## Facts

- Maryland Casualty issued a homeowners’ policy covering the Millses’ residence; the residence was completely destroyed by fire.
- The insurer denied coverage after investigating and concluding the fire was intentionally set.
- The insureds sued for policy proceeds; after both died, First State Bank of Denton, as executor of J.T. Mills’s estate, continued the action.
- The residence had been unoccupied for several weeks before the fire, but a neighbor observed a light in the house a few hours before the fire.
- A witness saw a pickup truck leaving the access road near the residence shortly before the fire; Mills owned a pickup truck, and only he and his wife had keys.
- The insurer introduced evidence of financial motive, including that the insured had bought another home before selling the insured residence and that the insured residence was worth less than the policy’s face amount.
- About fifteen minutes after the fire began, a police dispatcher called the Millses’ then-current residence; an unidentified male answered and stated the Millses were not home.
- Over objection, the district court admitted the dispatcher’s testimony about the call; the jury found for the insurer, and the court denied the Bank’s motion for judgment notwithstanding the verdict.

## Issues

1. Whether the dispatcher’s testimony about the telephone call was improperly admitted due to insufficient authentication under Federal Rule of Evidence 901 and as inadmissible hearsay.
2. Whether the district court erred in denying judgment notwithstanding the verdict where the Bank argued the insurer proved only motive, not that the insured set or procured the fire.

## Decision

- The Fifth Circuit affirmed the judgment for Maryland Casualty.
- The district court did not abuse its discretion in admitting the dispatcher’s testimony; the call was sufficiently authenticated for jury consideration.
- The statement that the Millses were not home qualified under the present-sense impression exception to hearsay, and admission was also supportable under the residual exception.
- Denial of judgment notwithstanding the verdict was proper because the circumstantial evidence permitted a reasonable jury to find an intentionally set fire and to credit the insurer’s arson defense.

## Legal Principles

- For telephone conversations, Rule 901 requires a prima facie showing that the evidence is what the proponent claims; dialing the assigned number and receiving a response purporting to be from that location can be sufficient, leaving identity disputes for the jury.
- Under Rule 803(1), a present-sense impression must be substantially contemporaneous with the event or condition described; timing and immediacy are central to admissibility.
- Judgment notwithstanding the verdict is appropriate only when the evidence and inferences so strongly favor the movant that reasonable jurors could not reach a contrary verdict.
- In civil arson-defense litigation under Texas law, an insurer may prove the defense through circumstantial evidence, including evidence of incendiary origin, motive, and opportunity; direct proof that the insured personally set the fire is not required.

## Conclusion

The Fifth Circuit upheld a defense verdict in a homeowners’ fire-loss case, ruling that the insurer’s evidence—though circumstantial—was sufficient to support the jury’s finding of an intentionally set fire, and that the dispatcher’s phone-call testimony was properly admitted based on adequate authentication and a hearsay exception.


First State Bank of Denton v. Maryland Cas. Co., 918 F.2d 38 (5th Cir. 1990)