Opinion
No. COA10-242
Filed 19 April 2011 This case not for publication
Appeal by defendant Lisa Marie Abernathy from order entered 18 September 2009 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 1 September 2010.
Hunton Williams LLP, by Megan E. Miller, for plaintiff-appellee. Bradshaw Law Firm, by Sarah R. Ziomek, for Lisa Marie Abernathy, defendant-appellant. Carpenter Carpenter, PLLC, by R. Wade Carpenter; and Morris W. Keeter, for Joy Lynette Biddy, defendant-appellee.
Gaston County No. 08 CVS 2507.
Defendant Lisa Marie Abernathy appeals from an order granting summary judgment in favor of plaintiff Genworth Life and Annuity Insurance Company and granting partial summary judgment in favor of defendant Joy Lynette Biddy. This appeal arises out of a dispute over the disbursement of life insurance proceeds held by Genworth. Ms. Abernathy and Ms. Biddy both claim to be the beneficiary of the life insurance policy of Ms. Abernathy's deceased father. On appeal, Ms. Abernathy first argues that the trial court erred in not continuing the summary judgment hearing because discovery was not complete. She has not, however, explained why she was unable to complete discovery in the 15 months between the filing of the action and the summary judgment hearing. She has also failed to demonstrate that the pending discovery would have produced evidence relevant to the summary judgment motions. Consequently, we hold that the trial court did not abuse its discretion when it denied her request to continue the summary judgment hearing.
Ms. Abernathy additionally argues that the existing evidence is sufficient to defeat summary judgment. Ms. Abernathy, however, failed to present any admissible evidence to the trial court that her father executed a change of beneficiary form making her the policy's beneficiary or that he substantially complied with the policy's requirements for a change of beneficiary. What evidence she did present suggested her father may have intended or believed he had made her the beneficiary of his policy. This evidence is not adequate to give rise to a genuine issue of material fact under the controlling law. Therefore, the trial court properly granted summary judgment.
Facts
On 5 October 1990, Leonard Ray Abernathy, Jr., applied with Life of Virginia Insurance Company, now known as Genworth, for a life insurance policy naming his father, Leonard Ray Abernathy, Sr., as primary beneficiary and his daughter, Lisa Marie Abernathy, as sole contingent beneficiary. The application was signed by Mr. Abernathy and Wayne Kenneth Ratchford, Jr., the Life of Virginia agent who sold the policy to Mr. Abernathy.
Life of Virginia accepted the application and issued a life insurance policy ("the policy") in a face amount of $130,000.00. Upon the death of her grandfather, Ms. Abernathy became the sole beneficiary under the policy. This policy remained in effect at the time of Mr. Abernathy's death on 10 December 2007.
In 1995, Mr. Abernathy was engaged to marry defendant Joy Lynette Biddy. On or about 5 May 1995, he changed the primary beneficiary of the policy to Ms. Biddy. He did not specify any contingent beneficiary. Although Mr. Abernathy and Ms. Biddy subsequently married, they eventually divorced in August 1999.
Mr. Abernathy died on 10 December 2007, leaving his daughter, Ms. Abernathy, as his only surviving heir. On 21 January 2008, Ms. Abernathy filed a proof of loss form stating that she was the beneficiary of the policy and entitled to 100% of the insurance proceeds. On 23 January 2008, Ms. Biddy filed her own proof of loss claiming that she was the one entitled to the policy proceeds.
Due to the competing claims, on 7 May 2008, Genworth filed a complaint in interpleader, seeking a determination of the rightful beneficiary of the proceeds of Mr. Abernathy's life insurance policy. Ms. Biddy answered and filed a crossclaim against Ms. Abernathy and a counterclaim against Genworth.
Ms. Abernathy not only filed counterclaims against Genworth, but also asserted third party claims against Mr. Ratchford, the former Life of Virginia agent, and his employer, McDonald Associates, which had been a Life of Virginia field office in Gastonia, North Carolina. In her counterclaims against Genworth, Ms. Abernathy alleged that Mr. Abernathy executed a change of beneficiary form prior to his divorce from Ms. Biddy, naming Ms. Abernathy as the sole beneficiary of the policy. According to Ms. Abernathy, her father submitted this form to Genworth through Mr. Ratchford in the summer of 1999. She alleged that Genworth or its agent "negligently lost, misplaced or failed to submit [Mr. Abernathy's] change of beneficiary form, changing the sole beneficiary under the policy from Biddy to Abernathy." She further asserted that Genworth owed a fiduciary duty to her as the "intended beneficiary under the policy," which it breached when it failed to pay the policy proceeds to her upon her demand.
