IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20831

GLORIA WELLS, 

 Plaintiff - Appellant

v.

MINNESOTA LIFE INSURANCE COMPANY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal addresses coverage for a mosquito bite under an accidentaldeath insurance policy. Melton Dean Wells was bitten by a mosquito carrying

West Nile Virus. Following complications, he died. Melton’s wife claimed

accidental-death benefits under a policy with Minnesota Life Insurance 

Company, but Minnesota Life denied her claim. The district court dismissed 

her suit on summary judgment. On appeal, the parties dispute the insuring 

clause, i.e. whether Melton’s death was accidental, and an exclusion under the 

policy, i.e. other causes of Melton’s death. Because we hold that there are 

genuine disputes of material fact as to both, we reverse and remand for a 

United States Court of Appeals

Fifth Circuit

FILED

March 22, 2018

Lyle W. Cayce

Clerk

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factfinder to decide determinative facts of the breach-of-contract claim. We 

affirm the district court’s dismissal of the bad-faith tort claim. 

I.

Melton Dean Wells, age 68, went to the hospital on August 21, 2013, with 

a history of obesity, diabetes, and hypertension.1 He was suffering from a 

fever, headache, and altered mental status, and the doctors ultimately 

diagnosed him with West Nile Encephalitis (“WNE”). West Nile Virus

(“WNV”), carried and transmitted to humans by the Culex mosquito, causes 

WNE. Over the next three weeks, Melton’s condition deteriorated as he 

developed respiratory failure, multi system organ failure, and septic shock. He 

died on September 17. The certified death certificate (“CDC”) reads:

IMMEDIATE CAUSE (final

disease or condition a. WESTNILE ENCEPHALITIS

resulting in death) 

[C]onditions . . . leading to 

the cause listed on line a. b. ACUTE RESPIRATORY FAILURE

Enter the UNDERLYING 

CAUSE (disease or injury c. SEPTIC SHOCK

that initiated the events 

resulting in death) LAST d. MULTI SYSTEM FAILURE

The certifying physician marked Melton’s death as “natural”, in contrast to an 

“accident,” on the CDC.

At all times relevant to this appeal, Melton had a Decreasing Term 

Accidental Death Insurance Policy (“the policy”) from Minnesota Life 

Insurance Company (“Minnesota Life”), which provides coverage

only when your death results, directly and independently from all 

other causes, from an accidental bodily injury which was 

 

1 Hospital documentation shows Melton’s full medical history includes “Type 2 

diabetes mellitus, no complications known, control uncertain, obesity, hyperlipidemia, benign 

prostatic hypertrophy, chronic venous insufficiency/ankle edema . . . [p]olyarticular 

osteoarthritis [and] lower extremity cellulitis.” 

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unintended, unexpected and unforeseen. The bodily injury must be 

evidenced by a visible contusion or wound . . . . The bodily injury 

must be the sole cause of your death. . . . Your death must occur 

within 90 days after the date of the accidental injury.

But even if a death falls within that insuring clause, coverage may still be 

excluded. Important here, Exclusion Four reads:

In no event will we pay the accidental death benefit where your 

death is caused directly or indirectly by, results from, or there is 

contribution from . . . bodily or mental infirmity, illness or 

disease . . . . 

The terms “accidental bodily injury,” “contusion,” “wound,” “infirmity,” 

“illness,” and “disease” are not defined in the policy. 

Following Melton’s death, his wife, Gloria Wells, submitted a claim 

under the policy for payment of accidental-death benefits. Over the phone, she 

explained to a Minnesota Life representative that a mosquito bite caused 

Melton’s death. Nevertheless, Minnesota Life denied her claim, explaining:

We have received no information to support that [Melton’s] death 

resulted directly and independently from any accidental bodily 

injury sustained. Rather it appears the severe [WNE] was 

exacerbated by his diabetes, morbid obesity and his age.

The claim is not payable as an accidental bodily injury did not 

cause [Melton’s] death, directly and independently from all other 

causes. Rather, his death was due or there were contributions from 

bodily or mental infirmity, illness or disease and this is specifically 

excluded under the terms of the policy.

II.

Unhappy with the denial of her insurance claim, Gloria filed this 

diversity suit against Minnesota Life in Texas federal court, claiming breach 

of contract, breach of good faith and fair dealing, violation of the Texas 

Insurance Code, and violation of the Texas Deceptive Trade Practices Act. In 

her complaint, she alleges that her insurance claim falls within the insuring 

clause of the policy because Melton’s mosquito bite, a visible contusion/wound,

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was an unintended, unexpected, and unforeseen accidental bodily injury that 

resulted in the WNE that was a “substantial factor in bringing about [Melton’s] 

death.”

