IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GEORGE E. RAY, : CIVIL ACTION

: NO. 05-2507

Plaintiff, : 

:

v. :

:

FEDERAL INSURANCE COMPANY AND :

CHUBB GROUP OF INSURANCE :

COMPANIES, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. MAY 10, 2007

Plaintiff George E. Ray filed this pro se complaint against

defendants Federal Insurance Company and Chubb Group Insurance

Companies (“Federal”) based on Federal’s denial of Ray’s total

disability benefits. Ray argues that his disability is caused by

his fall down the stairs; Federal argues that the disability is

caused, at least in part, by Ray’s degenerative medical

condition, spondylotic cervical myelopathy.

Ray alleges that Federal breached its contract with Ray by

not providing him with disability benefits. Federal argues that

it did not breach the contract because the contract provided

coverage only for “accidents” that are the “direct” cause of the

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 1 of 13
 First, Federal moved for summary judgment (doc. no. 46). 1

Second, Ray responded (doc. no. 48). (This document is titled

“Plaintiff’s supplement to existing motion for summary

judgment.”) Third, Federal filed a reply brief (doc. no. 49). 

Fourth, Ray sur-responded (doc. nos. 51, 52). (This sur-response

is actually two letters to the Court in response to Federal’s

brief.) Fifth, Federal filed a sur-reply (doc. no. 53). (This

document is titled a “second sur-reply brief,” but it is actually

a sur-reply brief.) Sixth, and finally, Ray filed a sur-surresponse (doc. no. 54). (This document is titled “petition for

judicial notice.”)

2

disability, and that the contract specifically excluded from

coverage disabilities resulting from disease or illness.

Federal has moved for summary judgment. For the reasons 1

that follow, Federal’s motion will be granted.

I. BACKGROUND

A. Factual History

Ray entered into an insurance contract with Federal whereby

Federal would provide coverage for Ray for “accidental

disabilities.” Coverage was effective June 1, 2002. A copy of

the insurance plan is attached to Federal’s motion as Exhibit B.

The plan provides for payment of total disability benefits

if “accidental bodily injury causes the primary insured person to

have a permanent total disability.” Certificate of Insurance

Declarations § IV. The plan provides coverage only for an

“accidental bodily injury,” which is defined as “bodily injury,

which is accidental and the direct cause of a loss.” Certificate

of Insurance Contract § VI. “Accident or accidental” is in turn

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 2 of 13
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defined as “a sudden, unforseen, and unexpected event which

happens by chance, arises from a source external to the injured

person, is independent of illness, disease or other bodily

malfunction and is the direct cause of loss.” Certificate of

Insurance Contract § VI. In addition, the plan specifically

excludes from permanent total disability coverage “disease or

illness”: “This insurance does not apply to loss caused or

resulting from an insured person’s emotional trauma, mental or

physical illness, disease, pregnancy, childbirth or miscarriage,

bacterial or viral infection, or bodily malfunctions.” 

Certificate of Insurance Contract § V.

Essentially, to receive benefits under the insurance

contract, Ray must show (1) that he had an accident, (2) that he

has a disability, and (3) that the accident was the “direct”

cause of the disability. The first two prongs are not contested:

(1) Federal assumes arguendo that Ray did fall down the stairs

and (2) although Ray has not spelled out his specific disability,

his complaint states that he has “permanent nerve damage” and the

medical exhibits suggest that he has reduced usage of his limbs

and extremities. Federal bases its argument on the third prong,

that the fall down the stairs cannot be the “direct” cause of the

disability, because the disability is caused, at least in part,

by Ray’s degenerative medical condition.

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 3 of 13
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Ray alleges that, on February 1, 2004, he slipped and fell

down his basement stairs. Pl.’s Depo. at 96-101. After his

fall, Ray’s first encounter with professional medical care was on

February 26, 2004, when he went to Temple University Hospital. 

Doc. No. 46, Ex. C, at 13; Pl.’s Depo. at 104. According to the

admitting nurse’s screening sheet, Ray stated his reason for

admission was “because my hands are weak and no feeling,” and

that he answered “no” to the question “Have you had a recent fall

or do you need to hold on to things in order to keep your

balance?”. Doc. No. 46, Ex. C, at 13, 14.

