McNabb v. Kentucky Central Life Ins. Co.
| Decision Date | 01 April 1982 |
| Docket Number | No. 18648,18648 |
| Parties | Sandra McNABB, Appellant, v. KENTUCKY CENTRAL LIFE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Larry M. Thompson, Fort Worth, for appellant.
Godfrey, Decker, McMackin, Shipman, McClane & Bourland, William L. Kirkman, Fort Worth, for appellee.
Before MASSEY, C. J., and SPURLOCK and HOLMAN, JJ.
This is an appeal from a summary judgment. Appellant, Sandra McNabb, brought an action for damages against the appellee, Kentucky Central Life Insurance Company, alleging that the proceeds of several life insurance policies insuring the life of her daughter, Glenda, were wrongfully paid to a third party as the result of a forged change of beneficiary form executed by Glenda's father, Eldias McNabb and an agent of the insurance company, Dale Tillery. Defendant Kentucky Life Insurance Company filed a motion for summary judgment contending that the proceeds were paid in good faith prior to any notice of claim by the plaintiff. The trial court granted defendant's motion for summary judgment. Plaintiff appeals.
We affirm.
Two policies on Glenda's life originally listed her mother, Sandra McNabb, as beneficiary, and the other policy listed the estate of the insured as the beneficiary. All three policies were issued several years prior to Glenda's death at the age of 12 years as the result of injuries received in an automobile accident on June 27, 1977. Change of beneficiary forms were received by the insurance company on June 29, 1977, dated June 21, 1977, changing the beneficiary on all policies from Sandra to Eldias McNabb, the girl's father. Notice of claim and proof of death forms were submitted by the new beneficiary and received by the insurance company early in July, 1977. An assignment of the proceeds on the policies from the beneficiary, Eldias, to Lucas Funeral Home to pay funeral expenses of the deceased girl was executed by Eldias and received by the insurance company in early July, 1977, and the insurance company paid the proceeds to the funeral home in August.
The purpose of the summary judgment rule is to provide a means of summarily terminating a case when it appears that only a question of law is involved and that no genuine issue of fact exists. Straughan v. Houston Citizens Bank & Trust, 580 S.W.2d 29 (Tex.Civ.App.-Houston (1st Dist.) 1979, no writ). The granting of a summary judgment should be affirmed on appeal only if the record established a right to the summary judgment as a matter of law. Bergman v. Oshman's Sporting Goods, Inc., 594 S.W.2d 814 (Tex.Civ.App.-Tyler 1980, no writ). This court must view the evidence in the light most favorable to the party opposing the motion for summary judgment. Pack v. City of Fort Worth, 552 S.W.2d 895 (Tex.Civ.App.-Fort Worth 1977, writ ref'd n. r. e.).
In its first point of error plaintiff alleges that the insurance company did not prove its right to judgment as a matter of law on its insurance policy defenses. She cites Tex.R.Civ.P. 166-A as authority for the proposition that in order for evidence to be admissible, sworn to or certified copies of documents must be attached to affidavits and defendant failed to do so. Plaintiff further alleges that the affidavit submitted by the insurance company makes no reference to documents or policy provisions which would make them admissible, and there is no evidence to show that these are the original policies which have been admitted into evidence. An affidavit in support of defendant's motion for summary judgment was submitted, signed and sworn to by J. L. McDonald, manager of the Policy Benefits Division of Kentucky Central Life Insurance Company. In that document, he acknowledged and swore that he was aware and cognizant of all the facts set forth in the motion for summary judgment and that all facts and statements contained therein are true and correct. Rule 166-A(b) states that a party against whom a claim is asserted may move with or without support affidavits for summary judgment in his favor, and subsection (e) states that support affidavits shall be made on personal knowledge, setting forth facts admissible in evidence. Sworn to or certified copies of all papers referred to in the affidavit shall be attached thereto or served therewith. Defendant substantially complied with the requirements in Rule 166-A by the sworn to affidavit which was made a part of its motion for summary judgment. "Defects in form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." Tex.R.Civ.P. 166-A(e). Plaintiff did not object to the admissibility of any evidence in the trial court.
Plaintiff further asserts that the policy clause which allows for a change in beneficiary by the parent or guardian of a minor insured is not...
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