In her third party complaint against Mr. Ratchford and McDonald Associates, Ms. Abernathy alleged that Mr. Ratchford or McDonald Associates negligently lost, misplaced, or failed to submit her father's change of beneficiary form, which would have changed the sole beneficiary under the policy from Ms. Biddy to Ms. Abernathy. She further alleged that they also breached their fiduciary duty to her by failing to properly submit the change of beneficiary form to Genworth.
On 14 October 2008, Mr. Ratchford filed an answer to Ms. Abernathy's third party complaint, stating that he stopped selling insurance in 1992. On 15 July 2009, Robert E. McDonald filed an answer on behalf of third party defendant McDonald Associates, stating that McDonald Associates had ceased doing business in 1996, three years before Ms. Abernathy claimed Mr. Abernathy submitted the change of beneficiary form to Genworth through the agency.
On 31 July 2009, after the parties had exchanged written discovery, Ms. Biddy filed a motion for partial summary judgment, seeking immediate payment of the insurance proceeds. On 11 August 2009, Genworth filed a motion for summary judgment, asserting that Ms. Abernathy had failed to show that her father submitted a change of beneficiary form and that the only form Genworth had on file identified Ms. Biddy as the beneficiary. On 14 August 2009, after the summary judgment motions were filed, Genworth took Ms. Abernathy's deposition and Ms. Abernathy took Mr. Ratchford's deposition.
On 25 August 2009, Ms. Abernathy's counsel filed an affidavit pursuant to Rule 56(f) of the Rules of Civil Procedure, seeking a continuance of the motion for summary judgment in order to "permit depositions to be taken and discovery to be completed." The affidavit asserted that Ms. Abernathy had served additional discovery requests on Genworth and McDonald Associates on 17 August 2009. The responses were not due until 17 September 2009, but the summary judgment motions were calendared to be heard on 31 August 2009. The affidavit also asserted that Ms. Biddy had not yet been deposed.
The trial court did not continue the hearing on Genworth's and Ms. Biddy's summary judgment motions, but rather, on 18 September 2009, the court entered an order granting both motions. The trial court included in its order a Rule 54(b) certification allowing the order to be immediately appealed. Ms. Abernathy timely appealed the order to this Court on 14 October 2009.
After the record on appeal was filed with this Court together with a Rule 11(c) supplement, Ms. Abernathy filed a motion to amend the 11(c) supplement to add additional documents, including Ms. Abernathy's answers to Genworth's first set of interrogatories, Ms. Abernathy's second request to Genworth for production of documents, Ms. Abernathy's first set of interrogatories and request for production of documents to McDonald Associates, and Mr. Abernathy's life insurance applications from 1981 and 1983. This Court denied the motion because the documents were never presented to the trial court. We, therefore, have not considered those materials in deciding Ms. Abernathy's appeal.
I
Ms. Abernathy first contends that because she was still developing her case and had not been dilatory in the discovery process, the trial court erred in denying her request that the summary judgment hearing be continued. Rule 56(a) of the Rules of Civil Procedure allows a party to move for summary judgment at any time after 30 days from the commencement of the case. If, however, the party opposing the motion sets forth in an affidavit the reasons why he or she cannot present "facts essential to justify his opposition," the court may order a continuance to allow discovery to continue. N.C.R. Civ. P. 56(f). Rule 56(f) "gives the trial court the discretion to refuse the motion for judgment or order a continuance, if the opposing party states by affidavit the reasons why he is unable to present the necessary opposing material." Gillis v. Whitley's Discount Auto Sales, Inc., 70 N.C. App. 270, 274, 319 S.E.2d 661, 664 (1984).
