Opinion
No. 03 CIV. 8409 (DLC).
December 30, 2004
Stacey Van Malden, Goldberger Dubin, P.C., New York, New York, for Plaintiffs.
Fred N. Knopf, Arthur B. Colligan, Jr., Wilson, Elser, Moskowitz, Edelman Dicker LLP, White Plains, New York, for Defendants.
OPINION ORDER
Plaintiff Sook Ying Loo ("Ms. Loo") and her son, plaintiff Sing Loo ("Mr. Loo"), have filed this action seeking accidental death benefits under a life insurance policy issued by the defendant The Prudential Insurance Company of America ("Prudential") insuring the life of Young Lu Chen ("Chen"), Ms. Loo's brother. Prudential has moved for summary judgment on the grounds that there was fraud committed against Prudential in the procurement of Chen's policy, and that plaintiffs have not set forth enough admissible evidence for a reasonable juror to conclude that Chen died accidentally. Prudential has evidence that Mr. Loo impersonated Chen in applying for the insurance, and even posed as Chen during the medical exam for the policy. A man identified as Chen was then found dead in China four months after the policy had been issued, at a time when both plaintiffs were also in China. Because of the evidentiary problems that permeate this motion, and because the facts must be taken in the light most favorable to the plaintiffs, Prudential's motion is denied.
Background
The following facts are undisputed or taken in the light most favorable to the plaintiff, unless otherwise noted. Chen, a legal permanent resident of the United States, emigrated from China in 1990, but traveled back and forth between the countries regularly. At the time of his alleged death on September 2, 2000, he was 56 years old, with black hair and brown eyes. He weighed approximately 140 lbs. and was about 5 ft. 6 in. tall.
Mr. Loo emigrated from China to the United States in 1975. Mr. Loo's residence is 40 Monroe Street, New York, New York, but he lives at his parents' apartment at 20 Monroe Street and rents out the 40 Monroe Street apartment to family members. Mr. Loo has worked as a handyman and does not have a steady income. The largest annual salary he has earned was approximately $25,000. Mr. Loo is 50 years old, has black hair, brown eyes, weighs about 140 lbs and is approximately 5 ft. 6 in. tall. Mr. Loo and Chen have the same physical description, except that Mr. Loo has a mole above his right upper lip. Mr. Loo's mother, co-plaintiff Ms. Loo, emigrated from China in 1969 and resides at 20 Monroe Street.
Purchase of the Policy
On April 25, 2000, Prudential issued a life insurance policy in the name of Yong Lu Chen. The policy had a face amount of $150,000, with an accidental death benefit of $300,000, and an economic loss benefit of $150,000 — for a total death benefit of $600,000. Ms. Loo is named as the primary beneficiary of the policy and Mr. Loo is the secondary or contingent beneficiary. The policy had an annual premium of $8,240, the first two quarters of which were paid by money orders dated March 20 and May 20, 2000. The money orders stated they were from Chen and listed his address as 20 Monroe Street, Apt. #LF-11, New York, New York 10002. This is the same address listed on the insurance application. The policy contains an incontestability clause which provides that Prudential "will not contest this contract after it has been in force during the Insured's lifetime for two years from the issue date. . . . The exceptions are: (1) nonpayment of premium, and (2) any change in the contract that requires our approval and that would increase our liability." The insurance policy provides that Prudential will pay the beneficiary the death benefit only if it receives "due proof" of death, and Prudential will not pay the accidental benefit on the contract unless it receives "due proof that the Insured's death was the direct result, independent of all other causes of accidental bodily injury that occurred on or after the contract date." (Emphasis supplied.)
The events surrounding the purchase of the life insurance policy in question are the subject of much dispute, in large part due to the inconsistent testimony of George Lu ("Lu") the Prudential agent who negotiated and issued the policy. Lu has provided several conflicting versions of how and with whom he contracted for the policy. At different times during the investigation into the issuance of the policy and over the course of this litigation, Lu has stated that he had only dealt with Chen and not the plaintiffs and that he conducted the entire transaction by mail. Lu also provided contradictory testimony about at what locations he met with Chen or Mr. Loo and whether he witnessed the insured sign the application.
