Colasanto v. Life Insurance Co. of North America

                  UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                             

No. 96-1152

             VALENTINO T. COLASANTO, TRUSTEE OF THE 
               ROBERT M. COLASANTO REVOCABLE TRUST,

                      Plaintiff, Appellant,

                                v.

             LIFE INSURANCE COMPANY OF NORTH AMERICA,

                       Defendant, Appellee,

                                v.

                        STEPHEN A. FARLEY,

                 Third-Party Defendant, Appellee.
                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Ernest C. Torres, U.S. District Judge]
                                                                
                                             

                              Before

                      Selya, Circuit Judge,
                                                    

                 Campbell, Senior Circuit Judge,
                                                         

                and Boyle,* Senior District Judge.
                                                           

                                             

     Katherine A. Merolla, with whom Amedeo C. Merolla and Pucci,
                                                                           
Goldin & Merolla were on brief, for appellant.
                          
     William B.  VanLonkhuyzen, with  whom Norman S.  Zalkind and
                                                                       
Zalkind,  Rodriguez, Lunt &  Duncan were  on brief,  for appellee
                                             
Stephen A. Farley.
                                             

                        November 15, 1996
                                             

                 
*Of the District of Rhode Island, sitting by designation.


          SELYA, Circuit  Judge.  This appeal  summons our review
                    SELYA, Circuit  Judge.
                                         

of a jury verdict that awarded certain life insurance proceeds to

the  decedent's quondam companion rather than  to a family trust.

Upon close perscrutation  of the record, the parties' briefs, and

the applicable law, we discern no error.

I.  BACKGROUND
          I.  BACKGROUND

          We  start with a neutral account of the facts that were

before the jury.   The  decedent, Robert M.  Colasanto, made  his

mark as a successful  business executive.  In September  of 1982,

Colasanto met Stephen  A. Farley.   A relationship developed  and

the  two men  began cohabiting  in San  Diego, California.   They

lived initially in  a rented  dwelling and later  in a  luxurious

home that Colasanto  purchased.  During this time frame Colasanto

founded a  health-care organization, Community Care Network, Inc.

(CCN),  which became  hugely successful.   Colasanto  enjoyed the

fruits of his  good fortune including,  inter alia, a  beneficial
                                                            

interest under a  group life  insurance policy owned  by CCN  and

issued by  Life Insurance Company  of North America  (LINA) which

afforded him a $140,000 death benefit.

          Colasanto's  world  changed in  1989  when a  physician

diagnosed  him as HIV-positive.  By 1992, he had contracted AIDS.

Yearning  for his  native  New  England,  he  bought  a  home  in

Massachusetts.  Colasanto and Farley  took up residence there  in

the spring of 1993.

          As   Colasanto's  health  deteriorated,  so,  too,  his

relationship with  Farley.    The  two  men  began  discussing  a

                                2


property  settlement  in mid-1993.    Despite  the assistance  of

retained  counsel, they were unable to agree on terms.  According

to Farley, however, the parties reached an informal  agreement on

or about December 3,  1993.  Under that accord,  Colasanto was to

transfer ownership of five life insurance policies (including the

LINA group life policy) to Farley.

          On December 10, Colasanto completed and executed a form

entitled "Application  for Conversion  of Group or  Employee Life

Insurance"  (the conversion  application) with  the intention  of

converting his  coverage under the group policy  to an individual

policy.   Line  10(c)  of the  conversion  application bears  the

inscription  "Pay  Death Benefit  to,"  followed  by three  blank

lines.    Underneath  the  first blank  line  these  instructions

appear:  "Print Full Name of Beneficiary and State Relationship."

On  the left-hand side of  this line Colasanto  typed "Stephen A.

Farley."  He left a blank space  in the middle of the line and on

the right-hand side he  typed "Executor."1  On the  following two

lines Colasanto  added "Issue  policy with  Mr. Farley  as owner.

See  enclosed letter."  The  letter, signed by  Colasanto, bore a

caption indicating that it was being transmitted "RE:  CONVERSION

OF GROUP COVERAGE TO INDIVIDUAL COVERAGE   SPECIFICATION OF OWNER

OF INDIVIDUAL POLICY  WHICH IS ISSUED."   The body of the  letter

made explicit reference to  the conversion application and stated
                    
                              

     1The parties  agree that  on December 10,  1993, Colasanto's
will nominated Farley as his executor.  Colasanto made a new will
before he  died.  Farley was  not named as executor  then and was
not  appointed executor  of  Colasanto's estate  upon Colasanto's
demise.

