Echaide v. Confederation of Canada Life Insurance, 71-3062.

Citation459 F.2d 1377
Decision Date11 May 1972
Docket NumberNo. 71-3062.,71-3062.
PartiesEmeterio Santovenia ECHAIDE and Lorenzo Santovenia, as assignees of Emilio Garcia Mendez, Plaintiffs-Appellees, v. CONFEDERATION OF CANADA LIFE INSURANCE a/k/a Confederation Life Association, etc., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Phillip G. Newcomm, Shutts & Bowen, Miami, Fla., for defendant-appellant.

James M. Henderson, Kneale, Roberts, Kneale, Starkweather & Henderson, Miami, Fla., for plaintiffs-appellees.

Before TUTTLE, GEWIN and THORNBERRY, Circuit Judges.

TUTTLE, Circuit Judge:

This is another in a growing list of cases involving insurance policies issued in Cuba, prior to Fidel Castro's takeover there in 1959, upon which claimants in the United States seek to recover. Plaintiffs here, claiming as assignees of the original insured, a Cuban resident, were awarded summary judgment by the district court. We reverse.

Appellant is a Canadian insurance corporation authorized to do business in Florida and which has, since 1908, maintained a business office in Havana, Cuba. Some time prior to 1950 appellant issued in Havana a life pension policy to Emilio Garcia Mendez, a Cuban citizen.1 By its terms the policy provided for the payment to the insured, after February 21, 1963, of a monthly pension in the amount of $100. In lieu of this particular pension, however, the insured could upon written notice to the company opt instead for one of four other methods of payment. Three of these were differing monthly pension plans; the fourth was the option to take the cash surrender value of the policy as of the date when such option was exercised. However, once a particular option was selected and payments under a monthly pension had commenced, the policy provided that the insured could not thereafter select a different option.

Appellant does not dispute that premiums on the policy have been fully paid nor does it deny its obligation to pay what is rightfully due under the policy.

Plaintiffs brought this action in Florida to recover the cash surrender value of the policy. They alleged that they represented Mendez, the insured, by virtue of a power of attorney executed by him in their favor in May of 1962 and that they had demanded payment of the appellant but without success.2

In its answer defendant-appellant generally denied the material allegations of the complaint and affirmatively alleged that in late 1965 Mendez, the insured, himself selected one of the options under the pension policy and that since that time and in accordance with the pension plan thus chosen appellant has been paying Mendez in Cuba the sum of 117.60 pesos monthly.3 Significantly appellant without qualification denied plaintiffs' allegation that "(p)laintiffs represent the insured by virtue of a power of attorney executed in their favor on the 30th of May, 1962." Thereafter appellant submitted affidavits and documents, discussed hereinafter, in support of its affirmative allegations and moved the court for summary judgment. Plaintiffs, without submitting affidavits of their own, then filed a cross-motion for summary judgment on the ground that there was no issue as to any material fact, adding that they would "rely on the pleadings previously filed in this action, together with supporting affidavits and the attached Memorandum of Law submitted herewith." The court entered summary judgment in favor of plaintiffs and the insurance company now appeals from that judgment.

We think that on this state of the pleadings it was error to enter summary judgment for the plaintiffs. Rule 56(c) of the Federal Rules of Civil Procedure in pertinent part provides that summary judgment "shall be rendered forthwith 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 the moving party is entitled to judgment as a matter of law." (Emphasis supplied). We are of the view that appellant in its answer raised such an issue of fact by categorically denying plaintiffs' allegation that they represented Mendez through a power of attorney. This denial, we think, was sufficient to raise as factual issues whether plaintiffs did then and there represent the insured by virtue of the power and indeed whether such a power ever existed in favor of plaintiffs. Although plaintiffs attached to their pleadings a copy of the document purporting to grant the power of attorney, they did not, by affidavit or otherwise, attempt to rebut appellant's outright denial of the existence and/or current validity of this power. Under these circumstances summary judgment for plaintiffs ought not to have been granted.

However, in view of certain concessions made by plaintiffs we find it unnecessary to remand the case for a resolution of the factual issues, for even if we assume that Mendez did in fact execute a power of attorney in favor of the plaintiffs, we are of the opinion that as a matter of law appellant is nonetheless entitled to judgment. We note that plaintiffs brought this action in a representative capacity in behalf of Mendez, the original insured. Their averment in the complaint was that "Plaintiffs represent the insured by virtue of a power of attorney . . ." which indicates that plaintiffs in this suit were acting as Mendez' agents for purposes of collecting on the policy. See Jacksonville Terminal Co. v. Smith, 67 Fla. 10, 64 So. 354 (1914). It follows, therefore, that if Mendez himself selected an option under his policy and is receiving payments from the company pursuant to it, then plaintiffs would have no basis for maintaining this suit inasmuch as Mendez, the principal, would already have accomplished that which he authorized the plaintiffs, his agents, to do. 3 Am.Jur. 2d, Agency § 36.

The pivotal issue, then, is whether it has been established as fact that Mendez chose a pension plan and that thereafter appellant made and continues to make payments to Mendez accordingly. We think it has. It is noted that in support of its allegations to that effect (which under the federal rules of pleading stood denied) appellant submitted to the trial court the affidavit of Michael Rosenfelder, Associate Corporate Actuary for appellant. In his affidavit Rosenfelder averred, inter alia:

9. That on February 21, 1963, the said Pension Date, Emilio Garcia Mendez was entitled to select one of four options set out in the policy, one of which would have entitled him to a cash settlement of 16,541 pesos consisting of a cash option of 15,450 pesos and accumulated bonuses of 1,091 pesos, but he decided to defer any settlement until a future date.
10. That now produced and shown to me and marked Exhibits A and B to this my affidavit are photostats respectively of a form in Spanish executed by Emilio Garcia Mendez dated November 19, 1965, and an English translation thereof, whereby he selected an option providing for a monthly pension for life of 117.60 pesos without a
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    • U.S. District Court — Southern District of Alabama
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    ...against resolving complex First Amendment issues on a motion for summary judgment"). 103 See Echaide v. Confederation of Canada Life Insurance, 459 F.2d 1377, 1381, n. 5 (5th Cir. 1972); CMS Industries, Inc. v. L.P.S. International, Ltd., 643 F.2d 289, 295 (5th Cir. Unit B 1981). In Stein v......
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