On October 1, 2007, X and the D Insurance Company execute a life insurance policy. The first page of the policy is in these terms:
D Insurance Company (“D Co.”) agrees to pay to P, the beneficiary, ten thousand dollars ($10,000) upon receipt of written proof of the death of X, the insured. The foregoing agreement is made in consideration of the application for this policy and the payment of the first premium of $100, receipt of which is hereby acknowledged, and in further consideration of the payment of the yearly premium of $100 on or before the first day of October in every year after 2007 during the life of X. This policy is issued and accepted subject to all the provisions and conditions set forth on the following consecutively numbered pages, which are hereby made a part of this contract.
In witness whereof, the parties hereto have caused this policy to be executed this first day of October, 2007.
(Signed) A, President of D Co.
Page 3 of the policy contains, inter alia, the following:
Suicide. If the insured shall within one year after the date of execution of this policy die by his or her own hand or act, whether sane or insane, no amount shall be payable under this policy.
X dies, and D Co. refuses to pay P. Later in 2007 the action of P v. D Co. is brought in a court of a state that has adopted, in all relevant respects, the Federal Rules of Civil Procedure. The body of the complaint (to which the policy is attached) includes an adequate allegation of jurisdiction as §1; the remainder of the body of the complaint is as follows:
- 2. On October 1, 2007, D Co. and X executed a policy, attached hereto and incorporated herein.
- 3. On October 5, 2007, X died; and shortly thereafter P sent and D received written proof thereof.
- 4. D Co. owes P the face amount ($10,000) of said policy.
Wherefore P demands judgment against D Co. for the sum of $10,000, interest, and costs.
D Co. makes a motion containing a 12(b)(6) defense together with a 12(e) request for a more definite statement. Both are denied.
D Co. then files in due time an answer, the body of which is as follows:
First Defense: D Co. admits §§ 1 and 2 of the complaint; and D Co. denies each and every other allegation contained in the complaint.
Second Defense: D Co. is informed and believes and, based upon such information and belief, D Co. alleges that, on or about October 5, 2007, X committed suicide.
Incidentally, under the state’s law, D Co. has the burden of pleading and proving suicide, with the standard of decision being preponderance of the evidence.
Just recently, the case has come to trial before a jury. P introduces in evidence an official death certificate certifying that the death of X occurred on October 5, 2007, together with proof that on October 6 P mailed to D Co. a copy of the certificate and that on October 8 D Co. received such copy. Thereupon P rests his case and immediately makes the following motion: “P moves for a directed verdict in his favor.” The motion is denied.
D Co.’s evidence tends to show that, in August and September of 2007, X was drinking heavily and mentioned suicide on several occasions; that on October 5 he suffered severe burns on eighty percent of his body as the result of a fire in his automobile, burns from which he later died; that the car had been burning for some time before X got out of the car; that as he left the car his clothes were “all afire”; that a passing motorist stopped and, in an attempt to extinguish the flames, threw sand on X, the motorist later testifying that X at the time said, “Just let it burn and burn”; that the interior of the car was on fire and that, although the car’s interior was badly burned, there was no fire damage under the hood and none in the trunk except where the rear seat had burned away; and that after the fire in the car had been extinguished, witnesses saw a “fairly well burned” gallon can in the car’s interior. All of this came in without objection by P.
P in rebuttal testifies, without objection, that in the months before his death X was in good humor and in love with life.
No additional testimony is offered by either party and, at the close of all the evidence, D Co. makes the following motion: “D Co. moves for a directed verdict in its favor, on the ground that the evidence overwhelmingly established that X committed suicide.” The motion is denied.
After closing arguments and instructions, the jury is sent out. The jury soon renders a verdict for P for the full amount. The clerk thereupon enters judgment for P.
In due time and form D Co. then moves: (i) for a judgment notwithstanding the verdict on the same ground as its directed verdict motion; and (ii) for a new trial on the ground that the verdict was against the weight of the evidence on the suicide issue. The judge states: “The weight of the evidence is clearly against the plaintiff so that as a matter of law it becomes the duty of the court to withdraw the case from the jury and enter a judgment for the defendant. The motion of the defendant for a judgment notwithstanding the verdict of the jury will be granted for the reason that its motion for a directed verdict should have been granted. The motion for a new trial will be denied. It is my judgment that the evidence did not warrant going to the jury, but if I am wrong in that, then I do not think a new trial should be granted as there were no other errors of law.”
Judgment for D Co. was thereupon entered.
Answer one of the following two parts of this question:
(1) Assume you are the attorney for P. What single ruling by the judge, of which you could and would seek remedy, is most likely to result in relief? Explain.
(2) Assume you are the attorney for D Co. What single ruling by the judge, of which you could and would seek remedy, is most likely to result in relief? Explain.