Minnesota Life moved for summary judgment on all claims, and the 

district court granted its motion. The district court held that Gloria’s 

insurance claim did not fall under the insuring clause for three reasons. First, 

the court held that Gloria did not satisfy the “sole cause” requirement because 

septic shock, acute respiratory failure, and multi system failure all contributed 

to Melton’s death, in addition to the WNE. Second, the court held that Gloria 

failed to introduce evidence showing that a mosquito bite is or should be 

considered “accidental” under the policy. And finally, the court held that 

Gloria offered no evidence of a visible wound or contusion in the form of a 

mosquito bite. 

Then, turning to the policy exclusion, the district court held that, even if 

Gloria’s insurance claim did fall under the insuring clause, benefits should not 

be paid because her claim also fell under Exclusion Four of the policy. The 

court noted Melton’s “bodily infirmities”—obesity, diabetes, and 

hypertension—and his “conditions”—acute respiratory failure, septic shock, 

and multi-system failure—then held Gloria’s claim excluded because she “did 

not rebut evidence of multiple contributing causes” to Melton’s death. It is 

unclear whether the court was referring to Melton’s infirmities, conditions, or 

both. 

Following the district court’s judgment in favor of Minnesota Life, Gloria 

moved for a new trial or, alternatively, to amend the judgment. The district 

court denied that motion, and Gloria timely appealed. Specifically, she now 

appeals the dismissal of her breach-of-contract and bad-faith claims and the 

denial of her post-judgment motion. 

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III. 

We review a district court’s grant of summary judgment de novo. Crose 

v. Humana Ins. Co., 823 F.3d 344, 347 (5th Cir. 2016). Summary judgment is 

appropriate only where “the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). “Unsubstantiated assertions, improbable inferences, and 

unsupported speculation are not sufficient to defeat a motion for summary 

judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003). “We 

resolve factual controversies in favor of the nonmoving party, but only 

when . . . both parties have submitted evidence of contradictory facts.” Little 

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). 

When such contradictory facts exist, courts may “not make credibility 

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 

Inc., 530 U.S. 133, 150 (2000).

IV.

We turn first to Gloria’s breach-of-contract claim. In this diversity suit, 

“we are Erie bound to apply the underlying state law, that of the State of 

Texas.” Messick v. Gen. Motors Corp., 460 F.2d 485, 486–87 (5th Cir. 1972). 

To establish a breach-of-contract-claim under Texas law, a plaintiff must 

show: “(1) the existence of a valid contract; (2) performance or tendered 

performance by the plaintiff; (3) breach of the contract by the defendant; and 

(4) damages to the plaintiff resulting from that breach.” Hunn v. Dan Wilson 

Homes, Inc., 789 F.3d 573, 579 (5th Cir. 2015). The only breach-of-contract 

issue in this case is whether Minnesota Life breached the policy by denying 

Gloria’s claim for benefits. Texas law “places the burden of establishing 

coverage upon the insured [and] the burden of establishing an exclusion upon 

the insurer.” Century Sur. Co. v. Hardscape Const. Specialties Inc., 578 F.3d 

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262, 265 (5th Cir. 2009). Thus the burden is on Gloria to show coverage and 

upon Minnesota Life to establish an exclusion.

“Insurance policies are controlled by rules of interpretation and 

construction which are applicable to contracts generally.” Nat’l Union Fire Ins. 

Co. of Pittsburgh v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). “[T]he 

courts have adopted the ordinary meaning of words and terms as they are 

commonly understood by the average laymen in preference to a technical 

meaning as understood by members of a profession . . . .” Order of Ry. 

Conductors of Am. v. Gregory, 91 S.W.2d 1139, 1141 (Tex. Civ. App. 1936); see 

also Certain Underwriters at Lloyds, London v. Law, 570 F.3d 574, 577 (5th 

Cir. 2009) (“Words not defined in a contract are to be understood ‘according to 

their plain and ordinary meaning.’” (quoting Gray & Co. Realtors, Inc. v. Atl. 

Hous. Found., Inc., 228 S.W.3d 431, 434 (Tex. App. 2007)). 

If, after applying those rules of contract interpretation, a contract 

provision is “subject to two or more reasonable interpretations,” that provision 

is ambiguous. Sekel v. Aetna Life Ins. Co., 704 F.2d 1335, 1337 (5th Cir. 1983)

(quoting Glover v. Nat’l Ins. Underwriters, 545 S.W.2d 755, 761 (Tex. 1977)). 

We construe ambiguities in Texas insurance contracts against the insurer, 

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 866 (Tex. 2000), so 

“if a contract of insurance is susceptible of more than one reasonable 

interpretation, we must resolve the uncertainty by adopting the construction 

that most favors the insured.” Nat’l Union Fire Ins. Co. of Pittsburgh v. 

Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991). “In particular, 

exceptions or limitations on liability are strictly construed against the insurer 

and in favor of the insured.” Id.

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A.

To carry her burden of establishing coverage, Gloria must show that her 

claim for benefits falls within the insuring clause of the policy.2 She says that 

her claim is covered because Melton’s mosquito bite (1) was a visible 

contusion/wound, (2) was an unintended, unexpected, and unforeseen 

accidental bodily injury, and (3) directly and independently was the sole cause 

of his death. Minnesota Life, like the district court, focuses on three portions 

of the insuring clause to argue that Gloria’s claim is not covered: accidental 

bodily injury, sole cause, and wound/contusion. We take each in turn, 

beginning with accidental bodily injury. 