The parties have provided two sources for Lu's version of the events — a July 21, 2004 report ("July 21 Report") of an interview Prudential investigators conducted with Lu on July 20 and excerpts from an August 26 deposition of Lu in which Lu testified about how the policy was issued and what he told Prudential investigators about the policy. There does not appear to be any basis for receipt of the July 21 Report in evidence. Although Lu is apparently still employed by Prudential, it did not submit an affidavit from him. Prudential has not shown that it will be entitled to rely at trial on Lu's deposition testimony.
Lu eventually testified that the following is the true version of events. Lu now contends that he only had contact with Mr. Loo, who called him — impersonating Chen — to inquire about obtaining life insurance. Lu claims that after several more conversations with Mr. Loo who continued to pretend to be Chen, Lu prepared some policy illustrations and agreed to meet who he thought was the insured at a home in Astoria, Queens. Lu only met Mr. Loo at this meeting. Mr. Loo told him that Chen was ill and sleeping in a back room, but that Mr. Loo would relay the life insurance presentation. After hearing the presentation, Mr. Loo stated that his uncle, Chen, wanted the highest death benefit coverage and elected the policy amounts at issue. Mr. Loo and Lu then completed Chen's life insurance application. Mr. Loo then brought the handwritten application to the back room for Chen's signature and returned with a signed document and several money orders to pay the initial premium. In direct violation of Prudential company policy, Lu never saw Chen sign the application or money orders, nor did he ask for identification during the meeting.
The parties have not submitted a copy of the handwritten application as part of this motion. Prudential did provide the actual insurance policy which contains a typed application for life insurance which allegedly mirrors the responses on the handwritten application.
For his part, Mr. Loo testified that he had nothing to do with the issuance of the policy and communicated for the first time with Lu after Chen's death when he sought to file a claim for benefits in January 2001. Mr. Loo states that he was only "briefly" informed about the policy by Chen after it had been secured. Misrepresentations on the Application
Neither plaintiff has submitted an affidavit in opposition to this summary judgment motion. They rely instead on their deposition testimony to raise issues of fact. Since the defendant has not objected, the deposition testimony is considered on this motion. At trial, the plaintiffs will be required to provide admissible evidence to present their case.
It is undisputed that Chen's application for insurance contains several misrepresentations. The application states that Chen was married, when he is in fact divorced. The application (as well as a computer printout generated by Lu which documented internal communications at Prudential from March 27 through April 25, 2000 with respect to the application) states that Chen was the owner of the Hong Kong Restaurant in Manhattan. The notes on Lu's printout from March 27 also state that the insured represented that he made $55,000 per year. No evidence has been offered to show that Chen even worked at the Hong Kong restaurant, let alone owned the restaurant or earned $55,000 per year. Mr. Loo told Prudential investigators that Chen never had a steady job in the United States and that he did not know where Chen worked in 2000. Indeed, plaintiffs have not produced a single document establishing that Chen lived and worked in the United States from 1997 to 2000.
The insurance application provides that Prudential:
assume[s] that all statements in an application are made to the best of the knowledge and belief of the person(s) who make them; they are deemed to be representations not warranties. We rely on those statements when we issue the contract and when we change it.
The insurance application also provides that Chen's home address was 20 Monroe Street and Mr. Loo testified that Chen lived with Ms. Loo at this address when Chen was in New York. There is, however, some conflicting evidence about Chen's living arrangements in the United States. Mr. Loo told Prudential investigators that Chen lived in Long Island City, New York from 1998 to 2000. Lu testified that Chen's address was originally listed in the insurance application as Astoria, Queens, where Lu stated that he first met Mr. Loo. In addition, the home address the insured provided at the medical examination for the insurance policy was an Astoria, Queens address. The home phone number listed on the application has a 718 area code, but Monroe Street is in Manhattan which is outside the 718 area code. Plaintiffs have produced no evidence apart from Mr. Loo's deposition testimony that Chen ever lived at 20 Monroe Street in 2000, or in the five years before 2000. In fact, Ms. Loo testified that the last time she saw Chen alive was in June or July 2000 in Fuzhou, China, and that Chen was living there at the time. Ms. Loo testified that Chen had previously lived in the United States, but was unsure when he lived there.
