                                                                                  [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT                             FILED
                                                                     U.S. COURT OF APPEALS
                             ________________________                  ELEVENTH CIRCUIT
                                                                           MAR 16 2001
                                                                        THOMAS K. KAHN
                               Nos. 98-5500 & 99-4028                        CLERK
                             ________________________

                        D. C. Docket No. 95-08627-CV-DMM

AUDREY SHAPS,

                                                                   Plaintiff-Appellant,

                                           versus


PROVIDENT LIFE & ACCIDENT
INSURANCE COMPANY, PROVIDENT
LIFE AND CASUALTY INSURANCE COMPANY,
a foreign corporation,

                                                                   Defendants-Appellees.

                             ________________________

                    Appeals from the United States District Court
                        for the Southern District of Florida
                          _________________________
                                 (March 16, 2001)

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI*, Judge.

MARCUS, Circuit Judge:

     *
      Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation.
      This is an appeal of a jury verdict in favor of Defendant Provident Life and

Casualty Insurance Company (“Provident Casualty”) in a suit brought by Plaintiff

Audrey Shaps alleging two breaches of a disability insurance contract. In a

special verdict, the jury determined that Shaps was not continuously disabled

within the terms of her Provident Casualty disability policy from September 10,

1990 through October 23, 1994, and thereby rejected her first claim for relief.

With respect to her second claim, the jury determined that Shaps was continuously

disabled from September 8, 1995 through April 6, 1996, but denied relief because

it found that she had failed to comply with certain conditions precedent. On

appeal, Shaps argues that the district court committed multiple errors warranting a

new trial.

      We find all of Shaps’ objections to be unpersuasive on this record, save one

that cannot be decided at this time. Shaps contends that the district court erred by

determining that a rule of Florida law placing the burden of proof on the insurer in

this context was inapplicable because that rule is substantive and the substantive

law of New York, not Florida, governs this case. Whether the Florida rule is

substantive appears to turn in part upon proper characterization of the Florida

Supreme Court’s decision in Aetna Life Insurance Co. v. Fruchter, 283 So. 2d 36

(Fla. 1973). It is unclear, however, whether the opinion in Fruchter, which


                                          2
discharged a writ of certiorari as improvidently granted, constitutes binding Florida

precedent. Moreover, it is unclear to what extent the court’s remarks in Fruchter

may be read to address the choice-of-law dispute now before us. Accordingly, we

respectfully certify to the Florida Supreme Court the following two questions:

         1.    Is the burden of proof rule recognized in Aetna Life Insurance
               Co. v. Fruchter, 266 So. 2d 61 (Fla. 3d Dist. Ct. App. 1972),
               cert. discharged, 283 So. 2d 36 (Fla. 1973), part of the
               substantive law of Florida, such that it would not be applied in a
               case where under Florida’s doctrine of lex loci contractus the
               substantive law of another state (New York) governs the
               parties’ contract dispute?

         2.    Would requiring the insured to prove disability in this context
               violate the public policy of Florida, such that the burden of
               proof must be placed on the insurer? See Gillen v. United
               Services Automobile Ass’n, 300 So. 2d 3 (Fla. 1974).

                                             I.

         The background to this appeal is as follows. In June 1987, Provident

Casualty issued an individual disability insurance policy to Shaps, who at the time

resided and worked in New York. The policy defines “Total Disability” in these

terms:

               Total disability . . . means that due to Injuries or Sickness:

               1. you are not able to perform the substantial and material
               duties    of your Occupation; and
               2. you are under the care and attendance of a Physician.



                                             3
      The policy defines “Sickness” as “sickness or disease which is first

manifested while your policy is in force.” The policy defines “Occupation” as “the

occupation (or occupations, if more than one) in which you are regularly engaged

at the time you become disabled.” The policy defines “Physician” as “any legally

qualified physician.”

      The policy also contains the following relevant provisions:

            PROOF OF LOSS

            If the policy provides for a periodic payment for a continuing
            loss, you must give us written proof of loss within 90 days after
            the end of each period for which we are liable. For any other
            written loss, written proof must be given within 90 days after
            such loss. . . .

            TIME OF PAYMENT OF CLAIMS

            After receiving written proof of loss, we will pay monthly all
            benefits then due for disability. Benefits for any other loss
            covered by this policy will be paid as soon as we receive proper
            written proof.

            LEGAL ACTIONS

            No legal action may be brought to recover on this policy within
            60 days after written proof of loss has been given as required by
            this policy. No such action may be brought after three years
            from the time written proof of loss is required to be given.

