United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2193

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David J. Wood, Trustee of the *

Richard T. Smith Family Trust #2, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Valley Forge Life Insurance *

Company, *

*

Appellee. *

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Submitted: November 15, 2006

Filed: February 27, 2007

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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

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ARNOLD, Circuit Judge.

Valley Forge Life Insurance Company appeals the entry of partial summary

against it and the entry of judgment against it for accidental death benefits under an

insurance policy. We affirm.

I.

David Wood sued Valley Forge for benefits under the accidental death benefits

rider of a life insurance policy taken out by M. David Howell and Richard T. Smith

on Mr. Howell's life. Mr. Smith was the original beneficiary of the policy, and he
1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

2

The Honorable G. Thomas Eisele, United States District Judge for the Eastern

District of Arkansas.

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later assigned the policy to the Richard T. Smith Family Trust. Mr. Wood is the trust's

trustee.

Mr. Howell was found dead after a drug and alcohol overdose in a Los Angeles

hotel room. Two years after Mr. Howell died, Mr. Wood submitted a claim for

accidental death benefits. Valley Forge denied coverage on the ground that

Mr. Howell's death was a suicide and a rider explicitly excluded suicide from

coverage. Alternatively, Valley Forge maintained that coverage was precluded by the

exclusion for deaths "caused or contributed to by sickness and disease" because

Mr. Howell's drug and alcohol addictions and depression contributed to the overdose.

Mr. Wood filed suit. Valley Forge raised the affirmative defense that the life

insurance policy never went into effect because of alleged misrepresentations in the

application, thus barring the claim, and it filed a counterclaim seeking to rescind the

original policy. The district court1

 granted Mr. Wood's motion for partial summary

judgment against both this defense and the related rescission claim. The court also

granted partial summary judgment to Mr. Wood on Valley Forge's defense that

Mr. Howell's death was caused or contributed to by sickness and disease and therefore

excluded from accidental death coverage.

After the case was transferred to a different district judge,2

 a jury trial was held

on the sole issue of whether Mr. Howell's death was a suicide or an accident. The

district court admitted Mr. Howell's death certificate and his autopsy report into

evidence, but granted Mr. Wood's motion to redact from both documents the coroner's

conclusion that Mr. Howell's death was a suicide. The court's jury instructions placed
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the burden of proof on Valley Forge to show that Mr. Howell had committed suicide;

directed the jury to find against Valley Forge if it had a "fair question" as to

Mr. Howell's cause of death; and required Valley Forge to prove that Mr. Howell

intended to take his life "then and there." The jury determined that the death was

accidental, and the district court entered judgment in Mr. Wood's favor.

Valley Forge appeals the pre-trial orders granting partial summary judgment to

Mr. Wood. In addition, Valley Forge appeals the judgment entered in favor of

Mr. Wood following the jury verdict; the insurer contends that the district court erred

at trial by redacting the coroner's conclusion of suicide from the death certificate and

the autopsy report and by improperly instructing the jury.

II.

We review de novo the district court's grant of partial summary judgment

against Valley Forge. Wal-Mart Stores, Inc. v. RLI Ins. Co., 292 F.3d 583, 586 (8th

Cir. 2002). Summary judgment is appropriate where there is no genuine issue of

material fact and the moving party is entitled to judgment in its favor as a matter of

law. Fed. R. Civ. P. 56(c).

A.

We consider first Valley Forge's argument that the policy was void ab initio

because Mr. Howell and Mr. Smith failed to comply with a condition precedent. The

district court ruled against Valley Forge on this claim, relying, in part, on the so-called

incontestability clause in the policy. That clause, which was required by a state statute

in effect at the time that the policy was issued, see Ark. Stat. § 23-81-105 (1998),

precluded Valley Forge from contesting the policy after it had been "in force during

the Insured's lifetime for 2 years from the Policy Date." Here the policy date was

more than two years before Mr. Howell's death and four years before Mr. Wood's

claim for benefits. Valley Forge argues, however, that the policy was never "in force,"
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as required by the incontestability clause, because the failure of a condition precedent

prevented the formation of a contract.