1.

Accidental Bodily Injury

The foundation of the insuring clause, and the policy itself, is an

“accidental bodily injury which was unintended, unexpected, and unforeseen.” 

Gloria says the accidental bodily injury in this case is the bite from a WNVinfected Culex mosquito. The policy does not explicitly define “accidental 

bodily injury,” but the parties focus on whether Melton’s injury was

“unintended, unexpected, and unforeseen;” and so do we.3 The dispute is 

whether Melton’s injury fits that description. 

 

2 We repeat, the insuring clause reads:

[C]overage under this policy will provide benefits only when your death 

results, directly and independently from all other causes, from an 

accidental bodily injury which was unintended, unexpected and 

unforeseen. The bodily injury must be evidenced by a visible contusion 

or wound . . . . The bodily injury must be the sole cause of your 

death. . . . Your death must occur within 90 days after the date of the 

accidental injury.

3 Black’s Law Dictionary defines “accident” as “[a]n unintended and unforeseen 

injurious occurrence; something that does not occur in the usual course of events or that could 

not be reasonably anticipated; any unwanted or harmful event occurring suddenly, as a 

collision, spill, fall, or the like, irrespective of cause or blame . . . .” ACCIDENT, Black’s Law 

Dictionary (10th ed. 2014).

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Gloria argues that Melton did not intend, expect, or foresee that a WNVinfected Culex mosquito would bite him, an obvious bodily injury.4 In support, 

she points to the testimony of Matthew Virnig, Minnesota Life claims 

examiner, who testified that there was no question in his mind “initially” that 

the cause of Melton’s death was unintended, unexpected, and unforeseen. And 

we find no direct evidence in the record that Melton intended, expected, or 

foresaw that such a perilous bite would befall him. Instead, Gloria expressed 

her view that the WNV-infected bite was unexpected, explaining that she was 

“having [her] doubts about God right now because . . . a mosquito got him out 

there and killed him a month later.” 

Minnesota Life, on the other hand, would define Melton’s alleged

accidental bodily injury more broadly to show that it does not fit the definition 

in the policy. Instead of focusing on Melton’s bite from a WNV-infected Culex 

mosquito, Minnesota Life argues that a mosquito bite generally is not 

unexpected and unforeseen in Texas. But a bite by a generic mosquito is not

the accidental injury Gloria pleaded in her complaint; instead, she says it is 

the bite by a WNV-infected Culex mosquito that triggers coverage. Without 

guidance from the policy as to how broadly or narrowly an “accidental bodily 

injury” is to be defined, we take the facts of the alleged accidental injury as 

Gloria contends. 

Minnesota Life then expands its argument to say that WNV is most 

commonly transmitted to humans through WNV-infected Culex mosquito 

bites, and when a virus is contracted through “normal means brought about by 

everyday life,” it cannot be deemed an unexpected or unforeseen accident. 

 

4 In 2013, accidents accounted for 5.2% of deaths in Texas. Leading Causes of Death 

by Race Ethnicity Texas 2013, TEX. HEALTH & HUM. SERVS. (Sept. 14, 2015), 

https://www.dshs.texas.gov/chs/vstat/vs13/t16.aspx. West Nile Virus accounted for .0078%. 

West Nile Virus Disease Cases and Presumptive Viremic Blood Donors by State, 2013, CDC, 

https://www.cdc.gov/westnile/resources/pdfs/data/2013WNVHumanInfectionsbyState.pdf. 

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Svensson v. Securian Life Ins. Co., 706 F. Supp. 2d 521, 532 (S.D.N.Y. 2010). 

But the case Minnesota Life cites for that proposition is inapposite. In 

Svensson v. Securian Life Insurance Co., an insured died of a “respiratory 

illness which she developed after inhaling a community-spread bacterial 

pathogen.” Id. at 523. In affirming the denial of accidental-death benefits, the 

New York district court quoted then-Judge Cardozo’s “common sense 

approach” to accidental injury: 

Germs may indeed be inhaled through the nose or mouth, or 

absorbed into the system through normal channels of entry. In 

such cases their inroads will seldom, if ever, be assignable to a 

determinate or single act, identified in space or time. For this as 

well as for the reason that the absorption is incidental to a bodily 

process both natural and normal, their action presents itself to the 

mind as a disease and not an accident.

Id. at 528 (quoting Connelly v. Hunt Furniture Co., 147 N.E. 366, 367 (1925)). 

Here, however, there was a determinate, single act—the bite—that is not 

incidental to a bodily process. The mosquito, an external “physical” force,

affirmatively acted to cause Melton harm and produce an unforeseen result. 

We find that inhaling a community-spread pathogen and being bitten by a 

mosquito can be thinly sliced so as to be distinguishable. 