                                3


in relevant part:

               Please  note that  I am  requesting that
          the individual policy be issued such that the
          owner is as follows:
          Stephen A. Farley
          10448 Russel Road
          La Mesa, CA 91941 D.O.B. 2-21-49

               Mr. Farley is currently  the beneficiary
          of the group coverage.   If he needs to  fill
          out another beneficiary form, please  send it
          to him since  that will be  his right as  the
          policy owner.

               The premium statement(s) should  be sent
          to Mr. Farley at the above address.

          Colasanto  transmitted  the conversion  application and

letter  to LINA.   He sent forms  and letters to  four other life

insurers on the same date.  Each letter instructed the carrier to

transfer ownership of the  affected policy to Farley.  In each of

the  five instances Colasanto  contemporaneously furnished Farley

with signed  copies of  the conversion application  or assignment

form,  the  cover letter,  and  a certified  mail  return receipt

request  in Colasanto's  handwriting asking  that the  receipt be

forwarded to Farley.2

          Farley  returned  to California  on  December  22.   On

January 19, 1994, Colasanto sent a premium payment to LINA on the

policy  in question and accompanied it  with a letter reiterating

"that the individual policy should be issued to Stephen A. Farley

as owner."   Colasanto added:  "If a separate form is required to

change  owner,  then  please  send  the  form.    Future  premium
                    
                              

     2Upon  Colasanto's death,  Farley  apparently collected  the
proceeds of the  other four  policies without incident.   In  any
event, none of those policies are implicated here.

                                4


statements should be sent to Mr. Farley as owner."  LINA sent the

individual policy to Colasanto in  early February together with a

letter admonishing  that if Colasanto wished  to designate Farley

as owner, he should  execute an assignment form and  return it to

LINA.  Despite the fact that LINA enclosed a blank form with this

letter, Colasanto never signed it.

          Later that month, Farley  returned to Massachusetts.  A

reconciliation ensued.3   Colasanto  repaired to  California with

Farley, only to return to  Massachusetts alone following a bitter

quarrel  that  took place  on  March  7, 1994.    The next  month

Colasanto  executed  a  change-of-beneficiary  form  in which  he

purported  to  designate  one   of  his  brothers,  Valentino  T.

Colasanto,  in his capacity as Trustee of the Robert M. Colasanto

Revocable  Trust,   as  the  beneficiary  of   the  LINA  policy.

Colasanto died on June 17, 1994.

          Both Farley and  the Trustee laid  claim to the  policy

proceeds.   The Trustee won the  race to the courthouse steps and

filed suit  against LINA  in a  Rhode Island state  court.   LINA

removed the case  to federal  district court, 28  U.S.C.    1441,

citing the existence of original jurisdiction arising out of both

diversity  and  interpleader, see  28  U.S.C.     1332(a),  1335,
                                           

impleaded  Farley, and  deposited the  face value  of  the policy

($140,000)  into  the  registry  of  the  district  court.    See
                                                                           
                    
                              

     3During  this  period Farley  took  possession  of both  the
subject  policy  and  the blank  assignment  form.   The  parties
disagree about  how this occurred.   The appellant  contends that
Farley filched the papers; Farley claims that Colasanto gave them
to him.

                                5


generally   Fed.  R.   Civ.  P.   22  (discussing   mechanics  of
                   

interpleader actions).

          LINA's  departure from  the  fray left  Farley and  the

Trustee locked in mortal combat.  After considerable skirmishing,

the case  was tried and the  jury returned a verdict  in Farley's

favor.    The  district  court thereafter  denied  the  Trustee's

motions under Fed. R. Civ. P. 50(b) (judgment as a matter of law)

and Fed. R. Civ. P. 59(a) (new trial).  This appeal followed.

          The Trustee  presses several  points in support  of his

position.    We have  considered them  all,  but address  in this

opinion only those contentions that  have arguable merit and that

are necessary to a resolution of this appeal.

