
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1152                       VALENTINO T. COLASANTO, TRUSTEE OF THE                          ROBERT M. COLASANTO REVOCABLE TRUST,                                Plaintiff, Appellant,                                          v.                       LIFE INSURANCE COMPANY OF NORTH AMERICA,                                 Defendant, Appellee,                                          v.                                  STEPHEN A. FARLEY,                           Third-Party Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Boyle,* Senior District Judge.                                      _____________________                              _________________________               Katherine A. Merolla, with whom Amedeo C. Merolla and Pucci,               ____________________            _________________     ______          Goldin & Merolla were on brief, for appellant.          ________________               William B.  VanLonkhuyzen, with  whom Norman S.  Zalkind and               _________________________             __________________          Zalkind,  Rodriguez, Lunt &  Duncan were  on brief,  for appellee          ___________________________________          Stephen A. Farley.                              _________________________                                  November 15, 1996                               ________________________          _________________          *Of the District of Rhode Island, sitting by designation.                    SELYA, Circuit  Judge.  This appeal  summons our review                    SELYA, Circuit  Judge.                           ______________          of a jury verdict that awarded certain life insurance proceeds to          the  decedent's quondam companion rather than  to a family trust.          Upon close perscrutation  of the record, the parties' briefs, and          the applicable law, we discern no error.          I.  BACKGROUND          I.  BACKGROUND                    We  start with a neutral account of the facts that were          before the jury.   The  decedent, Robert M.  Colasanto, made  his          mark as a successful  business executive.  In September  of 1982,          Colasanto met Stephen  A. Farley.   A relationship developed  and          the  two men  began cohabiting  in San  Diego, California.   They          lived initially in  a rented  dwelling and later  in a  luxurious          home that Colasanto  purchased.  During this time frame Colasanto          founded a  health-care organization, Community Care Network, Inc.          (CCN),  which became  hugely successful.   Colasanto  enjoyed the          fruits of his  good fortune including,  inter alia, a  beneficial                                                  _____ ____          interest under a  group life  insurance policy owned  by CCN  and          issued by  Life Insurance Company  of North America  (LINA) which          afforded him a $140,000 death benefit.                    Colasanto's  world  changed in  1989  when a  physician          diagnosed  him as HIV-positive.  By 1992, he had contracted AIDS.          Yearning  for his  native  New  England,  he  bought  a  home  in          Massachusetts.  Colasanto and Farley  took up residence there  in          the spring of 1993.                    As   Colasanto's  health  deteriorated,  so,  too,  his          relationship with  Farley.    The  two  men  began  discussing  a                                          2          property  settlement  in mid-1993.    Despite  the assistance  of          retained  counsel, they were unable to agree on terms.  According          to Farley, however, the parties reached an informal  agreement on          or about December 3,  1993.  Under that accord,  Colasanto was to          transfer ownership of five life insurance policies (including the          LINA group life policy) to Farley.                    On December 10, Colasanto completed and executed a form          entitled "Application  for Conversion  of Group or  Employee Life          Insurance"  (the conversion  application) with  the intention  of          converting his  coverage under the group policy  to an individual          policy.   Line  10(c)  of the  conversion  application bears  the          inscription  "Pay  Death Benefit  to,"  followed  by three  blank          lines.    Underneath  the  first blank  line  these  instructions          appear:  "Print Full Name of Beneficiary and State Relationship."          On  the left-hand side of  this line Colasanto  typed "Stephen A.          Farley."  He left a blank space  in the middle of the line and on          the right-hand side he  typed "Executor."1  On the  following two          lines Colasanto  added "Issue  policy with  Mr. Farley  as owner.          See  enclosed letter."  The  letter, signed by  Colasanto, bore a          caption indicating that it was being transmitted "RE:  CONVERSION          OF GROUP COVERAGE TO INDIVIDUAL COVERAGE   SPECIFICATION OF OWNER          OF INDIVIDUAL POLICY  WHICH IS ISSUED."   The body of the  letter          made explicit reference to  the conversion application and stated                                        ____________________               1The parties  agree that  on December 10,  1993, Colasanto's          will nominated Farley as his executor.  Colasanto made a new will          before he  died.  Farley was  not named as executor  then and was          not  appointed executor  of  Colasanto's estate  upon Colasanto's          demise.                                          