (3d Cir. 1993); Vargas v. Hudson County Bd. of Elections, 
    949 F.2d 665
    ,
    671-72 (3d Cir. 1991); Van Orman v. American Ins. Co., 
    680 F.2d 301
    ,
    308-310 (3d Cir. 1982).
    21
    scheme "is not as satisfactory as the ability to decree a
    clean line of demarcation, it might be more consistent with
    the realities of existence." Appleman & Appleman, supra,
    S 391 at 52-3. And, we add, it is more consistent with the
    ability of modern medicine to prolong life. While Tomaiuoli
    was correct in recognizing that Kievit distinguished its facts
    from the Runyon facts along the patent-latent axis, we
    believe -- and predict that the Supreme Court of New
    Jersey would similarly believe -- that Tomaiuoli erred (an
    error which the district court here followed) in raising this
    essentially factual distinction to the level of legal
    categorization.
    It is important to note also that all of the New Jersey
    precedents discussed above are heavily fact-bound, relying
    upon the precise nature of the insured's pre-existing
    condition; the relationship between that condition, the type
    of accident, and the resulting disability; and the language
    of the applicable insurance policy. In none of these cases
    were the New Jersey courts faced with a factual scenario
    like the cancer hypothetical or the present case, in which
    the defendant suffered from arguably "active" diseases
    which the jury could find, based on medical expert
    testimony, were reasonably under control by virtue of the
    insured's then-existing medical treatments.9 While such a
    condition is not "dormant" in any technical sense of the
    word, it is functionally like a "dormant" condition in the
    important respect that it did not pose an immediate threat
    of death until triggered by the injury.10 Of course, such an
    _________________________________________________________________
    9. Tomaiuoli is the closest case to the present one on the facts. Mr.
    Tomaiuoli's heart disease and diabetes were diagnosed a few years prior
    to his accident and were monitored during regular checkups. His doctor
    noted "no signification [sic] changes" in his conditions during this time,
    and it appears that medication was prescribed at some point. See
    Tomaiuoli, 
    182 A.2d at 585-86
    . The court found additionally that
    "arteriosclerosis and its attendant symptoms are the invariable
    consequences of the aging process and are progressive in varying degrees
    depending upon the arterial fortitude of the individual." 
    Id. at 587
    . The
    court does not make note of any testimony to the effect that Mr.
    Tomaiuoli's conditions were under control at the time of accident,
    however.
    10. Both Kievit and Mahon appear to attach significance to whether or
    not the insured was aware of his pre-existing condition prior to the time
    22
    analogy may or may not be appropriate on the facts of a
    particular case -- as noted in Kievit, just because an active
    or virulent pre-existing condition might not have killed the
    insured had the accident not happened does not mean that
    the condition is not a proximate contributing cause. See
    Kievit, 170 A.2d at 30. But this is a question of fact, not a
    question of law.
    Bearing in mind New Jersey's broad and liberal
    construction of insurance policies in favor of the insured,
    see, e.g., Dittmar v. Continental Cas. Co., 
    150 A.2d 666
    , 672
    (N.J. 1959), its adoption of the doctrine of reasonable
    expectations, and the harshness with which the rule
    advanced by these insurers would operate under some
    factual scenarios, we do not believe that the New Jersey
    Supreme Court would adhere to the insurers' mechanical
    reading of New Jersey law. To the contrary, we believe that
    the court would hold that in cases such as the present one,
    in which there is medical evidence to a reasonable degree of
    certainty that the insured's relevant pre-existing conditions,
    even if active and symptomatic and capable of ultimately
    causing death, were under control at the time of the
    accident, and that the insured was expected to live a
    productive life for the foreseeable future (measured in terms
    of years), it is a question of fact for the jury to decide
    whether the pre-existing condition or the accident was the
    cause of the defendant's death or disability under an ADB
    policy.