The only record evidence that Minnesota Life offers to rebut the 

accidental nature of Melton’s death is the death certificate. To be sure, the 

CDC lists Melton’s death as “natural,” which the district court relied on in 

arriving at its conclusion that coverage should be denied. But “[t]he recitation 

in the death certificate is at best prima facie evidence” that a death is or is not

covered under an insurance policy. Stroburg v. Ins. Co. of N. Am., 464 S.W.2d 

827, 829 (Tex. 1971). And here, Gloria’s testimony regarding her shock at 

Melton’s bite, Virnig’s testimony that he initially believed “the cause of 

Melton’s death” was an accidental bodily injury, and the fact that Melton’s 

WNV is assignable to an unnatural, determinate act allows a factfinder to 

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conclude that Melton’s mosquito bite was unintended, unexpected, and 

unforeseen and, consequently, an accidental bodily injury under the policy.5 

Therefore, the district court erred in relying solely on the CDC to conclude that 

there is no issue of material fact as to whether Melton’s mosquito bite was an 

“accidental bodily injury.” It is a question for a factfinder.

2. 

Sole Cause

Next, we consider whether Gloria has created a genuine dispute 

regarding the “sole cause” of Melton’s death. We turn first to the relevant 

words of the insuring clause:

[C]overage under this policy will provide benefits only when your 

death results, directly and independently from all other 

causes . . . . The bodily injury must be the sole cause of your death.

We find a guide path in Mutual Benefit Health & Accident Association v. 

Hudman. 398 S.W.2d 110 (Tex. 1965). The Texas Supreme Court held that, 

to recover benefits under an accidental-death policy that limits coverage to 

death from an accidental injury “independently of other causes,” the accident 

must be the “sole proximate cause” of death.6 Id. at 112–13; see Sekel, 704 F.2d 

 

5 We think it is possible, under this policy, for a factfinder to come down on either side 

of whether a mosquito bite is an “accidental bodily injury.” This is to say that a mosquito 

bite is not categorically covered (or not covered) under accidental-death policies generally or 

even under this particular policy. To be sure, we hold in this case that the factual 

circumstances make it a disputed issue. As Lambrecht & Associates, Inc. v. State Farm 

Lloyds reminds us, Texas “[c]ourts determine whether certain conduct constitutes an 

‘accident’ for purposes of insurance coverage on a case-by-case basis.” 119 S.W.3d 16, 21 (Tex. 

App. 2003) (analyzing “accidental loss” in business insurance policy). 6 The Texas Supreme Court was careful to distinguish between the sole-cause test 

applicable here and a but-for test, explaining: 

It solves nothing when applying a sole-cause test, to resort to a but-for test . . . . 

When we have two concurring factors which produce death, one within and the 

other without the policy coverage, results under such a test would depend upon 

the factor to which the test is applied. It is a true statement that Hudman’s 

death would not have occurred but for his overexertion, the bodily injury and 

accidental cause. It is also true that his death would not have occurred but for 

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at 1337 (“In Texas and most other jurisdictions [“directly and independently”] 

clauses have been construed to preclude recovery where disease or bodily 

infirmity is a concurrent proximate cause of death.”); Stroburg, 464 S.W.2d at

829. Texas courts define “proximate cause” as “that cause, unbroken by any 

new and independent cause, that produces injury and without which the injury 

would not have occurred.” Tex. Campaign for the Env’t v. Partners Dewatering 

Int’l, LLC, 485 S.W.3d 184, 197 (Tex. App. 2016); see Stroburg, 464 S.W.2d at 

831 (“‘[P]roximate cause’ as applied in insurance cases has essentially the same 

meaning as that applied by our own courts in negligence cases . . . .”). So in 

order to recover benefits, the mosquito bite must be the sole proximate cause 

of Melton’s death, with no concurrent proximate causes acting alongside it.7 

With that theory of causation in mind, we turn to this case. Minnesota 

Life argues that “sole cause” should be interpreted to mean that the accidental 

bodily injury must be the only proximate cause of death, regardless of how any 

such concurrent proximate causes may have originated. As discussed 

previously, the CDC lists acute respiratory failure, septic shock, and multi 

system failure, as “diseases, injuries, or complications that directly caused the 

 

the pre-existing heart disease, the non-accidental cause. If we apply the butfor test to the accidental bodily injury, we can say that the death would not 

have occurred but for the overexertion and the plaintiff would win. When we 

apply the same test to the other concurring cause, the non-accidental heart 

disease, we get an opposite result. This is so because the death would not have 

occurred but for the non-accidental heart disease, and the plaintiff would lose.

Hudman, 398 S.W.2d at 113. 

7 We note that Minnesota Life says that Gloria must show “[WNE] was the sole cause 

of [Melton’s] death, exclusive of any other contributing cause.” But that misstates Gloria’s 

burden; she must show WNE was the sole cause of Melton’s death, exclusive of any other 

proximate cause. See Sekel, 704 F.2d at 1337 (distinguishing between a “contributing factor” 

and “concurrent proximate” cause). 