3          in relevant part:                         Please  note that  I am  requesting that                    the individual policy be issued such that the                    owner is as follows:                    Stephen A. Farley                    10448 Russel Road                    La Mesa, CA 91941 D.O.B. 2-21-49                         Mr. Farley is currently  the beneficiary                    of the group coverage.   If he needs to  fill                    out another beneficiary form, please  send it                    to him since  that will be  his right as  the                    policy owner.                         The premium statement(s) should  be sent                    to Mr. Farley at the above address.                    Colasanto  transmitted  the conversion  application and          letter  to LINA.   He sent forms  and letters to  four other life          insurers on the same date.  Each letter instructed the carrier to          transfer ownership of the  affected policy to Farley.  In each of          the  five instances Colasanto  contemporaneously furnished Farley          with signed  copies of  the conversion application  or assignment          form,  the  cover letter,  and  a certified  mail  return receipt          request  in Colasanto's  handwriting asking  that the  receipt be          forwarded to Farley.2                    Farley  returned  to California  on  December  22.   On          January 19, 1994, Colasanto sent a premium payment to LINA on the          policy  in question and accompanied it  with a letter reiterating          "that the individual policy should be issued to Stephen A. Farley          as owner."   Colasanto added:  "If a separate form is required to          change  owner,  then  please  send  the  form.    Future  premium                                        ____________________               2Upon  Colasanto's death,  Farley  apparently collected  the          proceeds of the  other four  policies without incident.   In  any          event, none of those policies are implicated here.                                          4          statements should be sent to Mr. Farley as owner."  LINA sent the          individual policy to Colasanto in  early February together with a          letter admonishing  that if Colasanto wished  to designate Farley          as owner, he should  execute an assignment form and  return it to          LINA.  Despite the fact that LINA enclosed a blank form with this          letter, Colasanto never signed it.                    Later that month, Farley  returned to Massachusetts.  A          reconciliation ensued.3   Colasanto  repaired to  California with          Farley, only to return to  Massachusetts alone following a bitter          quarrel  that  took place  on  March  7, 1994.    The next  month          Colasanto  executed  a  change-of-beneficiary  form  in which  he          purported  to  designate  one   of  his  brothers,  Valentino  T.          Colasanto,  in his capacity as Trustee of the Robert M. Colasanto          Revocable  Trust,   as  the  beneficiary  of   the  LINA  policy.          Colasanto died on June 17, 1994.                    Both Farley and  the Trustee laid  claim to the  policy          proceeds.   The Trustee won the  race to the courthouse steps and          filed suit  against LINA  in a  Rhode Island state  court.   LINA          removed the case  to federal  district court, 28  U.S.C.    1441,          citing the existence of original jurisdiction arising out of both          diversity  and  interpleader, see  28  U.S.C.     1332(a),  1335,                                        ___          impleaded  Farley, and  deposited the  face value  of  the policy          ($140,000)  into  the  registry  of  the  district  court.    See                                                                        ___                                        ____________________               3During  this  period Farley  took  possession  of both  the          subject  policy  and  the blank  assignment  form.   The  parties          disagree about  how this occurred.   The appellant  contends that          Farley filched the papers; Farley claims that Colasanto gave them          to him.                                          5          generally   Fed.  R.   Civ.  P.   22  (discussing   mechanics  of          _________          interpleader actions).                    LINA's  departure from  the  fray left  Farley and  the          Trustee locked in mortal combat.  After considerable skirmishing,          the case  was tried and the  jury returned a verdict  in Farley's          favor.    The  district  court thereafter  denied  the  Trustee's          motions under Fed. R. Civ. P. 50(b) (judgment as a matter of law)          and Fed. R. Civ. P. 59(a) (new trial).  This appeal followed.                    The Trustee  presses several  points in support  of his          position.    We have  considered them  all,  but address  in this          opinion only those contentions that  have arguable merit and that          are necessary to a resolution of this appeal.          II.  OWNERSHIP OF THE POLICY          II.  OWNERSHIP OF THE POLICY                    The appellant's  flagship claim  is that no  reasonable          juror could conclude that  Colasanto transferred ownership of the          subject policy to  Farley, and the  lower court therefore  should          have granted  the motion for judgment  as a matter of  law.4  The          standard  of review referable to a trial court's refusal to order          judgment  as a  matter of  law is  set in cement.   The  court of          appeals  undertakes  plenary  review,   see  Gibson  v.  City  of                                                  ___  ______      ________          Cranston, 37 F.3d 731,  735 (1st Cir. 1994), and  "examine[s] the          ________          evidence  and the inferences reasonably  to be drawn therefrom in          the light most favorable to  the nonmovant," Wagenmann v.  