Plaintiffs argue that Ms. Loo's deposition testimony should not be considered in evaluating this motion because it was conducted in Mandarin, a language she does not speak. This request is denied. Plaintiffs, who have retained counsel, are responsible for providing competent translators in order to participate effectively in this litigation, including for their depositions.
The insurance application further stated that the proposed insured did not plan to live or travel outside the United States within the next 12 months. There is evidence, however, that Chen traveled back and forth to China regularly. In fact, according to plaintiffs, Chen was in China in June or July 2000, almost immediately after the policy was issued. Lu's computer printout, however, reflects that Prudential employees were aware that the insured was considering traveling to China and Hong Kong in two months. The computer printout also shows that despite these travel plans, which conflict with what is written on the formal application, the insurance policy was approved on April 24, 2000.
Medical Examination
As a requirement for obtaining the life insurance policy, Chen was obligated to undergo a health examination. On April 14, 2000, a Portamedic paramedical examiner, Chen Wen Hou ("Hou") examined a person who identified himself as Chen. The person gave Hou an Alabama Non-Driver Identification Card, bearing the number 144970, in Chen's name, but containing Mr. Loo's photograph. Hou examined the picture on the card, compared it to the person who was present for the examination, and confirmed that the picture and the person were one and the same. In addition, Hou compared the signature on the Alabama identification card with the examinee's signature on the documents filled out during the exam. Hou found these to be one and the same. During the course of the examination, Hou measured the examinee's height and weight, took blood and urine samples, and performed an electrocardiogram ("EKG"). Based upon the Prudential Examiner's Confidential Report, dated April 14, 2000, Prudential issued the life insurance policy in Chen's name. Mr. Loo denied at his deposition that he took this medical examination. The Alabama Non-Driver Identification Card
Mr. Loo testified that he and Chen traveled together to Alabama in 1998 to try and find employment. In Alabama, both Mr. Loo and Chen applied for identification from the Alabama Department of Public Safety. According to Mr. Loo, he was unable to obtain an Alabama driver's license because he did not pass a required examination. An Alabama Non-Driver Identification Card bearing the number 144970 was issued, however, in Chen's name, but with Mr. Loo's photograph. Mr. Loo testified that he had his photo taken by the Alabama Department of Public Safety, but that he never received any Alabama identification card in the mail as he was told would happen. Mr. Loo testified that he did not know that the Alabama Non-Driver Identification Card which was issued and presented at the medical examination contained his photograph and Chen's name until Mr. Loo's attorney showed him the card or a copy of the card as part of this litigation. Mr. Loo also denied that he signed the Alabama Non-Driver Identification Card in Chen's name or presented this card at the medical examination.
Proof of Death
According to the plaintiffs, Chen traveled from New York to China sometime in June or July of 2000 with a tour group. Mr. Loo testified that he last saw Chen in August 2000 — two or three weeks before Chen's death — in Fuzhou City, China. Mr. Loo was staying in Fuzhou City at the time with Ms. Loo. Both plaintiffs have stated that they own the apartment where they were staying in 2000. The apartment is also where Chen resided while in China.
Plaintiffs have not submitted evidence of Chen's current passport, the name of the tour group he traveled with, the name of the airline he traveled on, or the dates of travel.
Mr. Loo had previously told Prudential investigators that he and Ms. Loo were in Beijing at the time they were informed Chen had died.
Evidence submitted by Prudential investigators indicates that Chen may have owned the apartment in Fuzhou.
According to the plaintiffs, in early September 2000, Min Feng ("Feng"), a relative previously unknown to Mr. Loo, telephoned Ms. Loo and Mr. Loo to inform them that Chen's body had been found with identification — Chen's green card and phone book. Feng told Mr. Loo that the police had told her that Chen died after accidentally falling while mountain climbing. Feng did not know Chen and could not identify his body. Feng had obtained possession of the green card and phone book the police found on Chen because Feng had assisted with the "aftermath" of Chen's passing. When he left China in 2000, Mr. Loo brought the phone book and green card back to the United States, destroyed the phone book and then returned the green card to Feng in China at some point in 2001 in order to allow her to take care of unspecified, unresolved affairs. Mr. Loo testified that Chen's body was cremated, but there was no funeral because Chen was a young man. Mr. Loo also stated that the funeral home provided a receipt for the cremation. This purported receipt is contained in Chen's death certificate. Plaintiffs state that Chen's ashes are presently at the Fuzhou funeral parlor in an urn.
