The Missing Insured and The Life Insurance Death Claim†

C. Edgar Sentell

I.

Introduction

Life insurance policies invariably require that the beneficiary provide “due proof” of death when a claim is made for a death benefit. Obviously, this is difficult when the person whose life is insured has disappeared without a trace. In most situations, when the claimant can produce the body of the insured complete with a certification of the death by the civil authorities, the claimant has no difficulty proving the death. The difficulty occurs when the insured has disappeared and there is no direct evidence of the manner or fact of the insured’s death. Typically, the disappearance is reported to the insurer by the beneficiary shortly after the insured leaves home and the insurer refuses to recognize the evidence submitted as “due proof” of death. Here, the basic question does not relate to how the death occurred but rather to whether it did occur. A number of cases involving insureds who have disappeared include dramatic allegations and an unusual set of facts. For example, an insured was involved in criminal activities and was either killed by criminals or went into hiding to avoid being killed.[1] There are cases involving the alleged death of a pilot in combat,[2] of a driver in an alligator-inhabited bayou,[3] of a swimmer by drowning,[4] and of a boatsman who apparently fell off his boat and drowned.[5] Frequently, the facts may suggest death by murder or suicide, as well as intentional disappearance.[6]

II.

The Presumption of Death

People often disappear without explanation. This results in questions relating to property rights and responsibilities, including insurance problems, to be worked out as satisfactorily as possible. Because this is not unusual, the law has developed some basic principles and presumptions in connection with the clarification of these problems. Some of these are used in connection with the life insurance contract. One of the most important of these principles is the presumption of death after absence of seven years.

An important point is that in many cases it is not necessary to resort to “presumptions” to prove a person’s death, or death at a particular time. There is a virtual unanimity in modern cases, at least implicitly, that proof may be made that a person is dead at any time.[7] In the face of evidence indicating that a person probably died, it is not necessary for a prescribed period of time to elapse. Although a presumption of death may arise under certain circumstances, it is universally recognized that death may be proved by circumstantial evidence before the maturation of any presumptive period; the existence of a presumption does not preclude proof of death before the presumption applies.[8] Courts disagree from jurisdiction to jurisdiction concerning what circumstantial evidence may be used to prove the insured’s death. The following are situations where courts frequently allow the use of circumstantial evidence: 1) where the age of the insured would be beyond human expectation; 2) where the insured’s health was seriously impaired when he or she disappeared; 3) where the insured was exposed to danger or peril; 4) where the insured’s absence is unexplained and the evidence shows that the insured’s character and habits are inconsistent with the voluntary absence for the period involved.

The presumption of death after the unexplained absence of seven years developed after 1800. Prior to that date, in the absence of evidence to the contrary, an absent person was presumed to be living even though he might have been ninety or one hundred years old at the time a question arose. As generally stated today, however, the person will be presumed to have died if (a) he has been missing from his home or usual residence for a period of seven years; (b) such absence has been continuous and without an explanation; (c) persons most likely to hear from him have heard nothing; and (d) he cannot be located by diligent search and inquiry.[9] At the present time, this presumption is recognized in almost all the states, either by statute or judicial recognition of the common law rule.[10] More recently, however, a number of states have amended their statutes to lower the seven-year period to five consecutive years. In other states, the presumption has been lowered to even less than five years. Two examples are Minnesota and Georgia whose legislatures lowered their presumptive period to four years.[11]

There is no fundamental difference between the common-law presumption and various statutory presumptions.[12] As noted above, one of the elements on which the presumption is based is the requirement for a diligent search. The degree of diligence of the search varies from jurisdiction to jurisdiction and depends upon the individual situations of the missing insureds and the claimants.[13]

The Uniform Probate Code, adopted in a number of states, contains provisions as to presumption of death. The Uniform Probate Code provides that a person who is absent for a continuous period of five years, during which he has not been heard from and whose absence is not satisfactorily explained after a diligent search or inquiry is presumed to be dead.[14] His death is presumed to have occurred at the end of the period unless there is sufficient evidence that death occurred earlier.

III.

Nature of the Presumption of Death

There have been many philosophical discussions among scholars as to the nature of the presumption of death from unexplained absence.[15] The basic question is whether presumption rises to the dignity of evidence or disappears completely from the case when evidence of some good reason for the disappearance of the insured is produced.[16] The usual net effect of the presumption is to place upon the insurer the burden of going forward with testimony to overcome the presumption.