Adams,                                                       _________     _____                                        ____________________               4Transfer  of  ownership  is  a  critical  datum  since,  if          Colasanto remained the  owner of  the policy on  April 21,  1994,          then his  execution and delivery of  a change-of-beneficiary form          on that date would  have been effective, and the  policy proceeds          would be payable to the successor beneficiary (the Trustee).                                          6          829 F.2d 196, 200  (1st Cir. 1987).   In so doing the court  "may          not  consider  credibility  of witnesses,  resolve  conflicts  in          testimony,  or  evaluate  the  weight  of  the  evidence."    Id.                                                                        ___          Overriding a jury verdict  is warranted only if the  evidence "is          so one-sided that the movant is plainly entitled to judgment, for          reasonable minds could not differ as to the outcome."  Gibson, 37                                                                 ______          F.3d at 735.                                          A                                          A                    The gist  of the Trustee's argument  is that Colasanto,          although taking  an initial  step  to transfer  ownership of  the          policy to Farley, never effectuated  that change according to the          terms of the policy.   Thus, no  reasonable jury could find  that          Colasanto  substantially  complied   with  the  explicit   policy          requirements necessary to anoint Farley as the owner.                    This argument misses the mark.  It is predicated on the          common law doctrine of substantial compliance.  The parties agree          that   the   substantive  law   of  Massachusetts   governs  this          controversy,  and, according to  the appellant, the Massachusetts          cases suggest that,  if a  policy specifies the  manner in  which          transfers  are to be made, the failure of literal compliance with          the policy requirements will  be excused only if the  insured did          everything  that he  could do  to comply  with  those provisions.          See, e.g., Acacia Mut. Life Ins. Co. v. Feinberg, 318 Mass.  246,          ___  ____  _________________________    ________          250,  61  N.E.2d 122,  124 (1945)  (stating  that "it  is  of the          essence of substantial compliance that the insured must have done          all  in his  power  to  effect  the  change,  leaving  only  some                                          7          ministerial  act  on  the  part  of  the  insurer  necessary   to          consummate it"); Resnek v.  Mutual Life Ins. Co., 286  Mass. 305,                           ______     ____________________          309, 190 N.E. 603, 604-05 (1934) (similar).                    Building  on  this  base,  the appellant  points  to  a          provision in the LINA policy that states:  "Changes [of ownership          or  beneficiary]  must  be   requested  in  writing  on  a   form          satisfactory  to  us  and  sent to  our  Administrative  Office."          Because this condition could have been,  but was not, met   after          all, the carrier sent  Colasanto a blank assignment form,  and he          easily could have completed it and mailed it back   the appellant          insists  that there  was no  substantial compliance,  and, hence,          that  the attempted change of ownership was ineffectual.  See id.                                                                    ___ ___          at  309-10 (indicating that if the insured  is put on notice that          he has  not done all in his power to comply with the requirements          for changing a beneficiary,  as by the insurer's rejection  of an          improperly  completed  form, and  the insured  does not  take the          suggested remedial action,  there is no substantial  compliance).          Even though  Colasanto explicitly  designated Farley as  owner on          the conversion  application, reaffirmed that  designation in  the          cover  letter, and  wrote a  subsequent epistle  reiterating that          Farley owned the policy,  the appellant asseverates that Farley's          claim of ownership fails  because Colasanto never transmitted the          assignment form to LINA.  The appellant then tries to hoist  this          asseveration by its bootstraps, noting that LINA never recognized          a transfer of  policy ownership  to Farley,  instead sending  the          policy to Colasanto and accepting the change-of-beneficiary  form                                          8          that he subsequently submitted.                    There  are  two visible  flaws  in  the fabric  of  the          appellant's thesis.  In the first place, we do not think that the          doctrine of substantial compliance  applies to this case.   It is          generally  held  in  Massachusetts  that  the  provisions  of  an          insurance policy which stipulate  what formalities must attend an          assignment  are for  the  benefit of  the  insurer, not  for  the          benefit of others.  See Abbruzise v. Sposata, 306 Mass. 151, 153-                              ___ _________    _______          54, 27 N.E.2d  722, 723-24  (1940); Goldman v.  Moses, 287  Mass.                                              _______     _____          393, 397, 191 N.E. 873, 874 (1934).  