New England Mut. Life Ins. Co. v. Null

• Decision Date: 11 May 1977
• Docket Number: No. 76-1426,76-1426
• Citation: 554 F.2d 896
• Parties: NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, a corporation, Appellee, v. Shirley Ann NULL, Individually and as Administratrix of the Estate of Victor G. Null, Deceased, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 896

554 F.2d 896

NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, a corporation, Appellee, v. Shirley Ann NULL, Individually and as Administratrix of the Estate of Victor G. Null, Deceased, Appellant.

No. 76-1426.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1977.

Decided May 11, 1977.

Joseph W. Toeniskoetter, St. Louis, Mo., for appellant; Andrew P. Deschu, St. Louis, Mo., on brief.

P. Terence Crebs, St. Louis, Mo., on brief for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

Shirley Ann Null, widow of murder victim Victor G. Null, brings this appeal from a summary judgment declaring a personal life insurance policy issued on the life of Victor G. Null by appellee New England Mutual Life Insurance Company (New England) to be void from the beginning because Ronald Calvert, a person then intending to cause the death of the insured, Victor Null, participated in arrangements to purchase the policy and contemporaneously secured from Victor Null an assignment thereof under which Ronald Calvert became an indirect beneficiary of this policy. We reverse the judgment and remand for further proceedings.

The district court's opinion awarding summary judgment is reported as New England Mut. Life Ins. Co. v. Calvert, 410 F.Supp. 937 (E.D.Mo.1976). This litigation is the aftermath of the successful federal prosecution of Ronald Calvert on charges of mail fraud, wire fraud, and conspiracy. We affirmed that conviction in United States v. Calvert, 523 F.2d 895 (8th Cir. 1975), cert, denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976). The district court based its summary judgment on the evidence and the implicit factual conclusions underlying the jury's guilty verdict in United States v. Calvert, supra. New England Mut. Life Ins. Co. v. Calvert, supra, 410 F.Supp. at 939-41.

Our opinion in the criminal case outlined Ronald Calvert's scheme to defraud insurance companies by obtaining several insurance policies on the life of Victor Null, an inventor and business associate of Calvert's, and then attempting to "contract" for Null's murder as a means of collecting the multimillion dollar proceeds of the policies through his father, James Calvert, who was named as beneficiary or assignee on all the life insurance policies. The Government's prosecution of Ronald Calvert rested on mail and wire transmissions made in fraudulently obtaining the insurance policies. ¹ This court's opinion recited the circumstances surrounding the issuance of two insurance policies by appellee New England, as well as those concerning a number of policies issued by other insurers. For factual background, we repeat the portion of the opinion discussing the issuance of the New England policies, including the $100,000 "personal" policy on the life of Null following Ronald Calvert's unsuccessful attempt to obtain a $500,000 policy from Prudential Insurance Company:

In May 1972, the defendant (Ronald Calvert) contacted a local agent for Prudential Insurance Company and filled out an insurance application seeking $500,000 coverage on Null's life with James Calvert (father of Ronald Calvert) as the beneficiary. The defendant delivered a check for more than $10,000, signed by his father. The Prudential office in St. Louis mailed the application and medical examination forms to the home office in Houston * * *. Before the check was deposited, the defendant contacted the local agent and declared that he wanted to add accidental death benefits. The agent informed the defendant that this was more than Prudential normally writes in accidental death, and that he would have to check with the home office in Houston. A new check was delivered to replace the prior one. The local office then mailed a letter to Houston advising the home office of the change in the application * * *. The local agent learned that Prudential would not authorize such a large policy, and informed the defendant of this fact. The defendant then asked the agent to withdraw the application, because he did not want the application to be rejected. This was done.

