                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2193
                                    ___________

David J. Wood, Trustee of the            *
Richard T. Smith Family Trust #2,        *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Valley Forge Life Insurance              *
Company,                                 *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: November 15, 2006
                                 Filed: February 27, 2007
                                  ___________

Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
                           ___________

ARNOLD, Circuit Judge.

      Valley Forge Life Insurance Company appeals the entry of partial summary
against it and the entry of judgment against it for accidental death benefits under an
insurance policy. We affirm.

                                           I.
       David Wood sued Valley Forge for benefits under the accidental death benefits
rider of a life insurance policy taken out by M. David Howell and Richard T. Smith
on Mr. Howell's life. Mr. Smith was the original beneficiary of the policy, and he
later assigned the policy to the Richard T. Smith Family Trust. Mr. Wood is the trust's
trustee.

       Mr. Howell was found dead after a drug and alcohol overdose in a Los Angeles
hotel room. Two years after Mr. Howell died, Mr. Wood submitted a claim for
accidental death benefits. Valley Forge denied coverage on the ground that
Mr. Howell's death was a suicide and a rider explicitly excluded suicide from
coverage. Alternatively, Valley Forge maintained that coverage was precluded by the
exclusion for deaths "caused or contributed to by sickness and disease" because
Mr. Howell's drug and alcohol addictions and depression contributed to the overdose.

      Mr. Wood filed suit. Valley Forge raised the affirmative defense that the life
insurance policy never went into effect because of alleged misrepresentations in the
application, thus barring the claim, and it filed a counterclaim seeking to rescind the
original policy. The district court1 granted Mr. Wood's motion for partial summary
judgment against both this defense and the related rescission claim. The court also
granted partial summary judgment to Mr. Wood on Valley Forge's defense that
Mr. Howell's death was caused or contributed to by sickness and disease and therefore
excluded from accidental death coverage.

       After the case was transferred to a different district judge,2 a jury trial was held
on the sole issue of whether Mr. Howell's death was a suicide or an accident. The
district court admitted Mr. Howell's death certificate and his autopsy report into
evidence, but granted Mr. Wood's motion to redact from both documents the coroner's
conclusion that Mr. Howell's death was a suicide. The court's jury instructions placed


      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
      2
        The Honorable G. Thomas Eisele, United States District Judge for the Eastern
District of Arkansas.

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the burden of proof on Valley Forge to show that Mr. Howell had committed suicide;
directed the jury to find against Valley Forge if it had a "fair question" as to
Mr. Howell's cause of death; and required Valley Forge to prove that Mr. Howell
intended to take his life "then and there." The jury determined that the death was
accidental, and the district court entered judgment in Mr. Wood's favor.

        Valley Forge appeals the pre-trial orders granting partial summary judgment to
Mr. Wood. In addition, Valley Forge appeals the judgment entered in favor of
Mr. Wood following the jury verdict; the insurer contends that the district court erred
at trial by redacting the coroner's conclusion of suicide from the death certificate and
the autopsy report and by improperly instructing the jury.

                                         II.
      We review de novo the district court's grant of partial summary judgment
against Valley Forge. Wal-Mart Stores, Inc. v. RLI Ins. Co., 292 F.3d 583, 586 (8th
Cir. 2002). Summary judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment in its favor as a matter of
law. Fed. R. Civ. P. 56(c).

                                           A.
       We consider first Valley Forge's argument that the policy was void ab initio
because Mr. Howell and Mr. Smith failed to comply with a condition precedent. The
district court ruled against Valley Forge on this claim, relying, in part, on the so-called
incontestability clause in the policy. That clause, which was required by a state statute
in effect at the time that the policy was issued, see Ark. Stat. § 23-81-105 (1998),
precluded Valley Forge from contesting the policy after it had been "in force during
the Insured's lifetime for 2 years from the Policy Date." Here the policy date was
more than two years before Mr. Howell's death and four years before Mr. Wood's
claim for benefits. Valley Forge argues, however, that the policy was never "in force,"



                                           -3-
as required by the incontestability clause, because the failure of a condition precedent
prevented the formation of a contract.