      Shaps first submitted a claim for disability benefits to Provident Casualty’s

New York office on or about July 29, 1989, asserting that the nature of her


                                         4
sickness or injury was “TMJ syndrome” (temporal mandibular joint disorder) and

that she last worked in July 1989. Shaps subsequently submitted additional claim

forms to Provident Casualty’s New York office, and thereby continued to receive

benefits.

      On September 7, 1990, Provident Casualty made a final payment to Shaps.

Provident Casualty advised Shaps that it had determined that there was no evidence

of continuous total disability as defined by her policy, and therefore it was

discontinuing payments.

      On December 15, 1994, Provident Casualty received from Shaps notice of a

new claim for disability benefits, dated December 1, 1994. Shaps now stated that

the nature of her disabling sickness or injury was breast cancer and TMJ syndrome.

Shaps’ claim form stated that her disabling illness began on October 24, 1994, and

that she was disabled as of that date. Provident Casualty initially paid benefits on

this claim. In May 1995, however, Provident Casualty stopped paying benefits on

this claim. Provident Casualty explained that it stopped paying benefits based on a

claim form from Shaps’ physician which indicated that Shaps was no longer totally

disabled. After receiving additional information, Provident Casualty sent Shaps a

benefit check representing benefits from May through September 1995. Shaps did




                                          5
not submit claim forms to Provident Casualty for the period September 8, 1995 to

April 6, 1996, and Provident in turn sent no payments for that period.

      Shaps filed this lawsuit on September 18, 1995. In her suit, originally filed

in the Circuit Court for Palm Beach County, Florida, and subsequently removed to

the Southern District of Florida, Shaps alleged breach of insurance contract,

naming Provident Life and Accident Insurance Company (“Provident Accident”)

as the defendant. As amended, Shaps’ complaint eventually alleged three separate

counts for breach of contract and specific performance against Provident Accident

and Provident Casualty, and a count for intentional infliction of emotional distress

against both defendants. Provident Accident and Provident Casualty moved for

summary judgment on all counts. The district court granted the motion in part,

dismissing the count for intentional infliction of emotional distress, and ruling that

in the event Shaps prevailed at trial she would have no claim for attorneys’ fees

pursuant to Florida law. Shaps thereafter amended her complaint to seek disability

benefits from October 1990 through the date of trial.

      As noted above, the policy at issue contains a clause providing that no action

on the policy may be brought more than three years after the time proof of loss was

required. Provident Casualty first discontinued payments in 1990, and Shaps

brought suit five years later in 1995. Under New York law, which governs the


                                          6
contract, the limitations period for an insurance policy such as this one begins upon

the termination of the disability. Accordingly, the district court ruled that Shaps’

breach of contract claim related to the cessation of benefits in September 1990

would be time-barred unless she could prove that she was continuously disabled

from October 1990 through October 24, 1994 (when Shaps alleged that a new

period of disability, for breast cancer as well as TMJ syndrome, commenced).

      The case went to trial in August 1998 on the breach of contract and specific

performance counts against Provident Accident and Provident Casualty. At trial,

Provident Casualty presented evidence that Shaps was not continuously disabled

during the 1990-94 period. In particular, Provident Casualty pointed to evidence

that during this time Shaps moved to Florida, arranged a mortgage, sold an

apartment in New York, filed tax returns that stated that she was “disabled” in

1990, “unemployed” in 1991, “loan officer” in 1992, and “retired” in 1993 and

1994. Provident Casualty also admitted into evidence Shaps’ March 20, 1991

application to Federal Kemper Life Insurance Company for a life insurance policy.

The application lists her occupation as a mortgage loan officer who was “between

jobs.” The application stated that Shaps received disability payments in the past

for TMJ as a result of stress, but also stated that she was “doing fine,” with respect

to TMJ had “[n]o problems. Haven’t seen doctor for 2 years,” and that all of her


                                          7
tests were “normal.” Shaps also affirmed on the forms that she had no “mental or

physical impairment or disease.” The forms were signed by Shaps, although she

testified at trial that she did not intend to make the statements contained in the

forms.

