Rose O'CONNELL, Plaintiff-Appellant, v. J.C. PENNEY LIFE INSURANCE COMPANY, a Stock Company, Defendant-Appellee, 132 F. App'x 177

MEMORANDUM Rose O’Connell appeals a

summary-judgment in favor of J.C. Penney Insurance Company on her claims of breach of contract and bad faith denial of benefits under an insurance contract. We review the district court’s grant of

summary judgment de novo, see Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004), and reverse. Mrs. O’Connell filed a claim for benefits under an accidental death and disability policy issued by J.C. Penney on her husband Richard O’Connell, who died while hospitalized for a broken hip he sustained when he fell while exiting a bus. The immediate cause of Mr. O’Connell’s death was pneumonia, which developed during the hospitalization. J.C.

Penney denied the request for policy benefits, stating that the policy provided coverage only where the insured’s death resulted “solely and independently” from accident or injury, and not where a pre-existing disease contributes to the insured’s death. J.C. Penney took the position that Mr. O’Connell’s pre-existing Parkinson’s disease was a contributing cause of death.

Arizona courts strictly construe policy provisions which provide benefits, as here, only where death or disability is “solely and independently” caused by the accident at issue: If the question is whether the death resulted solely from accidental causes, the test is as follows: (

a) when an accident causes a diseased condition which, together with the accident, results in death, the accident alone is considered the cause of death; (

b) when at the time of the accident the insured was suffering from some disease, but such disease had no causal connection with the death resulting from the accident, the accident is the sole cause of the death, and (

c) when at the time of the accident there was an existing disease which, cooperating with the accident, resulted in the death, the accident cannot be considered as the sole cause, independent of all other causes. New York Life Ins. Co. v. Greber, 55 Ariz. 261, 100 P.2d 987, 987 (1940). The district court erred by finding that Mr. O’Connell’s fall and subsequent hip fracture “did not directly and independently cause his death” because the medical evidence offered on

summary judgment did not establish conclusively the cause of Mr. O’Connell’s pneumonia. Where, as here, a coverage dispute turns on the cause of the insured’s death or disability,

summary judgment is proper where the medical evidence concerning the cause of death or disability is in agreement or undisputed. See, e.g., Button v. Connecticut Gen. Life Ins. Co., 847 F.2d 584, 586-87 (9th Cir.1988). Where, however, the facts support more than one reasonable inference concerning the role of a pre-existing condition in death or disability, the issue of causation is reserved for the trier of fact. See, e.g., Dickerson v. Hartford Accident & Indem.

Co., 56 Ariz. 70, 105 P.2d 517, 520 (1940) (reversing directed verdict for insurer where conflicting medical evidence would have supported jury verdict in favor of insured). REVERSED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.