Prudential Insurance Company of America v. King

• Decision Date: 29 November 1971
• Docket Number: No. 71-1052.,71-1052.
• Citation: 453 F.2d 925
• Parties: The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee, v. Aleene T. KING, Appellee, and Pamela Nicholson Coleman and Judy C. Crick, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 925 (1971)

The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee, v. Aleene T. KING, Appellee, and Pamela Nicholson Coleman and Judy C. Crick, Appellants.

No. 71-1052.

United States Court of Appeals, Eighth Circuit.

November 4, 1971.

Rehearing Denied November 29, 1971.

Duke W. Ponick, Jr., Morris, Foust, Moudy, & Beckett, Kansas City, Mo., for appellant Coleman.

M. Randall Vanet, McLaughlin & Vanet, Kansas City, Mo., for appellant Crick.

Frank Brockus, Kuraner, Oberlander, Dingman, Brockus & Lowe, Kansas City, Mo., for appellee Aleene T. King.

Before VOGEL, GIBSON and LAY, Circuit Judges.

VOGEL, Circuit Judge.

The Prudential Insurance Company of America, plaintiff in the District Court, commenced this statutory interpleader action pursuant to 28 U.S.C.A. § 1335 and § 1397, with respect to the proceeds of a $10,000.00 policy of Servicemen's Group Life Insurance issued in accordance with 38 U.S.C.A. § 765, et seq., which became payable upon the death of Harold R. Silvey, deceased serviceman. No jurisdictional questions are presented.

Defendants — appellants (appellants herein) Pamela Nicholson Coleman and Judy C. Crick jointly appeal from a non-jury verdict by the District Court for the Western District of Missouri which by its judgment ordered the proceeds of the insurance paid to defendant-appellee (appellee herein) Aleene T. King. The District Court's opinion is reported as Prudential Ins. Co. v. King, W.D.Mo. W.D.1970, 324 F.Supp. 1236. The material facts are not in dispute. For the reasons that follow, we reverse.

Harold R. Silvey was born July 14, 1948. He entered the military service of the United States in March 1966 just prior to his eighteenth birthday. He entered the service without the knowledge or consent of his mother, appellee King. He did, however, have the written consent of Merlin C. Silvey, his natural father. (Appellee King was divorced from Merlin C. Silvey in July 1953). At the time of Harold R. Silvey's entry into the military service Public Law 82-214 (38 U.S.C.A. § 765, et seq.) was in effect, automatically insuring a soldier against death up to the amount of $10,000.00 without any action being taken on the part of the serviceman. The order of preference of beneficiaries with respect to such a policy was established by 38 U.S.C.A. § 770(a).¹

In April 1967 the Army issued Regulation No. 608-2, setting forth comprehensive regulations affecting Servicemen's Group Life Insurance, including regulations for beneficiary designation thereunder. One of these regulations specified that VA Form 29-8286 was to be used to designate beneficiaries for insurance and to designate changes of beneficiaries.

On November 28, 1967, Harold R. Silvey, while stationed at Fort Campbell, Kentucky, executed DA Form No. 3054, entitled Elections of Amount, Beneficiary Designation and Settlement Options for Servicemen's Group Life Insurance. On his Form 3054, Silvey designated the appellants Pamela Nicholson (now Mrs. Pamela Nicholson Coleman) and Mrs. Judy Crick, both friends of his, as beneficiaries under this insurance, payable 50% to each. A photostatic copy of the form executed by Silvey was offered and received in evidence in the District Court.

COPYRIGHT MATERIAL OMITTED

On July 3, 1968, Silvey, who had never married and was still a minor, was killed in action in Vietnam. Thereafter, King, Coleman and Crick claimed the proceeds of the $10,000.00 policy. Prudential interpleaded the various parties and paid the proceeds of the policy into the District Court to await that court's determination.²

While the action was pending in the District Court, all of the parties thereto entered into a written stipulation which, inter alia, provided in pertinent part:

"9. During the lifetime of the said Harold R. Silvey and while said insurance was in full force, on or about November 28, 1967, the said Harold R. Silvey signed an Election of Amount, Beneficiary Designation and Settlement Option for Servicemen\'s Group Life Insurance, DA Form 3054, designating defendants PAMELA NICHOLSON and JUDY CRICK, each as beneficiaries of fifty percent (50%) of the death benefit of said life insurance, a copy of which DA Form 3054 has been marked \'P. Ex.-1\', which is the subject of further stipulation in Paragraph 18 hereof and which is incorporated herein by express reference."

Paragraph 18, referred to supra, merely provided for a waiver of objection to certain exhibits, including DA Form 3054, because of lack of identification and further provided that the documents were to be considered genuine.

