Branca v. Security Benefit Life Insurance
Branca v. Security Benefit Life Insurance
Opinion of the Court
In this insurance case, appellants Maria Victoria Branca and Fernando Javier Bran-ca, both of whom are minors, and their guardian, Ana Maria Branca (the Brancas), appeal the judgment of the United States District Court for the Southern District of Florida dismissing, on the merits, for failure to carry their burden of proof, the Brancas’ action to collect the proceeds of two life insurance contracts. We affirm in part and remand.
Issues
We address four issues. First, we must determine the effect of a judicial presumption of death rendered by an Argentine court and admitted into evidence at trial to prove the insured’s death. Second, we decide the preclusive effect of a judgment of a Florida probate court on a suit in a United States district court sitting in Florida, and whether that judgment is prima facie evidence of the facts it recites. Third, we consider whether the trial court properly refused to grant the Brancas’ motion for a new trial under FED.R.CIV.P. 60(b)(6). Finally, we decide whether the trial court erred by not ruling whether appellee Security Benefit Life Insurance Company (Security) deserved to be sanctioned for violating an order of the United States District Court for the District of Kansas that compelled discovery.
Background
On May 8, 1975, Security issued two life insurance policies to Fernando Arturo Branca (Fernando), a resident of Buenos Aires, Argentina, who designated his children, Maria Victoria Branca and Fernando Javier Branca, as beneficiaries of the policies. Fernando traveled frequently to the United States and Europe for business and pleasure, and maintained property and bank accounts in Miami, Florida, where the insurance contracts arose.
Fernando disappeared from his residence in Buenos Aires on April 28, 1977, and no witness in this litigation has seen, heard from, or spoken with him since that date. Conversely, no body was ever recovered, nor was any physical evidence of Fernando’s death adduced at trial. No evidence suggested that Fernando’s disappearance was violent. The two policies lapsed for failure to pay the required premiums in September 1977.
On March 16, 1981, the Argentine Court of Civil and Commercial Federal Affairs declared Fernando presumptively dead and fixed the date of his death at April 28,
Opinion
A. The Argentine Decree
As a preliminary matter, we rule on Security’s objection to the trial court’s admission of the Argentine decree into evidence. We observe that the insurance contract required due proof of death before Security became obligated to disburse the policies’ proceeds. We must decide whether the admission of the decree was proper as a matter of law or if it constituted an abuse of discretion. Security contends that the Argentine court’s decision is hearsay and admissible under no exception to hearsay. We agree that the Argentine decree is hearsay.
(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
Mathis v. United States, succinctly describes the rules for admitting evidence under 803(24).
In order for evidence to be admitted pursuant to Rule 803(24), five conditions must be met. These are:
(1) The proponent of the evidence must give the adverse party the notice specified within the rule.
(2) The statement must have circumstantial guarantees of trustworthiness equivalent to the 23 specified exceptions listed in Rule 803.
(3) The statement must be offered as evidence of a material fact.
(4) The statement must be more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts.
(5) The general purposes of the Federal Rules and the interests of justice must best be served by admission of the statement into evidence.
As in Mathis, the parties do not dispute that proper notice was given, so the first prerequisite to admissibility is satisfied.
After deciding that the Argentine decree of presumptive death was admissible at trial, we turn to the central issue of this case: What effect does the decree have in Florida? At the outset, we acknowledge that we must apply Florida law in this diversity case, and that we must interpret that law in the same way the Florida courts would.
The Brancas contend that Florida law expressly designates foreign judgments of presumptive death as prima facie evidence of the time and place of death. The Brancas rely on this statutory language:
731.103 Evidence as to death or status
In proceedings under this code, the rules of evidence in civil actions are applicable unless specifically changed by the code. The following additional rules relating to determination of death and status are applicable:
(2) A copy of any record or report of a governmental agency, domestic or foreign, that a person is alive, missing, detained, or, from the facts related, presumed dead is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report. [Emphasis supplied.]
If we assume that the Argentine decree qualifies as prima facie evidence under section 731.103(2), we must determine if the Brancas’ action for insurance benefits is one of the “proceedings under this code.” We turn to the short title section of the Florida Probate Code, which states:
731.005 Short title
Chapters 731-735 shall be known and may be cited as the Florida Probate Code and herein referred to as “the code” in this act.
In order for the Argentine decree to be prima facie evidence of the fact and date of death, the action must be pursuant to statutory rights defined by the Florida Probate Code. We think it is quite clear that section 731.103 makes the general civil rules of evidence applicable to probate proceedings, subject to the listed modifications. The statute does not allow the use of evi-dentiary rules tailored to probate actions in the general civil arena. General civil contract law governs the Brancas’ action on an insurance contract, and not the law of probate. The Brancas’ contract action, therefore, is not one of the “proceedings under
B. The Florida Probate Decree
The Brancas contend that a judgment of a Florida probate court determining heirs establishes the fact and date of Fernando’s death, and that Security failed to rebut this prima facie evidence. We decide this question of first impression adversely to the Brancas.