Prudential has provided a copy of Chen's green card dated March 12, 1990.
Mr. Loo had previously told Prudential investigators that no funeral was held because there were not enough relatives to attend such a ceremony.
Mr. Loo testified that Ms. Loo and he went to the funeral home prior to Chen's cremation to identify the deceased. Mr. Loo stated that he and Ms. Loo never spoke with the police directly. Mr. Loo also indicated that he went to the Gu Yong Police Station, which had recovered Chen, with Feng to identify Chen's body, but did not speak much while there. The police told Mr. Loo that according to its investigation, Chen had slipped from a hillside and fell into a valley. Mr. Loo testified that he also went to the police station to get a certificate that Chen had died accidentally. He indicated that a notification office kept the original certificate, and he kept a copy. Mr. Loo states that he cannot now locate his copy of this document.
Reports by investigators hired by Prudential who traveled to China to examine Chen's purported death both corroborate and call into question plaintiffs' version of the events. A station supervisor at the Gu Yong Police Station in Fuzhou reported to Prudential that on September 2, 2000, a call was received from an unidentified person who reported that a male corpse had been found. Two policemen responded to the scene and conducted an investigation. The two officers were interviewed. They reported that when they arrived at the scene, a corpse was found to be floating face up in the stream. The person was deceased and no obvious wounds or bleeding were found on his body. The deceased was in his 50's and no identification documents were found on his body. Three pictures of the deceased were taken at the scene, which are of very poor quality and of little use for identification purposes. The corpse was forwarded to the Fuzhou funeral parlor for temporary storage. No autopsy was performed on the deceased to determine the cause of death, nor was there medical forensic evidence collected such as hair or blood samples. The police stated that two days after discovery of the deceased, a Chinese male named Wu Fu-Liang ("Wu") visited the station and reported that his uncle, subsequently identified to be Chen, was missing. Wu then informed Ms. Loo and Mr. Loo that there was a corpse fitting the description of Chen. Ms. Loo and Mr. Loo later identified the corpse to be Chen. The investigators were told by the local police and the funeral parlor that the corpse was cremated on September 8, 2000 at the funeral parlor and Chen's ashes sent to the United States by mail. The funeral parlor reported that Chen's nephew handled the arrangements. The Prudential reports, which included interviews with Feng and an exploration of the area where Chen's body was found, go on to raise a host of concerns about the police's investigation into the cause of death and the identity of the deceased. One of Chen's other nephews told Prudential that Chen had moved back to China several years before 2000 and had not returned to the United States.
These reports were discussed at length during the deposition testimony of Richard Marquez, director of investigations at Prudential, and Brenda Tate, senior claims manager at Prudential. The parties have not addressed the admissibility of the information gleaned during Prudential's investigation in the United States or China.
Ms. Loo was described by the police as being 69 years old and a resident of the United States. Mr. Loo was described as being 48 years old and a resident of the United States. Wu was 30 years old and a resident of Fuzhou City.
