Minh Tu v. Mutual Life Ins. Co. of New York

• Decision Date: 08 October 1997
• Docket Number: 97-1461 and 97-1473,Nos. 97-1421,s. 97-1421
• Citation: 136 F.3d 77
• Parties: MINH TU, Plaintiff, Appellant, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Union Central Life Insurance Company, John Alden Life Insurance Company, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 77

136 F.3d 77

MINH TU, Plaintiff, Appellant, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Union Central Life Insurance Company, John Alden Life Insurance Company, Defendants, Appellees.

Nos. 97-1421, 97-1461 and 97-1473.

United States Court of Appeals First Circuit.

Heard Oct. 8, 1997.

Decided Feb. 13, 1998.

Owen Gallagher with whom Garrett Harris and Gallagher & Gallagher, P.C., Boston, MA, were on consolidated brief, for appellant.

Joseph H. Skerry III with whom Mark M. Owen and Lyne, Woodworth & Evarts LLP, Boston, MA, were on consolidated brief, for appellees.

Before BOUDIN, Circuit Judge, GODBOLD ^* and CYR, Senior Circuit Judges.

BOUDIN, Circuit Judge.

This is an appeal by Minh Tu from a district court decision rejecting his claims and granting summary judgment to the defendants. His complaint sought to recover just over $3.9 million in life insurance issued by three different insurers on the life of Minh Tu's wife, Phuong Ly. Summary judgment was granted because the district court found insufficient admissible evidence of Phuong Ly's death to submit the case to a jury.

What follow are facts that are undisputed or represent Minh Tu's version of events. Randlett v. Shalala, 118 F.3d 857, 858 (1st Cir.1997). Minh Tu and his wife, together with their children, came to the United States from Vietnam in 1980 and settled in Boston. The couple engaged in various business ventures including a jewelry store and a hotel. In the early 1990's, Minh Tu and his wife were in financial difficulty and missed a number of mortgage, rent and tax payments.

In June 1984 and November 1985, Phuong Ly acquired life insurance policies from Mutual Life Insurance Company of New York and John Alden Life Insurance Company, respectively, with total death benefits of $375,000. However, the bulk of the insurance on her life was obtained in late 1991 and early 1992 when Union Central Life Insurance Company issued additional policies to her with benefits of $3.5 million. The premiums were very large, amounting to $60,000 to $80,000 per year; but Minh Tu later said that the Union Central policies were taken to accommodate the salesman and to help the family obtain commercial loans.

In late 1992, Minh Tu and Phuong Ly visited Vietnam to pursue opportunities to import beer to Vietnam. In January 1993, Phuong Ly traveled alone from Boston to Ho Chi Minh City. According to Minh Tu, the purpose for his wife's trip was to visit restaurants in Ho Chi Minh City to see if interest could be developed in the beer venture. Phuong Ly arrived in Ho Chi Minh City on January 13, 1993, and stayed at a hotel. She had a return ticket to the United States for February 7, 1993, and a three-month Vietnamese visa.

According to Minh Tu, Phuong Ly next traveled to an area of Vietnam close to the Cambodian border, arriving at a hotel in the town of Chau Doc at around 9 p.m. on January 25, 1993. Phuong Ly called Minh Tu from the hotel and told him that she was going to visit an important Buddhist shrine in the city and that she would then travel to Cambodia for a few days. Minh Tu says that the following morning, Phuong Ly left a carry-all at the hotel desk, announced that she was planning to travel to Cambodia for a few days and said that she was renting a car for that purpose. An hour later she left the hotel by herself.

Phuong Ly did not use her return ticket and has not been seen alive again. Minh Tu traveled several times to Vietnam, in February and March 1993, to find his wife. On the first trip, Minh Tu says that he was told by Vietnamese officials that his wife had been killed by bandits in Cambodia. On the second trip, according to Minh Tu, a Vietnamese police officer traveled into Cambodia and returned with a set of documents--hereafter referred to as the Cambodian documents-- which Tu brought back to the United States. Minh Tu also has produced his wife's damaged passport, saying that the Vietnamese returned it to him, but no admissible evidence explains where or how the passport was discovered.

The Cambodian documents, purporting to have been prepared by an investigator of a government security service in Cambodia (Captain Se Sa Roeun), included a report, a notice of death, and a certification. According to the report, a female body had been found by the local villagers on January 27, 1993, in the border area of Cambodia nearby the area of Vietnam from which Phuong Ly had allegedly made her final phone call. The documents said that the body had been cremated, and the death certificate identified Phuong Ly.

In April 1993, Minh Tu's son, Paul, submitted the Cambodian documents to the town clerk of Milton, Massachusetts, and requested a death certificate. The town clerk, who is the authorized registrar of deaths of town residents, recorded Phuong Ly's death and provided the certificate. Shortly thereafter, Minh Tu submitted claims to all three insurance companies, supported by the Milton death certificate, the Cambodian documents, a statement that Minh Tu said he had obtained from the hotel clerk in the border town, and a report of Minh Tu's own investigation.