We first discuss the collateral estoppel effect of the Florida probate court judgment on the present suit. Such discussion is not strictly necessary to decide this case, but the analysis of the Florida view of collateral estoppel guides us in determining the probate court judgment’s effect as evidence.
In order for a Florida court’s judgment to have collateral estoppel effect in another suit in Florida, specific criteria must be satisfied. In particular, the parties and issues must be identical, and the particular matter must have been fully litigated and determined in a contest which resulted in a final decision of a court of competent jurisdiction.
The question remains whether the judgment in probate can be prima facie evidence of facts underlying that judgment in the instant suit. The Brancas point to a Court of Claims decision holding a Virginia probate court decree prima facie evidence of the facts it stated in administrative proceedings before the Army Board for Correction of Military Records (ABCMR).
Given Florida’s strict requirements for the application of collateral estoppel, as shown by Florida’s refusal to adopt the Parklane doctrine, we do not think the Florida courts would use the probate court’s decree as prima facie evidence of the date of Fernando’s death. We use the following policy reasons, in addition to the strict application of collateral estoppel in the Florida courts, to reach our conclusion. A judgment in rem binds the world to any decision affecting the res involved in the litigation. In this way, property rights may be determined with great certainty. Such certainty allows the owners of the property interest to use the property more efficiently, or to transfer their interests more easily. A probate proceeding is in rem because it determines heirs and dispos
We find further support for our position by referring to the Florida rules of evidence. . In relevant part, the law recites:
92.07 Judgments and decrees of this state as evidence
The recitals in all judgments and decrees of the Supreme Court and of the several circuit courts of this state, when such judgment or decree appears regular and has been recorded as provided by law for more than 20 years, shall be admissible in evidence as prima facie proof of the truth of the facts so recited.
From this statute, it is clear that judgments are admissible as prima facie evidence of the facts they recite 20 years after they have been recorded. While the statute does not apply in this case, we believe that the Florida legislature would have written a similar statute for the admissibility of probate decrees immediately after they issued in other Florida courts if it had desired such an effect. Because we find no statute authorizing admission of probate decrees as prima facie evidence of the facts they recite in other proceedings (unless 20 years has elapsed from final judgment), and because Florida policy precludes estop-pel by judgment against one not a party to the prior action in a subsequent suit, we hold that the Brancas’ contention must fail.
Florida law prescribes for a presumption of death if a person is missing and silent for a set period.
The Argentine decree of presumptive death has no more effect as evidence in the instant suit than the Florida probate decree. Because the Argentine decree, therefore, would not be prima facie evidence in this suit even if it were granted full faith and credit, we need not analyze the issue. We do not decide what deference beyond the effect in probate we would grant to the Argentine decree because that issue is not necessary to this decision.
To summarize the evidentiary questions raised in this appeal, we hold that the trial judge properly admitted the Argentine death decree into evidence; that neither the Argentine decree nor the Florida probate decree had any collateral estoppel effect in this action; and that neither of these decrees constituted prima facie evidence in this suit. Finally, the trial judge made no
C. Motion for New Trial
The Brancas contend that the trial judge should have granted them a new trial under FED.R.CIV.P. 60(b)(6). The rule states in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. * * *
In order to grant relief under 60(b)(6), a case must be extraordinary.
We treat the motion as if made under 60(b)(2). The Brancas state that an Argentine investigation of Fernando’s disappearance resulted in the arrest of the leader of the military junta in power when Fernando disappeared. They wish to issue letters rogatory to this leader under FED. R.CIV.P. 28(b)(3). The Brancas, however, give no reason why they did not issue letters rogatory to this official before trial. We were not told why issuance of letters rogatory would have been fruitless, but the fruitlessness of doing so is assumed in the argument. In short, the Brancas have not proved due diligence in discovering this evidence. Therefore, the trial court properly denied relief under 60(b)(2). Other than this allegedly new evidence, we discern no other reason for relief from judgment except, perhaps, the reason that might arise from the following section of this opinion. The trial court made no error by denying the motion for new trial under 60(b)(6).
D. Sanctions
The Brancas ask this court to find error in the district judge’s failure to rule on the Brancas’ motion for sanctions against Security based on Security’s failure to obey a motion to compel discovery. We agree that some ruling should have been made, and remand.
The background relevant to this issue is as follows: On February 25, 1983, the Brancas deposed Security’s employee in Topeka, Kansas. Security’s attorney objected to some of the Brancas’ questions, and instructed the employee not to answer. The Brancas moved to compel discovery under FED.R.CIV.P. 37(a)(1)
Security argues that the district court in Florida had no jurisdiction to grant sanctions against Security, and cites the rules of civil procedure in support of this proposition as follows:
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken.
(b) Failure to Comply with Order.
(1) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court.
