Continental Casualty Co. v. Barbara F. Adamo

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15448 APRIL 2, 2003
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 98-02373-CV-ODE

CONTINENTAL CASUALTY COMPANY,
Plaintiff-Appellee,

versus

BARBARA F. ADAMO,
Individually and in her capacity as
Administrator of the Estate of
SHANA SLAKMAN,
SHERWIN GLASS,
Defendants-Appellees,

BARRY S. SLAKMAN,
Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northen District of Georgia
_________________________

(April 2, 2003)

Before ANDERSON, BLACK and WILSON, Circuit Judges.
PER CURIAM:

Barry S. Slakman, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of Barbara F. Adamo, Sherwin Glass, and Continental

Casualty Co. in Continental’s interpleader action. The district court found that

Slakman was prohibited from recovering life insurance benefits under section 33-

25-13 of the Code of Georgia, because he was convicted of murdering his wife,

the insured. Slakman, however, asserts that section 33-25-13 does not prohibit

recovery until his conviction becomes “final” under state law. As this case turns

on an important question of state law for which there is no controlling precedent,

we certify the question to the Georgia Supreme Court for resolution.

Shana Slakman, Slakman’s wife and Adamo and Glass’s daughter, was

insured under a life insurance policy issued to Slakman by Continental, under

which Slakman was the beneficiary. After Slakman was indicted for the murder of

his wife, Continental initiated this interpleader action in the district court to

resolve conflicting claims to the benefits under that policy.

Slakman initially was convicted of murdering his wife in 1994. Shortly

thereafter, the district court granted summary judgment in favor of Continental,

Adamo, and Glass, finding that section 33-25-13 barred Slakman’s recovery of

benefits under the policy. We, however, reversed the district court’s grant of

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summary judgment, because, during the pendency of the appeal, Slakman’s

conviction was vacated. See Cont’l Cas. Co. v. Adamo, 11th Cir. 2000, __ F.3d __

(No. 00-10594, Aug. 29, 2000). On remand, the district court stayed the case

pending Slakman’s retrial for the murder, and, after Slakman was retried and

reconvicted, the parties renewed their motion for summary judgment. The district

court, agreeing that Slakman forfeited all rights under the policy, granted the

motion. This appeal followed.

“In diversity cases, a federal court applies the law of the forum in which it

sits.” LaTorre v. Conn. Mut. Life Ins. Co., 38 F.3d 538, 540 (11th Cir. 1994).

“Where[, however,] there is any doubt as to the application of state law, a federal

court should certify the question to the state supreme court to avoid making

unnecessary Erie guesses and to offer the state court the opportunity to interpret or

change existing law.” Keener v. Convergys Corp., 312 F.3d 1236, 1241 (11th Cir.

2002) (per curiam) (internal quotation marks omitted).

Section 33-25-13 provides,

No person who commits murder or voluntary manslaughter or
who conspires . . . to commit murder shall receive any benefits from
any insurance policy on the life of the deceased, even though the
person so killing or conspiring be named beneficiary in the insurance
policy. A plea of guilty or a judicial finding of guilt not reversed or
otherwise set aside as to any of such crimes shall be prima facie
evidence of guilt in determining rights under this Code section. All

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 right, interest, estate, and proceeds in such an insurance policy shall
go to the other heirs of the deceased who may be entitled thereto by
the laws of descent and distribution of this state, unless secondary
beneficiaries be named in the policy, in which event such secondary
beneficiaries shall take.

O.C.G.A. § 33-25-13 (emphasis added). Under that statute, it is unclear whether

an individual must be given the opportunity to challenge his conviction on direct

appeal or by collaterally attacking his sentence before he is barred from recovering

life insurance benefits. Moreover, a review of Georgia case law indicates that this

issue has not been addressed directly by the courts.

As this case presents an important issue of Georgia law that has not been

addressed by the Georgia Supreme Court, we certify the following question to the

Georgia Supreme Court: WHETHER SECTION 33-25-13 OF THE CODE OF

GEORGIA BARS AN INDIVIDUAL FROM RECEIVING BENEFITS UNDER

A MURDER VICTIM’S LIFE INSURANCE POLICY BEFORE HIS

CONVICTION AND SENTENCE BECOME “FINAL” UNDER STATE LAW.

In so doing, we do not intend to restrict the court’s consideration of the issue

presented. “This latitude extends to the Supreme Court’s restatement of the issue

or issues and the manner in which the answers are given.” Washburn v. Rabun,

755 F.2d 1404, 1406 (11th Cir. 1985). To assist the court in considering this

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question, the record in this case and the parties’ briefs shall be transmitted to the

court.

QUESTION CERTIFIED.

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