       The application form states that the "insurance will not take effect until the
policy is delivered while ... conditions remain as described in this application."
Relying on this language, Valley Forge maintains that the policy never "took effect"
because when it was delivered certain "conditions," i.e., Mr. Howell's income and net
worth, were not as stated in the application. But we question the applicability of this
provision to the case before us: We believe that by stating that the policy would not
be effective unless conditions "remain[ed]" as described, the provision addresses
situations where circumstances change after an application is completed but before
delivery of the policy, not situations involving misrepresentations in the application
itself. Valley Forge, however, did not rely on a change. Instead it alleged in its
counterclaim that a "condition precedent" had not been satisfied because Mr. Howell's
statements regarding his income and net worth were "false when made and when the
policy was issued."

       We note, moreover, that Valley Forge's contention that the contract was void
ab initio might be more persuasive if language to the contrary did not appear on the
very page of the application that included the alleged misrepresentations. At the
bottom of the financial questionnaire setting out figures for Mr. Howell's income and
net worth, and immediately above Mr. Howell's signature, the form recites that "any
material misstatement in this declaration, or elsewhere in this application, will render
the policy, if issued, voidable" (emphasis added). Based on the plain language of this
document, Valley Forge's claim that the policy was void ab initio must fail. And even
assuming that an ambiguity was created by a conflict between the statement in the
questionnaire and the provision upon which Valley Forge relies, our conclusion would
be the same because an ambiguity is construed against the insurer, see Phelps v. U.S.
Life Credit Life Ins. Co., 336 Ark. 257, 261-62, 984 S.W.2d 425, 428 (1999).



                                          -4-
      As we have said, the policy was voidable, not void ab initio. It was therefore
"in effect" for more than two years before Mr. Howell died, and thus the
incontestability clause barred Valley Forge's later rescission claim. See Life & Cas.
Ins. Co. of Tenn. v. Smith, 245 Ark. 934, 938, 436 S.W.2d 97, 99 (1969). We
therefore agree with the district court that the life insurance policy was valid as a
matter of law.

                                           B.
       We turn now to Valley Forge's assertion that the district court erred in granting
partial summary judgment to Mr. Wood on the question of whether the policy
exclusion for death "caused by or contributed to by sickness or disease" applied.
Valley Forge maintains that a jury should have determined whether Mr. Howell's drug
dependence and depression were diseases that caused or contributed to his death. The
district court disagreed, concluding that the exclusion is limited to proximate causes
of death and that as a matter of law drug dependence and depression "were only
remote indirect causes rather than proximate causes of Mr. Howell's death."

       Because the Arkansas Supreme Court has not addressed the specific issue in
this case, our task is "to predict how the Arkansas Supreme Court would resolve the
issue if confronted with it." See Jackson v. Anchor Packing Co., 994 F.2d 1295, 1301
(8th Cir. 1993). We conclude that the Arkansas Supreme Court would require
proximate cause to trigger the exclusion, and thus we affirm the order of the district
court.

      In two cases of relevance, the Arkansas Supreme Court decided that where an
accident aggravates a preexisting disease, the insurer is not relieved of liability on an
accidental death policy. See Life & Casualty Ins. Co. of Tenn. v. Jones, 230 Ark. 979,
985-86, 328 S.W.2d 118, 121-22 (1959); Prudential Ins. Co. of Am. v. Croley,
199 Ark. 630, 632-35, 135 S.W.2d 322, 324 (1940). In Jones, the insured had a heart
condition that contributed to his death from a heart attack after someone struck him

                                          -5-
with a bottle. The Arkansas Supreme Court considered his death to be accidental
within the meaning of the policy. Jones, 230 Ark. at 983-87, 328 S.W.2d at 120-22.
And in Croley, 199 Ark. at 632-35, 135 S.W.2d at 324, the court held that the
evidence supported a finding that the proximate cause of death was the decedent's
injury and exposure to inclement weather as a result of an automobile accident which,
according to expert testimony, caused him to contract the pneumonia from which he
died; the decedent's preexisting bronchitis which made him more susceptible to
pneumonia did not affect the insurer's liability. In both cases, the Arkansas Supreme
Court concluded that the only causes relevant to determining whether the beneficiary
was entitled to accidental death coverage were the proximate causes, which in Jones
and Croley were the accident and the resulting injuries.

