USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1065

PAUL FERRAGAMO,

Plaintiff - Appellant,

v.

CHUBB LIFE INSURANCE COMPANY OF AMERICA,

Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Boudin, Circuit Judge,

_____________

and Barbadoro,* District Judge.

______________

_____________________

Maria A. Luise,
________________

with whom

Frank Mondano
______________

and

Balliro &
_________

Mondano were on brief for appellant.

_______
Paul M. Sanford,
_______________

with whom Medeiros Karmen & Sanford Inc.

________________________________

was on brief for appellee.

____________________

September 3, 1996
____________________

____________________

Of the District of New Hampshire, sitting by designation.

Per Curiam.
Per Curiam
___________

On

December

14,

1981, appellant

Paul

Ferragamo ("Ferragamo")

Insurance

entitled

was insured by United

Company ("United

Life")

pursuant to

At

that time

he

owned and

operated

Recycling, a scrap metal recycling business.

Ferragamo submitted

accident

proceeded

Relying on

a claim for total

suffered

injuries to his

he

a policy

which

Ferragamo to benefit payments in the event of his total

disability.2

on an

Life and Accident

while

at

left leg and ankle.

to

file

Shortly thereafter,

disability benefits based

work

As

monthly reports

these reports

Northshore

which

caused

severe

required by the policy,

regarding

and the information

his

injury.

contained therein

establishing that Ferragamo remained totally disabled and was not

working for pay

of

or profit, appellee Chubb Life Insurance Company

America ("Chubb"),

United Life's

successor,

paid Ferragamo

total

disability benefits

until June 1993,3 as

per month

also

of $2,400

well as social

per month from

April 1982

insurance benefits of

over the initial five year period of his claim.

$750

Chubb

waived the further payment of premiums pursuant to a policy

provision.

Although

information

from

the

monthly

reports

Ferragamo regarding

the

requested

nature

detailed

of any

work

____________________

We present the facts in the light most favorable to the jury's

verdict.

See,
___

e.g., Coastal Fuels of P.R., Inc. v.

____ _____________________________

Petroleum Corp., 79 F.3d

_______________

Caribbean
_________

182, 186, petition for cert. filed, 65

_________________________

U.S.L.W. 3034 (July 2, 1996).

The disputed period

is limited to

1988.

-2-

the period after

January

activities,4 he continuously represented

or earning

any income other

the course of Ferragamo's

attempted

that he was not working

than "investment income."5

During

eleven- year claimed disability, Chubb

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

claiming total

and

varied

physical

to the

business,

and

work

effect that

he

activities,

was working

returns where

significant profits

operating a

Ferragamo

including

as a

real

construction company

playing

public records under

builder, filing

he stated under

from his

was

engaging in numerous

his trial lawyer, signing

federal income tax

received

while

disability, he was actually

racquetball with

oath

revealed that,

oath that

he

estate development

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

self-employed real

estate

town officers, that he was

developer, contractor

or

builder

earning from $100,000 to $250,000 per year.

To mention only some

of

fully

the

discovered

evidence,

Ferragamo

developed

____________________

The inquiries included

questions regarding his occupation and

duties, whether he was self-employed, whether he

had returned to

work on either

what his

a part-time

activities consisted

or full-time basis,

of, the amount

of his monthly

daily

income, and

whether he was partially or totally disabled.

Ferragamo

certify that

signed each
the foregoing

report below

the statement

statements and answers

and true to the best of my knowledge."

-3-

that: "I

are complete

$6,000,000

condominium

where he would be

complex

in

at the job site

from 7:00-7:30 AM to 4:00-5:00 PM.

truck

to

climbed

out.

work, but

at times

Swampscott,

Massachusetts,

almost continuously each

day

He not only drove his pick-up

operated

a front-end

loader and

down inside the newly dug foundation holes to check them

He was also fully

active in all aspects

of the planning,

financing, supervision and sale of this project.