By a supplemental stipulation pursuant to the District Court's order of November 4, 1970, the parties added to paragraph 9, supra, of the stipulation the following:

"That after the death of the said Harold R. Silvey, the aforesaid signed DA Form 3054 was transmitted through Army channels, in a manner presently unknown to the parties to the action, to the Casualty Division of the Office of the Adjutant General, Department of the Army, which said Division certified said document to the Office of Servicemen\'s Group Life Insurance, 212 Washington Street, Newark, New Jersey 07102 for processing. Further, that after the aforesaid signed DA Form 3054 was received by the Casualty Division of the office of the Adjutant General, Department of the Army, that office transmitted a VA Form 29-8283 `Claim for Death Benefits\' to both defendants Pamela Nicholson Coleman and Judy C. Crick which were received by them (previously identified in the Stipulation filed May 29, 1969 at Page 4 as P.Ex. 3). In addition, the following documents which are the subject of further stipulation in Paragraph 18 hereof were sent to and received by defendant Pamela Nicholson Coleman: Various documents listed including letters from the Army to appellants Coleman and Crick and instructions "to Beneficiaries of Servicemen\'s Group Life Insurance"."

In its opinion, the District Court premised its decision as follows:

"For the reasons hereinafter stated in detail, judgment should be entered for defendant King because:

(1) The defendants Coleman and Crick relied upon a claimed divestiture of the parents as statutory beneficiaries of the insured\'s Servicemen\'s Group Life Insurance by a beneficiary designation on DA Form 3054 which was defective in that it was not executed in accordance with the policy and the governing Army Regulations; and

(2) The defendants Coleman and Crick failed to produce evidence to show that the insured, in using the unauthorized DA Form 3054, intended to change the beneficiaries by divesting the statutory beneficiaries of their right to the proceeds of his Serviceman\'s Group Life Insurance; and

(3) The defendants Coleman and Crick failed to produce evidence to show that it was not practicable for the insured to use the correct form to designate them as the beneficiaries of his life policy, as required by the governing regulations." 324 F.Supp. at 1239-1240

We believe the above-stated legal conclusions are not warranted under these facts. First, we direct attention to the controlling statute, 38 U.S.C.A. § 770, which requires no more than "a writing" for beneficiary designation. We would also direct attention to the fact that DA Form 3054 is specifically designated as an "Elections of Amount, Beneficiary Designation and Settlement Options for Servicemen's Group Life Insurance". VA Form 29-8286, which was designated in 1967 as the proper form for use in the naming of beneficiaries, was similar in content and certainly the failure to use it should not be a vehicle by which the serviceman's will or intent could be nullified. The words of Judge Haynsworth in Bew v. United States, 4 Cir., 1961, 286 F.2d 570, 572, are particularly appropos:

"It is well settled that there need not always be strict compliance with all of the regulations governing a change of beneficiary in a N.S.L.I. policy. Formalistic requirements will not be determinative if the apparent intention of the serviceman can reasonably be effectuated. (Roberts v. United States, 4 Cir., 157 F.2d 906; Shapiro v. United States, 2 Cir., 166 F.2d 240; United States v. Pahmer, 2 Cir., 238 F.2d 431; McKewen v. Mc-Kewen, 5 Cir., 165 F.2d 761; Bradley v. United States, 10 Cir., 143 F.2d 573.)

"We think the intention of the serviceman is readily apparent from his statement on the Record of Emergency Data form DD 93, as found by the Board of Veterans Appeals. As stated by that Board, there had been confusion between rights to indemnity and rights to insurance with waiver of premium created by the same act of Congress. Under the regulation, the form, itself, is an approved means of effecting a change of beneficiary as to indemnity, but not as to insurance, but, as the Board found, this serviceman could have had nothing else in mind when he designated Joyce as the sole beneficiary to the extent of $10,000, for that amount could be referable only to insurance. When servicemen are required to execute such a multitude of forms for varying purposes, the fact that his election and exercise of his rights are not expressed on that form having the prescribed color and number should not be a conclusive bar to the implementation of his purpose. When, as here, his purpose and intention clearly appear in the form DD 93, executed in 1956 when he was living with his wife and less than a year preceding his death, we think the Board properly gave it effect as a designation of Joyce as the beneficiary of the entire proceeds of both his insurance policies." (Emphasis supplied.)

In Wiley v. United States, 10 Cir., 1968, 399 F.2d 844, 847, it was said:

"`In such a case (i. e., changing beneficiaries under National Service Life Insurance), technicalities will not be permitted to thwart the express desire of the insured. * * *\' Collins v. United States, 161 F.2d 64, 69 (10th Cir. 1947)."

Judge Johnsen, speaking for this court in Bratcher v. United States, 8 Cir., 1953, 205 F.2d 953, noted:

"The

...