The Claim for Benefits
On January 18, 2001, Ms. Loo filed a claim for benefits based on Chen's death. Shortly thereafter, plaintiffs provided copies of Chinese documents as proof of Chen's accidental death. After an investigation in the United States and China, Prudential denied plaintiffs' claim for death benefits in a December 13, 2001 letter ("December 13 Letter"). The December 13 Letter informed Ms. Loo that it would not assume liability for the death benefits Ms. Loo had claimed because the documents plaintiffs had submitted as proof of the death of Chen on September 2, 2000 could not be substantiated. Specifically, Prudential wrote that the information purportedly provided by the local police to the Fuzhou Notary Public Office, who in turn issued the Notorial Certificate, could not be confirmed. The December 13 Letter also stated that in denying the claim for inadequate proof, Prudential was not waiving any other defense or rights available to it. Procedural History
Plaintiffs filed this action on September 23, 2003 in New York state court. The complaint consists of four state law causes of action. The first cause of action seeks payment for the death benefit of Chen under his life insurance policy in the amount of $150,000. The second and third causes of action seek payment of $300,000 and $150,000, respectively, under the accidental death and economatic benefits in the policy. The fourth cause of action is for damages for defendant's purported bad faith in denying the payment of the policy. On October 23, 2003, Prudential removed this action based upon the diversity of the parties. On October 30, Prudential filed its answer, asserting as a counterclaim that it had rejected plaintiffs' claim for payment of benefits on the policy "based upon material misrepresentations of fact by the person, purporting to be Young Lu Chen and upon the belief that the Policy was issued without the knowledge of the life insured." Discovery ended on August 6, 2004. Prudential moved for summary judgment on October 14 on two grounds. First, it argues that the insurance policy is void because it was procured by fraud. Second, Prudential contends that plaintiffs are not entitled to collect on the policy because they have failed to prove the insured's death by admissible evidence. On November 3, plaintiffs' counsel requested a two-week extension to oppose this motion because they had only recently received plaintiffs' deposition transcripts. Defendant consented to this request and it was granted on November 4. The summary judgment motion was fully submitted on December 3.
Discussion
Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
Material Misrepresentations
Under New York law, a life insurance policy must contain a clause which prohibits the insurer from attempting to void the policy for any reason other than nonpayment of premium after the policy "has been in force during the insured's lifetime for 2 years from the Issue Date." N.Y. Ins. Law § 3203; see also Hydell v. North Atl. Life Ins. Co., 667 N.Y.S.2d 391 (2d Dep't 1998). "It is well settled that when death occurs during this two-year period the right to contest is a continuing one."Hydell, 667 N.Y.S.2d at 392. An insurer may rescind a policy if it appears that the policy was procured through fraud, mutual mistake of fact, or the insured's misrepresentation or concealment of material facts in the application. See N.Y. Ins. Law § 3105; First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 118-19 (2d Cir. 1999). Even an innocent misrepresentation, if material, is sufficient in certain circumstances to allow the insurer to avoid the contract of insurance or defeat recovery. Mut. Benefit Life Ins. Co. v. JMR Electronics Corp., 848 F.2d 30, 32 (2d Cir. 1988).
The parties assume that New York law controls this dispute and this implied consent "is sufficient to establish choice of law." Santalucia v. Sebright Transp., Inc., 232 F.3d 293, 296 (2d Cir. 2000).
No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless such misrepresentation was material. No misrepresentation shall be deemed material unless knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract.First Fin., 193 F.3d at 119 (citation omitted). The burden is on the insurer to establish both that information was misrepresented, see N.Y. Ins. Law § 3105; Guzman v. Am. Life Ins. Co. of New York, 548 N.Y.S.2d 284, 285 (2d Dep't 1989), and that "it would have rejected the application if it had known the undisclosed information, and summary judgment cannot be granted unless the insurer comes forward with proof that it would not have issued the policy had it known the undisclosed facts."First Fin., 193 F.3d at 119. A court may not rely "merely on statements by representatives of the insurer that it would not have issued the policy but for the representation." Id. To meet its burden, the insurer "must submit evidence of its underwriting practices with respect to similar applicants." Id. The existence of a misrepresentation as well as the determination of materiality "normally presents an issue of fact for the jury, but where the evidence concerning the materiality is clear and substantially uncontradicted, the matter is one of law for the court to determine. JMR Electronics, 848 F.2d at 32 (citation omitted); see also Nat'l Life Ins. Co. v. Solomon, 529 F.2d 59, 61 (2d Cir. 1975).
Prudential argues that the insured made three material misrepresentations in his application for insurance. Prudential alleges that misrepresentations about employment status and travel plans were material. Prudential also contends that Mr. Loo impersonated Chen at the April 14, 2000 medical examination and Chen, in fact, never submitted to the required physical.
It is uncontested that the insurance application contains a misrepresentation with respect to Chen's employment status. Prudential has failed to offer evidence, however, that this misrepresentation was material. The only evidence offered by Prudential regarding its underwriting policies provides that the company would not have issued the policy if Mr. Loo had in fact taken the April 14, 2000 medical examination. It does not state that Prudential would have acted any differently based on different employment information.