When, as now, the insurer is          no longer a  combatant, and the  dispute over  the validity of  a          transfer  is limited to the  assignor and the  assignee (or those          claiming  under them),  the  assignor is  precluded from  relying          mechanically on the formalities built  into the policy to  defeat          the transfer.  See  Abbruzise, 306 Mass. at 153-54;  Goldman, 287                         ___  _________                        _______          Mass. at 397; Herman v. Connecticut Mut. Life Ins. Co., 218 Mass.                        ______    ______________________________          181, 185, 105 N.E. 450, 451 (1914); Merrill v. New Eng. Mut. Life                                              _______    __________________          Ins.  Co., 103  Mass.  245,  252 (1869).    In other  words,  the          _________          assignment, though not in compliance with the policy, nonetheless          may be binding  as between the  assignor and assignee as  long as          the evidence of the act and  the intent is sufficient to  confirm          the assignment's validity.                    The second flaw in the appellant's thesis is that, even          if the substantial compliance  doctrine retains some relevance in          a contest over life insurance proceeds between parties other than          the insurer,  an argument  premised on substantial  compliance in                                          9          this  case  overlooks  the  obvious.    If  an  insurance  policy          regulates  the form  of an  assignment and  the insured  complies          literally  with those  terms,  the assignment  is valid,  and the          _________          question of substantial compliance is immaterial.                    Here,  the policy provides  not one, but  two, means of          changing  the ownership.    It stipulates:    "The Owner  ("you,"          "your")  is  the  Insured  unless  otherwise  designated  in  the                                     ______________________________________          application or  unless changed  as provided under  the Change  of          ___________          Ownership or Beneficiary provision [i.e., by use of an assignment          form]."    (Emphasis  supplied).    The  jacket  of  the   policy          reiterates  this duality:    "The Owner  ("you,"  "your") is  the          insured  unless another  person  is named  in the  application or                                           _____________________________          later becomes the  Owner as  allowed by the  policy."   (Emphasis          supplied).  Thus, while Colasanto could have effected the desired          change of ownership by  returning the assignment form to  LINA as          instructed,  we see no reason why he  could not also have done so          in  the application.  Since the policy appears explicitly to have          ___________________          given the  policyholder that option,  we think that  a reasonable          jury could have decided the point on the basis that Colasanto had          chosen this manner  of switching the policy's  ownership and that          the resultant designation was valid and binding.                    A group policy  and an individual  policy that is  spun          off from it ordinarily are  deemed a single, continuing  contract          of  insurance.  See Binkley  v. Manufacturers Life  Ins. Co., 471                          ___ _______     ____________________________          F.2d 889, 891  (10th Cir.),  cert. denied, 414  U.S. 877  (1973);                                       _____ ______          Brindis v. Mutual Life  Ins. Co., 29 Mass. App.  Ct. 368, 369-70,          _______    _____________________                                          10          560  N.E.2d  722,  723  (1990).    Until  Colasanto  retired, his          employer  owned the group policy.  There was no individual policy          (and, hence,  no individual owner) until  Colasanto exercised his          right of conversion.   In all  probability, then, the  conversion          application  is an application  within the purview  of the quoted          policy language    we hesitate  only because LINA is  not a party          here, and  it cannot be heard  on the topic in  this proceeding            and  in any event,  the appellant concedes  that it is  such.  He          maintains, however,  that the  application could  not be  used to          dictate ownership  because there  was no line  or place on  it to          spell out the nature of the change.                    We reject  this argument.  An  insurance company cannot          confer a prerogative upon the insured in the policy covenants and          then surreptitiously take it away by omitting any reference to it          on  the forms that the company prints to implement the covenants.          Here, the policy told Colasanto that he could designate the owner          of  a  converted   policy  by  naming  that  individual   in  the          application, and  he did  so.   At the very  least, a  reasonable          jury, faced with this concatenation of circumstances, had a right          to  conclude  that  the  policy  allowed  Colasanto  to  use  the          conversion application as a vehicle to bring about  the ownership          arrangement that he preferred.  On that basis, the designation of          ownership contained  in the  application complied  literally with          the terms of the policy.                                          B                                          B                    The appellant  advances a second  theory that  involves                                          11          substantial compliance.  He  asserts that, under Fed. R.  