II.  OWNERSHIP OF THE POLICY
          II.  OWNERSHIP OF THE POLICY

          The appellant's  flagship claim  is that no  reasonable

juror could conclude that  Colasanto transferred ownership of the

subject policy to  Farley, and the  lower court therefore  should

have granted  the motion for judgment  as a matter of  law.4  The

standard  of review referable to a trial court's refusal to order

judgment  as a  matter of  law is  set in cement.   The  court of

appeals  undertakes  plenary  review,   see  Gibson  v.  City  of
                                                                           

Cranston, 37 F.3d 731,  735 (1st Cir. 1994), and  "examine[s] the
                  

evidence  and the inferences reasonably  to be drawn therefrom in

the light most favorable to  the nonmovant," Wagenmann v.  Adams,
                                                                          
                    
                              

     4Transfer  of  ownership  is  a  critical  datum  since,  if
Colasanto remained the  owner of  the policy on  April 21,  1994,
then his  execution and delivery of  a change-of-beneficiary form
on that date would  have been effective, and the  policy proceeds
would be payable to the successor beneficiary (the Trustee).

                                6


829 F.2d 196, 200  (1st Cir. 1987).   In so doing the court  "may

not  consider  credibility  of witnesses,  resolve  conflicts  in

testimony,  or  evaluate  the  weight  of  the  evidence."    Id.
                                                                           

Overriding a jury verdict  is warranted only if the  evidence "is

so one-sided that the movant is plainly entitled to judgment, for

reasonable minds could not differ as to the outcome."  Gibson, 37
                                                                       

F.3d at 735.

                                A
                                          A

          The gist  of the Trustee's argument  is that Colasanto,

although taking  an initial  step  to transfer  ownership of  the

policy to Farley, never effectuated  that change according to the

terms of the policy.   Thus, no  reasonable jury could find  that

Colasanto  substantially  complied   with  the  explicit   policy

requirements necessary to anoint Farley as the owner.

          This argument misses the mark.  It is predicated on the

common law doctrine of substantial compliance.  The parties agree

that   the   substantive  law   of  Massachusetts   governs  this

controversy,  and, according to  the appellant, the Massachusetts

cases suggest that,  if a  policy specifies the  manner in  which

transfers  are to be made, the failure of literal compliance with

the policy requirements will  be excused only if the  insured did

everything  that he  could do  to comply  with  those provisions.

See, e.g., Acacia Mut. Life Ins. Co. v. Feinberg, 318 Mass.  246,
                                                          

250,  61  N.E.2d 122,  124 (1945)  (stating  that "it  is  of the

essence of substantial compliance that the insured must have done

all  in his  power  to  effect  the  change,  leaving  only  some

                                7


ministerial  act  on  the  part  of  the  insurer  necessary   to

consummate it"); Resnek v.  Mutual Life Ins. Co., 286  Mass. 305,
                                                          

309, 190 N.E. 603, 604-05 (1934) (similar).

          Building  on  this  base,  the appellant  points  to  a

provision in the LINA policy that states:  "Changes [of ownership

or  beneficiary]  must  be   requested  in  writing  on  a   form

satisfactory  to  us  and  sent to  our  Administrative  Office."

Because this condition could have been,  but was not, met   after

all, the carrier sent  Colasanto a blank assignment form,  and he

easily could have completed it and mailed it back   the appellant

insists  that there  was no  substantial compliance,  and, hence,

that  the attempted change of ownership was ineffectual.  See id.
                                                                           

at  309-10 (indicating that if the insured  is put on notice that

he has  not done all in his power to comply with the requirements

for changing a beneficiary,  as by the insurer's rejection  of an

improperly  completed  form, and  the insured  does not  take the

suggested remedial action,  there is no substantial  compliance).

Even though  Colasanto explicitly  designated Farley as  owner on

the conversion  application, reaffirmed that  designation in  the

cover  letter, and  wrote a  subsequent epistle  reiterating that

Farley owned the policy,  the appellant asseverates that Farley's

claim of ownership fails  because Colasanto never transmitted the

assignment form to LINA.  The appellant then tries to hoist  this

asseveration by its bootstraps, noting that LINA never recognized

a transfer of  policy ownership  to Farley,  instead sending  the

policy to Colasanto and accepting the change-of-beneficiary  form

                                8


that he subsequently submitted.

