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.

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