    The remaining question is the standard of causation. The
    traditional term is "proximate cause," but there appears to
    be some confusion in the case law and scholarly
    commentary as to how that term should be defined in this
    context. More specifically, there is some difference of
    opinion whether it should be defined in the same way as
    _________________________________________________________________
    of the injury. In light of modern medicine's increasingly developed
    ability
    to detect diseases in their nascent stages, we fail to see how this
    distinction could continue to have much meaning. That is, we discern
    little difference between a disease or condition that is unknown to the
    patient and asymptomatic, and one that is known but that is being
    treated to the extent that it is considered "under control." The relevant
    question in both instances is the same -- to what extent is the pre-
    existing condition affecting the life (and life expectancy) of the
    patient?
    23
    that term is used in standard negligence cases, or whether
    it should be defined as the "predominant cause." See, e.g.,
    Appleman & Appleman, supra, S 362 at 484-85, 487 ("it is
    necessary only that the accident stand out as a
    predominant factor in producing the loss") (citing cases);
    Carroll v. CUNA Mutual Ins. Society, 
    894 P.2d 746
    , 755
    (Colo. 1995) (en banc) ("Courts when using the word
    ``proximate cause,' however, seem to intend no more that to
    distinguish between remote and predominant causes.").
    The Mahon court appears to conflate the two terms:
    [T]he test is whether the accidental injury, as
    contrasted with the contributing disease or bodily
    condition, is the proximate or predominant cause of
    the disability or loss, sometimes additionally qualified
    as the active, efficient, dominant, originating, or direct
    cause.
    Mahon, 
    167 A.2d at 201
    . The New Jersey Supreme Court in
    Kievit uses the term "proximate cause" without defining it,
    although the court does discuss Mahon's definition and
    seems to approve of it. See Kievit, 170 A.2d at 487-90
    (noting Mahon's definition of proximate cause as the "direct,
    efficient, and predominant cause."). In consideration of the
    foregoing, we predict that the New Jersey Supreme Court
    would define "proximate cause" in this setting as the direct,
    efficient, and predominant cause of the insured's death. We
    note that this was the test the district court applied in
    instructing the jury and ruling on defendants' motion for
    judgment as a matter of law.
    Adoption of the rule we have described would bring New
    Jersey in line with the modern approach taken by courts of
    other jurisdictions. See Appleman & Appleman, supra, at
    S 393; see also, e.g., Carroll v. CUNA Mutual Ins. Society,
    
    894 P.2d 746
    , 755 (Colo. 1995) (holding that benefits are
    recoverable "as long as one can show that the accident is
    the predominant cause of the [death]."); Life Ins. Co. of
    North America v. Evans, 
    637 P.2d 806
    , 808-09 (Mont. 1981)
    ("Recovery may be had even though the disease appears to
    have actually contributed to the cause of death as long as
    the accident sets in motion the chain of events leading to
    death, or if it is the prime or moving cause."). We believe
    that New Jersey would follow this course.
    24
    Under this standard, the evidence adduced by the
    plaintiff would support a verdict in her favor. Although it is
    undisputed that some of Mr. Murray's conditions were
    active and symptomatic and capable of ultimately causing
    his death, Dr. Scotti testified that they were under control,
    that Mr. Murray would have lived with them for years, that
    the accident caused an exacerbation of the pre-existing
    conditions, and that the accident was the predominant
    cause of death.11 If so, the death could be found by the jury
    to be proximately caused by an "accident and independent
    of all other causes" within the stipulated limited coverage
    clause of the policy as we have construed it, and the
    judgment as a matter of law in favor of the defendants
    must be vacated.
    IV. The Jury Charge
    The defendants contend that, even if the district court
    improperly granted judgment as a matter of law, the jury
    rendered its verdict pursuant to erroneous instructions,
    and a properly instructed jury would have had no choice
    but to find in their favor. They therefore assert that they
    are entitled to judgment as a matter of law on this
    alternative ground.
    We agree that the jury charge as given by the district
    court did not conform to New Jersey law as we predict it.12
    Nonetheless, we will not reverse a judgment where "it is
    highly probable that the error did not contribute to the
    judgment," McQueeney v. Wilmington Trust Co., 
    779 F.2d 916
    , 924 (3d Cir. 1985), i.e., where the challenged error
    _________________________________________________________________
    11. As we noted in Part II, supra, the district court found that the
    "particulars, the specifics of Dr. Scotti's testimony" belie Dr. Scotti's
    testimony that all of Mr. Murray's pre-existing conditions were under
    control at the time of the accident. While the district court could be
    justified in reaching this conclusion on a de novo review of the facts, it
    is error in the context of a motion for judgment as a matter of law, since
    there is a legally sufficient evidentiary basis for a reasonable jury to
    accept Dr. Scotti's conclusion, and since the evidence must be taken in
    a light most favorable to the non-moving party. See supra note 4.