          There  are  two visible  flaws  in  the fabric  of  the

appellant's thesis.  In the first place, we do not think that the

doctrine of substantial compliance  applies to this case.   It is

generally  held  in  Massachusetts  that  the  provisions  of  an

insurance policy which stipulate  what formalities must attend an

assignment  are for  the  benefit of  the  insurer, not  for  the

benefit of others.  See Abbruzise v. Sposata, 306 Mass. 151, 153-
                                                      

54, 27 N.E.2d  722, 723-24  (1940); Goldman v.  Moses, 287  Mass.
                                                               

393, 397, 191 N.E. 873, 874 (1934).  When, as now, the insurer is

no longer a  combatant, and the  dispute over  the validity of  a

transfer  is limited to the  assignor and the  assignee (or those

claiming  under them),  the  assignor is  precluded from  relying

mechanically on the formalities built  into the policy to  defeat

the transfer.  See  Abbruzise, 306 Mass. at 153-54;  Goldman, 287
                                                                      

Mass. at 397; Herman v. Connecticut Mut. Life Ins. Co., 218 Mass.
                                                                

181, 185, 105 N.E. 450, 451 (1914); Merrill v. New Eng. Mut. Life
                                                                           

Ins.  Co., 103  Mass.  245,  252 (1869).    In other  words,  the
                   

assignment, though not in compliance with the policy, nonetheless

may be binding  as between the  assignor and assignee as  long as

the evidence of the act and  the intent is sufficient to  confirm

the assignment's validity.

          The second flaw in the appellant's thesis is that, even

if the substantial compliance  doctrine retains some relevance in

a contest over life insurance proceeds between parties other than

the insurer,  an argument  premised on substantial  compliance in

                                9


this  case  overlooks  the  obvious.    If  an  insurance  policy

regulates  the form  of an  assignment and  the insured  complies

literally  with those  terms,  the assignment  is valid,  and the
                   

question of substantial compliance is immaterial.

          Here,  the policy provides  not one, but  two, means of

changing  the ownership.    It stipulates:    "The Owner  ("you,"

"your")  is  the  Insured  unless  otherwise  designated  in  the
                                                                           

application or  unless changed  as provided under  the Change  of
                     

Ownership or Beneficiary provision [i.e., by use of an assignment

form]."    (Emphasis  supplied).    The  jacket  of  the   policy

reiterates  this duality:    "The Owner  ("you,"  "your") is  the

insured  unless another  person  is named  in the  application or
                                                                        

later becomes the  Owner as  allowed by the  policy."   (Emphasis

supplied).  Thus, while Colasanto could have effected the desired

change of ownership by  returning the assignment form to  LINA as

instructed,  we see no reason why he  could not also have done so

in  the application.  Since the policy appears explicitly to have
                             

given the  policyholder that option,  we think that  a reasonable

jury could have decided the point on the basis that Colasanto had

chosen this manner  of switching the policy's  ownership and that

the resultant designation was valid and binding.

          A group policy  and an individual  policy that is  spun

off from it ordinarily are  deemed a single, continuing  contract

of  insurance.  See Binkley  v. Manufacturers Life  Ins. Co., 471
                                                                      

F.2d 889, 891  (10th Cir.),  cert. denied, 414  U.S. 877  (1973);
                                                   

Brindis v. Mutual Life  Ins. Co., 29 Mass. App.  Ct. 368, 369-70,
                                          

                                10


560  N.E.2d  722,  723  (1990).    Until  Colasanto  retired, his

employer  owned the group policy.  There was no individual policy

(and, hence,  no individual owner) until  Colasanto exercised his

right of conversion.   In all  probability, then, the  conversion

application  is an application  within the purview  of the quoted

policy language    we hesitate  only because LINA is  not a party

here, and  it cannot be heard  on the topic in  this proceeding  

and  in any event,  the appellant concedes  that it is  such.  He

maintains, however,  that the  application could  not be  used to

dictate ownership  because there  was no line  or place on  it to

spell out the nature of the change.

          We reject  this argument.  An  insurance company cannot

confer a prerogative upon the insured in the policy covenants and

then surreptitiously take it away by omitting any reference to it

on  the forms that the company prints to implement the covenants.

Here, the policy told Colasanto that he could designate the owner

of  a  converted   policy  by  naming  that  individual   in  the

application, and  he did  so.   At the very  least, a  reasonable

jury, faced with this concatenation of circumstances, had a right

to  conclude  that  the  policy  allowed  Colasanto  to  use  the

conversion application as a vehicle to bring about  the ownership

arrangement that he preferred.  On that basis, the designation of

ownership contained  in the  application complied  literally with

the terms of the policy.

