Conflicting Presumptions


You have brought a diversity case in Federal Court against Sun Life Insurance Company of Canada in behalf of Miranda Brown, beneficiary of a $100,000 "double indemnity" life insurance policy insuring the life of her husband, Alex Brown. Applicable state law recognizes a presumption of continuing life (for seven years after unexplained disappearance) and a presumption against suicide. Here is the evidence.

1) Alex Brown, a contractor by occupation, and a pilot by hobby, disappeared with his 1988 Cessna 172 single-engine airplane on July 12, 1998 and has not been seen or heard from since.

2) On July 12 a commercial fisherman working near Matinicus Island (about 60 miles from Alex's house and airstrip) heard on his radio (which was tuned to the aircraft Unicom frequency) an unidentified male voice exclaim, "I am going in!"

3) On July 29 a nosewheel of a Cessna washed up on Matinicus Island. It came from a Cessna of the same model as Alex's. This model had been manufactured from 1982-1992.

4) On July 12 Miranda Brown came home from work and found an envelope lying in the middle of the dining room table. On the front of the envelope in Alex's handwriting were the words, "To my wife, with Love". Inside the envelope was the Sun Life Insurance policy on which suit was brought.

At the conclusion of the evidence both parties move for a directed verdict. What ruling and why? Does it depend on the "weight" to be afforded the applicable presumptions under state law? See Rule 302. If the motions are denied, how should the jury be instructed?

Rule 301 as ultimately enacted appears to be an adaptation of the bursting bubble approach and certainly is a rejection of the burden-shifting and presumptions-as-evidence approaches. What it actually is, as we shall see, remains somewhat unclear. Apparently the Senate Committee thought that the burden of production described by Rule 301, if unmet, would not result in a directed verdict. The Senate report says that "it would be inappropriate under this rule to instruct the jury that the inference they are to draw is conclusive.'' But what did the drafters think the jury should be told? Here the legislative history offers up gibberish:

If the adverse party offers no evidence contradicting the presumed fact, the court will instruct the jury that if it finds the basic facts, it may presume the existence of the presumed fact. If the adverse party does offer evidence contradicting the presumed fact, the court cannot instruct the jury that it may presume (emphasis in the original) the existence of the presumed fact from proof of the basic facts. The court may, however, instruct the jury that it may infer the existence of the presumed fact from proof of the basic facts.

Do the drafters presume that jurors know the difference between "presume'' and "infer''?

Suppose a juror who is told that he "may presume'' a fact says, "Well, I understand that I may do so, but by what criteria do I decide whether I should do so?''

Suppose a judge wanted to use Rule 301 as an explanation-seeker? How would he instruct the jury? And would the instructions be consistent with the legislative history of 301?

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