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23. Is the court likely to grant the insurance company's motion for summary judgment?
Under State A law, the party seeking recovery under an accidental death policy has the burden of establishing the insured's death. The insurance company filed a motion for summary judgment. In her memorandum in opposition to the motion, the woman included an affidavit that recited the evidence stated above and added, «To my knowledge, my husband is dead.»
A woman filed a diversity action in State A federal court against an insurance company to recover insurance proceeds pursuant to the accidental death provision of her husband's life insurance policy. The evidence showed that the husband was last seen on a business trip five years ago, that he has not been heard from since, and that his body was never recovered.
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The Federal Rules of Civil Procedure (FRCP) allow parties to augment the record by affidavits. Affidavits must be made on personal knowledge. See Fed. R. Civ. P. 56(c)(4). A witness may testify to a matter only if the evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.
Motions opposing summary judgment may be supported with affidavits. However, those affidavits must:
be based on personal knowledge;set forth such facts as would be admissible during trial; ANDshow that the affiant is competent to testify.D is correct. When a motion for summary judgment is supported or opposed by an affidavit, a party may not rest upon mere pleading allegations or denials. His or her response must be shown by specific facts.
Here, the wife's statement is an allegation that is merely her own belief. There is no evidence or factual support in the affidavit to back the allegation that her husband is dead as she did not see him die. Because she has no personal knowledge that he is dead, and there is no other factual support in the record, her affidavit is inadequate under the FRCP. The insurance company's motion is likely to be granted.
A is incorrect. The insurance company does not have the burden to show that the husband is alive, the wife does. She bears the burden at trial to show that the husband is dead, as well as to defeat the insurance company's motion for summary judgment.
B is incorrect. The wife's affidavit failed to establish that there is a genuine issue of material fact regarding the husband's death because: (i) the affidavit was not based on personal knowledge; and (ii) it did not provide any admissible facts but merely recited her inference from the other evidence already in the record.
C is incorrect. The FRCP specifically provides that an affidavit based on personal knowledge may be used to support or oppose a motion for summary judgment. See Fed. R. Civ. P. 56(c)(1)(A). Here, the wife had no personal knowledge of her husband's death. Thus, her affidavit would not be sufficient, as stated for the reasons above.