                                B
                                          B

          The appellant  advances a second  theory that  involves

                                11


substantial compliance.  He  asserts that, under Fed. R.  Civ. P.

56(d),5 the  district court's  order denying his  pretrial motion

for summary judgment  precluded presentation  of the  substantial

compliance issue at trial.  The court's order stated:

          Although  there does  not  appear to  be  any
                                                                 
          dispute  that Robert  M. Colasanto  failed to
                                                                 
          execute and deliver  the documents  necessary
                                                                 
          to  transfer  ownership  of  the   policy  in
                                                                 
          question   to  Stephen  Farley,  there  is  a
                                                  
          genuine  issue  of  fact   regarding  whether
          Robert Colasanto ever agreed to  make Stephen
          Farley  an   irrevocable  beneficiary  and/or
          owner  of such  policy  and whether  adequate
          consideration   was   given   for  any   such
          agreement.

(Emphasis supplied).

          The  appellant interprets  the underscored  language as

establishing   as  a  matter  of   law  that  Colasanto  had  not

substantially complied  with  the requirements  for  transferring

ownership of the policy to Farley.
                    
                              

     5The rule provides in pertinent part:

          If on motion under  this rule judgment is not
          rendered upon  the whole case or  for all the
          relief asked  and a  trial is  necessary, the
          court  at  the  hearing  of  the  motion,  by
          examining  the  pleadings  and  the  evidence
          before it and by interrogating counsel, shall
          if practicable ascertain what  material facts
          exist  without  substantial  controversy  and
          what material facts are actually and  in good
          faith  controverted.  It shall thereupon make
          an  order specifying  the  facts that  appear
          without substantial  controversy  . .  .  and
          directing  such  further  proceedings in  the
          action as  are just.   Upon the trial  of the
          action the facts so specified shall be deemed
          established, and the trial shall be conducted
          accordingly.

Fed. R. Civ. P. 56(d).

                                12


          The  appellant's  contention is  vulnerable  on several

grounds.    We  mention  two  of  them.    First,  the  issue  of

substantial  compliance  is  a  red  herring,  as  LINA   is  not

challenging  Farley's status  and the  case turns,  in  the final

analysis, on Colasanto's discerned intent.  See supra Part II(A).
                                                               

Second,   the   Rule  56(d)   approach   is   little  more   than

stultification by tactical semantics.  We explain briefly.

          Although the  appellant is correct in  noting that Rule

56(d) empowers a  court to specify  (and set to  one side)  facts

that are without  substantial controversy, the rule  nevertheless

"permits  the court  to retain  full power  to make  one complete

adjudication  on all  aspects of  the case  when the  proper time

arrives."  10A Charles  Alan Wright et al., Federal  Practice and

Procedure    2737 (2d  ed. 1983).   Here,  it is  disingenuous to

suggest that the court relinquished this power.  Fairly read, the

underscored language simply acknowledges  the lack of any dispute

as to whether the  assignment form was executed and  delivered to

LINA.  To say, as the appellant would have it, that the statement

decides  the compliance question as a matter of law would require

us  both to torture the  district court's words  and overlook its

manifest intention.  We refuse to do so.

III.  THE BENEFICIARY DESIGNATION
          III.  THE BENEFICIARY DESIGNATION

          The  appellant's fallback  position  is  that, even  if

Colasanto transferred ownership of the policy to Farley, it still

must  be found as a matter of  law that Farley, as an individual,

is  not entitled to the policy proceeds.  This reasoning rests on

                                13


line 10(c) of the conversion application, which solicits the full

name of the beneficiary and the beneficiary's relationship to the

insured.  In response  Colasanto typed:  "Stephen Farley         

Executor."    The  appellant posits  that  the  use  of the  word

"executor"  in  this  context   designates  a  fiduciary  as  the

beneficiary and,  therefore, Colasanto's executor    not Farley  

is entitled to the avails of the policy.

          The principal  authority on which the  appellant relies

is  Faircloth v. Northwestern Nat'l  Life Ins. Co.,  799 F. Supp.
                                                            

815 (S.D. Ohio 1992).  In Faircloth, the insured wrote "Faircloth
                                             

James H. Administrator" on the line in the application that asked

for the name of the beneficiary.  The court ruled  as a matter of

law that the policy  proceeds went to the named beneficiary to be

administered for  the benefit of the estate, and not to him as an

individual.   See id. at  817.  The  appellant reads Faircloth to
                                                                        

stand  for  the proposition  that whenever  a fiduciary  label is

found in close proximity to a beneficiary's name, the beneficiary

designation must be construed as running to the actual fiduciary,

not  to the  individual  named.   If  Faircloth stands  for  this
                                                         

proposition    a matter on which we take no view   it contradicts

basic  tenets of  Massachusetts contract  interpretation,  and we

must therefore disregard it.

