Opinion
No. 108,924.
2013-07-5
Beverly CLARK, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant, v. Jill Clark, Appellee.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge. Frank D. Taff, of Topeka, for appellant. Charles T. Engel, of Engel Law, P.A., of Topeka, for appellee.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge.
Frank D. Taff, of Topeka, for appellant. Charles T. Engel, of Engel Law, P.A., of Topeka, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The matter is here for the second time on summary judgment. Beverly Clark presents material facts about the validity of the change of beneficiary form that cannot be resolved by summary judgment. We reverse and remand for the district court to determine the validity of the change of beneficiary form.
Facts
In 1988, Thomas Clark obtained life insurance from Metropolitan Life Insurance Company (MetLife) through his employer, Unisys Corporation. The program administrator of the group life insurance policy is Marsh@WorkSolutions, a service of Seabury & Smith, Inc. (Marsh). Thomas designated his wife, Beverly Clark, as his sole beneficiary. Thomas and Beverly divorced in 1992. Thomas married Jill Clark in 1998.
Thomas was diagnosed with lung cancer in August 2007. Thomas started to get his affairs in order by executing a durable power of attorney, executing his last will and testament, and changing the beneficiary of his savings plan, pension plan, and life insurance policy.
Thomas told Jill he “had changed the beneficiary” on his life insurance policy “but he screwed up” and would “take care of it.” Marsh sent Thomas a letter on September 12, 2007, acknowledging his interest in changing the beneficiary on his life insurance policy. Enclosed with the letter was a beneficiary change form. On March 24, 2008, Marsh mailed something to Thomas. Marsh has no record of what it sent to him. Thomas wrote, “Important Life Insurance Info for Jill & Toms Metro Life” on the envelope. It appears from the record the envelope was empty when discovered. Thomas died on August 11, 2008.
On January 1, 2009, Jill's friend, Cara Zirkle, was at Jill's house and saw “a scrap of paper sticking up from behind ... the wood trim behind [Thomas'] desk,” The envelope said “Jill” on it, and a photocopy of a change of beneficiary form naming Jill as the sole beneficiary of the life insurance policy was inside. The form was dated March 29, 2008. All information on the form is typed except for Thomas' signature.
Jill sent the form to Marsh on January 3, 2009. Marsh rejected the form because “[t]he change cannot be made without the date of your request.” Jill has never seen or been able to locate the original signed form.
Beverly challenges the validity of the change of beneficiary form.
Another panel of this court previously addressed this case on summary judgment, Clark v. Metropolitan Life Ins. Co., No. 105,961, 2012 WL 402020 (Kan.App.2012) (unpublished opinion), and remanded it to the district court to address the validity of the change of beneficiary form. The district court once again granted summary judgment without determining the validity of the change of beneficiary form, which can only be done by an agreement of the parties or after an evidentiary hearing.
Analysis
Summary Judgment
Beverly argues the district court erred in granting summary judgment to Jill when drawing inferences in favor of Jill.
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012) (quoting Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009)).
The district court adopted the facts and legal conclusions presented by Jill to grant Jill's motion for summary judgment. Jill's brief contained facts which, if taken as true, demonstrated Tom requested a beneficiary change form, named Jill as his sole beneficiary on the form, and signed and dated the form, with the original unaccounted for. Jill found a copy and submitted it to Marsh.
Beverly counters raising factual issues in her response to the validity of the change of beneficiary form. Beverly also contends Thomas knew what he was doing, did everything he could have done to settle his affairs, and intentionally omitted Jill from his life insurance. The bottom line in this matter is Beverly challenges the validity of the beneficiary change form and it is clearly a genuine issue of material fact that can only be settled through an evidentiary hearing to determine its validity and/or admissibility.
On appeal, Beverly argues the district court resolved a “sharp conflict” between Jill's and Cara's testimony in favor of Jill, thereby making an improper credibility determination in favor of Jill. She also characterized the story of how the beneficiary change form was discovered by using the phrases “[t]he plot has thickened,” “[h]ow convenient,” and describing Jill's and Cara's testimony as “most interesting.” Posing the question whether Jill and Cara were “truthful” about their “fortuitous find,” Beverly concludes that Jill's credibility is a “jury question.” Jill responds that challenging her credibility is not enough to create a genuine issue of material fact.
Generally, the “mere statement that plaintiff questions [defendant's] credibility does not constitute a valid and sufficient controversion of [a statement of fact].” Hammig v. Ford, 246 Kan. 70, 75, 785 P.2d 977 (1990). However, if there is “ ‘any question as to the credibility of witnesses,’ “ summary judgment should be denied. Timi v. Prescott State Bank, 220 Kan. 377, 392, 553 P.2d 315 (1976) (Fromme, J., concurring).
For instance, in Hammig, the plaintiff argued the defendant's credibility was a genuine issue of material fact. Each time the defendant attempted to explain his actions, the plaintiff purported to controvert that explanation by responding his “ ‘credibility is at issue as to any statements he made.’ “ Hammig, 246 Kan. at 74. However, our Supreme Court held that this superficial practice failed to meet the burden for contesting a statement of uncontroverted facts. 246 Kan. at 75.
Beverly pointed to specific conflicts in the depositions of Jill and Cara questioning how the envelope containing the copy of the beneficiary form was located and by whom it was retrieved. Beverly draws specific and reasonable inferences from their depositions, suggesting they did not get their stories straight. Beverly presents a genuine issue of material fact, namely whether the change of beneficiary form is authentic.
This court recognizes the prior panel's recognition of the issues present as follows:
“The resolution of this dispute centers on the authenticity of the change of beneficiary form sent to Marsh by Jill. If it is authentic, then she should receive the proceeds from her deceased husband's life insurance policy. If it is not, then Beverly should receive the proceeds.... The district court resolved this dispute by simply ruling in Jill's favor, with no factual support. We hold that is erroneous.” Clark, 2012 WL 402020, at *2.
The change of beneficiary form's validity is a material question of fact and cannot be resolved by summary judgment. The parties have raised several other issues in this appeal, and we deem it unnecessary to address them at this time as the matter is being remanded to address the validity of the beneficiary change form. We reverse and remand for further proceedings.
Reversed and remanded with directions.