The defendant thereafter met with a local agent for New England Mutual. The agent informed the defendant that the application would have to be accompanied by a letter containing information on the partnership, that both would have to be sent to underwriters, and that there were no underwriters in St. Louis. Such a letter was mailed to the home office in Massachusetts on July 10, 1972 * * *. In analyzing the application, New England relied on the financial stability of the defendant's father; the defendant had deposited money into one of his father's bank accounts to bolster the appearance of stability. On July 19, 1972, the local agent received a mailgram from the New England home office approving $150,000 business and $100,000 personal insurance on the life of Null * * *. The local agent informed the defendant that New England had approved these lesser amounts, rather than the $500,000 requested and that an application from Null himself would be needed for the personal insurance. The defendant subsequently accompanied Null to the local office, where the latter submitted an application for personal insurance in the amount of $100,000, with an accidental death benefit of $100,000. At the same time, Null assigned the personal policy to James Calvert. ² This assignment was apparently not known to the home office until September. The premium check was signed by James Calvert. On July 24, 1972, the local agent mailed a letter to the home office in Massachusetts, advising them that the premium had been collected, and forwarding the application for personal insurance signed by Null * * *. On September 1, 1972, the assignment and change of beneficiary form which Null had signed in the defendant's presence was mailed to the home office * * *.

On July 24, 1972, a new partnership agreement was reached, bringing in several new partners, including an attorney and a C.P.A. In early September, a separate agreement was signed by all the partners stating that the New England insurance belonged exclusively to James Calvert. (United States v. Calvert, 523 F.2d 895, 900-01 (8th Cir. 1975) (note 2), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976) (emphasis added).)

Appellee recites several additional facts ³ relating to the issuance of the $100,000 policy in the name of Victor G. Null:

* * * Mr. Null * * * was to be the owner subject to receipt of a new application and additional information. * * * Under date of July 21, 1972, a new application was secured for the said $100,000 policy * * *. Although that application indicates that premium was received at the time of the making of the application, such premium was in fact not received until July 24, 1972.

On that date Mr. Null and defendant Ronald F. Calvert presented themselves at the Whitney St. Louis Agency of appellee. Defendant Ronald F. Calvert delivered a check of his father to Mr. Whitney. * * * The amount of that check, namely $5,616.00, * * * included advance payment of premium for both policies appellee had agreed to issue. Also on July 24, 1972 at the same time the check for the payment of the premium was delivered, Victor G. Null executed an Absolute Assignment and Change of Beneficiary form to James Henry Calvert of the $100,000 policy appellee had agreed to issue. * * * The Absolute Assignment and Change of Beneficiary form was not received in appellee's home office in Boston, Massachusetts, until September 5, 1972. * * *

In August, 1972, both policies were delivered to defendant, Ronald F. Calvert. (Appellee Br. at 11-12 (references to record and footnotes omitted).)

In this action to void the two life insurance policies referred to above, New England named as parties Ronald Calvert, the criminal defendant, and James Calvert, his father, who was the named owner-beneficiary in the $150,000 policy and assignee of the $100,000 policy, and the appellant Shirley Ann Null, individually and as administratrix of the estate of Victor G. Null. Appellee sought a declaratory judgment that none of the defendants were entitled to any benefits under these two insurance policies. Mrs. Null filed a counterclaim seeking a determination that she, as personal representative of the Null estate, should recover the proceeds of the $100,000 policy on the life of Victor G. Null. Jurisdiction rests on diversity of citizenship and the requisite amount in controversy. Missouri law controls this litigation.

The district court decided that the jury's guilty verdict in the criminal case necessarily determined that Ronald Calvert, acting through Victor Null, procured from New England the disputed policies of insurance on the life of Mr. Null, with the "then-existing intent to cause Null's murder," 410 F.Supp. at 940, "as part of the scheme by Calvert to defraud" insurance companies, id., and that such finding served to void the policies as to Ronald Calvert and James Calvert, because an insurer is relieved of all liability on a policy procured by a beneficiary intending at the time of the procurement to murder the insured. Id.

The district court judgment declaring the policies void ab initio has become final and conclusively binding as against Ronald Calvert and James Calvert because neither has processed an appeal to this court.

The district court employed a similar analysis in rejecting the Null estate's claim to the $100,000 policy issued on Victor Null's personal application, stating:

In the present context, the jury conviction in United States v. Calvert, supra, is conclusive of the fact that the mailing of the application for personal insurance was part of Calvert's scheme to defraud and that it was Calvert who caused the mailing. Accordingly, defendant Null's contentions are without merit. (New England Mut. Life Ins. Co. v. Calvert, 410 F.Supp. 937, 941 (E.D.Mo.1976).)

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