          Massachusetts law holds that, if an ambiguity exists in

contract documents, its  ultimate resolution almost always  turns

on  the parties'  intent.   See Smart  v. Gillette  Co. Long-Term
                                                                           

Disability  Plan, 70 F.3d 173, 178 (1st Cir. 1995); Massachusetts
                                                                           

                                14


Mun. Wholesale Elec. Co.  v. Town of  Danvers, 411 Mass. 39,  45,
                                                       

577   N.E.2d 283, 288 (1991).  In such a situation, the intent of

the  contracting parties  is  a matter  to  be discerned  by  the

factfinder  from the circumstances  surrounding the ambiguity and

from  such reasonable inferences as may be available.  See Smart,
                                                                          

70 F.3d at 178.

          These rules  apply to  insurance documents in  the same

way  as they apply in  other contractual settings.   See Falmouth
                                                                           

Nat'l Bank v. Ticor Tile Ins.  Co., 920 F.2d 1058, 1061 (1st Cir.
                                            

1990) (applying Massachusetts law).   For instance, two analogous

Massachusetts cases indicate that,  when the insured, called upon

by  the   insurer  to  designate   a  beneficiary  by   name  and

relationship,  complies  by  using  a descriptive  term  such  as

"wife,"  it  is up  to the  factfinder  to determine  whether the

insured   meant  the   particular  person   named,  or,   in  the

alternative,  a person fitting the description on the date of the

insured's death.   See,  e.g., Strachan v.  Prudential Life  Ins.
                                                                           

Co., 321  Mass. 507,  509, 73  N.E.2d 840, 843  (1947); Brogi  v.
                                                                       

Brogi, 211 Mass. 512, 514, 98 N.E. 573, 573 (1912).6
               

          Of  course,  it  can  be argued  that  the  appellation

"executor" is more "legalistic" than the term "wife,"  and merits

different treatment.   We agree that the beneficiary's burden may

be  heavier when a fiduciary  designation is in  play, but, here,

                    
                              

     6Interestingly,  both  cases   determined  that  the   named
individual  should  take,  though  neither of  them  was  legally
married to  the insured at the  time of the latter's  death.  See
                                                                           
Strachan, 321 Mass. at 511; Brogi, 211 Mass. at 514.
                                           

                                15


the end result is the same.

          In  general,  courts construe  beneficiary designations

made in connection with insurance policies according to the rules

applicable  to the construction of wills.  See 5 George J. Couch,
                                                        

Cyclopedia of Insurance Law   28:7  (2d ed. 1984).  "The cardinal

rule in the interpretation of a will is the  ascertainment of the

testator's intent from an examination of the language employed by

him construed in  the light of the circumstances known  to him at

the time he executed  the will, and his intent,  when determined,

must  be given  effect  unless contrary  to  some rule  of  law."

Magill v. Magill,  317 Mass. 89, 92,  56 N.E.2d 892, 894  (1944).
                          

Thus,  a  testamentary  gift  will  vest  in  a  beneficiary  qua
                                                                           

fiduciary absent  a plain manifestation of  the testator's intent

to  accomplish a  different  result.   See  Slavik v.  Estate  of
                                                                           

Slavik, 46  Ark. App.  74, 76,  880  S.W.2d 524,  526 (1994)  (en
                

banc); Baker  v. Wright,  257 Ala.  697, 703,  60 So.2d  825, 830
                                 

(1952).   However,  merely inserting  the  word "executor"  in  a

change  of beneficiary  form  that requests  the policyholder  to

state  the  relationship  between  the  beneficiary  and  himself

presents presumptively  a materially weaker case  for holding the

gift to be taken in a fiduciary capacity than leaving property by

will to  a donee who  is a fiduciary and  is so described  in the

dispositive clause.  See Slavik, 46 Ark. App. at 76.  In sum, the
                                         

naked fact  that the beneficiary's relationship to the insured is

designated  in  the  policy  documents  by a  legal  term  (e.g.,

"executor") does not compel a finding of a fiduciary disposition;

                                16


the  matter still  comes down  to a  question of  the declarant's

intent.

          Applying the principles  gleaned from  these cases,  we

descry  no  error  here.    It  is  plain  as  a  pikestaff  that

Colasanto's  use of the word "executor" in response to line 10(c)

creates an  ambiguity.  Given the suggestive spacing that appears

on  the  completed  form  and  the delicate  nature  of  Farley's

relationship  to Colasanto   a relationship that, in a homophobic

society, he might wish to describe with some tact    the response

can  plausibly be  construed  as  using  the  word  in  a  purely

descriptive sense.  To  be sure, it can be argued  that Colasanto

used the word  to indicate the legal status  of the beneficiary  

but  this possibility means no more than  that the word, taken in

context, is ambiguous.  See Fashion House, Inc.  v. K mart Corp.,
                                                                          

892  F.2d  1076,  1083 (1st  Cir.  1989)  ("Contract  language is

usually  considered  ambiguous .  . .  where the  phraseology can

support reasonable difference of opinion as to the meaning of the

words  employed  and  obligations  undertaken.").   Because  such

ambiguities must  be resolved according to  the insured's intent,

it  follows  that  the  district court  properly  submitted  this

question to the jury.

          Taking the next step, the jury's finding that Colasanto

intended the term "executor" to describe Farley as an individual,

not  as a fiduciary, is amply supported.   Since Farley was named

as  the  executor of  Colasanto's  estate at  the  time Colasanto

completed   the  conversion  application,   the  description  was

                                17


accurate.  Here, moreover,  Colasanto originally had named Farley

as the beneficiary of the  group life policy.  While it  is true,

as  the appellant  suggests,  that a  term  such as  "friend"  or

"companion"  might  have   described  Farley's  relationship   to

Colasanto  more fittingly, that  is the stuff  of jury arguments,

not of  appellate review    and  the jury had  a right  to assess

Colasanto's word choice with  knowledge that emotionally  charged

phrases may have  been painful to contemplate because  a ten-year

relationship was on the rocks.  Finally, it is telling (or so the

jurors could have thought) that Colasanto never once referred  to

Farley  as a  fiduciary or  in a  fiduciary status  in subsequent

correspondence or conversations anent the policy.

          We need not paint the lily.  On this scumbled record, a

rational jury could have inferred    as this jury did    that the

word  "executor"  was  meant  only  to  describe  the  particular

individual whom the insured  intended to name as  the beneficiary

of the  policy, and not  to portend a  disposition to  Farley qua
                                                                           

fiduciary.

IV.  THE MOTION FOR A NEW TRIAL
          IV.  THE MOTION FOR A NEW TRIAL

          The appellant  tells us that  the trial court  erred in

denying his motion for a new  trial.  Appellate review of  orders

refusing new trials is tightly circumscribed.  We ordinarily will

not disturb such a  ruling if a  reasonable basis exists for  the

jury's  verdict.   See Wagenmann,  829 F.2d  at 200-01.   Phrased
                                          

another way, we will  not intervene unless we ascertain  that the

outcome  is "against the clear  weight of the  evidence such that

                                18


upholding the  verdict will result in a  miscarriage of justice."

Putnam Resources v. Pateman,  958 F.2d 448, 459 (1st  Cir. 1992).
                                     

This is not such a case.

          We need not tarry.   The motion for a  new trial hinged

largely  on the two issues  previously discussed    the change of

ownership and the identity  of the beneficiary.  We  have already

explained that the jury had enough evidence on these questions to

support a  verdict in Farley's  favor.   See supra Parts  II(A) &
                                                            

III.  We add here only that,  on both issues, the totality of the

evidence does not suggest either that justice miscarried or  that

the  trial  court's  refusal   to  overturn  the  jury's  verdict

constituted an  abuse of discretion.   Consequently, the district

court did not  err in  denying the appellant's  new trial  motion

under Fed. R. Civ. P. 59(a).  See Sanchez v. Puerto Rico Oil Co.,
                                                                          

37 F.3d 712, 717 (1st Cir. 1994).

V.  THE EVIDENTIARY QUESTION
          V.  THE EVIDENTIARY QUESTION

          The appellant contends  that the trial court  blundered

in refusing to admit into evidence portions of letters written by

Colasanto  to Farley  on  March  17,  1994  and  April  1,  1994,

respectively.  As a starting point, the appellant claims that the

proffered statements were admissible  under Fed. R. Evid. 803(3).