Security does not cite or allude to the rest of the rulé which specifically outlines the procedure used to request sanctions for failure to comply with orders compelling discovery in the court in which the action is pending. This part of the rule provides:
(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following[-]
Security’s failure to comply with the order of the Kansas district court compelling discovery is clearly covered by this provision, but Security ignores this portion of the rule. Security’s argument to the contrary seems not merely patently frivolous, but affirmatively misleading. Security’s contention that the Court of Appeals for the Tenth Circuit had jurisdiction over an appeal of the Kansas court’s order is also patently frivolous, as we will explain. An order compelling discovery is interlocutory, and not an appealable final order.
Conclusion
We agree with the trial judge that the Argentine judicial presumption of death is admissible. However, the Argentine decree is not prima facie evidence of the date of the insured’s death, nor is the Florida probate decree. As such, the trial judge’s finding that the Brancas did not carry their burden of proof is not clearly erroneous. Also, the Brancas raise no circumstances justifying a new trial under Rule 60(b). On these issues, we affirm. The trial judge, however, erred by not ruling on the Bran-cas’ request for sanctions against Security for Security’s failure to comply with an order compelling discovery. We remand so the trial judge may make factual findings and legal conclusions on this issue.
AFFIRMED in part and REMANDED.
. While other facts surround this appeal, we recite only those facts material to this decision.
. Our jurisdiction of this appeal is founded on 28 U.S.C. § 1291 (1982).
. See FED.R.EVID. 801.
. FED.R.EVID. 803(24).
. Mathis v. United States, 559 F.2d 294, 298 (5th Cir. 1977).
. Id.
. See generally Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895) (discussing the effect of foreign judgments in United States courts): Reese, The Status in This Country of Judgments Rendered Abroad, 50 COLUM.L.REV. 783 (1950) (reviewing development of the Hilton doctrine in federal and state courts).
. FED.R.EVID. 803(24)(A); Mathis, 559 F.2d at 298.
. FED.R.EVID. 803(24)(B).
. Huff v. White Motor Corp., 609 F.2d 286, 295 (7th Cir. 1979); United States v. Friedman, 593 F.2d 109, 119 (9th Cir. 1979); Mathis, 559 F.2d at 298.
. See Friedman, 593 F.2d at 118 (requiring an abuse of discretion to reverse admission of hearsay evidence under FED.R.EVID. 803(24)).
. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
. FLA.STAT.ANN. § 731.103 (West 1984).
. FLA.STAT.ANN. § 731.005 (West 1984).
. Because we consider the estoppel effect of the Florida probate court decision, we need not decide whether to grant comity and collateral estoppel effect to the Argentine decree. See generally Hilton, 159 U.S. at 164-67, 16 S.Ct. at 143-44 (discussing comity and judgments of foreign nations).
. Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla. 1977); Seaboard Coast Line R.R. v. Cox, 338 So.2d 190 (Fla. 1976); Gordon v. Gordon, 59 So.2d 40 (Fla. 1952).
. Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843, 845 (Fla. 1984); see generally Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (discussing offensive collateral estoppel).
. Midgett v. United States, 603 F.2d 835, 846, 221 Ct.Cl. 171 (1979).
. In re Kelley’s Estate, 19 N.Y.S.2d 837, 174 Misc. 53 (N.Y.Sur.Ct. 1940). See Becher v. Con-toure Laboratories, Inc., 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752 (1929); cf. Mutual Life Ins. Co. v. Bell, 147 Fla. 734, 3 So.2d 487 (1941) (precluding use of a verdict from an inquest in an action on a life insurance contract).
. Becher, 279 U.S. at 391, 49 S.Ct. at 357.
. FLA.STAT.ANN. § 92.07 (West 1984).
. Johns v. Burns, 67 So.2d 765, 767 (Fla. 1953).
. Id.
. See generally Parker v. Parker, 155 Fla. 635, 21 So.2d 141, 142 (1945) (discussing the standard for recognizing the judgment of a foreign country); Hilton, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95.
. See generally Johns v. Burns, 67 So.2d 765, 766 (discussing the burden of proving date of death after the common law presumption of death has risen).
. Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); Gray v. Estelle, 574 F.2d 209 (5th Cir. 1978).
. Transit Casualty Co. v. Security Trust Co., 441 F.2d 788, 792 (5th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 211, 30 L.Ed.2d 164 (1971).
. See text accompanying note 29 for the provisions of FED.FLCIV.P. 37(a)(1).
. FED.R.CIV.P. 37(a)(1) and (b)(1).
. FED.R.CIV.P. 37(b)(2).
. Rouse Constr. Int'l, Inc. v. Rouse Constr. Corp., 680 F.2d 743, 745 (11th Cir. 1982).
. Branch v. Phillips Petroleum Co., 638 F.2d 873, 877 (5th Cir. 1981).
Reference
- Full Case Name
- Maria Victoria BRANCA, a minor, and Fernando Javier Branca, a minor, by their parent, natural guardian, and next friend, Ana Maria BRANCA v. SECURITY BENEFIT LIFE INSURANCE COMPANY, a Kansas Corporation
- Cited By
- 1 case
- Status
- Published