We review a denial of a motion to continue a summary judgment hearing under an abuse of discretion standard. Morin v. Sharp, 144 N.C. App. 369, 373, 549 S.E.2d 871, 873, disc. review denied, 354 N.C. 219, 557 S.E.2d 531 (2001). This Court will not disturb a trial court's decision regarding a continuance absent a "manifest abuse of discretion." Peace River Elec. Co-op, Inc. v. Ward Transformer Co., 116 N.C. App. 493, 511, 449 S.E.2d 202, 215 (1994), disc. review denied, 339 N.C. 739, 454 S.E.2d 655 (1995).
In arguing that she was entitled to a continuance, Ms. Abernathy has, on appeal, relied on information that was not provided to the trial court in the Rule 56(f) affidavit that was the basis for her motion to continue. In other words, Ms. Abernathy asks us to conclude that the trial court abused its discretion in failing to continue the summary judgment hearing for reasons that she never presented to the trial court. We are, of course, limited to considering the information and contentions that were before the trial court.
Contrary to Ms. Abernathy's contentions, "`[a] trial court is not barred in every case from granting summary judgment before discovery is completed.'" Young v. Fun Servs.-Carolina, Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260, 264 (quoting N.C. Council of Churches v. State, 120 N.C. App. 84, 92, 461 S.E.2d 354, 359 (1995), aff'd per curiam, 343 N.C. 117, 468 S.E.2d 58 (1996)), disc. review denied, 344 N.C. 444, 476 S.E.2d 134 (1996). See also Howard v. Jackson, 120 N.C. App. 243, 250, 461 S.E.2d 793, 798 (1995) (finding no abuse of discretion where trial court granted motion for summary judgment almost one year after complaint was filed, plaintiff did not request discovery until day of hearing, and plaintiff filed motion to continue after trial court granted summary judgment). Ms. Abernathy, however, points to Ussery v. Taylor, 156 N.C. App. 684, 577 S.E.2d 159 (2003), and Joyner v. Wilson Mem'l Hosp., Inc., 38 N.C. App. 720, 248 S.E.2d 881 (1978), as requiring a continuance given the circumstances of this case.
In Ussery, 156 N.C. App. at 685, 577 S.E.2d at 160, the trial court granted summary judgment for the defendants only two months and seven days after the complaint was filed — a period that did not allow the plaintiff sufficient time to develop her case. Similarly, in Joyner, 38 N.C. App. at 721, 248 S.E.2d at 881, a medical malpractice action, the defendant filed a motion for summary judgment one month after the plaintiff's complaint was filed. At the time that the trial court granted summary judgment, the plaintiff had interrogatories outstanding that "relat[ed] to who treated the plaintiff and the relationship between the defendant-physician and the hospital," which was information entirely in the defendant's knowledge and relevant to the issues of respondeat superior. Id. at 724, 248 S.E.2d at 883.
This case, unlike Ussery and Joyner, does not involve a short-circuiting of a plaintiff's opportunity for discovery. Instead, we have a situation similar to that in Young, in which summary judgment was granted to the defendant 11 months after the complaint was filed. 122 N.C. App. at 163, 468 S.E.2d at 264. The plaintiffs in Young contended on appeal — like Ms. Abernathy here — that because discovery was incomplete, summary judgment was improper. Id. at 162, 468 S.E.2d at 263. They argued that while the trial court had concluded, in granting summary judgment, that they lacked evidence of proximate causation, if the trial court had allowed the completion of discovery, they "may" have been able to obtain deposition testimony supportive of proximate cause. Id. This Court held that because more than 11 months had elapsed since the filing of the complaint, the trial court did not abuse its discretion in granting summary judgment even if discovery was incomplete. Id. at 163, 468 S.E.2d at 264.
In this case, Genworth filed suit more than 15 months before the trial court heard the motions for summary judgment. Ms. Abernathy did not explain to the trial court — and has not explained on appeal — why she could not complete the necessary discovery in that period of time. The Rule 56(f) affidavit submitted by Ms. Abernathy's counsel included a paragraph identifying the affiant, two paragraphs describing the two summary judgment motions, a paragraph mentioning the deposition of Ms. Abernathy taken by Genworth, and a paragraph stating that Ms. Abernathy took Mr. Ratchford's deposition on 14 August 2009. The affidavit then included the following paragraphs regarding the need for additional discovery:
6. In his deposition, Mr. Ratchford provided information which led to the need for additional discovery of the plaintiff, as well as Rule 30(b)(6) depositions.
