CNA Intern. Reinsurance Co., Ltd. v. Phoenix

• Decision Date: 02 July 1996
• Docket Number: 95-401,Nos. 95-2309,s. 95-2309
• Citation: 678 So.2d 378
• Parties: 21 Fla. L. Weekly D1540 CNA INTERNATIONAL REINSURANCE COMPANY, LTD., As Subrogee of Shapray Limited, Dark Blood, Inc., New Line Cinema, Inc., British Screen Finance, Ltd., Berliner Bank, Screen Partners and Film Finances, Inc., Appellants, v. Arlyn PHOENIX, as Personal Representative of The Estate of River J. Phoenix, Appellee. AMERICAN CASUALTY COMPANY OF READING, PA., As Subrogee of Time Warner, Inc., Appellant, v. Arlyn PHOENIX, as Personal Representative of the Estate of River J. Phoenix, Appellee.
• Court: Florida District Court of Appeals

Page 378

678 So.2d 378

21 Fla. L. Weekly D1540

CNA INTERNATIONAL REINSURANCE COMPANY, LTD., As Subrogee of Shapray Limited, Dark Blood, Inc., New Line Cinema, Inc., British Screen Finance, Ltd., Berliner Bank, Screen Partners and Film Finances, Inc., Appellants, v. Arlyn PHOENIX, as Personal Representative of The Estate of River J. Phoenix, Appellee.

AMERICAN CASUALTY COMPANY OF READING, PA., As Subrogee of Time Warner, Inc., Appellant, v. Arlyn PHOENIX, as Personal Representative of the Estate of River J. Phoenix, Appellee.

Nos. 95-2309, 95-401.

District Court of Appeal of Florida First District.

July 2, 1996.

Rehearing Denied Sept. 11, 1996.

John Beranek of Macfarlane Ausley Ferguson & McMullen, Tallahassee; Carl B. Schwait of Dell, Graham, Willcox, Barber, Jopling, Comfort, Schwait & Gershow, Gainesville, for Appellants.

David J. Kohs of Wright & Kohs, P.A., Orlando; Cynthia J. Pyles, Orlando, for Appellee.

JOANOS, Judge.

In these consolidated appeals from final orders granting appellee's motions to dismiss, appellants raise two issues: (1) whether the defense of impossibility of performance due to death applies when the impossibility is, allegedly, the fault of the person obligated to perform the personal services contract and (2) whether the trial court erred in ruling that the effective dates of the policies of insurance involved here were in November, 1993, after the widely publicized death in question. We affirm in part and reverse in part.

The case arises from the unfortunate death of the young actor, River Phoenix, originally of Gainesville, Florida, apparently due to an overdose of illegal drugs, before completion of two films, "Dark Blood" and "Interview With the Vampire," in which he had contracted to appear. As a result of the death, the "Dark Blood" project was totally abandoned. "Interview With the Vampire" was completed with another actor replacing Phoenix. CNA and American Casualty, which are both members of the CNA group of insurance companies, had written entertainment package insurance policies covering various aspects of the two productions. After paying the policy holders, CNA and American Casualty became subrogated to the claims the insureds had against the estate. ¹

CNA attempted to state a cause of action for breach of contract against Phoenix's estate, based on an "actor loanout agreement," between Jude Nile, a corporation owned and run by Phoenix and his mother, Arlyn Phoenix, and Scala Productions. ² The agreement, signed by Phoenix, allegedly included a general obligation not to do anything which would deprive the parties to the agreement of its benefits. CNA further alleged that by deliberately taking illegal drugs in quantities in excess of those necessary to kill a human being, Phoenix deprived the parties of his services and breached his obligation. American Casualty also couched its complaint for declaratory judgment in terms of breach of contract based on an actor loanout agreement between Jude Nile and Geffen Pictures, which gave Geffen the right to loan Phoenix to Time Warner. In addition to the count for breach of contract, the CNA complaint contained a second count, for fraud and misrepresentation, based on an allegedly false representation in a medical certificate, allegedly signed by Phoenix, denying that Phoenix had ever used "LSD, heroin, cocaine, alcohol in excess, or any other narcotics, depressants, stimulants or psychedelics whether prescribed or not prescribed by a physician."

The estate moved to dismiss both complaints, contending there could be no cause of action for breach of contract because the personal services contracts were rendered impossible to perform due to the death. The estate further alleged that reliance on any representation in the medical certificate was unreasonable as a matter of law as of the effective dates of the policies, which it contended were in November, 1993, after the widely publicized death on October 31, 1993. After hearings, the trial court granted the motions to dismiss with prejudice.

On appeal, CNA and American Casualty contend that the defense of impossibility of performance does not apply in this case because that doctrine requires that the impossibility be fortuitous and unavoidable, and that it occur through no fault of either party. They contend that because the death occurred from an intentional, massive overdose of illegal drugs, that this is not a situation in which neither party was at fault. The trial court very clearly ruled that even if the death was a suicide (there is no indication in the record that it was) or the result of an intentional, self-inflicted act, the doctrine of impossibility of performance applied.

Appellants have candidly conceded that no case authorities exist in support of their position concerning fault in a case of impossibility due to death. Appellants ask this court to find support for their theory in the following language of the Restatement of Contracts 2d §§ 261 and 262:

§ 261 Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless...