Branca by Branca v. Security Ben. Life Ins. Co., No. 83-5514

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtEDWARD S. SMITH
Citation773 F.2d 1158
Parties, 19 Fed. R. Evid. Serv. 832 Maria Victoria BRANCA, a minor, and Fernando Javier Branca, a minor, by their parent, natural guardian, and next friend, Ana Maria BRANCA, Plaintiffs-Appellants, v. SECURITY BENEFIT LIFE INSURANCE COMPANY, a Kansas Corporation, Defendant-Appellee.
Docket NumberNo. 83-5514
Decision Date15 October 1985

Page 1158

773 F.2d 1158
3 Fed.R.Serv.3d 1269, 19 Fed. R. Evid. Serv. 832
Maria Victoria BRANCA, a minor, and Fernando Javier Branca,
a minor, by their parent, natural guardian, and
next friend, Ana Maria BRANCA,
Plaintiffs-Appellants,
v.
SECURITY BENEFIT LIFE INSURANCE COMPANY, a Kansas
Corporation, Defendant-Appellee.
No. 83-5514.
United States Court of Appeals,
Eleventh Circuit.
Oct. 15, 1985.

Page 1159

Marc Postelnek, Miami Beach, Fla., for plaintiffs-appellants.

William J. Gallwey, III, P.A., Shutts & Bowen, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and SMITH *, Circuit Judges.

EDWARD S. SMITH, Circuit Judge:

In this insurance case, appellants Maria Victoria Branca and Fernando Javier Branca, 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 1

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,

Page 1160

1977. A Florida probate court later determined heirs and fixed the date of Fernando's death based on the Argentine court's decree. The instant suit to recover on the two life insurance contracts followed in 1981. 2

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. 3 The trial court, however, admitted the decree into evidence under the "catch-all" hearsay exception given by FED.R.EVID. 803(24). That exception reads as follows: 4

(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). 5

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. 6 The Argentine court issued its decree in accordance with the statutes of Argentina, and we can detect no evidence of fraud or other irregularity in the decree. Because we can find no error in the trial court's determination that the decree has sufficient circumstantial guarantees of trustworthiness to be admitted under this exception to the hearsay rule, the second condition of admissibility is met. 7

Page 1161

Because the Brancas tried to use the decree to prove Fernando's death, a fact material to the litigation, the hearsay was offered as evidence of a material fact, and the third requirement of the rule was satisfied. 8 The decree is the only evidence that tends to show Fernando's death directly; all the other evidence merely shows his absence. Therefore, the Argentine decree is more probative of Fernando's death than any of the Brancas' other evidence, and discharges the rule's fourth requirement. 9 The exception's final requirement is that admission of the hearsay will best serve the general purposes of the rules and the interests of justice. The purpose of the hearsay rule is to preclude admission of unreliable statements into evidence and allow the trier of fact to ascertain the truth of the matter. 10 The trial judge considered this factor but did not explain why it was met; we do not believe that this failure to explain is an abuse of discretion. 11 We are convinced that the trial judge made no error by admitting the Argentine court's judgment into evidence.

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. 12

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: 13

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: 14

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 evidentiary 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

Page 1162

this code" to which the evidentiary rule established in section 731.103(2) applies. The Argentine decree is not entitled to prima facie effect, and the burden of producing evidence never shifted to Security. We conclude as a matter of law that the trial court made no error in admitting the Argentine judicial decree of presumptive death as evidence of the fact and date of Fernando Arturo Branca's death, and that such evidence raised no...

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11 practice notes
  • Yahoo! v. La Ligue Contre Le Racisme, No. 01-17424.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 12, 2006
    ...150 (4th Cir.1989); Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir.1987); Branca v. Security Benefit Life Ins. Co., 773 F.2d 1158, 1161 (11th Cir.1985). This is a diversity suit, brought by Yahoo! in federal district court in In a typical enforcement case, the party in w......
  • Robinson v. Tanner, No. 85-7456
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    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...order compelling discovery is interlocutory and not an appealable final order. Branca by Branca v. Security Benefit Life Insurance Co., 773 F.2d 1158, 1165 (11th Cir.1985), modified on other grounds, 789 F.2d 1511 (11th Cir.1986). This rule extends to orders compelling a party to submit to ......
  • Lawyers Title Ins. Corp. v. Zogreo, LLC, No. COA09-1304.
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    • North Carolina Court of Appeal of North Carolina (US)
    • November 16, 2010
    ...interests to use the property more efficiently, or to transfer their interests more easily. Branca v. Security Ben. Life Ins. Co., 773 F.2d 1158, 1162 (11th Cir.Fla.1985). A proceeding to enforce a mechanic's lien, and the resulting judgment, determines the contractor's lien on the property......
  • McKee v. Sullivan, No. 89-8328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 22, 1990
    ...on "all the world," the probate court's underlying findings of death are not. Branca by Branca v. Security Benefit Life Insur. Co., 773 F.2d 1158, 1163 (11th Cir.1985), modified by 789 F.2d 1511 (11th Cir.1986). However, a probate court's determination of the issues presented to an agency "......
  • Request a trial to view additional results
11 cases
  • Yahoo! v. La Ligue Contre Le Racisme, No. 01-17424.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 12, 2006
    ...150 (4th Cir.1989); Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir.1987); Branca v. Security Benefit Life Ins. Co., 773 F.2d 1158, 1161 (11th Cir.1985). This is a diversity suit, brought by Yahoo! in federal district court in In a typical enforcement case, the party in w......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...order compelling discovery is interlocutory and not an appealable final order. Branca by Branca v. Security Benefit Life Insurance Co., 773 F.2d 1158, 1165 (11th Cir.1985), modified on other grounds, 789 F.2d 1511 (11th Cir.1986). This rule extends to orders compelling a party to submit to ......
  • Lawyers Title Ins. Corp. v. Zogreo, LLC, No. COA09-1304.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • November 16, 2010
    ...interests to use the property more efficiently, or to transfer their interests more easily. Branca v. Security Ben. Life Ins. Co., 773 F.2d 1158, 1162 (11th Cir.Fla.1985). A proceeding to enforce a mechanic's lien, and the resulting judgment, determines the contractor's lien on the property......
  • McKee v. Sullivan, No. 89-8328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 22, 1990
    ...on "all the world," the probate court's underlying findings of death are not. Branca by Branca v. Security Benefit Life Insur. Co., 773 F.2d 1158, 1163 (11th Cir.1985), modified by 789 F.2d 1511 (11th Cir.1986). However, a probate court's determination of the issues presented to an agency "......
  • Request a trial to view additional results

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