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death.” Thus, Minnesota Life says that, if we accept its construction, then the 

mosquito bite would not be the sole proximate cause of Melton’s death.8 

Gloria, however, interprets “sole cause” differently. She argues that 

ancillary complications stemming from an accidental bodily injury cannot

themselves serve as concurrent proximate causes of an accidental death where 

those complications arose directly from, and only because of, the accident. It 

follows, she further argues, that acute respiratory failure, septic shock, and 

multi system failure cannot be considered concurrent proximate causes of 

Melton’s death. In support, she cites the declaration of Dr. Paul Radelat, which 

states:

[I]t is misleading to characterize Acute Respiratory Failure, Septic 

Shock and Multisystem Acute Respiratory Failure as conditions 

leading to [Melton’s] death by [WNE] since these conditions are 

more accurately characterized as conditions resulting from his 

[WNE] and secondary thereto. Put another way, but for the 

[WNE], the latter three conditions would not have developed. 

If, after giving the contract terms their plain and ordinary meaning, Gloria’s 

construction is reasonable, under Texas law we must accept her construction. 

We now turn to our analysis of the policy term “sole cause.”

We begin with the observation that accepting Minnesota Life’s 

construction of the causation requirement would seem to create illusory 

coverage. Indeed, if accidental-death coverage could be precluded by later 

incidents directly related to and arising solely from the accident, one could 

reasonably conclude that an insured must die almost immediately after the 

 

8 We make special note that Minnesota Life does not cite to any expert testimony or 

other record evidence tending to show that acute respiratory failure, septic shock, and multi 

system failure were proximate causes of Melton’s death. To be sure, the CDC says that those 

complications were direct causes of death. But the relevant question is whether, “without 

[each complication,] the [death] would not have occurred.” Tex. Campaign for the Env’t, 485 

S.W.3d at 197. But we need not address that absence of record evidence further because we 

focus instead on the ambiguity of the provision.

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accident in order to recover benefits under the policy. Yet the policy is written 

to cover deaths that “occur within 90 days after the date of the accidental 

injury,” a time period that appears hollow under Minnesota Life’s construction. 

See Gregory, 91 S.W.2d at 1141 (“It is difficult to imagine a death six months 

after such an injury in which infection or disease had not set up as a result of 

the injury and finally produced death.”). 

Furthermore, Minnesota Life’s argument is belied by Texas 

jurisprudence. In articulating the “sole proximate cause” theory of causation 

in Hudman, the Texas Supreme Court cited a leading Texas insurance 

authority, which “cogently summarized” the rule as follows:

As a general rule, it has been stated that if there is a pre-existing 

disorder or illness at the time an injury is received, recovery may 

still be had if the injury was severe enough to have caused the 

entire damage or considerable damage, but not if the disease was 

the proximate cause or principal cause thereof. 

398 S.W.2d at 114 (quoting 1A Appleman, Insurance Law and Practice, § 403); 

see also Simpson v. Travelers Ins. Co, 121 F.2d 683, 684 (2d Cir. 1941) (“It has 

been held in similar circumstances that the event inducing the disease, not the 

disease itself, was the proximate cause of death.”). 

Minnesota Life does not point us to any authority in rebuttal to suggest 

that Texas courts would interpret “sole cause” to mean that complications 

arising solely from and dependent upon the accidental injury itself are to be 

considered concurrent proximate causes of an accidental death. Indeed, the 

cases it cites address a seizure disorder, heart disease, diabetes, coronary 

disease, and heart complications, all of which predated the accident at issue in 

each case. 

In sum, we conclude that Gloria’s construction of the “sole cause” 

provision is reasonable. So accepting her construction, as we must,

complications arising directly from, solely because of, and dependent upon the 

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accidental injury may not be concurrent proximate causes of an accidental 

death sufficient to strip the accident of its “sole proximate cause” status. In so 

holding, we do not disparage or exalt either party’s position. A factfinder may 

find that the mosquito bite was the sole proximate cause of Melton’s death in

the light of Dr. Radelat’s declaration that “it is misleading to characterize 

Acute Respiratory Failure, Septic Shock and Multisystem Acute Respiratory 

Failure as conditions leading to death by [WNE] since these conditions are 

more accurately characterized as conditions resulting from his [WNE] and 

secondary thereto.” Or, on the other hand, the factfinder may choose to 

disbelieve Dr. Radelet in the light of other evidence and find that Melton’s 

complications did not arise directly from and solely because of the WNE. In 

any event, we hold there is a genuine dispute of material fact as to whether the 

mosquito bite was the sole cause of Melton’s death.9

3.

Wound or Contusion

Finally, we consider whether there is evidence of a visible wound or 

contusion. The policy, in relevant part, reads

The bodily injury must be evidenced by a visible contusion or 

wound, except in the case of accidental drowning. 