The application form states that the "insurance will not take effect until the

policy is delivered while ... conditions remain as described in this application."

Relying on this language, Valley Forge maintains that the policy never "took effect"

because when it was delivered certain "conditions," i.e., Mr. Howell's income and net

worth, were not as stated in the application. But we question the applicability of this

provision to the case before us: We believe that by stating that the policy would not

be effective unless conditions "remain[ed]" as described, the provision addresses

situations where circumstances change after an application is completed but before

delivery of the policy, not situations involving misrepresentations in the application

itself. Valley Forge, however, did not rely on a change. Instead it alleged in its

counterclaim that a "condition precedent" had not been satisfied because Mr. Howell's

statements regarding his income and net worth were "false when made and when the

policy was issued."

We note, moreover, that Valley Forge's contention that the contract was void

ab initio might be more persuasive if language to the contrary did not appear on the

very page of the application that included the alleged misrepresentations. At the

bottom of the financial questionnaire setting out figures for Mr. Howell's income and

net worth, and immediately above Mr. Howell's signature, the form recites that "any

material misstatement in this declaration, or elsewhere in this application, will render

the policy, if issued, voidable" (emphasis added). Based on the plain language of this

document, Valley Forge's claim that the policy was void ab initio must fail. And even

assuming that an ambiguity was created by a conflict between the statement in the

questionnaire and the provision upon which Valley Forge relies, our conclusion would

be the same because an ambiguity is construed against the insurer, see Phelps v. U.S.

Life Credit Life Ins. Co., 336 Ark. 257, 261-62, 984 S.W.2d 425, 428 (1999).
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As we have said, the policy was voidable, not void ab initio. It was therefore

"in effect" for more than two years before Mr. Howell died, and thus the

incontestability clause barred Valley Forge's later rescission claim. See Life & Cas.

Ins. Co. of Tenn. v. Smith, 245 Ark. 934, 938, 436 S.W.2d 97, 99 (1969). We

therefore agree with the district court that the life insurance policy was valid as a

matter of law.

B.

We turn now to Valley Forge's assertion that the district court erred in granting

partial summary judgment to Mr. Wood on the question of whether the policy

exclusion for death "caused by or contributed to by sickness or disease" applied.

Valley Forge maintains that a jury should have determined whether Mr. Howell's drug

dependence and depression were diseases that caused or contributed to his death. The

district court disagreed, concluding that the exclusion is limited to proximate causes

of death and that as a matter of law drug dependence and depression "were only

remote indirect causes rather than proximate causes of Mr. Howell's death."

Because the Arkansas Supreme Court has not addressed the specific issue in

this case, our task is "to predict how the Arkansas Supreme Court would resolve the

issue if confronted with it." See Jackson v. Anchor Packing Co., 994 F.2d 1295, 1301

(8th Cir. 1993). We conclude that the Arkansas Supreme Court would require

proximate cause to trigger the exclusion, and thus we affirm the order of the district

court.

In two cases of relevance, the Arkansas Supreme Court decided that where an

accident aggravates a preexisting disease, the insurer is not relieved of liability on an

accidental death policy. See Life & Casualty Ins. Co. of Tenn. v. Jones, 230 Ark. 979,

985-86, 328 S.W.2d 118, 121-22 (1959); Prudential Ins. Co. of Am. v. Croley,

199 Ark. 630, 632-35, 135 S.W.2d 322, 324 (1940). In Jones, the insured had a heart

condition that contributed to his death from a heart attack after someone struck him
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with a bottle. The Arkansas Supreme Court considered his death to be accidental

within the meaning of the policy. Jones, 230 Ark. at 983-87, 328 S.W.2d at 120-22.