      We recognize that since Mr. Howell did not die from aggravation of a
preexisting disease, Jones and Croley are not directly on point. Valley Forge's
argument here is that Mr. Howell's disease caused the overdose, not that the overdose
aggravated his preexisting alcoholism, drug addiction, and depression. But Jones and
Croley stand for the general proposition that in cases like the present one, a court
should not go further back up the line of causation than what is generally called a
proximate cause. Applying that principle here, as we believe the Arkansas Supreme
Court would do, we conclude that Mr. Howell's drug addiction and depression are too
remote to be a proximate cause of Mr. Howell's death, and those conditions thus
cannot support the exclusion that Valley Forge argues for here.

                                         III.
       Valley Forge also appeals the district court's decision to redact the coroner's
conclusion that Mr. Howell's death was a suicide from the death certificate and the
autopsy report before admitting them into evidence. We hold that the district court
erred in redacting the evidence, but we nevertheless affirm the judgment because we
conclude that the error was harmless.



                                         -6-
      The district court's rationale for redacting the coroner's conclusion is unclear
from the record. Because it is also unclear whether the district court applied Arkansas
or federal law and the parties dispute which law to apply, we emphasize that the
Federal Rules of Evidence govern the admissibility of evidence in this diversity case.
See Sosna v. Binnington, 321 F.3d 742, 744-45 (8th Cir. 2003). The death certificate
and autopsy report were both admissible into evidence without redactions as business
records under Federal Rule of Evidence 803(6). See Sosna, 321 F.3d at 747.

       Although Federal Rule of Evidence 403(b) allows the district court to exclude
otherwise admissible evidence that is more unfairly prejudicial than probative, that
rule does not justify exclusion here. The coroner's conclusion was certainly probative
as to the cause of Mr. Howell's death, and the only "prejudice" to Mr. Wood of
admitting the evidence is that it helps Valley Forge's case. We can discern no inherent
unfairness in this evidence. Furthermore, under Federal Rule of Evidence 704(a),
evidence such as the coroner's opinion cannot be objectionable on the ground that "it
embraces an ultimate issue to be decided by the trier of fact." We thus conclude that
the district court erred in excluding the evidence.

       Nevertheless, when we consider the record as a whole, we are satisfied that the
error was harmless. We affirm the district court's judgment because we have a
"reasonable assurance that the jury would have reached the same conclusion had the
evidence been admitted." Adams v. Fuqua Indus. Inc., 820 F.2d 271, 273 (8th Cir.
1987). There was significant testimony from Valley Forge's expert that Mr. Howell's
death was a suicide. The expert testified at length as to the basis for his opinion,
including Mr. Howell's background and his substance abuse and depression. The
district court also admitted the records of the Betty Ford Center, where Mr. Howell
had been treated just before his death. These records showed that Mr. Howell had
contemplated suicide and had told Center personnel of his plans to kill himself.
Although we recognize that the coroner's conclusion would have provided additional
support for Valley Forge's contention that Mr. Howell committed suicide, we cannot

                                         -7-
conclude that its exclusion had an appreciable effect on the jury's verdict. Given this,
we conclude that the exclusion was harmless.

                                         IV.
       The remaining issues in the case involve contested jury instructions. In
reviewing challenges to jury instructions, we ask "whether the instructions, taken as
a whole and viewed in light of the evidence and applicable law, fairly and adequately
submitted the issues in the case to the jury." Wheeling Pittsburgh Steel Corp. v.
Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001). We will not
reverse based on instructional error unless the error affected a party's "substantial
rights." Id.