Civ. P.          56(d),5 the  district court's  order denying his  pretrial motion          for summary judgment  precluded presentation  of the  substantial          compliance issue at trial.  The court's order stated:                    Although  there does  not  appear to  be  any                    _____________________________________________                    dispute  that Robert  M. Colasanto  failed to                    _____________________________________________                    execute and deliver  the documents  necessary                    _____________________________________________                    to  transfer  ownership  of  the   policy  in                    _____________________________________________                    question   to  Stephen  Farley,  there  is  a                    ______________________________                    genuine  issue  of  fact   regarding  whether                    Robert Colasanto ever agreed to  make Stephen                    Farley  an   irrevocable  beneficiary  and/or                    owner  of such  policy  and whether  adequate                    consideration   was   given   for  any   such                    agreement.          (Emphasis supplied).                    The  appellant interprets  the underscored  language as          establishing   as  a  matter  of   law  that  Colasanto  had  not          substantially complied  with  the requirements  for  transferring          ownership of the policy to Farley.                                        ____________________               5The rule provides in pertinent part:                    If on motion under  this rule judgment is not                    rendered upon  the whole case or  for all the                    relief asked  and a  trial is  necessary, the                    court  at  the  hearing  of  the  motion,  by                    examining  the  pleadings  and  the  evidence                    before it and by interrogating counsel, shall                    if practicable ascertain what  material facts                    exist  without  substantial  controversy  and                    what material facts are actually and  in good                    faith  controverted.  It shall thereupon make                    an  order specifying  the  facts that  appear                    without substantial  controversy  . .  .  and                    directing  such  further  proceedings in  the                    action as  are just.   Upon the trial  of the                    action the facts so specified shall be deemed                    established, and the trial shall be conducted                    accordingly.          Fed. R. Civ. P. 56(d).                                          12                    The  appellant's  contention is  vulnerable  on several          grounds.    We  mention  two  of  them.    First,  the  issue  of          substantial  compliance  is  a  red  herring,  as  LINA   is  not          challenging  Farley's status  and the  case turns,  in  the final          analysis, on Colasanto's discerned intent.  See supra Part II(A).                                                      ___ _____          Second,   the   Rule  56(d)   approach   is   little  more   than          stultification by tactical semantics.  We explain briefly.                    Although the  appellant is correct in  noting that Rule          56(d) empowers a  court to specify  (and set to  one side)  facts          that are without  substantial controversy, the rule  nevertheless          "permits  the court  to retain  full power  to make  one complete          adjudication  on all  aspects of  the case  when the  proper time          arrives."  10A Charles  Alan Wright et al., Federal  Practice and          Procedure    2737 (2d  ed. 1983).   Here,  it is  disingenuous to          suggest that the court relinquished this power.  Fairly read, the          underscored language simply acknowledges  the lack of any dispute          as to whether the  assignment form was executed and  delivered to          LINA.  To say, as the appellant would have it, that the statement          decides  the compliance question as a matter of law would require          us  both to torture the  district court's words  and overlook its          manifest intention.  We refuse to do so.          III.  THE BENEFICIARY DESIGNATION          III.  THE BENEFICIARY DESIGNATION                    The  appellant's fallback  position  is  that, even  if          Colasanto transferred ownership of the policy to Farley, it still          must  be found as a matter of  law that Farley, as an individual,          is  not entitled to the policy proceeds.  This reasoning rests on                                          13          line 10(c) of the conversion application, which solicits the full          name of the beneficiary and the beneficiary's relationship to the          insured.  In response  Colasanto typed:  "Stephen Farley                   Executor."    The  appellant posits  that  the  use  of the  word          "executor"  in  this  context   designates  a  fiduciary  as  the          beneficiary and,  therefore, Colasanto's executor    not Farley            is entitled to the avails of the policy.                    The principal  authority on which the  appellant relies          is  Faircloth v. Northwestern Nat'l  Life Ins. Co.,  799 F. Supp.              _________    _________________________________          815 (S.D. Ohio 1992).  In Faircloth, the insured wrote "Faircloth                                    _________          James H. Administrator" on the line in the application that asked          for the name of the beneficiary.  