In a similar vein, while it is uncontested that the insurance application contained a misrepresentation as to Chen's foreign travel plans, Prudential has not shown that this misinformation was material to its decision to issue the policy. Chen allegedly stated on the application that he did not have plans to travel to China within 12 months of receiving the insurance. Prudential's computer notes from March 27, 2000 show that Prudential was aware of Chen's immediate travel plans, and nevertheless issued him the policy. In any event, Prudential has not provided evidence with respect to the materiality of the alleged travel plan misinformation.
Prudential's allegation that the insurance application was procured by fraud as a result of Mr. Loo's impersonation of Chen at the April 14, 2000 medical examination suffers from a different problem. While Prudential has offered evidence to establish that if Mr. Loo — and not Chen — took the medical examination, Prudential would not have issued the policy to Chen, there are questions of fact about who actually took the examination. It is uncontested that the person who took the medical examination used an identification card with Mr. Loo's picture and Chen's name. Hou testified that she compared the photograph, as well as the signature, on the identification with the examinee and believed that she was examining the person in the photograph. Mr. Loo, however, denies that he was the individual examined.
In support of their claim that Chen, and not Mr. Loo, took the April 14, 2000 medical examination, plaintiffs have submitted a November 17, 2004 affidavit signed by counsel for plaintiffs to which the results of a purported November 3, 2004 EKG of Mr. Loo are attached. The affidavit alleges that the attached EKG proves that Mr. Loo could not have been the person who was examined by Hou on April 14, 2000. Neither the November 17 affidavit nor the November 3 EKG will be considered on this motion.
Discovery ended in August 2004. On November 3, plaintiffs requested and received more time to oppose the instant motion based on the representation that it was needed because they had just received a copy of plaintiffs' deposition transcripts. It now appears that they sought the extension to have an EKG examination of Mr. Loo that day. Prudential has not had the opportunity to review the EKG or to test its reliability.
Waiver of the Material Misrepresentation Defense
Plaintiffs argue that Prudential has waived its claim that there were material misrepresentations in the policy that permit Prudential to rescind the agreement because Prudential failed to assert this defense in its answer, initially denied payment on the policy on the ground that plaintiff failed to submit adequate proof of death and not because of material misrepresentations, and raised the defense after the two-year contestability period ended. These arguments are meritless.
Plaintiffs' brief also appears to argue that any material misrepresentations in the application are not attributable to Chen because Chen did not speak English and could not have filled out the insurance application. This argument is specious. First, plaintiffs have provided no evidence that Chen was not able to speak or read English sufficiently or that he did not understand the terms of the policy or the application. Second, under New York law, "persons illiterate in the English language are not automatically excused from complying with the terms of a contract which they sign simply because they could not read it. Such persons must make a reasonable effort to have the contract read to them." Shklovskiy v. Khan, 709 N.Y.S.2d 208, 209-10 (2d Dep't 2000).
Although Prudential's December 13 Letter stated that plaintiff had inadequately proven the death of the insured, the letter also provided that Prudential did not waive any other defense available to it. Prudential included a counterclaim of material misrepresentations in its October 30 answer. When a death occurs during a policy's two year contestability period, the right to contest the beneficiary's claim based on material misrepresentations on the insurance application is available even after the two year contestability period ends when, for example, the insurer only becomes aware of the alleged material misrepresentation after the two year period has ended. See Hydell, 667 N.Y.S.2d at 393; see also Republic Ins. Co. v. Masters, Mates Pilots Pension Plan, 77 F.3d 48, 53 (2d Cir. 1996).
"Due Proof" of Death
The defendant has moved for summary judgment for the plaintiffs' failure to submit "due proof" of Chen's accidental death. Prudential's argument hinges on the admissibility at trial of Chen's death certificate. Prudential has confused the standards that apply to beneficiaries at two different stages of the process of seeking to recover on a claim.
