General American Life Ins. Co. v. Barrett, WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: BRECKENRIDGE
• Citation: 847 S.W.2d 125
• Parties: GENERAL AMERICAN LIFE INSURANCE COMPANY, Plaintiff, v. Carol J. BARRETT, Personal Representative, Appellant, Larry G. Green and Donald G. Green, Respondents. 45805.
• Docket Number: No. WD,WD
• Decision Date: 12 January 1993

Page 125

847 S.W.2d 125 GENERAL AMERICAN LIFE INSURANCE COMPANY, Plaintiff,
v.
Carol J. BARRETT, Personal Representative, Appellant,
Larry G. Green and Donald G. Green, Respondents. No. WD 45805. Missouri Court of Appeals,
Western District. Jan. 12, 1993.
Motion for Rehearing and/or Transfer to
Supreme Court Denied
March 2, 1993.

Page 127

Douglas R. Horn, Lee's Summit, for appellant.

Ronald V. Mueller, Kansas City, for respondents.

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Before TURNAGE, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

Carol J. Barrett, personal representative of the Estate of Tammy R. Green, appeals the trial court's order granting summary judgment for respondents, Larry G. Green and Donald G. Green. Barrett presents two points on appeal arguing that the trial court erred in granting summary judgment in favor of respondents because: (1) a genuine issue of material fact exists since Policy 1210 was not proven to have been adopted and in force; and (2) the beneficiary designation form, instructions and rules were incorporated into the policy of insurance and relied upon by Tammy R. Green. The judgment is reversed and the cause is remanded.

Tammy R. Green enrolled in a group life insurance program through her employer, Southwestern Bell, on May 16, 1988. A certificate of insurance in the amount of $120,000.00 was issued by General American Life Insurance Company (General American). At the time of her enrollment, Tammy R. Green completed a Southwestern Bell Corporation Beneficiary Designation Form designating Larry G. Green, her husband at the time, as primary beneficiary and Donald G. Green, her brother-in-law at the time, as contingent beneficiary.

Section C of the Beneficiary Designation Form completed by Tammy R. Green provides that the beneficiary designations are made pursuant to the Southwestern Bell Corporation Rules for Employee Beneficiary Designations (Rules). Tammy R. Green was provided with Instructions For Making Beneficiary Designations (Instructions) which also state that beneficiary designations are governed by the Rules. The Instructions direct the employee to read the Rules because they "constitute the contract between you and the ... program as to the manner in which distribution will be made at your death and set forth the rights, obligations, procedures and protections provided to you, your beneficiaries, the employing corporation, the programs and the program administrators." The Instructions, under the section titled "Distribution Rules Summary," state the following:

5. Divorce: If a share is provided for a person who is your spouse and you are not married to that person at your death, the designation of that person as a beneficiary will be treated as revoked before your death and the share provided will be distributed to your estate. If you intend that a divorced spouse receive a share, your beneficiary designation must be dated after the date your marriage was dissolved.

On page six, Section 3 of the Rules reads:

J. If, after the employee makes a beneficiary designation in favor of a person who is the employee's spouse, the employee is divorced or the marriage is annulled and the employee and beneficiary do not remarry and remain married at the employee's death, the beneficiary designation in favor of the employee's spouse is revoked on the date the marriage was dissolved, whether or not the beneficiary form refers to marital status, and the share of the former spouse shall belong and be distributed to the employee's estate;

The marriage between Tammy R. Green and Larry G. Green was dissolved on October 14, 1988. Tammy R. Green died on February 23, 1989. Tammy R. Green died without executing a post-dissolution beneficiary designation. Barrett, as personal representative, filed a claim to collect the proceeds of the life insurance policy in behalf of Tammy R. Green's estate. Her claim was not paid because General American required Larry and Donald Green to release their rights as designated beneficiaries, and they refused to do so. The Greens claim that, prior to Tammy R. Green's enrollment in the program, Policy 1210 was adopted as an amendment to Policy 7533 and that, under Policy 1210, the Rules do not apply to beneficiary determination until June 1, 1990. The Greens argue that because Tammy R. Green died before June 1, 1990, the Rules cannot be used to determine her beneficiaries. The language in the Rules regarding divorce is not stated in the body of Policy 1210. The Rules provide that if there is a conflict

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between the provisions of the Rules and the provisions of the policy, the policy terms shall control.

