Phillips-Foster v. Unum Life Ins. Co. of America, 01-3570.
| Decision Date | 04 September 2002 |
| Docket Number | No. 01-3570.,No. 01-3648.,01-3570.,01-3648. |
| Citation | 302 F.3d 785 |
| Parties | Sarah L. PHILLIPS-FOSTER, Plaintiff/Appellant, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant/Appellee, Nancy Ruhland, as parent and natural guardian of Ian G. Foster and Craig A. Foster, minor children; Jeramy T. Foster; Angela Sue Whitwam; Victoria Poshard; Diane Della Busta, as guardian ad-litem for Zoe Elizabeth Phillips, a minor child, Defendants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David G. Johnson, argued, Minneapolis, MN, for appellant.
Terrance J. Wagener, argued, Minneapolis, MN (Jack Harper, III, on the brief), for appellee.
Before: MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.
Sarah Phillips-Foster brought this declaratory judgment action against UNUM Life Insurance Company of America which had insured her deceased husband, Mark Foster. UNUM declined to pay her the policy proceeds because of a contractual suicide exclusion and because of her suspected involvement in Foster's death. She sued the company and other beneficiaries, and the district court1 granted summary judgment to UNUM. Phillips-Foster appeals from the final judgment dismissing UNUM from the case, and we affirm.
Mark Foster worked as a pharmacist for Drug Emporium, Inc., which had contracted with UNUM to provide life insurance benefits for its employees. As a pharmacist with less than five years in the position, Foster received a basic life insurance benefit in the amount of $100,000 and accidental death and dismemberment (AD & D) coverage in "[a]n amount equal to [his] life amount." In addition he purchased "Option B" which provided supplementary life coverage in the amount of $100,000. Both the AD & D and the supplementary life insurance coverage was subject to a suicide exclusion; the basic life benefit was not.
At the time of Foster's death Phillips-Foster was the beneficiary for both the basic life and the AD & D coverage. Foster had made her the beneficiary on March 11, 1997, several weeks before their marriage, in place of Victoria Poshard, a former girlfriend. The supplemental Option B enrollment form designated Jeramy T. Foster as primary beneficiary, and Craig A. Foster, Ian G. Foster and Angela (Foster) Whitwam as contingent beneficiaries. Jeramy and Angela were Foster's children from his first marriage to Susan Larson, and Craig and Ian were children from his second marriage to Nancy Ruhland.2
Foster was found dead on July 18, 1997, some four months after he married Phillips-Foster and named her a beneficiary. On the morning of July 18, Foster's nephew, Brent Thompson, contacted the Minneapolis Police Department to report that Foster was missing. Later that morning his body was found on the side of St. Croix Drive in rural Dairyland Township in Douglas County, Wisconsin. The body was dressed completely in white, and the cause of death appeared to be a gunshot wound to the chest. The Douglas County Sheriff began a homicide investigation, and the police later concluded that Foster had been shot with a .44 caliber rifle. A note was found in his shoe that had writing on both sides. One side said "Jack Frazier isn't here, but it's Jimmy Bailey? or look alike?" On the other side of the note was
The day after discovering Foster's body, investigators from the Douglas County Sheriff's Department and the Minneapolis Police Department interviewed Thompson, Phillips-Foster, and their housemate, Greg Friesner. Phillips-Foster told them on July 19 that she had last seen Foster at Madden's Resort near Brainerd, Minnesota on the afternoon of July 17. In a statement she gave on July 29, Phillips-Foster told police that at Madden's she and Foster had talked about threats he had received from Jack Frazier and Jimmy Bailey. Thompson told the detectives that he had last seen Foster between 2 and 2:30 a.m. on the morning of July 18, when Foster told him that he was having problems with Jack Frazier and was going to meet him at a Country Kitchen to straighten things out. Thompson said that Friesner had told him that he and Foster had seen Frazier on a motorcycle at an Amoco station near their house on the evening of July 17.3 Two of the investigators noted that during the meeting with Phillips-Foster and Thompson on July 19, neither inquired about how or where Foster had been killed.
