United States Court of Appeals

For the First Circuit

No. 00-1679

TINA L. MAURICE, ETC.,

Plaintiff, Appellant,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

[Hon. David M. Cohen, U.S. Magistrate Judge]

Before

 Selya and Stahl, Circuit Judges,

and Lisi,* District Judge.

Fernand A. Martineau and Richard D. Hewes, with whom Hewes

& Hewes was on brief, for appellant.

William D. Hewitt, with whom Catherine R. Connors and Pierce

Atwood were on brief, for appellee.

December 21, 2000

____________

*Of the District of Rhode Island, sitting by designation.
1State Farm did, however, pay for property damage to the

motorcycle as provided under the motorcycle policy. It also

paid an accidental death benefit of $5,000 under one of the

other policies. Neither of those payments is in dispute in this

appeal, nor is the availability of UM coverage under the

motorcycle policy.

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SELYA, Circuit Judge. This appeal evolves from a

tragic highway accident in which a motorcycle driven by David M.

Maurice collided with an automobile operated by Bonnie Pike.

Maurice was killed. After securing an appointment as the

personal representative of his estate, his widow, plaintiffappellant Tina L. Maurice, asserted a variety of claims arising

out of her husband's death.

Pike had only modest insurance. Her carrier paid the

appellant its policy limit: $50,000. The appellant then turned

to defendant-appellee State Farm Mutual Automobile Insurance

Company (State Farm). At the time of the accident, the Maurices

owned three vehicles (including the motorcycle). Each was

covered by a separate State Farm policy. The appellant tried to

"stack" the policies, demanding payment of the policy limits for

uninsured/underinsured motorist (UM) coverage under all three

polices. As regards the non-motorcycle policies, State Farm

refused, citing the so-called other owned vehicle exclusion (the

OOV exclusion) that appeared in each of those policies.1 That

exclusion reads:
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THERE IS NO COVERAGE

* * *

2. FOR BODILY INJURY TO AN INSURED:

a. WHILE OCCUPYING A MOTOR

VEHICLE OWNED BY YOU, YOUR

SPOUSE OR ANY RELATIVE IF IT

IS NOT INSURED FOR THIS

COVERAGE UNDER THIS POLICY . .

. .

(Emphasis omitted).

Undaunted by the plain language of the OOV exclusion,

the appellant sued. Acting on her own behalf and on behalf of

her late husband's estate, she brought an action for damages

against State Farm in a Maine court. She cited State Farm's

refusal to pay under the UM coverages and alleged, inter alia,

breach of contract and breach of the duty of good faith and fair

dealing. State Farm removed the action to the United States

District Court for the District of Maine. See 28 U.S.C. §§

1332(a), 1441. In due course, it moved for dismissal. Fed. R.

Civ. P. 12(b)(6). In an unpublished memorandum, Magistrate

Judge Cohen recommended granting the motion. At the same time,

he recommended denying the appellant's motion for leave to file

an amended complaint (the ostensible purpose of which was to add

a count for respondeat superior liability based on certain

actions of the insurance agent who had handled the Maurices'

account).
2The magistrate judge had the authority to decide the motion

to amend outright. See 28 U.S.C. § 636(b)(1)(A) (empowering

magistrate judges to rule on non-dispositive motions); Fed. R.

Civ. P. 72(a) (same). Here, however, the magistrate chose

merely to make a recommendation to the district court. We

descry no error and, in all events, neither party has complained

about this procedure.

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The appellant objected to the recommended rulings.2

The district court nonetheless adopted them in toto and entered

judgment for State Farm. This appeal followed.

In adjudicating this dispute, Magistrate Judge Cohen

wrote a thoughtful, meticulously reasoned rescript, dated

February 24, 2000, in which he concluded that the OOV exclusion

was valid and foreclosed the appellant's claims. Having

entertained oral argument, perused the record, and carefully

considered the parties' briefs, we find no principled basis for

disagreement. To the contrary, we regard this as a near-perfect

situation in which to put into practice our previous

pronouncement that "when a lower court produces a comprehensive,

well-reasoned decision, an appellate court should refrain from

writing at length to no other end than to hear its own words

resonate." Lawton v. State Mut. Life Assur. Co., 101 F.3d 218,

220 (1st Cir. 1996); accord Ayala v. Union de Tronquistas, 74

F.3d 344, 345 (1st Cir. 1996); In re San Juan Dupont Plaza Hotel

Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993). Consequently, we
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affirm the judgment for substantially the reasons elucidated in

the decision below. We add only six brief comments.