Minnesota Life contends that Melton’s claim is not covered under the insuring 

clause because Melton’s accidental injury, the bite, was not “evidenced by a 

visible contusion or wound,” and the district court agreed. To be sure, there is 

 

9 In its briefing, Minnesota Life seems to reference, by name, only Melton’s 

complications—acute respiratory failure, septic shock, and multi system failure—not his 

preexisting conditions. But even if Minnesota Life did intend to argue that Melton’s 

preexisting conditions were concurrent proximate causes of his death, we would hold that 

there is a genuine dispute of this material fact in the light of Dr. Radelat’s declaration that 

none of those conditions “w[ere] a contributing factor in [Melton’s] demise.” See Hudman, 

398 S.W.2d at 114 (“Recovery is not defeated when a preexisting condition or disorder is so 

remote in the scale of causation, so dormant and insubstantial, or so temporary and transient 

that it does not materially contribute to the death or injury.”). 

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no direct evidence in the record that Melton exhibited a wound or contusion 

from a mosquito bite. 

Gloria responds, however, that a jury reasonably could infer that a 

mosquito bit Melton and that the bite formed a wound or contusion. In the 

light of the undisputed fact that Melton had WNE and the following record 

evidence, we agree; Dr. Dennis Lee, Minnesota Life’s expert, declared that 

WNE “is commonly due to a bite from a mosquito infected with [WNV];”

Dr. Joseph Kass, Minnesota Life’s expert, declared “WNV is a mosquito-borne 

illness and/or disease most commonly spread by infected mosquitoes” and also 

wrote in a report that “[WNV is] a virus transmitted by the bite of a mosquito;” 

and Gloria stated to a Minnesota Life representative that “a mosquito got 

[Melton].” A reasonable jury could infer that, based on the circumstantial 

evidence, a mosquito bit Melton, causing a wound or contusion. Cf. Carnes v. 

Cont’l Cas. Co., 212 So. 2d 441, 443 (La. Ct. App. 1968) (“While no one saw the 

spider bite [the insured] nor were any of the experts able to testify with 

absolute certainty that the ‘staph’ infection entered the body through the 

spider bite, the circumstantial evidence is so strong as to preclude any other 

reasonable hypotheses.”). 

We acknowledge that there are other means, besides a mosquito bite, by 

which a person may contract WNV. But at the summary-judgment stage, 

Gloria need only present sufficient evidence to show “a reasonable jury could 

return a verdict for [her].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). There is competent circumstantial evidence from which a jury could 

reasonably find that a mosquito bit Melton, creating a visible wound or 

contusion on his body. 

4.

In sum, we hold that there is a genuine dispute of material fact as to 

whether Gloria’s claim falls within the insuring clause. It is undisputed that 

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Melton had WNE and that WNE develops from WNV, which is most commonly 

contracted from mosquito bites. As for the bite itself, the policy explains that 

an accidental bodily injury is unintended, unexpected and unforeseen; and 

there is evidence that Melton did not intend, expect, or foresee that he would 

be bitten by a WNV-infected Culex mosquito. Moreover, there is evidence that 

all of the complications that befell Melton in the hospital resulted solely from 

WNV, and under Gloria’s construction of “sole cause,” which we accept as 

reasonable, such complications should not be considered proximate causes of 

death alongside the WNV. Finally, as a general matter, a factfinder could find 

a mosquito bite is a wound or contusion, each of which is an undefined term in 

the policy; and there is circumstantial evidence that a mosquito did bite 

Melton. Therefore, we hold that this appeal presents the following disputed

issues of fact as to coverage: (1) whether a mosquito bit Melton, (2) whether

Melton’s alleged mosquito bite was an “accidental bodily injury,” and (3)

whether WNV from an alleged mosquito bite was the sole proximate cause of 

Melton’s death. 

B.

Although we hold that there is a genuine dispute of material fact as to 

whether the insuring clause covers Gloria’s claim, there remains the question

whether an exclusion under the policy bars coverage. The burden of

establishing an exclusion rests on Minnesota Life who argues that Gloria’s 

claim should be denied based on Exclusion Four:

In no event will we pay the accidental death benefit where your 

death is caused directly or indirectly by, results from, or there is 

contribution from . . . bodily or mental infirmity, illness or 

disease . . . . 

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As noted, the terms “infirmity,” “illness,” and “disease” are not defined in the 

policy. 

Our prior reasoning finding the “sole cause” provision ambiguous applies 

equally to Exclusion Four.10 Gloria argues that a proper construction of 

Exclusion Four is the exclusion applies only “to conditions existing when the 

accident happened” and does not apply to “a condition caused by the accidental 

injury;” and we find that construction reasonable for purposes of this appeal.11 

Having accepted Gloria’s construction, we turn to the facts. 