      For her part, Shaps presented the testimony of two health care providers that

she saw during the 1990-94 period. Ethel Green, a social worker who Shaps saw

from 1990 to 1992, testified that Shaps exhibited the symptoms of general anxiety

disorder, but stated that she could not testify as a medical expert as to whether

Shaps was disabled as a result of TMJ syndrome. John Girard, an internist Shaps

began seeing in 1992, also testified. He stated that he had no medical knowledge

as to whether Shaps was disabled before he saw her in 1992. He also stated that

Shaps was disabled from June 1992 through June 1995. Shaps also pursued at trial

her separate claim that she was denied benefits between September 8, 1995, and

April 6, 1996, in breach of her insurance contract. Among other things, Shaps

presented the testimony of her oncologist, Gerald Spunberg, who testified that

Shaps was totally disabled as a result of breast cancer. Shaps’ psychotherapist,

Beth Kreakower, testified that it was her opinion that Shaps was unable to perform

her duties as a loan officer from the time Shaps began seeing her in April 1995

until Shaps moved to California in April 1996.        At the close of the evidence, the


                                           8
trial court directed verdicts in favor of Provident Accident on the counts remaining

against it -- breach of contract and specific performance -- and in favor of

Provident Casualty on the count for specific performance. The remaining claims

for the jury were the breach of contract allegations against Provident Casualty.

The jury completed a special verdict form, finding that Shaps was not continuously

disabled within the terms of her Provident disability policy from September 10,

1990 through October 23, 1994. It then determined that Shaps was continuously

disabled from September 8, 1995 through April 6, 1996. It also found, however,

that Shaps failed to comply with the conditions precedent to her disability policy,

so as to bar her claim for benefits during the second time frame. The district court

entered final judgment in favor of Provident Accident and Provident Casualty, and

awarded costs to the defendants.

                                          II.

      The primary and most complex issue in this appeal is whether the district

court erred in determining what law applies to the question of which party bears

the burden of proof on a breach of insurance contract claim when the insurer

begins to pay total disability benefits to an insured, but later ceases to pay benefits

because it believes that the insured is not disabled. This Court reviews choice of




                                           9
law issues de novo. See Trumpet Vine Instruments, N.V. v. Union Capital Partners

I, Inc., 92 F.3d 1110, 1115 (11th Cir. 1996).

      Because the basis of the district court’s jurisdiction was diversity and suit

was filed in Florida, the district court was required to apply Florida’s conflict-of-

law rules. See, e.g., Maryland Cas. Co. v. Williams, 377 F.2d 389, 392 (5th Cir.

1967) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).

Under Florida’s conflict-of-law rules, the doctrine of lex loci contractus directs

that, in the absence of a contractual provision specifying governing law, a contract,

other than one for performance of services, is governed by law of the state in which

the contract is made. See Fioretti v. Massachusetts General Life Ins. Co., 53 F.3d

1228, 1235 (11th Cir. 1995). The contract here was executed in New York. The

parties do not dispute that New York law governs interpretation and application of

the contract, although they vigorously disagree as to what law governs the burden

of proof in this case.

      As Shaps sees it, Florida courts would not look to New York law in order to

determine the proper allocation of the burden of proof in this situation. Rather,

according to Shaps, the burden of proof is a procedural issue for conflict-of-law

purposes and hence is governed by Florida law even if interpretation of the




                                          10
contract is governed by substantive New York law.1 Shaps does not dispute that in

most instances Florida law places the burden of proof on the insured in a coverage

dispute. She maintains, however, that under the particular facts present in this

case, Florida law switches the burden to the insurer -- i.e., Provident -- to prove

that the insured was not disabled, because Provident had paid disability benefits to

Shaps before it determined that she was not disabled and discontinued paying her

benefits. See Aetna Life Ins. Co. v. Fruchter, 266 So. 2d 61, 63 (Fla. 3d Dist. Ct.

App. 1972), cert. discharged, 283 So. 2d 36 (Fla. 1973).2 Provident Casualty does


       1
          Whether the Florida courts would -- for conflict-of-law purposes -- view burden of proof
in this context as a procedural issue, and hence not subject to the lex loci contractus rule applicable
to substantive contract issues, is analytically distinct from whether the issue is procedural for
purposes of a federal court applying state law as opposed to federal law in a diversity case. See
Maryland Cas., 377 F.2d at 393 n.1. With respect to the latter issue, we have ruled that the burden
of proof in diversity cases must be allocated according to state, not federal, law. See, e.g., Coastal
Plains Feeders, Inc. v. Hartford Fire Ins. Co., 545 F.2d 448, 450 n. 5 (5th Cir. 1977). Accordingly,
when we speak of substance versus procedure in this opinion, we are referring only to how Florida
law treats the burden of proof for purposes of applying its own choice-of-law rules.
       2
       Provident Casualty insists that Fruchter is not actually implicated here because
Shaps was not claiming permanent disability; accordingly, says Provident, there is a
false conflict between Florida and New York law because both would place the
burden of proof on the insured. According to Provident Casualty, Shaps was not permanently
disabled and was instead being paid under provisions of the policy that provided for monthly benefit
checks to be paid after monthly submission of proof of loss. Provident Casualty asserts that in the
two cases relied upon in Fruchter, Ewing and Lecks, the insureds were permanently disabled.
Contrary to Provident Casualty’s argument, however, it is not clear to us that the Fruchter rule only
applies to permanent disabilities and not to cases like Shaps’. Neither the Ewing court nor the
Lecks court specifically limited the rule to permanent disability payments. Moreover, Fruchter
itself involved a case of “total disability” (with no mention of permanent disability) and the court
noted that “the language variation in the policy here and in Lecks and Ewing does not in our
judgment change the principle applying.”          Notably, the policy provision under which Shaps
claimed benefits provides: “We will pay the Monthly Benefit for Total Disability . . . .” See also