Courts seldom accord conclusive effect to the presumption of death. As one court has written:

The difference between proving a person dead who has been missing less than 7 years rather than more than 7 years lies in the degree of proof required to establish the death. In the latter case there is a presumption of death which shifts the burden of proof to the party claiming life, though even here the presumption has to be applied with care.[17]

Only one case was found in which the presumption of death was applied conclusively to determine the question of death, in the face of substantial evidence casting serious doubt on the insured’s death.[18]

The following can be used as rebuttal to the presumption of death from absence: (a) proof that the missing person is a fugitive from justice; (b) proof that the missing person had unhappy domestic relations; (c) proof that the insured was suffering economic difficulty; and (d) proof that the missing person had no local attachment or little regard for family ties.

IV.

Presumption of Death from Imminent Peril

Another presumption that sometimes comes into play is a presumption of death when a person disappears under circumstances of imminent peril. Again, this presumption is in no way conclusive, and amounts to little more than a finding that certain circumstances raise a natural inference of death. Where the presumption of death from imminent peril is applied, it may be said that one who has been missing for less than seven years is presumed to be alive, unless imminent peril can be shown, in which case the person is presumed to be dead. To put it another way, the element of peril accelerates the presumption of death.[19]

For example, in Rodriguez Diaz v. Mutual of Omaha Insurance Co.,[20] an insured who, with his fishing companion, disappeared at sea under conditions of peril was found to be dead even though the statutory seven-year presumption of death period had not expired. The wife and beneficiary were held to be entitled to the death proceeds. However, in Stepp v. Stepp,[21] there was evidence that a three-year old child dressed only in a lightweight nylon warmup outfit disappeared in twenty-eight degree weather while playing in a backyard adjacent to his home. This was found to be insufficient to establish exposure to specific peril at the beginning of his absence and thus did not support a presumption of death under the exception to five-year waiting period.

In 2003, two states adopted the Specific Peril Doctrine by amending their presumption of death statute. Virginia amended its Will and Decedents Estate Code to provide that a person who was exposed to a specific peril of death may be presumed, at any time after exposure, to have died less than seven years after he was last heard from.[22] Georgia amended its probate code to provide that when any domiciliary of that state has been exposed to a specific peril or tragedy resulting in probable death, the death of the individual may be proved by clear and convincing evidence at any time after such exposure.[23]

V.

Presumption of Continued Life

In actual practice, most people (including jurors) will presume that life continues until there is a clear showing that a person is probably dead. This reluctance to presume death probably has arisen because of the drastic effect the presumption of death will have on the family and property of the missing person. On a finding of death, the missing person’s property will be dissipated by distribution to heirs and family. The missing person’s spouse will be able to marry again and his or her children will be placed with a new family.

At common law it is presumed that one last seen alive remains alive.[24] This is the flip side of the presumption of death. It remains in effect until such time as the presumption of death matures. The presumption of continued life often serves, in effect, to discourage claims until such time as the claimant can at least attempt to invoke the presumption of death. The claimant’s “awkward position” has been described:

[S]he could have insisted that [her proof of death] was satisfactory and that the company absolutely refuse to accept her proof of death, and, if finally refused, then she could have instituted suit, in which event the burden of proof would have rested upon the plaintiff to prove the fact of the death of her husband, or [she could] wait either until she could make more satisfactory proof of death or until the expiration of seven years.[25]

VI.

Presumption of Death Under the Uniform Absence Act

The common law rule presuming death after seven years of unexplained absence had its critics. Perhaps the most prominent was Professor Wigmore.[26] He advocated a statute, which was adopted by the National Conference of Commissioners on Uniform State Laws in 1939.[27]

As stated in Armstrong v. Pilot Life Insurance Co.,[28] only Maryland, Wisconsin and Tennessee adopted the Uniform Act. Maryland has since repealed it, replacing it with one containing similar provisions and the same general purpose.[29] Wisconsin adopted the Act with substantial modifications, and continues to recognize the presumption of death after an absence of seven years.[30]

In its full form, the Uniform Act abolishes the common law doctrine that the death may be presumed from an unexplained absence of seven years.[31] The issue goes to the court or jury as one of fact to be determined upon the evidence. Further, the Act provides that exposure to specific peril is to be considered in every case.[32]

Tennessee rewrote its Uniform Absence as Evidence of Death Law by providing that one is presumed dead if they have been absent from their residence, unheard of for seven years, and such absence is not explained satisfactorily. This presumption can be rebutted by proof.[33]

VII.