7. On August 17, 2009, I propounded additional discovery to plaintiff. Plaintiff's responses are not due until September 17, 2009, after the hearing on the summary judgment motions.
8. On August 17, 2009, I propounded discovery to third party defendant, McDonald Associates. Those responses are not due until September 17, 2009, after the hearing on the summary judgment motions.
9. Defendant Biddy has not yet been deposed.
10. For the above stated reasons, Abernathy asks that the Court order a continuance of the hearing on both summary judgment motions, currently set for August 31, 2009, in order to permit depositions to be taken and discovery to be completed.
The Rule 56(f) affidavit does not explain why Ms. Abernathy did not take Mr. Ratchford's deposition until after the motions for summary judgment were filed or why she had not taken Ms. Biddy's deposition over the prior 15 months. Indeed, even after the filing of the motions for summary judgment, Ms. Abernathy did not attempt to take Ms. Biddy's deposition. Further, the affidavit does not explain what information pertinent to Genworth's and Ms. Biddy's summary judgment motions would likely be uncovered as a result of the McDonald Associates discovery. Just as this Court concluded in Young, we must also conclude, given this record, that the trial court did not abuse its discretion in failing to continue the summary judgment hearing.
II
Ms. Abernathy next contends that the record contains sufficient evidence to defeat summary judgment. Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R. Civ. P. 56(c). "The trial court may not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact. Moreover, all inferences of fact . . . must be drawn against the movant and in favor of the party opposing the motion. The standard of review for summary judgment is de novo." Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (internal citations and quotation marks omitted).
In her answer, Ms. Abernathy claimed that her father, in the summer of 1999, executed and submitted to Genworth a change of beneficiary form making her the sole beneficiary of his life insurance policy. Once Genworth and Ms. Biddy moved for summary judgment, Ms. Abernathy could not rely upon her pleadings, but rather was required to come forth with evidence sufficient to give rise to a genuine issue of material fact as to whether Ms. Abernathy was the beneficiary of her father's life insurance policy. See May v. City of Durham, 136 N.C. App. 578, 583, 525 S.E.2d 223, 228 (2000) ("[O]nce the movant has established the absence of a genuine issue of material fact, `[t]he non-moving party may not rest upon the mere allegations of his pleadings.'" (quoting Lowe v. Bradford, 305 N.C. 366, 370, 289 S.E.2d 363, 366 (1982))).
The evidence is undisputed that Genworth received a change of beneficiary form from Mr. Abernathy in May 1995 making Ms. Biddy his beneficiary. Genworth also filed an affidavit stating that it had no record of any change of beneficiary form being received from Mr. Abernathy in 1999. Ms. Abernathy has not produced a change of beneficiary form changing the beneficiary from Ms. Biddy to Ms. Abernathy. She also has presented no evidence rebutting Genworth's evidence that it never received a change of beneficiary form in 1999.
Ms. Abernathy argues, however, that her evidence is sufficient to establish substantial compliance with the policy. This Court has previously defined substantial compliance as follows:
"[I]f the insured has done substantially what is required of him, or what he is able to do, to effect a change of beneficiary, and all that remains to be done are ministerial acts of the association, the change will take effect, though the formal details are not completed before the death of the insured. It must be understood, however, that some affirmative act on the part of the insured to change the beneficiary is required, as his mere unexecuted intention will not suffice to work such a change."
Adams v. Jefferson-Pilot Life Ins. Co., 148 N.C. App. 356, 360-61, 558 S.E.2d 504, 508 (quoting Teague v. Pilot Life Ins. Co., 200 N.C. 450, 455-56, 157 S.E. 421, 424 (1931)), disc. review denied, 356 N.C. 159, 568 S.E.2d 186 (2002).
In Adams, the insured contacted his agent, met with him at a local restaurant, and signed a form in the presence of the agent and four employees of the restaurant. Id. at 357, 558 S.E.2d at 506. The agent submitted the form to her branch office and was informed that the form not only changed the beneficiary but it also stated that payments would be made to the beneficiary in installments unless otherwise indicated. Id. The office administrator suggested the agent call the insured to confirm that this is what he wanted. Id. The agent did not reach the insured before his death, and the form was not sent to the home office until after the insured's death. Id. at 357-58, 558 S.E.2d at 506. The insured had, however, completed everything he needed to do to change his beneficiary. Id. at 357, 558 S.E.2d at 506.
