Insurer Not a “Successor in Interest” Under Rule 32(a)(8) and Strict Unavailability Requirements for Rule 804 Hearsay Exceptions in Coverage Litigation

Note on authority: The Second Circuit issued this decision as a Summary Order, expressly stating it has no precedential effect under Local Rule 32.1.1. The commentary below addresses the legal principles the court applied and how the reasoning may guide litigants and courts in similar disputes.

1. Introduction

Parties: Plaintiff-Appellant Tara Bunnenberg sought to collect a stipulated judgment against Defendant-Appellee Liberty Mutual Fire Insurance Company (“Liberty”), the insurer of non-party Lauren McCormack.

Background: Bunnenberg was injured in a 2011 altercation with McCormack (fractured left eye orbit). McCormack later pleaded guilty to reckless assault (N.Y. Penal Law § 120.00(2)) and harassment (N.Y. Penal Law § 240.26). Bunnenberg sued McCormack in state court; that case ended in a settlement stipulating to a $350,000 judgment against McCormack, enforceable only against Liberty, while Liberty reserved its right to dispute coverage.

Coverage dispute: Bunnenberg then sued Liberty to enforce the judgment. Liberty asserted a policy exclusion for bodily injury intended by the insured. After a bench trial, the district court found McCormack intended the harm and held the exclusion defeated coverage.

Key issues on appeal: Whether the district court abused its discretion by excluding (i) McCormack’s plea allocution, (ii) McCormack’s deposition testimony from the underlying tort case, and (iii) Liberty’s claims notes; and whether the court erred by not applying a “missing witness” inference regarding McCormack’s absence at trial.

2. Summary of the Opinion

The Second Circuit affirmed the judgment for Liberty. It held the district court acted within its discretion in excluding the challenged items as hearsay not covered by any valid exception. The court also rejected the “missing witness charge” argument as inapposite in a bench trial and noted the trial judge was not required to draw any adverse inference from McCormack’s absence.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

  • Browe v. CTC Corp., 15 F.4th 175 (2d Cir. 2021) (quoting United States v. Fazio, 770 F.3d 160 (2d Cir. 2014)): Used for the governing standard of review—evidentiary rulings are reviewed for abuse of discretion. This deferential posture was central: Bunnenberg needed to show not merely that another ruling was possible, but that exclusion fell outside the permissible range.
  • United States v. Losada, 674 F.2d 167 (2d Cir. 1982) and Askew v. Lindsay, No. 21- 799-pr, 2022 WL 17748623 (2d Cir. Aug. 1, 2022): Cited for the “unavailability” requirement under Rule 804—proponents must attempt reasonable means to secure the witness, including voluntary efforts, not just late or minimal steps. These cases anchored the court’s conclusion that Bunnenberg did not do enough to treat McCormack as “unavailable.”
  • Williamson v. United States, 512 U.S. 594 (1994) and United States v. Jackson, 335 F.3d 170 (2d Cir. 2023): Applied to the “statement against interest” exception (Rule 804(b)(3)). The court relied on the principle that only truly self-inculpatory statements qualify and courts must parse statements line-by-line; self-serving or blame-minimizing portions do not come in simply because they appear in a generally inculpatory narrative.
  • Hub v. Sun Valley Co., 682 F.2d 776 (9th Cir. 1982): Used for the interpretive point that, for Rule 32(a)(8), courts look for an adversary in the earlier action with the same motive to cross-examine the deponent as the current opponent. This supported the Second Circuit’s rejection of Bunnenberg’s attempt to use McCormack’s deposition against Liberty.
  • Siemens Energy, Inc. v. Petroleos de Venezuela, S.A., 82 F.4th 144 (2d Cir. 2023): Controlled the forfeiture ruling—Bunnenberg’s “notice” theory for the claims notes was raised for the first time on appeal and thus generally not considered.
  • United States v. Ng Chong Hwa, 161 F.4th 127 (2d Cir. 2025): Even when a statement is offered “not for truth” (e.g., to show it was said), it is admissible only if the fact it was said is itself relevant. The court used this to explain that Liberty’s alleged “notice” of a self-defense claim did not bear on the dispositive question: whether McCormack acted intentionally.
  • 4 Pillar Dynasty LLC v. New York & Co., Inc., 933 F.3d 202 (2d Cir. 2019): Clarified that in a bench trial a judge may draw an adverse inference from a missing witness, but is not required to do so—and there is no “charge” to give to oneself.

3.2. Legal Reasoning

A. Plea Allocution: Why the Hearsay Exceptions Failed

  • Hearsay baseline: McCormack’s plea statements were out-of-court assertions offered for their truth (Fed. R. Evid. 801(c), 802).
  • Rule 803(22) (judgment of conviction): The court emphasized the text: admissibility is limited to crimes punishable by death or imprisonment for more than a year. McCormack’s offenses (misdemeanor/violation) did not qualify. The court also rejected “stacking” maximum sentences across counts and observed Bunnenberg sought to admit plea-hearing statements, not merely “evidence of a final judgment of conviction.”
  • Rule 804(b)(3) (statement against interest) and Rule 804(a) (unavailability): The court found Bunnenberg did not establish McCormack was “unavailable.” Efforts were too late and inadequately documented; the witness being outside subpoena range (Fed. R. Civ. P. 45(c)(1)(A)) did not eliminate the duty to try “other reasonable means.” Separately, the court treated “I never meant to hurt you” as culpability-minimizing rather than self-inculpatory, which fails Williamson/Jackson parsing.
  • Rule 807 (residual exception): The court endorsed the district court’s view that Bunnenberg did not use “reasonable efforts” to obtain admissible testimony and did not provide timely notice. It further found the apology lacked sufficient guarantees of trustworthiness (including being tied to a plea condition with potential benefits to McCormack).