In addition

time of

his alleged total

various land

tract in

to the Swampscott condominium,

disability Ferragamo also

transactions including

Littleton, New

Massachusetts, two

those involving a

Hampshire, two

in Salem,

lots in

and others in

during the

engaged in

340 acre

North Andover,

Lynnfield, Peabody,

Revere, and Swampscott, as well as at Chuebeque Island, Maine.

Predictably

upon

learning

the

above,

Chubb stopped

disability payments

sued seeking

under the policy, and

damages for breach of

and deceptive trade practices

negligent

infliction

of

counterclaimed

contract, negligence, unfair

pursuant to Mass. Gen. L.

emotional

infliction of emotional distress.

and

incredibly, Ferragamo

alleging

distress,

and

ch. 93,

intentional

Chubb denied these allegations

fraud,

deceit

and

negligent

misrepresentation.

trial

was

presented to the jury.

moved

held

At the

at

which

Chapter 93A, on

above

facts

close of plaintiff's case

for judgment pursuant to Fed. R.

was denied by the

the

Chubb

Civ. P. 50, which motion

district court on all counts

which ruling was reserved.

-4-

were

except regarding

Thereafter, at the

close of the

similar

evidence, Chubb

results.

including on

The

jury

renewed the Rule

found

for

Chubb's counterclaim in the

50 motion,

Chubb

on

all

with

counts

amount of $192,401.71.

Pursuant to special interrogatories the jury ruled that Chubb had

not

breached

the policy

misrepresentations

1988, he

contract,

regarding his

engaged in fraud in

that

Ferragamo engaged

claim, and that

this respect.

in

after January

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 &
___ _____
_________________

Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993), cert. denied, ___ U.S.
________
____________

___, 115

issue

S. Ct. 597

of whether

(1994), because

Chubb had reasonably

they were relevant

to the

investigated Ferragamo's

eligibility for

benefits before terminating them.

See Teishing
___ ________

v. SER-Jobs For Progress, Inc., 19 F.3d 755, 762 (1st Cir. 1994).
___________________________

This

question

was put

at

Ferragamo's claim, but also

counsel

Sinai,
_____

in

the direct

3 F.3d at

issue

not

by the door that

examination of

475-76.

only by

Furthermore,

-5-

the

nature

was opened by

his own

of

his

expert witness.

considering the copious

independent

jury regarding

Ferragamo's

activities, any error committed is at best harmless.

See Almonte
___ _______

v.

evidence heard

by

the

National Union Fire Ins. Co.,

_____________________________

787 F.2d

763, 771

(1st Cir.

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

circumstances

of this trial.

that "cross examination

of direct

examination").

See Fed. R.
___

suspended

Evid. 611(b) (noting

should be limited to

the subject matter

On direct examination

testified regarding its insurance

Chubb

Chubb's expert under the

Ferragamo's

Chubb's expert

practices in August 1993, when

insurance

benefits.

He

also

testified regarding

the

the reasonableness of Chubb's

period of time that

reports

were

lapsed from the

received

to

the

actions as to

time the investigative

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

elementary that the failure

retired

to

to object to a jury charge

is given and

before the jury retires to

any claim of

error on

appeal.

Cabletron Sys., Inc., 54

_____________________

deliberate.

Fed.

It

is

after it

deliberate, is fatal to

R. Civ.

F.3d 931, 940 (1st

P. 51; Scarfo
______

Cir. 1995).

v.

While

there

are extraordinary

exceptions

to this

black-letter rule,

-6-

see, e.g., id., such

___ ____ ___

is not the present case.

Thus, we dwell no

longer on this or any other alleged error.

We

court.

can perceive

In fact

no appealable

error by

the record shows actions by

the district

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

(1994);

and

attorney's fees

on

appeal.

Fed. R. App. P. 38; Cronin

______

See
___

28 U.S.C.

1919

v. Town of Amesbury, 81 F.3d

________________

257, 261 (1st Cir. 1996).

The decision of the district court is affirmed.

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-7-