Life v. Abernathy
| Decision Date | 19 April 2011 |
| Docket Number | NO. COA10-242,COA10-242 |
| Court | North Carolina Court of Appeals |
| Parties | GENWORTH LIFE AND ANNUITY INSURANCE COMPANY, Plaintiff, v. LISA MARIE ABERNATHY and JOY LYNETTE BIDDY, Defendants. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Gaston County
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.
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 ofdefendant 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 thecontrolling law. Therefore, the trial court properly granted summary judgment.
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 "intendedbeneficiary 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 fileidentified 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.
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 3 0 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'sDiscount 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).
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