And in Croley, 199 Ark. at 632-35, 135 S.W.2d at 324, the court held that the

evidence supported a finding that the proximate cause of death was the decedent's

injury and exposure to inclement weather as a result of an automobile accident which,

according to expert testimony, caused him to contract the pneumonia from which he

died; the decedent's preexisting bronchitis which made him more susceptible to

pneumonia did not affect the insurer's liability. In both cases, the Arkansas Supreme

Court concluded that the only causes relevant to determining whether the beneficiary

was entitled to accidental death coverage were the proximate causes, which in Jones

and Croley were the accident and the resulting injuries.

We recognize that since Mr. Howell did not die from aggravation of a

preexisting disease, Jones and Croley are not directly on point. Valley Forge's

argument here is that Mr. Howell's disease caused the overdose, not that the overdose

aggravated his preexisting alcoholism, drug addiction, and depression. But Jones and

Croley stand for the general proposition that in cases like the present one, a court

should not go further back up the line of causation than what is generally called a

proximate cause. Applying that principle here, as we believe the Arkansas Supreme

Court would do, we conclude that Mr. Howell's drug addiction and depression are too

remote to be a proximate cause of Mr. Howell's death, and those conditions thus

cannot support the exclusion that Valley Forge argues for here.

III. 

Valley Forge also appeals the district court's decision to redact the coroner's

conclusion that Mr. Howell's death was a suicide from the death certificate and the

autopsy report before admitting them into evidence. We hold that the district court

erred in redacting the evidence, but we nevertheless affirm the judgment because we

conclude that the error was harmless.
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The district court's rationale for redacting the coroner's conclusion is unclear

from the record. Because it is also unclear whether the district court applied Arkansas

or federal law and the parties dispute which law to apply, we emphasize that the

Federal Rules of Evidence govern the admissibility of evidence in this diversity case.

See Sosna v. Binnington, 321 F.3d 742, 744-45 (8th Cir. 2003). The death certificate

and autopsy report were both admissible into evidence without redactions as business

records under Federal Rule of Evidence 803(6). See Sosna, 321 F.3d at 747.

Although Federal Rule of Evidence 403(b) allows the district court to exclude

otherwise admissible evidence that is more unfairly prejudicial than probative, that

rule does not justify exclusion here. The coroner's conclusion was certainly probative

as to the cause of Mr. Howell's death, and the only "prejudice" to Mr. Wood of

admitting the evidence is that it helps Valley Forge's case. We can discern no inherent

unfairness in this evidence. Furthermore, under Federal Rule of Evidence 704(a),

evidence such as the coroner's opinion cannot be objectionable on the ground that "it

embraces an ultimate issue to be decided by the trier of fact." We thus conclude that

the district court erred in excluding the evidence.

Nevertheless, when we consider the record as a whole, we are satisfied that the

error was harmless. We affirm the district court's judgment because we have a

"reasonable assurance that the jury would have reached the same conclusion had the

evidence been admitted." Adams v. Fuqua Indus. Inc., 820 F.2d 271, 273 (8th Cir.

1987). There was significant testimony from Valley Forge's expert that Mr. Howell's

death was a suicide. The expert testified at length as to the basis for his opinion,

including Mr. Howell's background and his substance abuse and depression. The

district court also admitted the records of the Betty Ford Center, where Mr. Howell

had been treated just before his death. These records showed that Mr. Howell had

contemplated suicide and had told Center personnel of his plans to kill himself.

Although we recognize that the coroner's conclusion would have provided additional

support for Valley Forge's contention that Mr. Howell committed suicide, we cannot
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conclude that its exclusion had an appreciable effect on the jury's verdict. Given this,

we conclude that the exclusion was harmless.

IV.

The remaining issues in the case involve contested jury instructions. In

reviewing challenges to jury instructions, we ask "whether the instructions, taken as

a whole and viewed in light of the evidence and applicable law, fairly and adequately

submitted the issues in the case to the jury." Wheeling Pittsburgh Steel Corp. v.

Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001). We will not

reverse based on instructional error unless the error affected a party's "substantial

rights." Id.

A.

Valley Forge asserts that the jury instructions improperly placed the burden on

it to prove suicide, thus relieving Mr. Wood of his burden to prove accidental death.