Response to September 11, 2001

The unprecedented and tragic events of September 11, 2001, brought legislative changes to the presumption of death statutes in a number of states.

For example, New Jersey amended its statute dealing with the presumption of death by providing that a resident or nonresident of the State of New Jersey is presumed to be dead if exposed to a specific event certified by the Governor as a catastrophic event that has resulted in a loss of life to persons known or unknown and whose absence following that event is not satisfactorily explained after diligent search or inquiry. The death is presumed to have occurred at the time of the catastrophic event. This statute, passed and approved on October 4, 2001, was made retroactive to September 11, 2001.[34] Pennsylvania amended its statute to provide that the terrorist attacks of September 11, 2001 constituted specific perils within the meaning of the presumption of death statute which would justify a court to immediately determine that the presumed decedent died on September 11, 2001.[35] Virginia amended its presumption of death statute to create an exception that 1) any person who has been documented to have been in that portion of the Pentagon damaged by the terrorist attack of September 11, 2001 or American Airlines Flight No. 77 on September 11, 2001 when it was flown into the Pentagon; and 2) who has disappeared as a result of this terrorist attack and has not been heard from in three or more months since such terrorist attacks; and 3) whose body has not been found or whose remains have not been identified through scientific testing shall be presumed dead in any incidence or cause of which his death shall be in question.[36] Kansas, in 2002, amended its statute to provide that individuals are presumed dead if they are missing as a result of a catastrophic event or a disaster.[37]

A New York court has held that the unprecedented terrorist attacks on American soil on September 11, 2001 qualified as a disaster of national magnitude as would allow for proof of death of an absent person less than three years after the date absence commenced, on grounds that the absentee was exposed to a specific peril of death.[38]

VIII.

Date of Death – When is it?

In life insurance cases, the actual date of death is of critical importance. Many life insurance policies on the lives of persons missing for extended periods of time lapse for non-payment of premiums prior to the expiration of the presumption period. A beneficiary would be well advised to keep up premium payments. The claimant beneficiary may, in some cases, obtain a refund of these premiums if there is a recovery of the death benefit based on the date the insured presumably died. Obviously, the actual date of death is also of considerable importance because of the accrual of interest from the date of death and the possible imposition of attorney fees and penalties on the insurer for failure to pay on a timely basis. On procedural matters, such as statute of limitation cases, the issue of date of death has also arisen.

The prevailing view is that there is no presumption that the insured died at any particular time within the seven-year period, only that he is dead at the end of the period. Under the minority view, it is assumed that the insured died on the last day of the seven-year period. Thus, the presumption of death may establish the fact of death, but not the time of death. Typically, a presumption-of-death statute will provide that death may be proven to have occurred at some earlier time.[39] The beneficiary may prove the likelihood of earlier death by competent evidence of many types, even though the insured was not in position of peril at the time he was last seen. In most jurisdictions, a claimant may wait for the expiration of the presumptive period to prove the fact of death and then introduce direct or circumstantial evidence to the jury for a determination of the time of death within the presumptive period. The factors that can be used as circumstantial evidence to show death without regard for the presumption may also be used to show the death of the absent insured at a time earlier than the expiration of the statutory or common law presumptive period. The factors include (1) if the missing insured were still alive, his age would be beyond human expectation or experience; (2) if the missing insured had a considerable impediment to his health when he disappeared; (3) if the insured was exposed to a specific peril when last heard from; and (4) if the missing insured’s absence is not explained and the evidence shows his character and habits are not consistent with a voluntary absence for the period involved.

On procedural matters such as the statute of limitations, a universal rule has emerged among courts considering the time of death issue. The rule provides that “the statute of limitations commences to run on the date that the presumptive death period expires.”[40]

IX.