When an insurance policy contains a requirement that a beneficiary submit "due proof" of accidental death in order to collect on accidental death benefits, the insured must provide to the insurer "such reasonable evidence as the party can command at the time, to give assurance that the event has happened." See Binder v. Commercial Travelers Mut. Acc. Ass'n of America, 165 F.2d 896, 899 (2d Cir. 1948) (citation omitted); see also Lampert v. John Hancock Mut. Life Ins. Co., 28 F. Supp. 142, 143 (E.D.N.Y. 1939), aff'd, 107 F.2d 1016 (2d Cir. 1939); Dana v. Northwestern Mut. Life Ins. Co., 272 N.Y.S. 296, 297 (N.Y.Sup.Ct. 1932), aff'd, 259 N.Y.S. 1011 (1st Dep't 1932). As a condition precedent to the collection of life insurance, "due proof" need not be "full, clear and explicit proof, which would be required upon the trial of an issue upon the question."Lampert, 28 F. Supp. at 143 (citation omitted); see also Wachtel v. Equitable Life Assur. Soc. of the United States, 266 N.Y. 345, 350 (N.Y. 1935); Binder, 165 F.2d at 899. In fact, in the absence of any specific contract requirement as to the mode or manner of making proof of death, "any method is sufficient which serves to bring home to the insurer the fact and proof of the death of the insured." 13 Couch on Ins. §§ 188:23; see also Cohen v. Metro. Life Ins. Co., 144 F.2d 748, 750 (3d Cir. 1944) (oral representations sufficient "due proof") (applying New Jersey law); Berkowitz v. New York Life Ins. Co., 10 N.Y.S.2d 106, 113-14 (1st Dep't 1939) (beneficiary's affidavit sufficient "due proof").
When providing "due proof" of an accidental death to the insurer, the insured "may not rest on the fact of her husband's absence or circumstantial evidence that he could have died an accidental or violent death." Caporino v. Travelers Ins. Co., 62 N.Y.S.2d 519, 521 (N.Y. 1984).
In New York, a death is caused by accidental means if it was the result of some unexpected and unlikely consequences.See Burr v. Commercial, 295 N.Y. 294, 300-302 (N.Y. 1946).
Due proof of an accidental death requires the beneficiary to come forward with proof of the accidental nature of the death. The evidence must indicate the truth of the facts states and if insufficient proof is submitted to the insurer, the insurer may request further information and the failure of the claimant to supply such proof may bar recovery.
13 Couch on Ins. § 189:53.
If an insurer contests a claimant's "due proof" of death or accidental death and the claimant brings suit to collect on the policy, the claimant must then prove to the finder of fact with admissible evidence that the insured died and that death was accidental. See, e.g., Tu v. Mut. Life Ins. Co., 136 F.3d 77, 79 (1st Cir. 1998) (applying Massachusetts law); Wachtel, 266 N.Y. at 350-51; 13 Couch on Ins. §§ 189:43, 189:52, 189:77. The insurer is "not the final judge" on proof of death and proof of means of death; "the question becomes one to be determined by the court." 13 Couch on Ins. § 189:46.
Plaintiffs met their initial burden of providing Prudential with "due proof" of Chen's death and that it was accidental. Plaintiffs provided eleven pages of documents that include Chen's death certificate. The certificate, which states that it is based on a certificate issued by the police in Fuzhou, states that Chen died accidentally on September 2, 2000 in Fuzhou ("Certificate"). It includes a receipt for the cremation as well as information purportedly received from the police about Chen's death. The Certificate is signed by a notary in Fuzhou, Huang Qua Ping ("Ping"), and dated September 22, 2000. A document authenticating the Certificate was signed by the manager of the Fujian Province Foreign Affairs Office, Yu Doa Quango ("Quango") ("Authentication"). Quango's signature serves to certify that the Ping's signature is an official signature. A general authentication certificate signed by Christina L. Tomlinson ("Tomlinson"), the Vice Consul of the United States at Guangdong Province, certifies that Quango identified himself correctly and that he was empowered to act as the manager of the Fujian Province Foreign Affairs Office. The collection of documents supplied by the plaintiffs to Prudential does not include any document from the Fuzhou police.