                                                  11
not disagree that the burden of proof is generally a procedural issue subject to

Florida law regardless of the operation of lex loci contractus. It asserts, however,

that the Fruchter’s unique burden-of-proof rule is substantive and therefore

inapplicable in a case governed by the substantive law of another state. With

Fruchter rendered inapplicable, says Provident Casualty, we must fall back on the

“normal” Florida rule placing the burden of proof on the insured.

       We are not aware of any Florida case law specifically addressing to what

extent Florida’s burden of proof rules are applicable in a case involving another

state’s contract laws under the doctrine of lex loci contractus. The Florida

Supreme Court has held that under lex loci contractus the law of the jurisdiction

where the contract was executed governs substantive issues regarding the contract,

such as the interpretation of its terms. See Lumbermens Mut. Cas. Co. v. August,

530 So. 2d 293, 295 (Fla. 1988). Shaps maintains that the Florida Supreme Court

must thereby have intended procedural issues to be governed by Florida law

regardless of the effect of lex loci contractus. That is the approach taken by the

Florida Supreme Court in related contexts. See, e.g., Colhoun v. Greyhound Lines,

Inc., 265 So. 2d 18, 20 (Fla. 1972) (Florida law, as law of the forum, applied to


Principal Mut. Life Ins. Co. v. Martin, 585 So. 2d 474, 475 (Fla. 3d Dist. Ct. App.
1991) (Fruchter applied in case without mention of permanent disability). There is simply no
indication that Fruchter is inapplicable because Shaps did not claim permanent disability.

                                               12
procedural matters notwithstanding applicability of foreign law to substantive

matters under lex loci delicti). As a general rule, for conflicts purposes a state will

view procedural issues as subject to its own laws. See Maryland Cas., 377 F.2d at

393 n.1 (“As a general rule, states will adhere to the law of a foreign state which is

substantive, but will apply its own law on matters of procedure.”).

      Assuming this proposition to be true, the question then becomes whether

Florida does in fact view the Fruchter burden of proof rule as procedural. Shaps

argues that in Florida the burden of proof is generally regarded as a procedural

issue, and the Fruchter rule is no exception. See Walker & LaBerge, Inc. v.

Halligan, 344 So. 2d 239, 243 (Fla. 1977) (noting that “[b]urden of proof

requirements are procedural”). Provident Casualty, by contrast, insists that the

Fruchter rule switching the burden of proof to the insurer is a principle of

substantive law applicable to a particular set of cases. The district court agreed,

finding that Florida courts view the Fruchter burden of proof rule as substantive,

not procedural, and that therefore the Fruchter rule must give way under lex loci

contractus.3 The court explained that the Fruchter rule was “a substantive rule,”


      3
        The substantive law of New York does not contain any rule shifting the burden
to the insurer in this context. In New York, as ordinarily would be the case in Florida,
the burden-of-proof is on the insured. See Klein v. National Life of Vermont, 7 F.
Supp. 2d 223, 226 (E.D.N.Y. 1998) (burden of proving total disability within the
terms of a disability insurance policy falls upon the insured).
                                          13
and “certainly not a general procedural rule. Florida doesn’t follow that rule across

the board in terms of its burden of proof. As they point out, it is a special rule for

that kind of case that departs from their usual rule and supersedes their standard

jury instructions.” Accordingly, the district court found that Shaps had the burden

of proof on the question of whether she was disabled.

      In reaching this conclusion, the district court relied on comments by the

Florida Supreme Court in its opinion discharging the writ of certiorari in Fruchter.