Issue of Settlement and Reappearance

The most difficult and complicating aspect of the problem of a missing insured as it relates to a life insurance contract is presented when the insured reappears after having been declared dead and after settlement of the death benefit has been made. The temptation for the insured and beneficiary to defraud the insurer by feigning the death of the insured is ever present. This is especially true when the amount of insurance is large.[41] The prevailing view is that the policy proceeds paid in full may be recovered by the insurer upon proof that the insured was still living.[42] In Kansas Farm Bureau Life Insurance Co. v. Farmway Credit Union,[43] the Kansas Supreme Court, reversing the lower court, reached a different result. It held that the insurer had assumed the risk that the insured might still be alive when it paid the proceeds in full. The insurer had failed to implement the Kansas Estate of Absentees Act requirement that a bond be obtained from all beneficiaries of the funds to cover the contingency that the insured might still be alive. The court held that since the insurer chose not to proceed under the Act, but paid the proceeds directly to the credit union without requiring any restitution or indemnity agreement, the insurer assumed the risk that the insured might not be dead.

However, the prevailing view, as illustrated in Southern Farm Bureau Life Insurance Co. v. Burney,[44] is that there can be no recovery if the insurer pays in compromise settlement less than the full amount. The defendant John Burney was a well-respected citizen of Helena, Arkansas. He was married with two children and president of Helena Rice Drier, Inc. Things begin to change when, because of trouble with his business, Burney told the local farmers he had sold their grain and had no money left to pay them. The farmers became upset with Burney. Several of them sued him and one threatened to kill him.

On June 11, 1976, as Burney was driving across a bridge over the Mississippi River, an oncoming car ran his truck into the wall of the bridge. By the time Burney got out of his truck, the other car had stopped, and the driver had begun to lambaste Burney. Fearing for his life, Burney jumped off the bridge into the river. He survived the jump, and after a couple of months of wandering, he settled in Florida. For the next six years, Burney, under the assumed name of John Bruce, kept his true identity hidden from the world. He worked as a farm hand, married again, and even had another child.

Back in Arkansas, when all efforts to locate him proved unsuccessful, Burney was presumed dead. His family conducted a memorial service and placed a gravestone in the cemetery in his memory.

John Burney had five life insurance policies with Southern Farm Bureau Life Insurance Company. Bonnie Burney, Burney’s first wife, was the beneficiary of two of these policies, and Helena Rice Drier, Inc. was the beneficiary of the remaining three. Claims were filed on all five of these policies and all five claims were disputed due to the uncertainty of Burney’s condition. Arkansas had a five-year presumption of death statute. Over the five-year presumptive period, Bonnie Burney continued to make policy premium payments amounting to $14,190. She had a $99,753 claim ($85,563 face value plus $14,190 in premiums) which was settled for $90,000 on January 26, 1982. As consideration she agreed to waive her right, in the event John Burney was not dead, to the additional premiums, attorney’s fees, and prejudgment interest.[45] Helena Rice Drier, Inc. settled its claims for the face amount of the policies, $380,000. In arriving at this amount Southern Farm Bureau forgave outstanding loans against the policies[46] in exchange for Helena Rice Drier’s agreement to abandon any claim for double indemnity, prejudgment interest, penalties, or attorney’s fees. Southern Farm Bureau, Bonnie Burney, and Helena Rice Drier all signed identical releases containing specific language to the effect that the parties were settling doubtful and disputed claims.[47]

Southern Farm Bureau learned John Burney was alive. It sued him and all of the policy beneficiaries in federal district court to set aside the settlement agreements under theories of fraud, mutual mistake, and unjust enrichment.

In describing the case as unusual and rather bizarre, the court held that the settlement agreements that had been entered into by the company and the beneficiaries were compromises of disputed and controverted claims and the agreements were valid and binding. The court applied the widely accepted rule that settlement contracts should be upheld unless there is fraud or mutual mistake of fact.[48] On the fraud issue the court found for the beneficiaries, finding that they were innocent of fraud. The court did not accept Southern Farm Bureau’s argument that John Burney’s fraud may reach the beneficiaries so as to set aside the settlement agreement. The court also relied heavily on the agreement language which referred to a “compromise settlement of doubtful and disputed claims.”[49]