    12. We of course do not mean to be critical of the district judge, who,
    given the opaqueness of New Jersey law in this area, could hardly have
    been expected to divine what our prediction would be.
    25
    was harmless. We conclude that the findings necessarily
    implicit in the verdict of the jury compel the conclusion
    that the jury would have reached the same result had it
    been instructed according to the correct legal standard as
    we have explained it. Therefore, the error in the instruction
    was harmless.13 Cf. Commercial Union Ins. Co. v.
    International Flavors and Fragrances, Inc., 
    822 F.2d 267
    ,
    275 (2d Cir. 1987) (if jury's findings would support verdict
    under proper instructions "no useful purpose could be
    served by submitting the same evidence to another jury");
    H.C. Blackwell Co. v. Kenworth Truck Co., 
    620 F.2d 104
    ,
    107 (5th Cir. 1980) (same); 9A Charles Alan Wright &
    Arthur R. Miller, Federal Practice and Procedure S 2540
    (1995) ("If the trial court erroneously grants a renewed
    motion for judgment as a matter of law under Rule 50(b),
    the appellate court may reverse and order reinstatement of
    the verdict of the jury.").
    In relevant part, the jury was instructed as follows:
    You are instructed with respect to this first element
    that if you find that the disease condition of the
    insured at the time of the accident was either active,
    known, symptomatic, or progressive, and of such a
    nature and severity in and of itself so as to be capable
    of contributing to his death, then plaintiff has not met
    plaintiff's burden of proof with respect to this element,
    and you should end your deliberations and return a
    verdict for defendants.
    If, on the other hand, you find that at the time of the
    accident, the disease condition of the insured was
    inactive and under control, and was not sufficient to
    cause death, then plaintiff has met plaintiff's burden
    of proof with respect to the first element, and you
    should proceed to consider the second element; which
    is, second, that the accidental injury was the direct,
    efficient and predominant cause of death, in that it set
    in progress the chain of events leading directly to death
    by exciting or triggering the pre-existing condition into
    _________________________________________________________________
    13. For the same reason we reject defendants' assertion that if the jury
    could reasonably have ruled in plaintiff's favor under proper instructions
    then a new trial should be ordered under the present circumstances.
    26
    activity, and thereby hasten death so as to cause it to
    occur at an earlier period than it would have occurred
    but for the accident.
    According to this instruction, for the jury to have returned
    a verdict for the plaintiff, it necessarily must have found
    that, at the time of the accident, Mr. Murray's pre-existing
    conditions were: (1) inactive, (2) under control, and (3) not
    sufficient to cause death.
    As we explained supra, whether the insured's conditions
    were "active" or "sufficient to cause death" is not
    dispositive. An insured suffering from conditions that are
    active, symptomatic, and ultimately capable of causing
    death may still recover under an ADB policy for an
    accidental death so long as there is medical evidence to a
    reasonable degree of certainty that the insured's conditions
    were under control at the time of the accident. Since the
    jury found that Mr. Murray's conditions were under such
    control, we have no reservations in concluding that the jury
    would also have found for the plaintiff under the standard
    as we have articulated it.
    This is not the end of the analysis, however. As quoted
    above, the district court also instructed the jury that it
    must find that the accidental injury was the "direct,
    efficient, and predominant cause of death." Since we have
    predicted that the New Jersey Supreme Court would apply
    this same causation test, this prong is also satisfied.
    Indeed, the district court found that there was sufficient
    evidence to support the jury's conclusion on the causation
    prong under the instructions given. Since we have found
    congruence between the findings implicit in the jury's
    verdict and both the control and causation prongs of our
    standard, in addition to vacating the judgment of the
    district court, we will remand with instructions to reinstate
    the verdict in favor of plaintiff.
    The parties shall bear their own costs.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    27