In that opinion, the Florida Supreme Court considered whether the trial court erred

in refusing to give the plaintiff’s requested instruction that the defendant insurance

company had the burden to show that the alleged total disability had ceased. The

court noted that “[t]his Court’s standard jury instructions, [placing the burden on

the plaintiff] while to be generally followed where applicable, are not intended to

change the substantive law applicable to the case.” Fruchter, 283 So. 2d at 37

(emphasis added). The court upheld the Third DCA’s reversal of the trial court,

citing New York Life Insurance Co. v. Lecks, 122 Fla. 127 (1936) and Mutual Life

Insurance Co. v. Ewing, 151 Fla. 661 (1942), both of which held that once the

insurer has acknowledged a disability by proceeding to make disability payments

under the policy, then in a suit to redress the discontinuance of payments and to

force the resumption of them, the burden is cast upon the insurer to prove that the


                                          14
disability no longer continues. The Fruchter court stated: “[W]e uphold the Third

District’s correct application and continued viability as a matter of substantive law

of the holdings in Lecks and Ewing and the district court’s reversal and remand of

the cause for a new trial.” 283 So. 2d at 38 (emphasis added).

       A state court’s characterization of an issue as substantive rather than

procedural for choice-of-law purposes is binding on a federal court. See Maryland

Cas., 377 F.2d at 393 n.1 (the “characterization adopted by the state courts in this

regard is conclusive upon the federal court”) (citing United Air Lines, Inc. v.

Wiener, 335 F.2d 379, 391 (9th Cir. 1964)). We are unclear, however, whether the

Florida Supreme Court’s opinion in Fruchter constitutes such a pronouncement.4

First, the opinion simply discharged as improvidently granted a petition for

certiorari. It is unclear whether such an opinion can constitute binding precedent.

Several lower appellate courts in Florida have cited the Florida Supreme Court’s

opinion as precedent. See, e.g., Mizrahi v. Provident Life & Accident Ins. Co., 748

So. 2d 1059, 1060 (Fla. 3d Dist. Ct. App. 1999); Principal Mut., 585 So. 2d at 475.

On the other hand, Florida courts -- including the Supreme Court itself -- have

suggested that “denial of certiorari by an appellate court cannot be construed as a


       4
        The parties have not made us aware of any Florida decision other than the Supreme Court’s
opinion in Fruchter that addresses whether the burden of proof in this context is substantive or
procedural.

                                               15
determination of the issues presented in the petition therefor and cannot be utilized

as precedent or authority for or against the propositions urged or defended in such

proceedings.” Southern Bell Tel. & Tel. Co. v. Bell, 116 So. 2d 617, 619 (Fla.

1959) (citing Collier v. City of Homestead, 81 So. 2d 201 (Fla. 1955)); see also

Carol City Utils., Inc. v. Dade County, 183 So. 2d 227, 231 (Fla. 3d Dist. Ct. App.

1966).

      Second, it is unclear whether the Florida Supreme Court’s description in

Fruchter of the burden-of-proof rule in that case as “substantive” was meant to

establish that rule as an element of substantive Florida law for conflict-of-laws

purposes. Although the opinion seems to mean just that, conflict-of-laws was not

an issue in the case. For the foregoing reasons, and given the importance of the

issue to proper resolution of this appeal, we think the most prudent course is to

certify the question to the Florida Supreme Court.

      Shaps makes a related argument that even if the Fruchter burden of proof

rule is a substantive component of Florida law that should be rendered inapplicable

to this case by operation of lex loci contractus, the rule should nevertheless be

applied here because Florida public policy supports placing the burden on the

insured in this situation. See Gillen v. United Services Auto. Ass’n, 300 So. 2d 3,

6 (Fla. 1974). Because that argument may be inextricably intertwined with


                                          16
resolution of the threshold choice-of-law issue, in an abundance of caution we shall

certify that question as well.5

      Accordingly, we respectfully certify the following two questions to the

Florida Supreme Court:

      1.     Is the burden of proof rule recognized in Aetna Life Insurance
             Co. v. Fruchter, 266 So. 2d 61 (Fla. 3d Dist. Ct. App. 1972),
             cert. discharged, 283 So. 2d 36 (Fla. 1973), part of the
             substantive law of Florida, such that it would not be applied in a
             case where under Florida’s doctrine of lex loci contractus the
             substantive law of another state (New York) governs the
             parties’ contract dispute?

      2.     Would requiring the insured to prove disability in this context
             violate the public policy of Florida, such that the burden of
             proof must be placed on the insurer? See Gillen v. United
             Services Automobile Ass’n, 300 So. 2d 3 (Fla. 1974).