On the issue of mistake, the court decided there was no mutual mistake of fact because Southern Farm Bureau in its answers to Bonnie Burney’s complaint in 1976 insisted that John Burney was not dead.[50] Seeking rescission, Southern Farm Bureau argued that, at the time of settlement, it settled because it then presumed Burney was dead. Nevertheless, the court found this argument unconvincing, eliminating Southern Farm Bureau’s foundation for a mutual mistake of fact defense.[51] The court found that the beneficiaries had no knowledge of the whereabouts of John Burney following his disappearance on June 11, 1976 in that he had had no contact with any of them until he returned to Arkansas in December of 1982. The court found John Burney liable to the insurer for the $470,000 because of his fraud and deception which had permeated the relationships of all the parties. John Burney was the wrongdoing party; therefore, the court held that he was the one who should be held liable.

X.

Insured’s Disappearance Raises an Inference of Accidental Death

It is possible to prove not only that one who has disappeared is dead, but also that he or she suffered an accidental death. In Englehart v. General Electric Co.,[52] the insured’s last known communications were with friends whom he told he was going fishing. Later, the insured’s boat was found adrift, his car was found parked at a yacht club. The appeals court held that the inference of death and the inference of how the death occurred are “radial” inferences. The jury’s conclusion that the insured was dead did not by itself support an inference that he died by accidental means, rather the circumstantial evidence surrounding the insured’s disappearance radiated both inferences.[53]

However, in the case of Houchens v. American Home Assurance Co.,[54] the disappearance of an insured without evidence that he died by accident, or that he was even dead, was held not to require payment of accidental death benefits under two life policies. There was no bizarre circumstance surrounding his disappearance. There was no evidence that he was in a position of peril when he disappeared. The statutory presumption of death was held insufficient to obligate the insurer to pay benefits.

XI.

Summary

The burden placed upon an insurer defending an action for life insurance benefits, in a case based on the disappearance of the insured, will vary depending on whether the claimant has the benefit of a presumption of death. In many cases, it is not necessary to resort to a presumption to prove a person’s death or to prove death at a particular time. Many cases will fall within a broad gray area where the facts are suggestive of death or intentional disappearance.

The presumption of death that arises from a seven-year absence (or a shorter period of time that may be prescribed by a particular state statute) does not usually carry a lot of evidentiary weight. However, at a minimum, when the presumption applies, the insurer must go forward with evidence to prove the insured is alive. There is also a presumption, which may be relied on by an insurer, that a person alive when last seen is presumed to still be alive. Another presumption that sometimes comes into play is a presumption of death when a person disappears under circumstances of imminent peril.

The unprecedented and tragic events of September 11, 2001 have caused a number of state legislatures 1) to create presumption of death exceptions; or 2) to define terrorist attacks as specific perils which would justify a court to immediately determine that a presumed decedent died on September 11, 2001; or 3) to provide that death is presumed to have occurred at the time of a catastrophic event certified by the governor.

In life insurance cases involving a disappearance of an insured, the actual date of death can be of critical importance because of the amount of interest that will run, the possible imposition of penalties and attorney fees, and the payment of premiums during the running of the presumptive period. Generally, the beneficiary would be well advised to keep up premium payments. This will avoid any problem of insurance having expired at the time of the presumptive death. The claimant will be able, in some cases, to obtain a refund of these premiums if there is a recovery of the death benefit, based on the date when the insured presumably died.

The most difficult aspect of the problem of a missing insured is when the insurance company pays the amount of money due under the policy and the insured reappears. If the company pays the full death benefit and the insured thereafter reappears, the company will generally have a claim against the beneficiary usually on the grounds of mutual mistake of fact. When a compromise settlement has been made, however, the company may have much more difficulty in recovering the policy proceeds. To avoid any questions on this score, the company could obtain from the payee a repayment agreement at the time of making settlement, or attempt to have such a provision incorporated in the decree if there is litigation to establish the claim. A bond with adequate surety is even more desirable from the insurance company’s standpoint.

ENDNOTES

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† Submitted by the author on behalf of the FDCC Life, Health and Disability Section.