On February 20, 1990, General American filed a Petition for Interpleader to determine who was entitled to the policy proceeds. Barrett and the Greens, the competing claimants for such proceeds, were joined as defendants. At the time it filed the petition, General American deposited with the court $130,001.00, which represented the policy proceeds plus interest. On June 6, 1990, the trial court discharged General American from further liability and ordered the defendants to interplead their competing claims to the funds deposited with the court. Both Barrett and the Greens filed cross-claims for declaratory judgment and motions for summary judgment. On December 27, 1991, the court entered summary judgment in favor of Larry G. Green and Donald G. Green. Barrett's cross-claim was denied.

Barrett argues in her first point on appeal that the trial court erred in granting summary judgment in favor of the Greens because a genuine issue of material fact arises out of the Greens' failure to prove that Southwestern Bell adopted Policy 1210. The existence of Policy 1210 is an essential element of the Greens' claim that the beneficiary designations by Tammy R. Green were not revoked as a result of the dissolution of the marriage of Tammy R. Green and Larry G. Green.

Review of summary judgment is conducted in the same manner as review of a court-tried case and the judgment will be sustained if, as a matter of law, it is sustainable on any theory. Hayes v. Hatfield, 758 S.W.2d 470, 472 (Mo.App.1988). The reviewing court must first determine whether there is a genuine issue of material fact which would require trial and then whether the judgment is correct as a matter of law. Roberts Fertilizer, Inc. v. Steinmeier, 748 S.W.2d 883, 886 (Mo.App.1988). The moving party bears the burden of showing the party's entitlement to summary judgment as a matter of law. Id. The moving party, however, is not required to show by unassailable proof that it was entitled to summary judgment. Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo.App.1989). In deciding whether an issue of material fact exists, the evidence of the party against whom summary judgment has been entered must be believed and all justifiable inferences drawn in that party's favor. American Family Mut. Ins. Co. v. Lacy, 825 S.W.2d 306, 313 (Mo.App.1991). The entire record is reviewed in the light most favorable to the party against whom summary judgment was entered. Hayes, 758 S.W.2d at 472.

Barrett argues that the Greens did not meet their burden of proving that they were entitled to summary judgment as a matter of law because they failed to present evidence that Southwestern Bell adopted Policy 1210. Barrett's argument is without merit. Rule 74.04(e), in pertinent part, requires the following:

When a motion for summary judgment is made and supported as provided in this Rule 74.04, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Barrett failed to challenge the Greens' assertion in their motion for summary judgment that no genuine issue of material fact exists. Failure to respond to a motion for summary judgment with specific facts showing genuine material issues results in admission of the facts alleged. Kessinger Hunter Management Co. v. Davis, 782 S.W.2d 426, 430 (Mo.App.1989). In her suggestions in opposition to the Greens' motion for summary judgment, Barrett adopted the position that no genuine issue of material fact existed because the dispute merely involved document interpretation. Barrett again committed to this position when she asserted in the suggestions in support of her own motion for summary judgment that "this case is ripe for summary judgment in that the facts are not in dispute and the court's only task is

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to interpret and apply the clear cut terms of the life insurance policy."

In her claim that the Greens failed to state sufficient facts upon which judgment could be granted, Barrett only challenges the adoption of Policy 1210. This challenge does not suffice to defeat the Greens' claim for two reasons. First, Barrett did not raise this argument before the trial court and, secondly, Barrett admitted in her suggestions in opposition to the Greens' motion for summary judgment that Southwestern Bell adopted Policy 1210. After admitting the adoption of Policy 1210, Barrett cannot take a contrary position on appeal. Also, Barrett's failure to argue in the trial court that Policy 1210 had not been adopted prevents her from raising it as an issue on appeal....