B. Prior Deposition Testimony: Why Rule 32(a)(8) Did Not Permit Use Against the Insurer

  • Rule 804(b)(1) (former testimony): Again failed because it requires the declarant’s “unavailability,” which Bunnenberg did not show.
  • Fed. R. Civ. P. 32(a)(8): The deposition was taken in a case between Bunnenberg and McCormack; the later case was Bunnenberg versus Liberty. The court accepted the district court’s conclusion that Liberty was not McCormack’s “representative[] or successor[] in interest.”
  • Motive-to-cross-examine logic: The decision underscores the functional test: whether the prior opposing party had the same interest and motive to cross-examine as the current opponent. McCormack’s goal was to avoid personal liability (including by self-defense narratives), while Liberty’s goal in the coverage action was to prove intentional conduct to trigger an exclusion. The settlement structure—judgment collectible only from Liberty with Liberty contesting coverage—illustrated the divergence.
  • Defense counsel alignment: The court highlighted professional responsibility: although Liberty funded the defense, counsel’s duty ran to McCormack, not Liberty—supporting the conclusion that Liberty’s interests were not represented at the deposition.

C. Claims Notes: Multiple Hearsay and Relevance Constraints

  • Multiple hearsay: The claims notes contained layered statements: Liberty employee → counsel → McCormack’s position. Each level needed its own hearsay exception. The court found none established.
  • Business records not established: The court noted Bunnenberg laid no foundation even to reach a business-record analysis, and—critically—business-record status would not automatically cure embedded hearsay.
  • “Notice” theory forfeited and weak on the merits: Raised first on appeal (forfeited under Siemens Energy). Even if considered, the court found no explained relevance: Liberty’s awareness of a litigation position did not answer whether McCormack acted intentionally (Ng Chong Hwa relevance requirement for “not-for-truth” uses).

D. Missing Witness: Bench Trial Limits

  • The court treated the argument as conceptually misplaced: there was no jury to instruct. While a judge may draw an adverse inference (4 Pillar Dynasty LLC v. New York & Co., Inc.), the judge is not required to, and Bunnenberg did not identify any specific erroneous inference decision.

3.3. Impact

  • Coverage litigation proof constraints: The decision illustrates that when coverage turns on intent (e.g., an “intended injury” exclusion), a claimant cannot assume prior criminal or civil records will be admissible; evidentiary foundations and proper exceptions matter as much as the underlying facts.
  • Practical warning on Rule 804: Parties seeking to admit prior statements under Rule 804 should document sustained, timely efforts to secure testimony—especially where the witness is outside subpoena power. Late subpoenas and vague efforts risk categorical exclusion.
  • Depositions from the tort case are not automatically usable against insurers: The Rule 32(a)(8) analysis signals skepticism that an insurer is a “successor in interest” to the insured for deposition use, particularly when insurer and insured have diverging incentives on intent-based coverage exclusions.
  • Bench trials and “missing witness” strategy: In a bench trial, counsel should frame the issue as a requested inference tied to specific factual findings, not as a “charge,” and should build a record on availability and control of the witness.

4. Complex Concepts Simplified

  • Hearsay: An out-of-court statement offered to prove what it says. It is generally inadmissible unless a rule creates an exception.
  • Unavailability (Rule 804): You generally must show you tried reasonable ways to get the witness to testify. Being outside subpoena range is relevant but not decisive; voluntary requests and timely planning matter.
  • Statement against interest (Rule 804(b)(3)): Only the parts that genuinely hurt the speaker’s penal interests qualify; self-exculpatory or minimizing remarks are typically excluded.
  • Residual exception (Rule 807): A narrow safety valve for unusually trustworthy and necessary hearsay—often requiring advance notice and proof that admissible evidence could not reasonably be obtained.
  • Rule 32(a)(8) “successor in interest”: Not merely someone with a relationship to a prior party; the focus is whether the earlier opponent had the same motive to cross-examine as the current one.
  • Multiple hearsay: A document can contain several layers of statements; each layer must independently satisfy an exception.
  • Missing witness inference: A factfinder may infer unfavorable testimony from a party’s failure to call an available witness, but it is discretionary—especially in a bench trial.

5. Conclusion

The Second Circuit affirmed because Bunnenberg’s key proof was inadmissible hearsay and she failed to satisfy the strict prerequisites for the relevant exceptions—particularly the requirement to show “unavailability” under Rule 804 and the identity/motive requirements for using prior depositions under Rule 32(a)(8). The decision reinforces that, in intent-based insurance coverage disputes, evidentiary preparation (timely witness procurement, proper foundations, and careful hearsay analysis) can be outcome-determinative—even where underlying events are strongly contested.