The court ruled  as a matter of          law that the policy  proceeds went to the named beneficiary to be          administered for  the benefit of the estate, and not to him as an          individual.   See id. at  817.  The  appellant reads Faircloth to                        ___ ___                                _________          stand  for  the proposition  that whenever  a fiduciary  label is          found in close proximity to a beneficiary's name, the beneficiary          designation must be construed as running to the actual fiduciary,          not  to the  individual  named.   If  Faircloth stands  for  this                                                _________          proposition    a matter on which we take no view   it contradicts          basic  tenets of  Massachusetts contract  interpretation,  and we          must therefore disregard it.                    Massachusetts law holds that, if an ambiguity exists in          contract documents, its  ultimate resolution almost always  turns          on  the parties'  intent.   See Smart  v. Gillette  Co. Long-Term                                      ___ _____     _______________________          Disability  Plan, 70 F.3d 173, 178 (1st Cir. 1995); Massachusetts          ________________                                    _____________                                          14          Mun. Wholesale Elec. Co.  v. Town of  Danvers, 411 Mass. 39,  45,          ________________________     ________________          577   N.E.2d 283, 288 (1991).  In such a situation, the intent of          the  contracting parties  is  a matter  to  be discerned  by  the          factfinder  from the circumstances  surrounding the ambiguity and          from  such reasonable inferences as may be available.  See Smart,                                                                 ___ _____          70 F.3d at 178.                    These rules  apply to  insurance documents in  the same          way  as they apply in  other contractual settings.   See Falmouth                                                               ___ ________          Nat'l Bank v. Ticor Tile Ins.  Co., 920 F.2d 1058, 1061 (1st Cir.          __________    ____________________          1990) (applying Massachusetts law).   For instance, two analogous          Massachusetts cases indicate that,  when the insured, called upon          by  the   insurer  to  designate   a  beneficiary  by   name  and          relationship,  complies  by  using  a descriptive  term  such  as          "wife,"  it  is up  to the  factfinder  to determine  whether the          insured   meant  the   particular  person   named,  or,   in  the          alternative,  a person fitting the description on the date of the          insured's death.   See,  e.g., Strachan v.  Prudential Life  Ins.                             ___   ____  ________     _____________________          Co., 321  Mass. 507,  509, 73  N.E.2d 840, 843  (1947); Brogi  v.          ___                                                     _____          Brogi, 211 Mass. 512, 514, 98 N.E. 573, 573 (1912).6          _____                    Of  course,  it  can  be argued  that  the  appellation          "executor" is more "legalistic" than the term "wife,"  and merits          different treatment.   We agree that the beneficiary's burden may          be  heavier when a fiduciary  designation is in  play, but, here,                                        ____________________               6Interestingly,  both  cases   determined  that  the   named          individual  should  take,  though  neither of  them  was  legally          married to  the insured at the  time of the latter's  death.  See                                                                        ___          Strachan, 321 Mass. at 511; Brogi, 211 Mass. at 514.          ________                    _____                                          15          the end result is the same.                    In  general,  courts construe  beneficiary designations          made in connection with insurance policies according to the rules          applicable  to the construction of wills.  See 5 George J. Couch,                                                     ___          Cyclopedia of Insurance Law   28:7  (2d ed. 1984).  "The cardinal          rule in the interpretation of a will is the  ascertainment of the          testator's intent from an examination of the language employed by          him construed in  the light of the circumstances known  to him at          the time he executed  the will, and his intent,  when determined,          must  be given  effect  unless contrary  to  some rule  of  law."          Magill v. Magill,  317 Mass. 89, 92,  56 N.E.2d 892, 894  (1944).          ______    ______          Thus,  a  testamentary  gift  will  vest  in  a  beneficiary  qua                                                                        ___          fiduciary absent  a plain manifestation of  the testator's intent          to  accomplish a  different  result.   See  Slavik v.  Estate  of                                                 ___  ______     __________          Slavik, 46  Ark. App.  74, 76,  880  S.W.2d 524,  526 (1994)  (en          ______          banc); Baker  v. Wright,  257 Ala.  697, 703,  60 So.2d  825, 830                 _____     ______          (1952).   However,  merely inserting  the  word "executor"  in  a          change  of beneficiary  form  that requests  the policyholder  to          state  the  relationship  between  the  beneficiary  and  himself          presents presumptively  a materially weaker case  for holding the          gift to be taken in a fiduciary capacity than leaving property by          will to  a donee who  is a fiduciary and  is so described  in the          dispositive clause.  