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41. How should the court rule on the admissibility of the billing clerk's testimony?
After a fire destroyed her home, a plaintiff sued the insurance company that insured the home for the proceeds of her policy. The company claimed that the policy had lapsed. At trial, the plaintiff admits that she failed to make a timely premium payment; however, she cites a policy provision that required the company to give her notice that it had not received the premium by a specified date and testifies that she never received such a notice. The company then calls its chief billing clerk, who is prepared to testify that, because of the plaintiff's unusual name, the clerk remembers preparing the plaintiff's notice and placing it in the «out» box on his desk, and that an employee from the company's mailroom daily picks up all mail from office «out» boxes and places it in a U.S. mail deposit box.
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A is incorrect. Habit evidence may be proved by testimony in the form of an opinion or by specific instances of conduct. There is not a requirement that the party needs to produce corroborative evidence. In this case, the mailing checklist did not need to be produced.
C is incorrect. Rule 406 permits the use of an organization's routine practice to prove that the organization acted in accordance with that practice on a regular occasion. In this case, the mailroom employee's practice is admissible to show that the company acted in accordance with that practice on a particular event.
D is incorrect. The billing clerk does not need actual knowledge of the mailing. Habit evidence is admissible as circumstantial evidence that the company acted in accordance with that practice on a particular event.