[1] See Cappo v. Allstate Life Ins. Co., 809 S.W.2d 131 (Mo. Ct. App. 1991); Cohen v. U.S. Life Ins. Co., 531 N.Y.S.2d 273 (App. Div. 1988); Armstrong v. Pilot Life Ins. Co., 656 S.W.2d 18 (Tenn. Ct. App. 1983). See also In re Death of Cole, 741 P.2d 734 (Idaho Ct. App. 1987) (insured disappeared under circumstances indicating a criminal conspiracy, although it was unclear whether the insured was a victim or a conspirator, or perhaps both); Hopper v. Dependable Life Ins. Co., 615 So. 2d 263, 263-64 (Fla. Dist. Ct. App. 1993) (insured, “a cropduster by trade, disappeared while piloting a flight between Florida and Columbia, South America”).

[2] Valley Forge Life Ins. Co. v. Republic Nat. Life Ins. Co., 579 S.W.2d 271 (Tex. Civ. App. 1978).

[3] White v. White, 876 S.W.2d 837 (Tenn. 1994).

[4] Roberson v. Gulf Life Ins. Co., 655 So. 2d 953 (Ala. 1995).

[5] Englehart v. General Elec. Co., 527 P.2d 685 (Wash. Ct. App. 1974).

[6] See Cappo, 809 S.W.2d at 131; Cohen, 531 N.Y.S.2d at 273; Armstrong, 656 S.W.2d at 18.

[7] See 45 Am Jur. Proof of Facts 3d 307-42 (1998) (discussion of the presumption or inference of death from unexplained disappearance).

[8] For cases involving claims brought before the maturation of a presumption of death see Woods v. Estate of Woods, 681 So. 2d 903 (Fla. Dist. Ct. App. 1996); In re Kerstetter, 582 A.2d 1122 (Pa. Super. Ct. 1990); White, 876 S.W.2d at 837; Englehart, 527 P.2d at 685.

[9] See generally 9 Wigmore on Evidence § 2531(a)(1), at 605 (Chadbourn 1981):

(1) There is a genuine presumption, of universal acceptance . . . , to aid proof of death. It is generally said to arise from the fact of the person’s continuous absence from home, traditionally for seven years, modernly for five years, unheard of by the persons who would naturally have received news from the absentee. The phrasings differ, however. Sometimes the absence is stated to be from the jurisdiction. Sometimes the element of nonreceipt of news is not noticed. Moreover, the practice is not uniform in defining the precise point or combination of facts at which the burden of producing evidence shifts to the opponent; one view is that the presumption may arise before the end of seven years, if the disappeared person has been exposed to a “specific peril” of death. But the general presumption is unquestioned.

[10] See 9 Wigmore on Evidence § 2531(a) n.1, at 604-09 for a state-by-state listing of the statues and cases as of 1981. At that time only a few of the statues had reduced the seven-year presumption period. Cf. N.Y. Est. Powers & Tr. Law §2-1.7(a) (McKinney 1988) (amended in 1993 to provide a three-year presumption of death):

A person who is absent for a continuous period of three years, during which, after diligent search, he or she has not been seen or heard of or from, and whose absence is not satisfactorily explained shall be presumed, in any action or proceeding involving the property of such person, contractual or property rights contingent upon his death or the administration of his estate, to have died three years after the date such unexplained absence commenced, subject to the following:

(1) The fact that such person was exposed to a specific peril of death may be a sufficient basis for determining that he died less than three years after the date his absence commenced.

(2) The three-year period provided herein shall not apply in any case in which a different period has been prescribed by statute.

See also Kutner v. New England Mut. Life Ins. Co., 395 N.Y.S.2d 540 (App. Div. 1977) (construing the previous statute and holding as a matter of law that on the basis of the facts presented, the presumption of death could not be invoked despite continuous absence for more than five years and evidence of diligent search. See also Caporino v. Travelers Ins. Co., 465 N.E.2d 26 (N.Y. 1984) (surrogate fixed the date of death as five years after the disappearance, which was followed by intensive search. All four insurers paid the single indemnity benefits, but all four refused to pay the additional indemnity benefits. Policies of two of the companies required as to such benefits that there be visible contusion or wound on the exterior of the body. These two companies, Travelers and Prudential, appealed from adverse judgments in the Appellate Division and the Court of Appeals reversed. The Court of Appeals also held that in the absence of proof of specific peril the date of death as fixed by the surrogate was binding. Also, Travelers was not liable for supplemental benefits, the coverage of which terminated prior to that date).

[11] Minn. Stat. Ann. § 576.141 (2000); Ga. Code Ann. § 53-9-1 (Supp. 2003).