We do not agree.

          Evidence  Rule   803(3)   removes  from   the   hearsay

prohibition statements that  exhibit a declarant's "then-existing

state of mind."  But, this exception is not to  be construed as a

sweeping  endorsement  of  all  state-of-mind evidence.    To  be

                                19


admissible  under  this  exception, a  declaration,  among  other

things, must  "mirror a state of mind, which, in light of all the

circumstances, including proximity in time,  is reasonably likely

to have been the  same condition existing at the  material time."

2 John  W. Strong, McCormick  on Evidence    274 (4th  ed. 1992).

Because disputes over  whether particular statements  come within

the state-of-mind exception are  fact-sensitive, the trial  court

is  in the best  position to resolve  them.  As is  true of other

rulings  admitting or  excluding  evidence,  appellate review  is

solely  for abuse of discretion.  See, e.g., Blinzler v. Marriott
                                                                           

Int'l., Inc., 81 F.3d 1148, 1158 (1st Cir. 1996).
                      

          Here,   the  appellant   argues   that  the   proffered

statements reflect  Colasanto's intent,  as early as  February of

1994,  not to transfer the  converted policy to  Farley, and that

they therefore rebut Farley's claim that Colasanto had a donative

intent.  The  district court excluded  the correspondence on  the

ground  that it did not relate to Colasanto's intent in February,

but only to his intent at or about the time he wrote the letters.

We detect no misuse of the court's wide discretion.

          On Farley's  version of  the case, Colasanto  evinced a

donative intent vis- -vis the LINA policy in December of 1993, in

January 1994, and again in early February  of that year.  Between

the last of  these incidents and the first  of the letters (which

bore a date of March 17,  1994), a bitter fight between the long-

time  companions  ensued.    That imbroglio,  for  all  practical

purposes,  eradicated any  vestige  of an  amicable relationship.

                                20


Although  the  subsequent  letters  clearly  reflect  Colasanto's

animosity  toward   Farley  on  March  17   and  thereafter,  the

significant  intervening events     the quarrel  and the  ensuing

breakup      could   reasonably   be  thought   to  disrupt   the

contemporaneity required by Evidence Rule  803(3).  Thus, we  are

unable to find that  the district court abused its  discretion by

excluding the proffered state-of-mind evidence.

          In  a last-ditch effort to stem the tide, the appellant

argues, in  the alternative, that  the evidence was  proper under

Fed.  R.  Evid.  804(b)(5).    That  catchall  rule  permits  the

introduction  of hearsay evidence,  not otherwise  admissible, as

long  as the  declarant  is unavailable,  the evidence  possesses

"circumstantial  guarantees  of trustworthiness,"  and  the trial

court finds that the evidence (i) is offered  to prove a material

facet, (ii) is more  probative on the point than  other available

evidence, and (iii) the interests of justice will be served.  See
                                                                           

Fed.  R. Evid.  804(b)(5); see  also  United States  v. Panzardi-
                                                                           

Lespier, 918  F.2d 313,  316 (1st  Cir. 1990).   A trial  court's
                 

determinations under  Evidence Rule 804(b)(5)  are reviewed under

an abuse of discretion standard.  See Cook v. United  States, 904
                                                                      

F.2d 107, 111 (1st Cir. 1990).

          The preconditions for deployment  of Rule 804(b)(5) are

formidable,  and  the  appellant  cannot  satisfy  them  in  this

instance.   For  example,  the  district  court  found  that  the

statements lacked satisfactory assurances of trustworthiness.  In

light  of  the  disputatious  course  of  events  that  had  been

                                21


unfolding for months, leading to the retention of counsel by both

Farley  and Colasanto  and  then to  the  acrimonious quarrel  in

California, we cannot fault  the district court's conclusion that

the statements were  suspect because litigation  was in the  wind

when they were made.7

VI.  CONCLUSION
          VI.  CONCLUSION

          We need go  no further.   For aught  that appears,  the

case was fairly tried and the lower court appropriately permitted

the jury's verdict to stand.

Affirmed.
          Affirmed.
                  

                    
                              

     7To emphasize the  point, we  note that the  April 1  letter
shows on its face that Colasanto contemporaneously sent a copy to
his attorney.

                                22