See Slavik, 46 Ark. App. at 76.  In sum, the                               ___ ______          naked fact  that the beneficiary's relationship to the insured is          designated  in  the  policy  documents  by a  legal  term  (e.g.,          "executor") does not compel a finding of a fiduciary disposition;                                          16          the  matter still  comes down  to a  question of  the declarant's          intent.                    Applying the principles  gleaned from  these cases,  we          descry  no  error  here.    It  is  plain  as  a  pikestaff  that          Colasanto's  use of the word "executor" in response to line 10(c)          creates an  ambiguity.  Given the suggestive spacing that appears          on  the  completed  form  and  the delicate  nature  of  Farley's          relationship  to Colasanto   a relationship that, in a homophobic          society, he might wish to describe with some tact    the response          can  plausibly be  construed  as  using  the  word  in  a  purely          descriptive sense.  To  be sure, it can be argued  that Colasanto          used the word  to indicate the legal status  of the beneficiary            but  this possibility means no more than  that the word, taken in          context, is ambiguous.  See Fashion House, Inc.  v. K mart Corp.,                                  ___ ___________________     ____________          892  F.2d  1076,  1083 (1st  Cir.  1989)  ("Contract  language is          usually  considered  ambiguous .  . .  where the  phraseology can          support reasonable difference of opinion as to the meaning of the          words  employed  and  obligations  undertaken.").   Because  such          ambiguities must  be resolved according to  the insured's intent,          it  follows  that  the  district court  properly  submitted  this          question to the jury.                    Taking the next step, the jury's finding that Colasanto          intended the term "executor" to describe Farley as an individual,          not  as a fiduciary, is amply supported.   Since Farley was named          as  the  executor of  Colasanto's  estate at  the  time Colasanto          completed   the  conversion  application,   the  description  was                                          17          accurate.  Here, moreover,  Colasanto originally had named Farley          as the beneficiary of the  group life policy.  While it  is true,          as  the appellant  suggests,  that a  term  such as  "friend"  or          "companion"  might  have   described  Farley's  relationship   to          Colasanto  more fittingly, that  is the stuff  of jury arguments,          not of  appellate review    and  the jury had  a right  to assess          Colasanto's word choice with  knowledge that emotionally  charged          phrases may have  been painful to contemplate because  a ten-year          relationship was on the rocks.  Finally, it is telling (or so the          jurors could have thought) that Colasanto never once referred  to          Farley  as a  fiduciary or  in a  fiduciary status  in subsequent          correspondence or conversations anent the policy.                    We need not paint the lily.  On this scumbled record, a          rational jury could have inferred    as this jury did    that the          word  "executor"  was  meant  only  to  describe  the  particular          individual whom the insured  intended to name as  the beneficiary          of the  policy, and not  to portend a  disposition to  Farley qua                                                                        ___          fiduciary.          IV.  THE MOTION FOR A NEW TRIAL          IV.  THE MOTION FOR A NEW TRIAL                    The appellant  tells us that  the trial court  erred in          denying his motion for a new  trial.  Appellate review of  orders          refusing new trials is tightly circumscribed.  We ordinarily will          not disturb such a  ruling if a  reasonable basis exists for  the          jury's  verdict.   See Wagenmann,  829 F.2d  at 200-01.   Phrased                             ___ _________          another way, we will  not intervene unless we ascertain  that the          outcome  is "against the clear  weight of the  evidence such that                                          18          upholding the  verdict will result in a  miscarriage of justice."          Putnam Resources v. Pateman,  958 F.2d 448, 459 (1st  Cir. 1992).          ________________    _______          This is not such a case.                    We need not tarry.   The motion for a  new trial hinged          largely  on the two issues  previously discussed    the change of          ownership and the identity  of the beneficiary.  We  have already          explained that the jury had enough evidence on these questions to          support a  verdict in Farley's  favor.   See supra Parts  II(A) &                                                   ___ _____          III.  We add here only that,  on both issues, the totality of the          evidence does not suggest either that justice miscarried or  that          the  trial  court's  refusal   to  overturn  the  jury's  verdict          constituted an  abuse of discretion.   Consequently, the district          court did not  err in  denying the appellant's  new trial  motion          under Fed. R. Civ. P. 59(a).  See Sanchez v. Puerto Rico Oil Co.,                                        ___ _______    ___________________          37 F.3d 712, 717 (1st Cir. 1994).          V.  THE EVIDENTIARY QUESTION          V.  