[12] See Woods v. Estate of Woods, 681 So. 2d 903, 905 (Fla. Dist. Ct. App. 1996) (“At common law, upon the expiration of seven years’ unexplained absence, a presumption of death arose. [Citation omitted.] [Fla. Stat. § ] 731.103(3) provides for that presumption to arise after only five years’ unexplained absence. The statute is merely a procedure by which the Legislature has provided a method to judicially establish the presumption of death which has already arisen by the passage of time.”).

[13] See C.P. Jhong, Annotation, Necessity and Sufficiency of Showing of Search and Inquiry by One Relying on Presumption of Death from 7 Years’ Absence, 99 A.L.R.2d 307 (1965). See Borzage v. Metro. Life Ins. Co., 270 A.2d 688 (Conn. Cir. Ct. 1970).

[14] Unif. Probate Code § 1-107, 8 U.L.A. 30 (1998).

[15] See, e.g., James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 341 (1898); 9 Wigmore on Evidence § 2491, at 304 (Chadbourn 1981).

[16] Professors Thayer and Wigmore both expressed the view that the presumption of death from unexplained absence for seven years was not evidence and should disappear from the case if the insurer provided evidence that the insured had good reasons for leaving. Thayer, supra note 13, at 337; Wigmore, supra note 13, § 2491. See MacDonald v. Pa. R. Co., 36 A.2d 492, 496-97 (Pa. 1944). See also Haynes v. Metro. Life Ins. Co., 277 A.2d 251 (Md. 1971) (court denied the beneficiary’s claim for interest from the date the Army issued a Statement of Casualty to the end of the seven-year period, after which the insurer paid the claim including premiums paid after the disappearance. Maryland had abolished the common law presumption).

[17] Matter of Dawson’s Estate, 346 So. 2d 386 (Ala. 1977) (emphasis added).

[18] In re Death of Cole, 741 P.2d 734 (Idaho Ct. App. 1987).

[19] See In re Kerstetter, 582 A.2d 1122, 1124 (Pa. Super. Ct. 1990) (quoting Fanning’s Adm’x v. Equitable Life Assur. Soc. 107 A. 715 (Pa. 1919), quoting in turn from Burr v. Sim, 4 Whart. 150, 171 (Pa. 1839) “To accelerate the presumption from time, or more properly to turn it from an artificial into a natural one, it is necessary to bring the person within the range of a particular and immediate danger.”).

[20] 803 F. Supp. 575 (D. P. R. 1992).

[21] 729 N.E.2d 836 (Ohio Ct. App. 1999).

[22] 2003 Va. Acts ch. 254.

[23] 2003 Ga. H. B. 32.

[24] Matter of Dawson’s Estate, 346 So. 2d 386 (Ala. 1977).

[25] Haynes v. Metro. Life Ins. Co., 277 A.2d 251, 255 (Md. 1971) (quoting from New York Life Ins. Co. v. Brame, 73 So. 806, 809 (Miss. 1917)).

[26] 9 Wigmore on Evidence § 2531(b), at 614 (Chadbourn 1981) (Professor Wigmore states: “In short, the seven-years-absence-unheard-from rule is arbitrary, unpractical, anachronistic, and obstructive. The circumstances of each case should be the basis for decision, and there should be no fixed or uniform rule”).

[27] Handbook of the National Conference on Uniform State Laws and Proceedings 201 (1939). See also Unif. Absence as Evidence of Death and Absentees’ Property Act, 8A U.L.A. 1 (2003). (Professor Wigmore participated in its drafting and adoption by the Conference. This Act was withdrawn and was superceded in 1981 by the Uniform Probate Code, Handbook, 405, 408 (1981)).

[28] 656 S.W.2d 18 (Tenn. Ct. App. 1983).

[29] Md. Code Ann., Cts. & Jud. Proc. §§ 3-101 - 3-110 (2002).

[30] See Hubbard v. Equitable Life Assur. Soc., 21 N.W.2d 665 (Wis. 1946).

[31] Haynes, 277 A.2d at 251; Armstrong, 656 S.W.2d at 18.

[32] White v. White, 876 S.W.2d 837 (Tenn. 1994).

[33] Tenn. Code Ann. § 30-3-102 (2001).