Although the policy provided that a change of beneficiary would not be effective until filed with the home office, the Court held that the evidence was undisputed that the insured had substantially complied. The Court explained: "To summarize, before the doctrine of substantial compliance may be applied, the policy owner [1] must himself take affirmative steps to change the beneficiary, [2] must substantially fulfill the actions required on his part to accomplish the change, [3] must communicate these efforts to an agent of the insurer, and [4] must do so in his lifetime." Id. at 363, 558 S.E.2d at 509. Because the undisputed evidence in Adams established each of the four required elements for substantial compliance, the beneficiary on the change of beneficiary form was entitled to summary judgment. Id. Adams first requires evidence that Mr. Abernathy took affirmative steps to change the beneficiary and substantially fulfilled the actions required by Life of Virginia's policy to accomplish the change. Ms. Abernathy argues that she saw her father sign the change of beneficiary form. As evidence, she cites only her interrogatory answers. Those answers, which were not provided to the trial court, were the subject of her motion to supplement the record on appeal that this Court has denied. That evidence may not, therefore, be considered in deciding whether the trial court erred in granting summary judgment.
The only other reference to Ms. Abernathy's seeing her father sign the form came during her attorney's argument before the trial court. "It is well settled that counsel's arguments do not constitute evidence." Coleman v. Coleman, 182 N.C. App. 25, 33, 641 S.E.2d 332, 339 (2007). We thus conclude that the record contains no evidence that Mr. Abernathy ever actually signed a change of beneficiary form, an act that was necessary to change his beneficiary to Ms. Abernathy.
Ms. Abernathy nonetheless points to her deposition testimony that her father met with his stockbroker to review paperwork one week before he passed away. She testified as to the purpose of this meeting: "Daddy wanted to make sure that I was supposed to be the sole beneficiary. And he wanted to make sure everything was in order for that for when he passed." While we agree with the trial court that this testimony is barred by the Dead Man's Statute, see N.C.R. Evid. 601(c), it would, even if admissible, be insufficient to defeat summary judgment. At most, this testimony supports a finding that Mr. Abernathy intended for Ms. Abernathy to be the beneficiary of the policy. Adams, however, holds that an insured's "`mere unexecuted intention will not suffice to work such a change.'" 148 N.C. App. at 361, 558 S.E.2d at 508 (quoting Teague, 200 N.C. at 456, 157 S.E. at 424).
Rule 601(c) provides: "Upon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest, . . . against the executor, administrator or survivor of a deceased person . . . concerning any oral communication between the witness and the deceased person. . . ." Ms. Abernathy has a direct pecuniary interest in the outcome of this litigation, and she is offering evidence of an oral communication of the deceased against Ms. Biddy, a person deriving her interest in the life insurance proceeds from the deceased. Since none of the exceptions set out in Rule 601(c) apply, Ms. Abernathy's testimony is barred by the Dead Man's Statute. See In re Will of Lamparter, 348 N.C. 45, 51, 497 S.E.2d 692, 695 (1998) (holding that Dead Man's Statute applies "when it appears (1) that such witness is a party, or interested in the event, (2) that his testimony relates to a . . . communication with the deceased person, (3) that the action is against the personal representative of the deceased or a person deriving title or interest from, through or under the deceased, and (4) that the witness is testifying in his own behalf or interest." (internal quotation marks omitted)).
Ms. Abernathy cites no authority suggesting that evidence of an intent to change a beneficiary would be sufficient to establish substantial compliance. The cases she relies on regarding intent did not involve the issue of who is entitled to insurance proceeds. In addition, this testimony cannot establish the additional requirement that Mr. Abernathy "substantially fulfill[ed] the actions required on his part to accomplish the change" under the policy and that he "communicate[d] these efforts to an agent of the insurer." Id. at 363, 558 S.E.2d at 509. It is, therefore, immaterial whether her testimony regarding his intent is admissible under the Dead Man's Statute or as an exception to the hearsay rule.