In denying plaintiffs' claim for benefits in December 2001, Prudential challenged the sufficiency of plaintiffs' "due proof" of accidental death. In this motion, Prudential argues that it is entitled to summary judgment because plaintiffs do not have admissible evidence which proves Chen died accidentally. Prudential contends that the Certificate is inadmissible and without that document in evidence, a reasonable juror could not conclude by a preponderance of the evidence that Chen had died accidently. More specifically, defendant contends that the death certificate is inadmissible under Rule 901, Fed.R.Evid., because the Certificate is not properly authenticated or self-authenticating, because plaintiffs cannot produce anybody with direct knowledge of the death certificate, and inadmissible under Rule 902, Fed.R.Civ.P., because of the myriad of unresolved questions surrounding Chen's death and because Tomlinson only attested to the veracity of Quango's signature, and not that of the notary who first authenticated the death certificate, Ping.
If a death certificate is properly certified, it is uncontested that it would be "prima facie evidence in all courts and places of the facts therein stated," including the cause of death. Anderson v. Commercial Travelers Mut. Accident Ass'n, 423 N.Y.S.2d 542, 543 (3d Dep't 1979) (citing N.Y. Pub. Health Law § 4103).
Rule 901(1), Fed.R.Evid., provides that in order for physical evidence to be admitted in evidence, there must be testimony of a witness with knowledge that "a matter is what it is claimed to be."
Rule 902(3), Fed.R.Evid., provides:
A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
(Emphasis supplied.)
Prudential's attempt to exclude the death certificate must fail. The Certificate contains a "final certification" of a vice-counsel as to the "genuineness of the signature and official position" of a "foreign official whose certificate of genuineness of signature and official position" is in a "chain of certificates of signature and official position relating to the execution or attestation of the death certificate." Rule 902(3), Fed.R.Evid. In other words, because Tomlinson certified Quango's authentication, and Quango had certified Ping's status and signature, and Ping had notarized the death certificate, this document is self-authenticating under Rule 902(3).
It is worth noting that nothing from Prudential's investigation in China casts doubt on the facts reflected in this chain of certifications. The police in Fuzhou apparently believed that a man who died accidentally on September 2, 2000 was identified by his relatives as Chen. Moreover, Prudential has not presented any evidence that this chain of certifications does not comport with the practice in China for certifying death. See Tu, 136 F.3d at 79.
Prudential's reliance on Woodley v. Monumental Life Ins. Co., No. 98C7677, 2000 WL 1721158 (N.D. Ill. Nov. 15, 2000), is unavailing. In Woodley, the death certificate was inadmissible because the vice counsel certified the signature and office of an individual who not only did not sign the death certificate, but unlike the present case, was not in the chain of certifications of the death certificate. Id. at *3.
Presumption of Death
In their opposition to this motion, plaintiffs argue that even if they had not initially satisfied the "due proof" of death requirement in the insurance policy or provided enough admissible evidence for a jury to determine Chen had died accidentally, they have set forth sufficient evidence for a finding of statutory presumption of death pursuant to N.Y. Est. Powers Trusts Law ("EPTL") § 2-1.7(a). EPTL § 2-1.7(a) provides, in pertinent part:
A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving any property of such person, contractual or property rights contingent upon his or her death or the administration of his or her estate, to have died three years after the date such unexplained absence commenced, or on such earlier date as clear and convincing evidence establishes is the most probable date of death.
(Emphasis supplied.) "The burden of establishing the facts which may, within reason, give rise to the presumption [of death] is upon the person invoking it." Kutner v. New England Mut. Life Ins. Co. of Boston, 395 N.Y.S.2d 540 (4th Dep't 1977) (citation omitted). While normally the question of whether the presumption should arise from the evidence presented is one of fact for the jury, where "the evidence is without contradiction and incapable, whether without or with contradiction, of creating, in reasonable minds, conflicting inferences, the question is one of law for the trial justice to decide." Id. at 541.
Mr. Loo and Ms. Loo have not plead or provided evidence which satisfy the requirements of EPTL § 2-1.7(a). At a mimimum, they have not even attempted to establish that they, or anybody for that matter, has conducted a diligent search for Chen.
Conclusion
The motion for summary judgment by The Prudential Insurance Company of America is denied.
SO ORDERED.