[34] N. J. Stat. Ann. § 3B:27-1 (West 2001).

[35] 20 Pa. Cons. Stat. Ann. § 5706 (West 2002).

[36] Va. Code Ann. § 64.1-105 (Michie 2002).

[37] Kan. Stat. Ann. § 59-2704(c) (2002).

[38] In re LaFuente, 743 N.Y.S.2d 678 (Sur. 2002).

[39] See Fla. Stat. Ann. § 731.103 (West 2003) (death is presumed to have occurred at the end of the statutory period unless there is evidence establishing that death occurred earlier); Idaho Code § 15-1-107 (Michie 2003) (death is presumed to have occurred at the end of the statutory period unless there is sufficient evidence for determining that death occurred earlier); N.Y. Est. Powers & Trust Law § 2-1.7 (a) (McKinney 1988).

[40] Carman v. Prudential Ins. Co., 748 P.2d 743 (Alaska 1988).

[41] See, e.g., Roberts v. Wabash Life Ins. Co., 410 N.E.2d 1377 (Ind. Ct. App. 1980) (insured, with $640,000 of insurance and numerous troubles, placed a body in a barn to which he set fire. His scheme was to pretend that the body was his. He was indicted for murder and kidnapping, and the insurer prevailed in the litigation). See also Southern Farm Bur. Life Ins. Co. v. Burney, 590 F. Supp. 1016 (E.D. Ark. 1984), aff’d per curiam, 759 F.2d 658 (8th Cir. 1985) (the insurer had paid $470,000 in compromise settlement of a larger claim).

[42] Alexander Hamilton Life Ins. Co. v. Lewis, 500 S.W.2d 420 (Ky. Ct. App. 1973), appeal after remand, 550 S.W.2d 558 (Ky. 1977) (after the disappearance of the insured for more than seven years, the beneficiary sued and recovered judgment. Upon discovery within the year that the insured was alive, the insurer sued to set aside the judgment, which was ordered. On retrial and later appeal the Kentucky Supreme Court held that the insurer was entitled to recover the amount paid plus interest).

[43] 889 P.2d 784 (Kan. 1995).

[44] 590 F. Supp. 1016 (E.D. Ark. 1984).

[45] Id. at 1020 (“Had a jury determined at trial that Burney was dead and fixed the date of death as of June 11, 1976, Southern Farm Bureau would have been obliged to return all premiums paid subsequent to June 11, 1976”).

[46] Id. at 1022 (the corporation borrowed money on the cash values of the policies to maintain the premiums after the disappearance of Burney).

[47] Id. at 1020 (the pertinent language in the settlement contract reads as follows:

It is understood and agreed that this is a compromise settlement of doubtful and disputed claims, that the payment made shall not be construed as an admission of liability on the part of the parties released by whom liability is denied, that payment is made and received in full and complete satisfaction of the aforesaid action, causes of action, claims and demands, that this release contains the entire agreement between the parties, and that the terms of this release are contractual and not a mere recital).

[48] Id. at 1021.

[49] Id. at 1020.

[50] Id. at 1019.

[51] Id. at 1018-20.

[52] 527 P.2d 685 (Wash. Ct. App. 1974).

[53] Id. at 689 (quoting Martin v. Ins. Co. of N. Am., 460 P.2d 682, 685 (Wash. Ct. App. 1969), “A jury will not be prmitted [sic] to extrapolate conjecturally beyond a legal conclusion which is itself arrived at circumstantially by inference from a proven fact . . . . But, a given set of facts may radially project two (or more) separate inferences. In such event, one inferential conclusion is not pyramided upon another; each is drawn independently from the same evidence.”).

[54] 927 F.2d 163 (4th Cir. 1991).

(Author’s bio)

Edgar Sentell is a retired Senior Vice President – General Counsel of Southern Farm Bureau Life Insurance Company in Jackson, Mississippi. He is a graduate of the University of Alabama, where he received his Bachelor’s degree in 1963 and his law degree in 1966. Mr. Sentell has been a member of the Federation of Defense & Corporate Counsel since 1987. He has served as vice-chair of its Life, Health and Disability Section. Mr. Sentell currently serves as a Professor of Business Law and Business Ethics at Mississippi College in Clinton, Mississippi.