In ruling on Valley Forge's motion for a new trial, the district court concluded that

since the only possible causes of Mr. Howell's death were suicide or accident, it would

have been "confusing, unnecessary, and indeed, prejudicial to instruct the jury on

Plaintiff's burden to prove accidental death."

We believe that the district court fairly presented the issue to the jury. Arkansas

law is clear that the insurer bears the burden of proving suicide, Cypress Farms, Inc.

v. Employers Life Ins. Co. of Am., 479 F.2d 124, 126 (8th Cir. 1973), and a "plaintiff

is not required to prove that the death of the insured did not result from suicide."

Aetna Life Ins. Co. v. Newbern, 127 F.2d 171, 173 (8th Cir. 1942). We also agree

with the district court that if the death was not a suicide, it was accidental. Mr. Wood

was thus entitled to prevail unless Valley Forge proved that Mr. Howell's death was

a suicide.
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B.

Valley Forge also maintains that the trial court misstated what Valley Forge was

required to prove to prevail on its argument that the death was a suicide. The relevant

instruction stated that if "there is a fair question" as to whether the death was due to

an accident or to suicide, the jury should find that it was due to an accident. The court

further instructed the jury that a "fair question is an honest question, one that is based

on the evidence or lack of evidence." The instruction was taken almost verbatim from

O'Malley, Grenig, & Lee, 3 Federal Jury Practice and Instructions § 126.71 (5th ed.

2000). The district court denied Valley Forge's motion for a new trial based on this

instruction, concluding that the instruction correctly stated what Valley Forge had to

prove. We agree.

The instruction incorporates the presumption against suicide that exists under

Arkansas law. "[P]roof of death of an insured from injuries received by him raises a

presumption of accidental death . . . and this presumption will continue until overcome

by affirmative proof to the contrary." Metropolitan Cas. Ins. Co. v. Chambers, 136

Ark. 84, 93, 206 S.W. 64, 67 (1918). 

The court's instruction also properly stated the combined effect of the "strong"

presumption against suicide, see Security Life & Trust Co. v. First Nat'l Bank in Little

Rock, 249 Ark. 572, 577, 460 S.W.2d 94, 96 (1970), and Valley Forge's burden of

proving suicide by a preponderance of the evidence. The Arkansas Supreme Court

has held that the presumption against suicide carries independent evidentiary weight.

See Union Cent. Life Ins. Co. v. Sims, 208 Ark. 1069, 1074, 189 S.W.2d 193, 195

(1945). Contrary to Valley Forge's assertions, it would thus not have been enough for

the district court to provide a general preponderance of the evidence instruction

placing the burden of proof on the insurer (i.e., an instruction that the plaintiff should

prevail if the evidence is in equipoise) because the presumption itself counts as

evidence against a finding of suicide. See Security Life, 249 Ark. at 578-79,

460 S.W.2d at 97. The presumption is of sufficient weight to require the jury to find
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that the death was an accident where under the evidence there is a fair question as to

the manner of death, that is where the evidence is "nearly evenly balanced."

Metropolitan Life Ins. Co. v. Graves, 201 Ark. 189, 197, 143 S.W.2d 1102, 1106

(1940).

C.

The court's jury instructions required Valley Forge to prove that "when

[Mr. Howell] consumed the drugs and alcohol he did so with the intent then and there

to take his life." Valley Forge maintains that the phrase "then and there" improperly

imposed a temporal element not found in the law and prejudiced its case. The district

court held that the "then and there" language was not prejudicial because it added

nothing to what Valley Forge was required to prove. We agree.

The challenged instruction fairly described what the jury had to find to conclude

that Mr. Howell committed suicide. For Valley Forge to prove suicide, it needed to

prove that Mr. Howell intended to commit suicide at the time of the overdose, that is

"then and there." It would not have been sufficient for Valley Forge to prove that Mr.

Howell had a general desire to kill himself that was not fully formed or on which he

did not intend to act when he overdosed

V.

For the reasons stated, we affirm the judgment of the district court.

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