THE EVIDENTIARY QUESTION                    The appellant contends  that the trial court  blundered          in refusing to admit into evidence portions of letters written by          Colasanto  to Farley  on  March  17,  1994  and  April  1,  1994,          respectively.  As a starting point, the appellant claims that the          proffered statements were admissible  under Fed. R. Evid. 803(3).          We do not agree.                    Evidence  Rule   803(3)   removes  from   the   hearsay          prohibition statements that  exhibit a declarant's "then-existing          state of mind."  But, this exception is not to  be construed as a          sweeping  endorsement  of  all  state-of-mind evidence.    To  be                                          19          admissible  under  this  exception, a  declaration,  among  other          things, must  "mirror a state of mind, which, in light of all the          circumstances, including proximity in time,  is reasonably likely          to have been the  same condition existing at the  material time."          2 John  W. Strong, McCormick  on Evidence    274 (4th  ed. 1992).          Because disputes over  whether particular statements  come within          the state-of-mind exception are  fact-sensitive, the trial  court          is  in the best  position to resolve  them.  As is  true of other          rulings  admitting or  excluding  evidence,  appellate review  is          solely  for abuse of discretion.  See, e.g., Blinzler v. Marriott                                            ___  ____  ________    ________          Int'l., Inc., 81 F.3d 1148, 1158 (1st Cir. 1996).          ____________                    Here,   the  appellant   argues   that  the   proffered          statements reflect  Colasanto's intent,  as early as  February of          1994,  not to transfer the  converted policy to  Farley, and that          they therefore rebut Farley's claim that Colasanto had a donative          intent.  The  district court excluded  the correspondence on  the          ground  that it did not relate to Colasanto's intent in February,          but only to his intent at or about the time he wrote the letters.          We detect no misuse of the court's wide discretion.                    On Farley's  version of  the case, Colasanto  evinced a          donative intent vis- -vis the LINA policy in December of 1993, in          January 1994, and again in early February  of that year.  Between          the last of  these incidents and the first  of the letters (which          bore a date of March 17,  1994), a bitter fight between the long-          time  companions  ensued.    That imbroglio,  for  all  practical          purposes,  eradicated any  vestige  of an  amicable relationship.                                          20          Although  the  subsequent  letters  clearly  reflect  Colasanto's          animosity  toward   Farley  on  March  17   and  thereafter,  the          significant  intervening events     the quarrel  and the  ensuing          breakup      could   reasonably   be  thought   to  disrupt   the          contemporaneity required by Evidence Rule  803(3).  Thus, we  are          unable to find that  the district court abused its  discretion by          excluding the proffered state-of-mind evidence.                    In  a last-ditch effort to stem the tide, the appellant          argues, in  the alternative, that  the evidence was  proper under          Fed.  R.  Evid.  804(b)(5).    That  catchall  rule  permits  the          introduction  of hearsay evidence,  not otherwise  admissible, as          long  as the  declarant  is unavailable,  the evidence  possesses          "circumstantial  guarantees  of trustworthiness,"  and  the trial          court finds that the evidence (i) is offered  to prove a material          facet, (ii) is more  probative on the point than  other available          evidence, and (iii) the interests of justice will be served.  See                                                                        ___          Fed.  R. Evid.  804(b)(5); see  also  United States  v. Panzardi-                                     ___  ____  _____________     _________          Lespier, 918  F.2d 313,  316 (1st  Cir. 1990).   A trial  court's          _______          determinations under  Evidence Rule 804(b)(5)  are reviewed under          an abuse of discretion standard.  See Cook v. United  States, 904                                            ___ ____    ______________          F.2d 107, 111 (1st Cir. 1990).                    The preconditions for deployment  of Rule 804(b)(5) are          formidable,  and  the  appellant  cannot  satisfy  them  in  this          instance.   For  example,  the  district  court  found  that  the          statements lacked satisfactory assurances of trustworthiness.  In          light  of  the  disputatious  course  of  events  that  had  been                                          21          unfolding for months, leading to the retention of counsel by both          Farley  and Colasanto  and  then to  the  acrimonious quarrel  in          California, we cannot fault  the district court's conclusion that          the statements were  suspect because litigation  was in the  wind          when they were made.7          VI.  CONCLUSION          VI.  CONCLUSION                    We need go  no further.   For aught  that appears,  the          case was fairly tried and the lower court appropriately permitted          the jury's verdict to stand.          Affirmed.          Affirmed.          ________                                        ____________________               7To emphasize the  point, we  note that the  April 1  letter          shows on its face that Colasanto contemporaneously sent a copy to          his attorney.                                          22