      We stress that our formulation of these questions is not meant to limit the

scope of inquiry by the Supreme Court of Florida. As we have explained


      5
        Shaps argues that the Florida Supreme Court has clearly expressed Florida’s
public policy that the insured be afforded benefits under her policy unless and until
the insurer provides sufficient evidence to support its decision that the insured is no
longer disabled. Provident Casualty responds, among other things, that the fact that
the law differs between Florida and another jurisdiction does not in itself bar
application of foreign law. See Herron v. Passailaigue, 110 So. 539, 542 (Fla. 1926)
(public policy interest must be of “paramount importance” to warrant application of
Florida law); see also Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988) (applying lex
loci contractus and holding that New York law applied even though New York law
precluded one spouse’s recovery in an action against the other spouse unless the
insurance policy expressly provided for the claim, and Florida law did not have that
limitation).
                                          17
previously, “the particular phrasing used in the certified question is not to restrict

the Supreme Court’s consideration of the problems involved and the issues as the

Supreme Court perceives them to be in its analysis . . . . This latitude extends to

the Supreme Court’s restatement of the issue or issues and the manner in which the

answers are to be given. . . .” Martinez v. Rodriquez, 394 F.2d 156, 159 n.6 (5th

Cir. 1968). To assist the Florida Supreme Court in its determination, the entire

record in this case, together with copies of the briefs of the parties, are transmitted

herewith.

                                          III.

      As for Shaps’ remaining objections, we find no merit in them, and therefore

resolve them at this time.6

      First, Shaps contends that the district court erred by allowing Provident

Casualty to maintain that the policy required Shaps to submit proof of loss forms

every thirty days as a precondition to payment for each month of claimed

disability. Shaps argues that there was nothing in the policy that required her to

provide proof of loss claims every thirty days throughout the course of her total

disability. She cites the language in her policy stating that “[i]f the policy provides

for a periodic payment for a continuing loss, you must give us written Proofs of


      6
       These objections concern New York and federal law, not Florida law.
                                           18
Loss within ninety (90) days after the end of each period for which we are liable.”

She also cites Panepinto v. New York Mutual Life Insurance Co., 688 N.E.2d 241

(N.Y. 1997), in which the court rejected an insurer’s argument that similar

language in the policy before it meant that the insured must file proof of loss

claims no later than ninety days after the end of each monthly time frame for which

the policy is obligated to pay benefits. Shaps argues that reversal is required

because Provident Casualty improperly argued that Shaps was required to file

monthly proof of loss claims, and improperly questioned her about the fact that she

did not always file monthly claims.

      Provident Casualty responds that Shaps’ trial counsel failed to object to

Provident’s argument and cross-examination on this issue at trial, and cannot now

raise the issue on appeal. Provident also argues that the Panepinto court’s analysis

only concerned the timing of proof of loss forms as they affected the relevant

statute of limitations. Provident Casualty quotes from the opinion:

      Concededly, the construction of the language that we embrace here
      could postpone the commencement of the limitations period
      indefinitely while the insured remains continuously disabled. . . . We
      reject New York Life’s contention that this interpretation will open
      the floodgates to stale claims. In this respect, we agree with the
      analysis of the Supreme Court of Minnesota: “An insured is not likely
      to wait years before filing proof of loss because he would want to
      receive benefits as soon as possible.”



                                         19
Id. at 388. Even under Panepinto, according to Provident Casualty, submission of

proof of loss is still a condition precedent for payment of a claim. In addition,

Provident Casualty highlights unique language in Shaps’ policy providing: “Time

of Payment of Claims -- After receiving written proof of loss, we will pay monthly

all benefits then due you for your disability.”

      Shaps did not object in the district court to the argument and cross-

examination she now argues was erroneous. Moreover, Shaps has not provided

any record citations for the argument and cross-examination questions to which she

now objects. This Court has held that “[w]hen no objections are raised, we review

the arguments for plain error, but a finding of plain error ‘is seldom justified in

reviewing argument of counsel in a civil case.’” Oxford Furniture Companies,

Inc. v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118, 1128 (11th Cir. 1993).

A new trial may be ordered only “when the interests of substantial justice are at

stake.” Id.

      Shaps has failed to demonstrate that Provident Casualty’s argument and

cross-examination were plainly erroneous. The court in Panepinto did hold, in the

context of determining the limitation period on the plaintiff’s claim, that “‘period

of disability’ does not mean a monthly segment of the disability, but rather the

entire period of disability for which benefits are available under the policies.” 688


                                          20
N.E.2d at 244. The Panepinto court did not, however, consider a provision like the

one in Shaps’ policy providing that “[a]fter receiving written proof of loss, we will

pay monthly all benefits then due you for your disability” (emphasis added). This

language in Shaps’ policy is ambiguous, and could fairly be interpreted to mean

that written proof of loss is indeed required in the manner Provident suggests.