                                            A.
        Valley Forge asserts that the jury instructions improperly placed the burden on
it to prove suicide, thus relieving Mr. Wood of his burden to prove accidental death.
In ruling on Valley Forge's motion for a new trial, the district court concluded that
since the only possible causes of Mr. Howell's death were suicide or accident, it would
have been "confusing, unnecessary, and indeed, prejudicial to instruct the jury on
Plaintiff's burden to prove accidental death."

       We believe that the district court fairly presented the issue to the jury. Arkansas
law is clear that the insurer bears the burden of proving suicide, Cypress Farms, Inc.
v. Employers Life Ins. Co. of Am., 479 F.2d 124, 126 (8th Cir. 1973), and a "plaintiff
is not required to prove that the death of the insured did not result from suicide."
Aetna Life Ins. Co. v. Newbern, 127 F.2d 171, 173 (8th Cir. 1942). We also agree
with the district court that if the death was not a suicide, it was accidental. Mr. Wood
was thus entitled to prevail unless Valley Forge proved that Mr. Howell's death was
a suicide.




                                           -8-
                                             B.
       Valley Forge also maintains that the trial court misstated what Valley Forge was
required to prove to prevail on its argument that the death was a suicide. The relevant
instruction stated that if "there is a fair question" as to whether the death was due to
an accident or to suicide, the jury should find that it was due to an accident. The court
further instructed the jury that a "fair question is an honest question, one that is based
on the evidence or lack of evidence." The instruction was taken almost verbatim from
O'Malley, Grenig, & Lee, 3 Federal Jury Practice and Instructions § 126.71 (5th ed.
2000). The district court denied Valley Forge's motion for a new trial based on this
instruction, concluding that the instruction correctly stated what Valley Forge had to
prove. We agree.

       The instruction incorporates the presumption against suicide that exists under
Arkansas law. "[P]roof of death of an insured from injuries received by him raises a
presumption of accidental death . . . and this presumption will continue until overcome
by affirmative proof to the contrary." Metropolitan Cas. Ins. Co. v. Chambers, 136
Ark. 84, 93, 206 S.W. 64, 67 (1918).

      The court's instruction also properly stated the combined effect of the "strong"
presumption against suicide, see Security Life & Trust Co. v. First Nat'l Bank in Little
Rock, 249 Ark. 572, 577, 460 S.W.2d 94, 96 (1970), and Valley Forge's burden of
proving suicide by a preponderance of the evidence. The Arkansas Supreme Court
has held that the presumption against suicide carries independent evidentiary weight.
See Union Cent. Life Ins. Co. v. Sims, 208 Ark. 1069, 1074, 189 S.W.2d 193, 195
(1945). Contrary to Valley Forge's assertions, it would thus not have been enough for
the district court to provide a general preponderance of the evidence instruction
placing the burden of proof on the insurer (i.e., an instruction that the plaintiff should
prevail if the evidence is in equipoise) because the presumption itself counts as
evidence against a finding of suicide. See Security Life, 249 Ark. at 578-79,
460 S.W.2d at 97. The presumption is of sufficient weight to require the jury to find

                                           -9-
that the death was an accident where under the evidence there is a fair question as to
the manner of death, that is where the evidence is "nearly evenly balanced."
Metropolitan Life Ins. Co. v. Graves, 201 Ark. 189, 197, 143 S.W.2d 1102, 1106
(1940).

                                          C.
       The court's jury instructions required Valley Forge to prove that "when
[Mr. Howell] consumed the drugs and alcohol he did so with the intent then and there
to take his life." Valley Forge maintains that the phrase "then and there" improperly
imposed a temporal element not found in the law and prejudiced its case. The district
court held that the "then and there" language was not prejudicial because it added
nothing to what Valley Forge was required to prove. We agree.

       The challenged instruction fairly described what the jury had to find to conclude
that Mr. Howell committed suicide. For Valley Forge to prove suicide, it needed to
prove that Mr. Howell intended to commit suicide at the time of the overdose, that is
"then and there." It would not have been sufficient for Valley Forge to prove that Mr.
Howell had a general desire to kill himself that was not fully formed or on which he
did not intend to act when he overdosed

                                         V.
      For the reasons stated, we affirm the judgment of the district court.
                       ______________________________




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