Minnesota Life attempts to carry its burden of establishing an exclusion 

by arguing that Melton’s preexisting conditions and post-accident 

complications exclude coverage. As explained, there is a genuine dispute, when 

applying Gloria’s construction of the exclusion, whether Melton’s post-accident 

complications fall under Exclusion Four. With respect to Melton’s preexisting

conditions, we find that Gloria has presented some evidence from her expert 

that neither Melton’s obesity, diabetes, age, nor hypertension “was a 

contributing factor in his demise.” Because the exclusion requires that the 

infirmity, illness, or disease cause or contribute to Melton’s death, a dispute of 

material fact arises as to whether his preexisting conditions exclude coverage. 

The district court erred in dismissing the breach-of-contract claim on summary 

judgment. 

 

10 Minnesota Life cites Sekel v. Aetna Life Insurance Co. to argue that Exclusion Four 

is not ambiguous. But the Sekel court held that a similarly worded exclusion was not 

ambiguous on the question whether a provision excluded diseases that were contributing 

causes to death or only diseases that were proximate causes to death. 704 F.2d at 1337. The 

issue in Sekel was not, as it is here, whether the provision excluded coverage based on an 

infirmity, illness, or disease that resulted only because of the accident. Id. at 1338 (explaining 

the insured’s preexisting illness, a heart condition, caused the insured’s “accident”). 

11 Gloria does not address whether, under her construction, Exclusion Four applies to 

conditions that onset after accident but are completely unrelated to the accident itself. 

Because we are not presented with such facts, we need not decide the reasonableness of her 

construction in that situation for purposes of this appeal. 

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V.

Finally, we address Gloria’s tort claim for bad-faith investigation. She 

argues that Minnesota Life breached its duty of good faith and fair dealing by 

not adequately investigating her claim for benefits. Specifically, she contends 

that Minnesota Life relied solely on the CDC’s characterization of Melton’s 

death as “natural” and Dr. Lee’s conclusory medical opinion instead of 

investigating the claim thoroughly. Of course, Minnesota Life denies any bad 

faith and says, in any event, Gloria cannot have a claim for bad faith without 

“the complete absence of a reasonable basis for the denial of [her] claim.” Bates 

v. Jackson Nat’l Life Ins. Co., 927 F. Supp. 1015, 1024 (S.D. Tex. 1996). The 

district court held that Minnesota Life did not demonstrate bad faith because 

it reasonably denied coverage based on the CDC and Dr. Lee’s medical review. 

We summarize the principles that guide our review: “An insurance 

company may . . . breach its duty of good faith and fair dealing by failing to 

reasonably investigate a claim.” Thompson v. Zurich Am. Ins. Co., 664 F.3d 

62, 69 (5th Cir. 2011) (citation and internal punctuation omitted). “[A]n 

insurer cannot insulate itself from bad faith liability by investigating a claim 

in a manner calculated to construct a pretextual basis for denial.” State Farm 

Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex. 1998). “Similarly, an 

insurer cannot escape liability by failing to investigate a claim so that it can 

contend that liability was never reasonably clear.” Nunn v. State Farm Mut. 

Auto. Ins. Co., 729 F. Supp. 2d 801, 808 (N.D. Tex. 2010) (internal quotation 

marks omitted). But “Texas courts have clarified that the insurer does not 

have a duty to leave no stone unturned.” Id. (internal quotation marks 

omitted). And Texas courts “agree[ ] that an insurer only breaches its duty of 

good faith and fair dealing when it lacks a reasonable basis for denying or 

delaying payment of the claim or when it should have known that no such basis 

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existed.” Thrash v. State Farm Fire & Cas. Co., 992 F.2d 1354, 1358 (5th Cir. 

1993).

The record shows that from October 17, 2013, when Gloria submitted her 

claim with Minnesota Life, to April 9, 2014, Minnesota Life requested the CDC, 

Melton’s medical records, and a “Health Information Request” form. The 

claims examiner assigned to Gloria’s case then “forwarded the records to 

Minnesota Life’s medical department for review asking for a medical opinion 

on the cause and manner of the Insured’s death.” Dr. Lee responded, “[T]he 

fact [that Melton] was diabetic, morbidly obese and 68 may have increased his 

risk of [WNV] to lead to such severe [WNE].” And thus, after the evidence 

submitted was reviewed by a claim manager, Minnesota Life determined that 

it “received no information to support that [Melton’s] death resulted directly 

and independently from any accidental bodily injury sustained.” 

As our opinion has made clear, this case is close with supporting evidence 

on both sides of the claim. We are aware that courts have held that “an 

insurer’s reliance upon an expert report, standing alone, will not necessarily 

shield the carrier if there is evidence that the report was not objectively 

prepared or the insurer’s reliance on the report was unreasonable.” Douglas 

v. State Farm Lloyds, 37 F. Supp. 2d 532, 541 (S.D. Tex. 1999). But Dr. Lee’s 

medical opinion was not the only evidence that Minnesota Life had to stand 

on. In the light of Melton’s medical record and the CDC, we hold that 

Minnesota Life had a reasonable basis for denying Gloria’s claim and, 

consequently, the district court did not err in granting summary judgment as 

to Gloria’s bad-faith claim. 