First: The OOV exclusion that appears in the two State

Farm policies is nose-on-the-face plain. Since the motorcycle

which the decedent was driving at the time of the accident was

owned by him but insured under a separate policy, this

exclusion, by its terms, avoids coverage for the appellant's

claims.

Second: We reject the appellant's argument that a

state statute, 24-A M.R.S.A. § 2902-D, renders the OOV exclusion

void. That statute provides:

An insurer may not sell or renew a

motor vehicle liability insurance policy on

or after January 1, 1994 with a provision

that excludes coverage for injury to the

insured or any family member of the insured.

24-A M.R.S.A. § 2902-D. The statute's reference to liability

insurance is not a mere fortuity. Maine's highest court has

authoritatively interpreted the statute, albeit in an earlier

iteration, to apply only to third-party liability coverages.

Cash v. Green Mountain Ins. Co., 644 A.2d 456, 457-58 (Me.

1994). In so holding, Cash explicitly rejected the same

argument that the appellant advances here. Id. at 457. To

cinch matters, Cash is merely one in a long line of Maine cases

that have upheld substantially similar exclusions to UM
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coverage. E.g., Daigle v. Hartford Cas. Ins. Co., 573 A.2d 791,

792 (Me. 1990); Bear v. United States Fid. & Guar. Co., 519 A.2d

180, 182 (Me. 1986); Gross v. Green Mountain Ins. Co., 506 A.2d

1139, 1142 (Me. 1986); Brackett v. Middlesex Ins. Co., 486 A.2d

1188, 1191 (Me. 1985); Hare v. Lumbermens Mut. Cas. Co., 471

A.2d 1041, 1043 (Me. 1984).

Third: The appellant's effort to undermine Cash

because that case dealt with an earlier version of the Maine

statute is unavailing. We have carefully examined the statutory

amendment, effected in 1993, and find it to be inconsequential

for present purposes. The recodification of the statute, in

itself, proves nothing. Moreover, the only substantive import

of the amendment relates to interspousal immunity. The

amendment does not in any way implicate UM coverages. Thus, the

distinction that the appellant suggests is a distinction that

makes no difference.

Fourth: The appellant asks that we certify the

coverage question to the Maine Supreme Judicial Court. Our

practice, however, has been to refrain from certification of

state-law issues when we can discern without difficulty the

course that the state's highest court likely would follow.

Porter v. Nutter, 913 F.2d 37, 41 n.4 (1st Cir. 1990). Given

the telling precedent of Cash, we think that certification of
3In all events, we find the argument unpersuasive on the

merits.

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the coverage question that the appellant seeks to raise would be

an empty exercise.

Fifth: The appellant's attempt to fashion a new

argument for invalidation of the OOV exclusion based on the

public policy of Maine, as expressed in the state's wrongful

death statute, 18-A M.R.S.A. § 2-804, is procedurally defaulted.

The law is clear that when a dispositive motion is heard before

a magistrate judge, the movant must make all her arguments then

and there, and cannot later add new arguments at subsequent

stages of the proceeding. Maine Green Party v. Maine Sec'y of

State, 173 F.3d 1, 4-5 (1st Cir. 1999) (refusing to review, as

unpreserved, an argument not seasonably presented to the

magistrate judge); Paterson-Leitch Co. v. Massachusetts Mun.

Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988)

(similar). Because the appellant did not make this argument to

the magistrate judge, she cannot make it here.3

Sixth: The appellant's challenge to the denial of her

motion for leave to amend is meritless. For one thing, the

proposed amendment fails to allege any "special relationship"

between the insurance agent and State Farm — and such a special
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relationship is a necessary concomitant of respondeat superior

liability in insurance cases under Maine law. Szelenyi v.

Morse, Payson & Noyes Ins., 594 A.2d 1092, 1095 (Me. 1991); Ghiz

v. Richard S. Bradford, Inc., 573 A.2d 379, 380-81 (Me. 1990).

For that reason, we concur with Magistrate Judge Cohen's

characterization of the proposed amendment as futile. See

generally Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.

1988) (discussing pleader's burden to allege "each material

element necessary to sustain recovery").

For another thing, not only had the time for amendments

stipulated in the district court's scheduling order expired by

the time that the appellant filed her motion, but State Farm's

motion for brevis disposition already was pending. Under these

circumstances, the appellant's motion for leave to amend was

untimely. E.g., RTC v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).

We need go no further. For the reasons stated, we

affirm the judgment below.

Affirmed.