Given this ambiguous language, we cannot conclude that the district court plainly

erred by allowing Provident Casualty to propose that the policy required Shaps to

submit proof of loss claims every thirty days.

             Second, Shaps argues that the District Court erred by admitting

hearsay evidence. Specifically, she asserts that the district court should not have

allowed Provident’s counsel to cross-examine her regarding her applications for

life insurance policies. Shaps contends that the documents contain hearsay and

double hearsay because the statements made in the documents were not made by

her.

       A “district court’s evidentiary rulings are not subject to disturbance on

appeal absent a clear abuse of discretion.” United States v. Sellers, 906 F.2d 597,

601 (11th Cir. 1990). Shaps has failed to demonstrate that the district court clearly

abused its discretion in admitting this evidence. The documents about which

Shaps complains include Kemper Life insurance policy and application file, which


                                          21
included five documents that were signed by her. The documents contained

statements indicating that Shaps was not continuously disabled from 1990 through

1994. Provident Casualty’s counsel cross-examined Shaps about the documents

after Shaps’ counsel questioned her about preparation of the documents. Shaps

suggests that the documents were hearsay simply because she did not fill them out.

But there is no question here that the life insurance policy and application about

which Shaps was questioned were signed by her and prepared as part of her

application for a life insurance policy. Moreover, Shaps’ counsel initiated the

discussion of the documents on direct examination, opening the door to further

inquiry. Accordingly, the district court did not abuse its discretion in allowing

Shaps to be cross-examined about statements contained in the Kemper life

insurance policy that she admittedly took out and signed.

      Third, Shaps argues that the district court erred by allowing Provident

Casualty to admit evidence of Shaps’ financial condition. Shaps argues that under

this Court’s law, as well as the laws of Florida and New York, a jury may not be

informed of the wealth or poverty of the parties, and Provident’s attempt to portray

Shaps as someone who is not in financial need of disability benefits was a

prejudicial attempt to sway the jury against her.




                                         22
      Provident Casualty responds that Shaps opened the door to cross-

examination on her financial condition when her counsel remarked in his opening

statement that Shaps “had been expecting to receive her check from Provident that

she had been relying upon to meet her needs, her financial needs.” In addition, on

direct examination, Shaps testified about her income tax returns, a life insurance

policy and a trust established for her sons, and her inability to pay for treatment

because her COBRA insurance had run out. Provident Casualty argues that it

cross-examined Shaps on statements she made in her income tax returns as to her

occupation, and also to counteract her assertion on direct examination that she

could not afford therapy when she contemporaneously made a lump sum payment

of $95,000 on her mortgage.

        The district court did not abuse its discretion in allowing Provident

Casualty to question Shaps about the statements on her tax returns about her

occupation and about her mortgage payment. This Court has held that a jury

should not be advised about the wealth or poverty of the parties, although it noted

that there are exceptions to this general rule. See Warren v. Ford Motor Credit

Co., 693 F.2d 1373, 1378 (11th Cir. 1982). Here, however, Shaps initiated the

discussion of her financial condition, through her counsel’s claim that she was

financially dependent on the benefits as well as her own testimony that she could


                                          23
not afford therapy. Although Shaps argues that Provident Casualty questioned her

about these issues in an attempt to portray her as someone who is not in financial

need of disability benefits as a prejudicial attempt to sway the jury against her,

Shaps’ opening statement and testimony on direct that she was in financial need of

the benefits was itself an attempt to sway the jury. Provident Casualty was

essentially responding to Shaps’ assertions.   Accordingly, the district court did

not abuse its discretion in admitting this evidence.

      Finally, Shaps argues that the district court erred by rejecting her proposed

jury instruction on her theory of waiver. In essence, Shaps contends that Provident

Casualty waived its right to insist on compliance with any asserted condition

precedent regarding continuous submission of monthly proof of loss forms, by

wrongfully terminating her disability benefits in 1990 and thereby committing an

anticipatory breach of contract. Shaps cites to both New York and Florida

caselaw holding that once an insurer disclaims liability the insured is excused from

fulfilling any obligations under the policy and the insurer otherwise waives

its rights under the policy. See Reed v. Commercial Union Ins. Co., 468 N.Y.S.2d

738, 739 (N.Y. 1983); Leonardo v. State Farm Fire and Cas. Co., 675 So. 2d 176,

178 (Fla. 4th Dist. Ct. App. 1996); Wegener v. International Bankers Ins. Co., 494

So. 2d 259 (Fla. 3d Dist. Ct. App. 1986).