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VI.

We reverse the district court and hold that genuine disputes of material 

fact preclude summary judgment on the breach-of-contract claim. We affirm 

the district court’s dismissal of the tort claim.12 We remand for further 

proceedings not inconsistent with this opinion. The judgment of the district 

court, therefore, is 

AFFIRMED in part, REVERSED in part, 

and the case is REMANDED.

 

12 Gloria’s argument on appeal as to whether the district court erred in denying her 

motion for new trial or, alternatively, motion to amend the judgment, goes only to the breachof-contract claim. Because we remand, her argument is moot.

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OWEN, Circuit Judge, concurring in part and dissenting in part:

The district court’s disposition of Gloria Wells’s tort claim was correct,

and I therefore concur in affirming the district court’s judgment in that regard. 

However, because Exclusion Four of the accidental-death policy bars coverage, 

the district court also correctly held that there was no breach of the insurance 

policy. I therefore respectfully dissent from the reversal of the district court’s 

judgment as to the breach of contract claim.

The policy provides that there is coverage:

only when . . . death results, directly and independently from all 

other causes, from an accidental bodily injury which was 

unintended, unexpected and unforeseen. The bodily injury must 

be evidenced by a visible contusion or wound . . . . [and] [t]he 

bodily injury must be the sole cause of . . . death.

Exclusion Four provides that there is no coverage if “death is caused 

directly or indirectly by, results from, or there is contribution from . . . bodily 

or mental infirmity, illness or disease.” We should interpret this provision by 

adopting the policy’s plain and ordinary meaning. Black’s Law Dictionary 

defines “disease” as “[a] deviation from the healthy and normal functioning of 

the body” or “[a]ny disorder; any depraved condition.”1 It defines “illness” as 

“[t]he quality, state, or condition of being sick; bodily or mental indisposition” 

or “[a] disease of the body or mind; disorder of health.”2 West Nile encephalitis, 

a life-threatening inflammation of the brain,3 is plainly a “disease” or “illness” 

 

1 BLACK’S LAW DICTIONARY 567 (10th ed. 2014); see also Disease, OXFORD ENGLISH 

DICTIONARY 763 (2d ed. 1989) (“A condition of the body, or of some part or organ of the body, 

in which its functions are disturbed or deranged; a morbid physical condition; ‘a departure 

from the state of health, especially when caused by structural change.’”).

2 BLACK’S LAW DICTIONARY 865 (10th ed. 2014); see also Illness, OXFORD ENGLISH 

DICTIONARY 656 (2d ed. 1989) (“Bad or unhealthy condition of the body . . . ; the condition of 

being ill . . . ; disease, ailment, sickness, malady.”).

3 See West Nile Virus, CENTERS FOR DISEASE CONTROL & PREVENTION (Aug. 2, 2017), 

https://www.cdc.gov/westnile/symptoms/index.html.

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as those terms are commonly understood. Major health organizations agree.

They too describe West Nile encephalitis as a disease or illness.4 Because the 

condition is an “illness” or “disease” under the policy, and because there is no

dispute that West Nile encephalitis contributed to Melton Wells’s death, 

Exclusion Four applies.

The majority opinion concludes that Exclusion Four applies only to an 

illness or diseased that the insured had at the time of the accident and not to 

an illness or disease that resulted from the accident. But Exclusion Four 

contains no such limitation. Exclusion Four applies when “death is caused 

directly or indirectly by, results from, or there is contribution from . . . bodily 

or mental infirmity, illness or disease.” Generally, “[w]ithout some indication 

to the contrary . . . [words] are to be afforded their full and fair scope . . . [and] 

are not to be arbitrarily limited.”5 Exclusion Four provides no indication that 

it is limited to conditions that pre-date the accident. Without that contrary 

indication, we should afford those terms their full scope.

It is rare that “accidental bodily injury” will result in an “illness” or 

“disease,” as is the case here, assuming that a bite from a mosquito carrying 

the West Nile virus constitutes “accidental bodily injury.” The far more typical 

cases are where an accidental injury results in trauma to the body that 

ultimately leads, or contributes, to death. But the policy only covers what it 

says it covers. Courts should not ignore the plain language of the policy when 

atypical facts result in a death or injury that is not covered under the policy’s 

express terms, however unfortunate the lack of coverage is for those who were 

accidentally injured.

 

4 See id. (describing West Nile encephalitis as a “severe illness”); West Nile virus, Signs 

and symptoms, WORLD HEALTH ORGANIZATION (Jul. 2011) 

http://www.who.int/mediacentre/factsheets/fs354/en/ (explaining that West Nile virus can 

cause “severe disease,” including encephalitis).

5 ANTONIN SCALIA & BRYAN GARNER, READING LAW 101 (2012).

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Based on straightforward principles of construction, Minnesota Life has 

established that Exclusion Four bars coverage for Melton Wells’s death. I 

respectfully dissent.

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