Markwica v. Davis
| Decision Date | 18 December 1984 |
| Citation | 473 N.E.2d 750,64 N.Y.2d 38,484 N.Y.S.2d 522 |
| Parties | , 473 N.E.2d 750 Donald J. MARKWICA et al., Respondents, v. Dorothy DAVIS, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Where as an incident of a separation agreement a decedent husband has agreed to continue his children as beneficiaries of a policy of insurance on his life, a constructive trust for their benefit will be impressed on the proceeds of such insurance in the hands of the decedent's second wife to whom they had been paid under a change of beneficiary designation.
On June 9, 1970, John and Carol Markwica entered into a separation agreement, paragraph 6 of which provided: "The husband agrees that he shall continue the children as beneficiaries on any and all life insurance policies he now owns." At that time John was insured in the amount of $10,000 under a group life insurance policy by virtue of his employment with Republic Steel Corporation.
On April 22, 1971, John and Carol were divorced. On April 26, 1975 John married Dorothy Davis, defendant in this action, and on May 10, 1975 named her as beneficiary of his group life insurance policy. John died on June 22, 1980, and the proceeds of the life insurance policy were paid to Dorothy on July 11, 1980. No proof is tendered to show that she had had any knowledge of the provisions of paragraph 6 of the 1970 separation agreement.
The present action was instituted by and on behalf of John and Carol's children on August 6, 1982 to recover the proceeds of the life insurance policy. Supreme Court denied the children's motion for summary judgment, but the Appellate Division reversed and granted the motion. We affirm.
On appeal before us defendant argues that there are questions of fact which require a trial, thus precluding summary judgment, in particular whether the $10,000 policy of life insurance at issue was in existence at the time of the execution of the separation agreement and if so whether it was within the description, "life insurance policies he now owns". As to the former question it is alleged in paragraph 8 of the complaint that the $10,000 policy was in existence at the time of the execution of the separation agreement, and in her bill of particulars defendant stated that she had received the sum of $11,000 plus interest on account of "a certain group life insurance policy referred to in paragraph '8' of Plaintiffs' Complaint." We read that as an implicit admission that the $10,000 policy was then in existence; moreover, no proof is tendered that it did not then exist.
With respect to the issue of "ownership", it is not contested that John was the insured and that he possessed the right to change beneficiaries, the exercise of which right gave rise to the present lawsuit. In the absence of tender, on the motion for summary judgment, of evidentiary proof that John and Carol intended some other meaning for the word "owns", we conclude that the group life insurance policy of which John was the insured and as to which he retained the right to change the beneficiary falls within the scope of paragraph 6 of their separation agreement. (Hartford Acc. & Ind. Co. v. Wesolowski, 33 N.Y.2d 169, 172, 350 N.Y.S.2d 895, 305 N.E.2d 907.)
Defendant next asserts that the failure to establish that John's estate was insolvent (and thus unable to respond in damages in an action brought against the estate for breach of his contract to continue the children as beneficiaries on the policy) is fatal to their recovery in this action, and that, in any event, the estate is a necessary party to this action. There is no merit to either contention. The present action is grounded in principles of the law of restitution for unjust enrichment. Defendant, having furnished no consideration for...
To continue reading
Request your trial
-
Torchia on Behalf of Torchia v. Torchia
...to that of a stranger to the agreement who was subsequently named gratuitously as beneficiary. Thus, in Markwica v. Davis, 64 N.Y.2d 38, 484 N.Y.S.2d 522, 473 N.E.2d 750 (1984), where the decedent's second wife had been named beneficiary in contravention of a prior separation agreement, the......
-
Aetna Life Ins. Co. v. Bunt
...on similar facts. Annot., 59 A.L.R.3d 9 (Supp. 1974 & Supp.1987). See 44 Am.Jur.2d Insurance § 1776 (1982); Markwica v. Davis, 64 N.Y.2d 38, 484 N.Y.S.2d 522, 473 N.E.2d 750 (1984); General American Life Ins. Co. v. Rogers, 539 S.W.2d 693 (Mo.App.1976); Green v. Green, 13 Mass.App.Ct. 340, ......
-
Kromer v. Kromer
...be applied here. It is settled that laches and estoppel are affirmative defenses which must be pleaded (see, Markwica v. Davis, 64 N.Y.2d 38, 42, 484 N.Y.S.2d 522, 473 N.E.2d 750; Surlak v. Surlak, 95 A.D.2d 371, 383, 466 N.Y.S.2d 461; Glenesk v. Guidance Realty Corp., 36 A.D.2d 852, 321 N.......
-
Shuman v. SquareTrade Inc.
... ... guilty of no wrongdoing, has received money to which he or ... she is not entitled.” Id. (citing Markwica ... v. Davis , 64 N.Y.2d 38, 484 N.Y.S.2d 522, 473 N.E.2d 750 ... (1984); Kirby McInerney & Squire, LLP v. Hall Charne ... Burce & ... ...
-
§ 19.03 Escalations
...a tenant's payment of a disproportionate share of property taxes resulted in the landlord obtaining a windfall.[192] Markwica v. Davis, 64 N.Y.2d 38, 484 N.Y.S.2d 522 (1984); Restatement, Restitution 2d, § 1 (Tent Draft Nov. 1, 1983).[193] Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chip......