In due course, the insurers sent an investigator to Vietnam and also asked the U.S. State Department to investigate the reported death. An official in the U.S. Embassy in Cambodia said that the so-called Cambodian documents did not comport with the usual practice for death reports in Cambodia and, further, that Captain Se Sa Roeun had told the embassy that he had never seen the corpse and was acting on the reports of local farmers. The U.S. official therefore refused to issue an official report of death outside the United States.

Ultimately, the insurers refused to make payments on the policies, and Minh Tu brought suit in the district court, for breach of the insurance contracts and also under Mass. Gen. L. c. 93A and c. 176D, which govern deceptive practices and insurance policies. After discovery, the insurance companies moved for summary judgment on the contract claims. On November 15, 1996, the district court ruled that the Milton death certificate and the Cambodian documents were not admissible evidence and granted summary judgment on the contract claims. Later an appealable judgment was entered in favor of defendants on all of Minh Tu's claims.

We review de novo the grant of summary judgment, drawing inferences in favor of the non-moving party. See Sargent v. Tenaska, Inc., 108 F.3d 5, 6 (1st Cir.1997). Minh Tu's main argument is that the district court should have submitted to the jury the question whether his wife was dead. At the outset he offers two reasons why he thinks a jury trial was required without regard to the admissibility or strength of the factual evidence that he could offer at trial.

The first such short cut is his claim that he submitted "due proof" to the insurers. All of the contracts use language indicating that the claimant must submit "due proof" or some equivalent term in order to qualify for payment under the policy. The MONY contract, for example, refers to "[t]he proceeds payable to the beneficiary upon our receipt of due proof of the death of the Insured." Minh Tu points to a Massachusetts ruling that "due proof" need not rise to the level of admissible evidence, Krantz v. John Hancock Mut. Life Ins. Co., 335 Mass. 703, 141 N.E.2d 719, 725 (1957).

Minh Tu may be correct in thinking that his submissions constitute "due proof," but misunderstands the consequences of such a submission. Due proof is "the proof furnished to the insurer [that] shows on the whole 'that the claim is of a class within the protection of the policy, so that if the proofs should be accepted as true the insurer reasonably might pay the claim.' " Washington v. Metropolitan Life Ins. Co., 372 Mass. 714, 363 N.E.2d 683, 685 (1977) (emphasis added) (quoting in part O'Neil v. Metropolitan Life Ins. Co., 300 Mass. 477, 15 N.E.2d, 809, 811 (1938)). In short, due proof satisfies a "preliminary requirement" of notice, Krantz, 141 N.E.2d at 723, but if the insurer denies death, the claimant must prove it by admissible evidence. Larsen v. Metropolitan Life Ins. Co., 289 Mass. 573, 194 N.E. 664, 665 (1935).

Minh Tu's second "short cut" to the jury presents a more difficult issue. Under Massachusetts law, a town clerk must record deaths "in his town," Mass. Gen. L. c. 46, § 1, and "may" file an out-of-state death certificate of a town domiciliary if satisfied of its sufficiency. Id. § 1C. Further, "[t]he record of the town clerk relative to a ... death shall be prima facie evidence of the facts recorded...." Id. § 19. Minh Tu offered a death certificate provided by the Milton town clerk and says that it entitled him to a trial on the issue.

In Massachusetts, as in a number of jurisdictions, a showing is often described as prima facie where, absent rebuttal or contradiction, the evidence either is sufficient to permit the jury to find the inferred fact or compels the jury to find the inferred fact. Commonwealth v. Garabedian, 399 Mass. 304, 503 N.E.2d 1290, 1293 (1987); Commonwealth v. Pauley, 368 Mass. 286, 331 N.E.2d 901, 904-05, appeal dismissed, 423 U.S. 887, 96 S.Ct. 181, 46 L.Ed.2d 119 (1975). Still more helpful to Minh Tu is the statement in one Massachusetts case that, "[e]ven if contradicted, prima facie evidence is sufficient by itself to require submission of a case to the jury." Todino v. Arbella Mut. Ins. Co., 415 Mass. 298, 612 N.E.2d 1181, 1183 (1993) (citing Anderson's Case, 373 Mass. 813, 370 N.E.2d 692 (1977)).

We will assume, arguendo, that the Massachusetts statute giving prima facie effect to a "record of a town clerk" relative to death embraces files or certificates made by the clerk concerning out-of-state deaths; one could argue that the prima facie effect is intended only for a record relating to deaths within Massachusetts, but no direct precedent resolves the point. Similarly, we will also assume without deciding that the prima facie effect statu...