The hospital’s “general history and physical examination”

sheet, completed on February 26, 2004, indicates that Ray’s

“chief complaint” is “progressive weakness and numbness of hands

and feet,” and that his “history of present illness” is that the

“problem started 9 months ago when he felt that his right hand is

getting numb, and cannot feel objects in his hand.” Doc. No. 46,

Ex. C, at 1. 

On March 11, 2004, at Temple University Hospital, Dr.

Devanand A. Dominique performed a surgery (a C3 through C7

laminoplasty) on Ray. Doc. No. 46, Ex. C, at 10. Dr.

Dominique’s notes indicate that Ray had spondylotic cervical

myelopathy, and that the surgery was performed to alleviate Ray’s

symptoms from the condition. Id.

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 4 of 13
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Federal has pointed to the notes from Ray’s primary care

physician, Dr. Francis Hunter, that seem to indicate that Ray had

similar mobility problems prior to his February 1, 2004, fall. 

Over the course of four visits in 2003, Dr. Hunter’s handwritten

notes report: 

[July 9, 2003:] [P]ast 5-6 weeks patient has been

having numbness in both hands and weakness in right leg

and right arm gets weak off and on. Patient states it

started around 6 months ago and has gotten gradually

worse. 

[July 30, 2003:] [S]till with some paresthesias;

decreased strength in right upper and lower

extremities. 

[August 27, 2003:] [D]ecreased strength in his upper

extremities. 

[September 24, 2003:] [S]tiffness in his hands . . . .

[S]ome neurological malfunction--needs neuro consult

and CT of head, patient referred to City Clinic to be

evaluated and get studies.

Doc. No. 46, Ex. E, at 1-3. 

B. Procedural History

This litigation, which at first blush looks like an ordinary

insurance contract dispute, has proved to be quite contentious. 

Ray’s pro se complaint, filed May 26, 2005, alleges that Federal,

in addition to improperly denying Ray disability benefits, lied

to the Pennsylvania Insurance Commission. In over two dozen

letters and motions sent to the Court, Ray alleges that Federal

and its counsel engaged in several acts of misconduct, most

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 5 of 13
 Alleging defense misconduct, Ray moved for sanctions 2

against Federal, alleging generally that Federal “lied,”

“falsified evidence,” and violated the Court-imposed deadlines

for producing discovery and filing certain motions (doc. no.

45). Federal filed a detailed response (doc. no. 47). 

The crux of Ray’s motion for sanctions is that counsel for

Federal committed forgery when he sent Temple University Hospital

a subpoena that was issued by this Court. Ray misunderstands, as

a layman conceivably would, how a subpoena is “issued.” In a

civil case such as this, an attorney for a party can obtain a

blank subpoena from the Clerk of Court, fill in the details

himself, and serve the subpoena on a third party. Counsel did

not commit forgery; rather, he followed the proper procedures.

Similarly, Ray alleges that counsel for Federal committed

some sort of misrepresentation by presenting to Magistrate Judge

Rueter a proposed order, which Judge Rueter then signed. Ray

argues, somewhat plausibly, that a judge signing an order

presented to him by counsel is fundamentally unfair. Again,

though, this dispute stems from a misunderstanding of court

procedures. It is not only common practice for counsel to

provide a judge with a copy of a proposed order, but to do so is

actually required by the Court’s local rules. See Local R. Civ.

P. 7.1(a).

After thoroughly investigating all of Ray’s allegations of

wrongdoing, the Court concludes that Ray’s allegations have no

merit. Ray’s motion for sanctions will be denied.

6

notably lying to Ray and to this Court.2

The issues in this case are obviously very personal to Ray,

as he believes he is entitled to insurance payments from Federal

to help him with his medical condition. Unfortunately, Ray’s

emotions have seeped into his filings and other litigationrelated activities, oftentimes overpowering his reasoning and

legal arguments. In fact, sentiments ran so high, Federal’s

deposition of Ray had to be conducted in front of a magistrate

judge. Ray’s unfounded objections to some of Federal’s discovery

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 6 of 13
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requests also precipitated detailed monitoring of this case by

the Court. 