In a second interview on July 19, Thompson told an investigator that Foster had expressed concern about his safety on July 17 because Frazier had demanded that he "make some drugs for him" or else he would "take care of [Foster] and his family." Thompson also opened a letter that Foster had left for him in the event that he died. The letter, dated July 15, 1997, expressed Foster's concern that he was in danger and provided instructions for obtaining his life insurance proceeds, for making funeral and wake arrangements, and for placing an obituary in Twin Cities and Eau Claire newspapers. During this same interview Friesner reported that Frazier was "totally obsessed" with Phillips-Foster and that he had made threats against Foster because of his relationship with her.
Phillips-Foster had been romantically involved during the 1990s with Jack Frazier and with James "Jimmy" Bailey, Jr., and both men were known to have been angry with her and Mark Foster. Bailey and Phillips-Foster had had a child together in 1991 — Jake Phillips. Bailey also suspected that he might be the father of Phillips-Foster's first child, Roy Phillips, who had been born in 1990.4 In the mid-1990s Jack Frazier moved in with Phillips-Foster and her roommate/lover, Jackie. Frazier and Phillips-Foster developed a romantic relationship, and Jimmy Bailey became involved with Jackie and later married her. Frazier and Phillips-Foster continued their relationship until February 1997, when she ended it and moved in with Mark Foster. Phillips-Foster and Foster were married on April 1, 1997. Tensions between Bailey, Frazier, Phillips-Foster, and Foster came to a head in May, 1997, at a custody hearing on the competing claims of Bailey and Phillips-Foster. Frazier allegedly made threats against Foster at the hearing, and Bailey allegedly assaulted both Foster and Phillips-Foster after losing the custody battle.
Douglas County investigators interviewed Jack Frazier at a restaurant about a week after Foster's body was discovered. He told them that when he read in the newspaper that Foster had been found dead in Dairyland, Wisconsin, he knew he would be contacted by the police because Phillips-Foster was trying to set him up. When asked about his whereabouts on July 17 and 18, he claimed that he had traveled from Minneapolis to Salem, Massachusetts on July 14 and returned home on the evening of July 18. He supported his alibi by turning over an itinerary from Yada Systems for his travel on those dates, a dated Northwest Airlines baggage claim check, and his personal calendar.
After talking with Frazier, the Douglas County Sheriffs Department became increasingly suspicious that Thompson, Friesner, and Phillips-Foster were involved in the death of Foster and that he might have had a role in his own death. They began to suspect that the note in Foster's shoe about Frazier and Bailey, the July 15 letter to Thompson about Foster's fears, the reported sighting of Frazier at the Amoco station the night before the murder, and the story about meeting Frazier at a Country Kitchen were intended to lead them to the conclusion that Frazier had killed Foster. The investigators also came to suspect that the death scene was selected to lead them to Frazier since he owned property in Pine County Minnesota, which was not far from the murder site in Douglas County, Wisconsin.
The suspicions of the Douglas County Sheriff's Department heightened after further interviews with Foster's children, a former girlfriend, and a coworker. Jeramy Foster told investigators that his father had owned several guns, one of which was a .44 caliber carbine. He reported that he had last seen the gun in a cabinet at his father's St. Paul storage unit, and that he had given his father the only key to the cabinet about five to six weeks prior to his death.5 When investigators searched the storage unit, they found that the gun was missing. The security log at the facility showed that Foster had entered his storage unit at 4:36 p.m. on July 17, and the manager identified Foster's car on a security videotape. The tape showed his car entering the lot with two or three people in the vehicle. Jeramy Foster and his sister, Angela Whitwam, also informed investigators that their father had followed a cult type of religion, called Tantra, which believed in free sex. Jeramy and Angela reported that their father had sex with other men and women, and that everyone living in the house with their father had had sex with each other at one time or another.6
Victoria Poshard, a former girlfriend of Foster, provided investigators with more information about his religious beliefs. She stated that Foster believed he was a voodoo priest and that he claimed to have gained his spiritual powers from shooting his teacher in a New Orleans cemetery. Foster had told her the same thing would happen to him, and that Greg Friesner was the "chosen one" who was going to kill him and inherit his worldly possessions and spiritual powers. In an affidavit submitted three months prior to Foster's death, as part of the custody battle between Phillips-Foster and Bailey, Poshard made many of the same claims. She stated that Foster studied Tantra, that he conducted rituals in his attic, that it was his destiny to be killed by Friesner so that his priestly powers would be transferred to his student, and that he had participated in ritual ceremonies in New Orleans.
Jenny Soule, a coworker of Foster's, reported to investigators that he...
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