Similarly, although Ms. Abernathy refers this Court to the affidavit of Martha Cooke, a friend of Mr. Abernathy, that affidavit, even if admissible, would be insufficient to meet the requirements of substantial compliance. Ms. Cooke stated in her affidavit, in relevant part:
Genworth filed a motion to strike the affidavit on the grounds that it violated Rule 56(c) and that it was irrelevant and contained inadmissible hearsay. The trial court never expressly addressed that motion.
11. After the divorce and over the years before he died, Mr. Abernathy told me on several occasions that everything he owned would go to Lisa.
. . . .
13. On the day before Mr. Abernathy died, my husband, Robert Cooke, and I went to Mr. Abernathy's home. . . . Mr. Abernathy said, in my presence and in the presence of my husband, that all of his financial affairs had been taken care of and that everything was in order so that Lisa would receive everything he had and everything he owned.
14. Based on my twenty year relationship with Mr. Abernathy, I knew him to be a perfectionist. He always made sure that he did things right. Lisa was the most important person in his life and he would have done everything he needed to make sure that she got everything he owned when he died. He always intended to care for Lisa.
We note that this affidavit does not specifically address Mr. Abernathy's insurance policy or its beneficiary, and Ms. Abernathy does not explain in what way it helps establish the facts necessary for substantial compliance with any policy requirements for changing the beneficiary. In any event, the evidence regarding Mr. Abernathy's statements is inadmissible hearsay. See N.C.R. Evid. 801(c) ("`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.").
Ms. Abernathy argues that her father's statements to Ms. Cooke were admissible under Rule 803(3) of the Rules of Evidence as evidence of "Mr. Abernathy's intent, plan and design." Rule 803(3) allows the admission of:
[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(Emphasis added.) Ms. Abernathy argues that these statements were offered "not to show that the beneficiary was in fact changed to Lisa Abernathy, but to show that he believed that it had been changed."
Ms. Abernathy, however, continues by arguing that her father's "intent, plan and mental purposes are inconsistent with the change of beneficiary form relied upon by defendant Biddy." This assertion demonstrates that Ms. Abernathy is actually maintaining that her father's belief that he changed his beneficiary to Ms. Abernathy constitutes proof that he did in fact change his beneficiary from Ms. Biddy to Ms. Abernathy. The evidence is, therefore, inadmissible under Rule 803(3). In any event, even if the statements were admitted only as evidence of Mr. Abernathy's belief, Mr. Abernathy's belief does not establish any of the four required elements, under Adams, for substantial compliance. Consequently, Ms. Cooke's affidavit does not give rise to an issue of material fact precluding summary judgment.
Finally, even if Ms. Abernathy did have evidence that her father signed the change of beneficiary form, she has failed to present evidence that it was delivered to Genworth. She cites her testimony that her father sent it to Genworth, but there is no indication that she had personal knowledge of that mailing. If that testimony is based on what her father told her, then it is barred by Rule 601(c), the Dead Man's Statute. With respect to it being received by Genworth or its agent and being mishandled and not processed, Ms. Abernathy cites only to her counterclaim. As this Court has previously held, "`a defendant's unverified pleadings are insufficient to defeat a motion for summary judgment since they do not comply with the requirements of Rule 56(e).'" Fayetteville Publ'g Co. v. Advanced Internet Techs., Inc., 192 N.C. App. 419, 428, 665 S.E.2d 518, 524 (2008) (quoting Weatherford v. Glassman, 129 N.C. App. 618, 623, 500 S.E.2d 466, 470 (1998)).
In opposing the motion for summary judgment, Ms. Abernathy did not submit to the trial court a copy of an actual change of beneficiary form making her the beneficiary of the insurance policy or even evidence that her father ever actually signed a change of beneficiary form. At best, she has presented evidence that her father intended or believed he had made her his beneficiary, although some of that evidence was inadmissible under the Dead Man's Statute. In any event, such evidence, even if admissible, does not under Adams meet the requirements for substantial compliance sufficient to make her the beneficiary. Accordingly, the trial court properly determined that no genuine issue of material fact existed and that summary judgment should be granted to Genworth and Ms. Biddy.
Affirmed.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).