In short, what should have been a simple case involving the

“cause” of Ray’s disability turned into an eighteen-month ordeal

that explored tangential paths, sapped the time and energy of all

parties (including the Court) involved, and resulted in

unsubstantiated finger-pointing and allegations of wrongdoing. 

With this Memorandum, the case comes to a close. 

II. DISCUSSION

A. Summary Judgment Standard

A court should grant summary judgment when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A fact is “material” if its existence or non-existence

would affect the outcome of the suit under governing law. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An

issue of fact is “genuine” when there is sufficient evidence from

which a reasonable jury could find in favor of the non-moving

party regarding the existence of that fact. Id. at 248-49. “In

considering the evidence, the court should draw all reasonable

inferences against the moving party.” El v. Se. Pa. Transp.

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 7 of 13
8

Auth., 479 F.3d 232, 238 (3d Cir. 2007).

“The non-moving party cannot rest on mere pleadings or

allegations; rather it must point to actual evidence in the

record on which a jury could decide an issue of fact its way.” 

El, 479 F.3d at 238. “[S]ummary judgment is essentially ‘put up

or shut up’ time for the non-moving party: the non-moving party

must rebut the motion with facts in the record and cannot rest

solely on assertions made in the pleadings, legal memoranda, or

oral argument.” Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d

195, 201 (3d Cir. 2006).

 Typically, courts grant pro se litigants some latitude in

their pleadings. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.

2003). However, a pro se plaintiff is not relieved of his

obligation under Rule 56 to point to competent evidence in the

record that is capable of refuting a defendant’s motion for

summary judgment. “[M]erely because a non-moving party is

proceeding pro se does not relieve him of the obligation under

Rule 56(e) to produce evidence that raises a genuine issue of

material fact.” Boykins v. Lucent Technologies, Inc., 78 F.

Supp. 2d 402, 408 (E.D. Pa. 2000) (Robreno, J.). 

B. Application of the Summary Judgment Standard

Accidental insurance policies, construed under Pennsylvania

law, can be placed in two classes. The first class is for

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 8 of 13
9

insurance policies that provide for disability benefits when an

accident, external to the insured, is the direct cause of the

disability. The second class encompasses the first, and includes

insurance policies with additional restrictions specifically

excluding from coverage any disability caused directly or

indirectly by physical illness or disease. See Cox v. Nw. Nat’l

Life Ins. Co., 1990 WL 121225, at *2 (E.D. Pa. Aug. 14, 1990)

(construing Johnson v. Ky. Cent. Life & Accident Ins. Co., 18

A.2d 507, 511 (Pa. Super. Ct. 1941), and Weiner v. Metro. Life

Ins. Co., 416 F. Supp. 551, 553 (E.D. Pa. 1976)). The insurance

contract in this case falls into the latter class: it provides

coverage only for “accidental” bodily injuries, and it

specifically excludes coverage for bodily injuries caused by

disease or illness. In this situation, the plaintiff’s burden is

quite high:

[I]t is not sufficient for the insured to establish a

direct causal relation between the accident and the

loss or disability. He must show that the resulting

condition was caused solely by external and accidental

means, and if the proof points to a pre-existing

infirmity or abnormality which may have been a

contributing factor, the burden is upon him to produce

further evidence to exclude that possibility. 

Lucas v. Metro. Life Ins. Co., 14 A.2d 85, 86 (Pa. 1940).

As the Third Circuit has held with respect to similar

insurance policies for accidental deaths, when an insurance

policy provides coverage for injury “caused solely through

violent external and accidental means,” and an “additional clause

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 9 of 13
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precluding recovery if the death was caused directly or

indirectly by disease,” the insured “may recover only if [a]

pre-existing disease did not contribute” to the injury. Shiffler

v. Equitable Life Assurance Soc’y of U.S., 838 F.2d 78, 84 (3d

Cir. 1988). The lesson from Cox, Lucas, and Shiffler is that the

burden is on Ray to present evidence that his disability was

caused “solely” by an accident and that a disease or medical

condition did not contribute to the disability. 

