Therese Cornwell Fuller, Administrator, Estate of Doris Hunt Cornwell v. American Federation of Labor and Congress of Industrial Organizations

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2003 Decided May 16, 2003
No. 02-7043
THERESE CORNWELL FULLER,
ADMINISTRATOR, ESTATE OF DORIS HUNT CORNWELL,
APPELLANT
V.
AMERICAN FEDERATION OF LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(99cv01936)
Kim Sperduto argued the cause and filed the briefs for
appellant.
Julia Penny Clark argued the cause for appellees. With
her on the brief was Robert Alexander.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Before: R ANDOLPH and ROGERS , Circuit Judges, and
WILLIAMS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: After seven years an individual
who disappears without a trace is, under common law and the
laws of several states, presumed dead. The issue here is
whether there is also a presumption that the individual died
on the last day of the seven-year period, or in other words,
that the individual was alive until that time.
After her husband died in 1977, Doris Cornwell began
receiving surviving spouse benefits under the AFL–CIO Staff
Retirement Plan for Employees, of which her husband was a
member. The Plan entitled her to receive these benefits
during her ‘‘lifetime.’’ In early June 1982, Cornwell vanished.
Apart from an alleged sighting soon after she disappeared, no
one saw or heard from her again. After learning of her
disappearance, the Plan Trustees suspended payment of
Cornwell’s benefits, with the qualification that if she reap-
peared the suspended payments would be disbursed.
Fifteen years later, the Arlington County Circuit Court in
Virginia declared Cornwell presumed dead. The administra-
tor of Cornwell’s estate, Therese C. Fuller, thereafter submit-
ted a claim to the Trustees for the payment of benefits that
had accrued from November 1982 to March 6, 1998, the date
of the court decree. Although the Trustees requested Fuller
to submit evidence of Cornwell’s eligibility to receive benefits
during her absence, the only materials Fuller submitted were
a copy of the court decree, and a letter recounting Cornwell’s
disappearance and the fruitless searches for her and arguing
that under Virginia law (VA. CODE ANN. § 64.1–105) Cornwell
was not presumed to be dead – and thus was entitled to
payment – until the court issued its declaration. The Trust-
ees denied Fuller’s claim, partly on the ground that Fuller
had provided no evidence indicating that Cornwell remained
alive after her disappearance.
Fuller filed a complaint on behalf of Cornwell’s estate,
seeking recovery of the benefits under § 502(a)(1)(B) of

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ERISA, 29 U.S.C. § 1132(a)(1)(B). The Trustees moved for
summary judgment, arguing that they were not required to
pay the benefits because there was no evidence that Cornwell
was alive during the period for which benefits were claimed.
Fuller’s cross-motion for summary judgment replied that the
Trustees’ rejection of the claim was unsupported since Corn-
well was presumed to be alive until the Virginia court issued
the declaration in 1998. The district court granted summary
judgment for the Trustees. Estate of Cornwell v. AFL–CIO,
Civ. No. 99–1936, slip op. at 6, 13 (D.D.C. Mar. 26, 2002).
Fuller has refined her argument on appeal. She now
asserts that the Trustees were obligated to presume that
Cornwell was alive for the seven years following her disap-
pearance, rather than for the entire period preceding the
declaration of presumed death. The parties now agree, and
the Plan provides, that District of Columbia law, not Virginia
law, controls. The District has adopted the common law rule
regarding the presumption of death: ‘‘If a person leaves his
domicile without a known intention of changing it, and does
not return or is not heard from for seven years from the time
of his so leaving, he shall be presumed to be dead in any case
where his death is in question, unless proof is made that he
was alive within that time.’’ D.C. CODE § 14–701; see Jemi-
son v. Metro. Life Ins. Co., 32 A.2d 704, 705 (D.C. 1943); see
generally 9 W IGMORE, EVIDENCE § 2531a, at 603 (Chadbourn
rev. 1981). A corollary is that a person who has been absent
for less than seven years is presumed to be alive. See Groff
v. Groff, 36 App. D.C. 560 (D.C. Cir. 1911); Alexander v.
Alexander, 36 App. D.C. 78 (D.C. Cir. 1910). According to
Fuller, it follows that, in the absence of evidence to the
contrary, the Trustees had to act on the basis that Cornwell
was alive for the seven years following her disappearance.
Some courts have adopted Fuller’s theory. In Acosta v.
United States, 320 F.2d 382 (Ct. Cl. 1963), a retired service-
man disappeared and, after a prolonged absence, was de-
clared dead. His widow sued to recover her husband’s
retirement pay for the seven years after his disappearance.
The Court of Claims ruled in her favor, holding that the
‘‘presumption should be that death occurred at the end of

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[the] seven-year period.’’ Id. at 385; see also United States
v. O’Brien, 51 F.2d 37, 42 (4th Cir. 1931); English v. United
States, 25 F.2d 335, 336 (D. Md. 1928); MacMurray v. United
States, 15 Cl. Ct. 323, 330 (1988).
Our court has not followed this line of cases. Interpreting
District of Columbia law, we held that the presumption of
death extends only to the fact of death; it establishes ‘‘no
presumption as to the time when’’ death occurred. Jones v.
Metro. Life Ins. Co., 116 F.2d 555, 556 (D.C. Cir. 1940)
(internal quotation marks omitted); accord Davie v. Briggs,
97 U.S. 628, 634 (1878). Once the presumption of death is
triggered, the decedent is no longer presumed to have been
alive during the seven years following her disappearance.
The only presumption is that she is dead. See United States
v. Hayman, 62 F.2d 118, 119 (5th Cir. 1932). The date of
Cornwell’s death was therefore a question of fact, to be
resolved on the evidence submitted to the Trustees. See
Briggs, 97 U.S. at 634.
The Plan designates the Trustees as ‘‘the sole judges of the
standard of proof required’’ to support a claim for Plan
benefits, and authorizes the Trustees to request ‘‘any infor-
mation or proof reasonably required to determine’’ a claim-
ant’s rights to benefits. Despite the Trustees’ request, Fuller
provided no evidence that Cornwell lived after she disap-
peared. (If Fuller had presented such evidence, the pre-
sumption of Cornwell’s death would have arisen at some time
later than seven years after her disappearance.) The district
court therefore correctly held that the Trustees acted in
accordance with the Plan and District of Columbia law in
refusing to honor the estate’s claim. Cf. Block v. Pitney
Bowes Inc., 952 F.2d 1450, 1455 (D.C. Cir. 1992). We do not
decide whether, if District of Columbia law presumed a
particular date of death, the Plan terms would overcome that
presumption.
Affirmed.

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