                                          24
      Shaps’ proposed jury instruction stated:

      If, however, you find that by the greater weight of the evidence the
      Defendants, Provident Life and Accident Insurance Company and/or
      Provident Life and Casualty Insurance Company, did have clean
      hands, then you must next decide whether the Defendants, Provident
      Life and Accident Insurance Company and/or Provident Life and
      Casualty Company, by their own conduct have waived the provisions
      of the policy requiring the Plaintiff, Audrey Shaps, to be under the
      care and attendance of a physician, and submit proofs of loss. Waiver
      is the voluntary and intentional relinquishment of a known right. If
      the greater weight of the evidence shows that Defendants, Provident
      Life and Accident Insurance Company and/or Provident Life and
      Casualty Company, have waived its right to require that Plaintiff,
      Audrey Shaps, be under the care and attendance of a physician and to
      submit proofs of loss then you should rule against the Defendants on
      their defense that Plaintiff, Audrey Shaps, failed to comply with
      conditions precedent to the policy. If, however, you find that the
      Defendants, Provident Life and Accident Insurance Company and/or
      Provident Life and Casualty Insurance Company, did not waive their
      rights you must determine whether the Plaintiff, Audrey Shaps,
      complied with the conditions precedent to the policy.

      Provident Casualty responds that the cases cited by Shaps are inapposite

because none involve disability insurance and all involve an attempt by the insurer

to void, cancel, or rescind the policy at issue; that is, a repudiation. Provident

Casualty argues that the evidence at trial was inconsistent with a repudiation

because it advised Shaps that it would review the claim further if she supplied

additional medical facts, because Shaps continued to pay premiums, and because

Provident Casualty paid benefits on Shaps’ December 1994 claim. Provident

Casualty also observes that Shaps did receive a jury instruction on waiver based on

                                          25
a request by Shaps’ counsel on the morning of closing arguments. That jury

instruction stated:

      [A] policyholder may not be required to perform conditions on time
      which are futile. If you find that Provident refused to honor Shaps’
      claims in an unconditional way, you may find that any subsequent
      omission in filing proofs of claim for the continuance of the same
      disability was waived by the conduct of Provident.

      Jury instructions are reviewed only for abuse of discretion. See Roberts &

Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir. 1998). The

instructions and the verdict form will be affirmed so long as they are sufficiently

instructed and do not mislead the jury, even if an isolated clause is inaccurate,

ambiguous, or incomplete. See Watkins v. Bowden, 105 F.3d 1344, 1356 (11th

Cir. 1997). A district court’s refusal to give a requested instruction “is error only if

the requested instruction is correct, not adequately covered by the charge given,

and involves a point so important that failure to give the instruction seriously

impaired the party’s ability to present an effective case.” See Wood v. President

and Trustees of Spring Hill College, 978 F.2d 1214, 1222 (11th Cir. 1992).

      We find no reversible error. As Provident Casualty points out, the decisions

cited by Shaps are inapplicable to her case. For example, in Reed, the plaintiff

obtained an insurance policy covering an apartment building she owned against

loss due to fire. The building suffered fire damage and the insurance company


                                          26
disclaimed liability on the ground that the policy had been cancelled a month

before the fire. The court held that once an insurer disclaims liability, an insured

is excused from fulfilling any of the obligations under the policy. 468 N.Y.S.2d at

739. In this case, however, Provident Casualty did not repudiate the policy.

Instead, Provident Casualty found that Shaps was no longer disabled at that

particular time, and it stated that it would reconsider the claim if Shaps had

additional evidence. Shaps continued to pay on the policy, and Provident Casualty

paid benefits on her later claim. Accordingly, there was no repudiation and Shaps

was not necessarily excused from complying with the policy’s conditions

precedent.

      Moreover, the district court did instruct the jury that a policyholder may not

be required to perform conditions which are futile. Because the law cited by Shaps

applies only in cases where a contract is repudiated, and also because the

instruction on futility adequately covered the issue of waiver and Shaps’ obligation

to fulfill conditions precedent, on the record before us we cannot say that the

district court abused its discretion in declining to give Shaps’ requested jury

instruction. Accordingly, on this issue as well, the district court did not commit

reversible error.




                                          27
      To summarize, we find all of Shaps’ objections to be insufficient on this

record, save one regarding the burden of proof. With respect that issue, we certify

to the Florida Supreme Court a pair of questions relating to the proper allocation of

the burden of proof. We therefore withhold final decision about the district

court’s entry of judgment in Provident Casualty’s favor until we receive the answer

to these questions.

      QUESTIONS CERTIFIED.




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