Morgan McFarlane had heart trouble. He suffered a fatal heart attack in the wee hours of January 1, 1990, while investigating a break-in at Kennedy High School in Chicago, where he worked- as a security guard. According to Police Officer David Rimkus, he received a call at around 3:00 a.m. to investigate the break-in at Kennedy High. McFar-lane met Rimkus and his partner at the front door when they arrived approximately ten minutes later. McFarlane, who had already searched an adjacent grade school building and had begun searching the high school, thought the burglar might still be on the premises and appeared .to be apprehensive. All three began their search on the first floor; Officer Rimkus and McFarlane climbed the stairs to the second floor, and after searching that floor, proceeded up another flight of stairs to the third floor. Their survey of the school building revealed.a great deal of vandalism, including gang graffiti and destruction of property, the most extensive being in the home economics room and in the principal’s office.
During the course of this search, Officer Rimkus observed that McFarlane was visibly upset and breathing heavily. When McFar-lane opened the door to a storage closet on the third floor, he shouted that, he had found something. As Officer Rimkus, who was standing a few feet away, turned toward him, McFarlane dropped a pair of bolt cutters he had spotted in the closet, clutched his chest, and keeled over. Although the paramedics arrived on the scene within a few minutes, their efforts to revive McFarlane failed.
At the time of his death, McFarlane was 50 years old, stood approximately six feet tall, and weighed between 325 and 350 pounds. The Cook County Medical Examiner listed the cause of death as arteriosclerotic cardiovascular disease with obesity as a contributing factor. According to McFarlane’s medical history, his family had a history of heart disease; and four of his brothers died suddenly, apparently of heart attacks., At least one medical record described McFarlane as “morbidly obese” — although his medical expert disputed that characterization since McFarlane’s weight did not interfere with his daily routine. McFarlane also suffered from diabetes and hypertension, and he took various medications to control his heart rate. In addition, he successfully underwent cardiac surgery in 1983 to repair an atrial septal defect (a congenital opening between the two sides of the heart).. McFarlane did nonetheless exhibit mild to moderate left ventricular hypertrophy and pulmonary heart disease as a result of the atrial septal defect.
Life Insurance Company of North America (“the Insurance Company”) had issued an insurance policy with $70,000 coverage for accidental injury' or death to McFarlane prior to his demise. When McFarlane’s wife attempted to collect the benefits under the policy, the Insurance Company denied her request on the grounds that his death was not accidental but due to an underlying heart condition. Although the suit Mrs. McFar-lane brought in the district court was initially dismissed for failure to prosecute, both sides agreed to reinstate it voluntarily and try it before a magistrate judge. At the conclusion of the trial, the magistrate ruled in' favor of the Insurance Company.
While McFarlane’s brief is silent on the standard of review, the Insurance Company asserts that we scrutinize the magistrate judge’s legal conclusions
de novo
while we look for clear error in its findings of fact.
Todd v. Corporate Life Ins. Co.,
Mrs. McFarlane does not challenge any of the factual findings by the magistrate judge; indeed, many of them appear to favor her cause. She questions only the magistrate’s application of Wisconsin law (which governs in this ease) to those facts. Under the relevant law, Wisconsin applies a fairly mechanical three-part analysis to determine ’whether an incident resulting in death is an accident that entitles the beneficiary to accidental death benefits under the insurance policy.
See Stoffel v. American Family Life Ins. Co.,
The Wisconsin Supreme Court employs an “average man test” to determine whether a death is accidental.
Wiger v. Mutual Life Ins. Co.,
It is our conclusion that the term “accidental means” must be interpreted according to the usage of the average man.... To eliminate from the definition of “accidental means” all cases where the injury happened as the natural or foreseeable result of a force or event voluntarily set in motion by the insured may have some scientific justification, but is contrary to the common understanding of the term and tends unfairly to limit such policies to cases where the insured is guilty of no negligence.
Id.
The only point of contention between the parties concerns whether the circumstances surrounding McFarlane’s death constituted its “sole cause.” Sole cause may be something of a misnomer since it actually serves to distinguish, according to a reasonableness standard, those acts whose performance poses no risk of serious injury from those that could cause considerable injury, even to someone in good health. The jury instruction endorsed by the Wisconsin Supreme Court to this end reads:
[I]f a disease or bodily condition exists and an accident occurs, to constitute the accidental' means the sole cause of the injury, ... it is not necessary that the injuries or the results thereof would have been as severe as they were had the disease or bodily condition not existed; but it is sufficient if the accidental means would have solely caused some considerable injury had the disease or bodily condition not existed.
Stoffel,
Mrs. McFarlane reads Stoffel to require that a plaintiff show only that the activity “could have” caused considerable injury to a healthy individual and attempts to make much of this apparent standard. She directs *269 our attention to the testimony of Dr. Richard Cooper, a cardiologist and her expert witness. Dr. Cooper concluded that a person without MeFarlane’s underlying physical and health problems (which we take to be an “average man”) could have suffered a nonfatal heart attack under the circumstances that surrounded his death. Indeed, the line of questioning employed by McFarlane’s attorney in the examination of Dr. Cooper closely tracked that of counsel in Stoffel. Mrs. McFarlane contends that the magistrate judge erred by holding her to a higher burden inasmuch as the judge concluded Mrs. McFarlane did not prove by a preponderance of the evidence that McFarlane would have sustained an injury that night had he not suffered from a preexisting heart condition. The distinction lies in the difference between “could” and “would.” Whereas “could” refers to some probability of an indeterminate size, “would” conveys something closely akin to more likely than not. In other words, the magistrate judge concluded, based on all the evidence presented, that Mrs. McFarlane did not establish that it was more likely than not that McFarlane would have sustained some serious injury absent his heart condition. This reasoning is consistent with Wisconsin law.
As the factfinder, the magistrate judge might have arrived at the same outcome even if Dr. Cooper had asserted that some healthy individual in McFarlane’s shoes
would
have suffered a non-fatal heart attack that night.
Cf. Graves,
Affirmed.
Notes
. Neither McFarlane’s policy nor the amendatory rider to it is at issue. Ostensibly designed to limit the insurer's exposure, the language of such amendatory riders has been construed by Wisconsin courts as requiring that the accident be the sole cause of death.
Stoffel,
. Mrs. McFarlane's counsel conceded at oral argument that if we affirmed the magistrate judge on the question of coverage, we would have no occasion to entertain her contention that the Insurance Company acted in bad faith in denying Mrs. McFarlane accidental death benefits.