Federal has pointed to specific evidence that Ray’s

degenerative medical condition is at least contributing factor,

if not the sole cause, of his disability. The records from

Temple University Hospital indicate that Ray was admitted because

of weakness in his limbs, that he was diagnosed with spondylotic

cervical myelopathy, and that he had surgery to relieve some of

the disease’s symptoms. The records from Ray’s personal

physician, Dr. Hunter, further indicate that Ray was experiencing

similar symptoms (consistent with spondylotic cervical

myelopathy) in 2003, well before his alleged fall.

Once Federal put forth this evidence that Ray’s disability

was caused at least in part by Ray’s spondylotic cervical

myelopathy, Ray could survive summary judgment only by pointing

to specific evidence in the record to support his contention that

his disability was caused solely by his “accident,” i.e. his fall

down the stairs. See Berckeley, 455 F.3d at 201.

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 10 of 13
 Albert and similar cases usually involve personal injury 3

or medical malpractice claims; nevertheless, the need for expert

testimony to demonstrate causation is also applicable in

insurance cases involving medical issues.

 Ray submitted two motions for summary judgment (doc. nos. 4

6 & 8), which were denied by the Court as premature (doc. nos. 27

11

Ray has not pointed to any evidence to support his claim. 

He rests merely on his allegations and his refutations of

Federal’s evidence. Typically, a causation analysis requires

expert testimony. See Albert v. Alter, 381 A.2d 459, 470 (Pa.

Super. Ct. 1977) (“[W]hen there is no obvious causal relationship

between the accident and the injury, unequivocal medical

testimony is necessary to establish the causal connection.”).3

This holds true even for pro se litigants. Moreover, in his

response to Federal’s summary judgment motion, Ray points to the

report of an independent medical examination conducted by Dr.

Elizabeth Post, a neurosurgeon, on March 4, 2005, that refutes

his own arguments. Doc. No. 48, at 2. Dr. Post writes:

Within a reasonable degree of medical certainty, Mr.

Ray suffers from the effects of spondylotic cervical

myelopathy, which is a progressive degenerative

disease. While this condition can be aggravated by

falls, there is no evidence in the record that supports

his version of the events that immediately preceded his

hospitalization, and, in fact, there is evidence that

his symptoms predated his admission by almost one year.

Doc. No. 7, Ex. 1.

In short, there is factual evidence to support Federal’s

argument; there is no factual evidence to support Ray’s argument. 

Therefore, Federal is entitled to judgment as a matter of law.4

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 11 of 13
& 32). To the extent that Ray’s comments at oral argument

constitute an “oral motion” for summary judgment under Rule 56,

he has failed to show that he is entitled to judgment as a matter

of law. Ray’s oral motion for summary judgment is therefore

denied. 

12

III. CONCLUSION

Federal is entitled to summary judgment on Ray’s claim that

Federal breached the insurance contract by not providing Ray with

disability benefits. An appropriate Order follows.

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 12 of 13
13

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GEORGE E. RAY, : CIVIL ACTION

: NO. 05-2507

Plaintiff, :

:

v. :

:

FEDERAL INSURANCE COMPANY AND :

CHUBB GROUP OF INSURANCE :

COMPANIES, :

:

Defendant. :

O R D E R

AND NOW, this 10th day of May 2007, after a hearing on the

record on May 8, 2007, for the reasons stated in the accompanying

Memorandum, it is hereby ORDERED that Defendant’s motion for

summary judgment (doc. no. 46) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s motion for sanctions

(doc. no. 45) is DENIED.

IT IS FURTHER ORDERED that Defendant’s motion for leave to

file a reply brief (doc. no. 49) is GRANTED.

IT IS FURTHER ORDERED that Defendant’s motion for leave to

file a second sur-reply brief (doc. no. 53) is GRANTED.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

Case 2:05-cv-02507-ER Document 59 Filed 05/10/07 Page 13 of 13