Ulery v. Asphalt Paving, Inc., B-268
| Decision Date | 07 April 1960 |
| Docket Number | No. B-268,B-268 |
| Citation | 119 So.2d 432 |
| Parties | Lennie L. ULERY, individually and as Executrix of the Last Will and Testament of Crawford E. Ulery, deceased, Ronald K. Ulery, Arnold D. Ulery and Carl D. Ulery, and Charies Ulery and Elsie Marie Ulery, minors by Yula S. Burns, as their next friend, Appellants, v. ASPHALT PAVING, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Barnes & Slater, and Crawford & May, Jacksonville, for appellants.
Adair, Ulmer, Murchison, Kent & Ashby, Jacksonville, for appellee.
This appeal is to review an order which upon motion of appellee, defendant below, finally dismissed the complaint for failure to state a cause for relief in equity. The allegations of fact as stated in the complaint are therefore taken as admitted.
The complaint reflects: That appellants are the widow and children of Crawford Ulery, deceased, who was the president and principal stockholder of the appellee corporation. Being the owner of two policies of insurance upon his life for $25,000 each (issued by Gulf Life Insurance Company, a party defendant below, who is not a party to this appeal), he assigned one of the policies to Orr & Company, Inc., and the other to Westfield Corporation as collateral security for obligations for which the appellee was primarily liable. The assignee corporations were co-plaintiffs below, but are not parties to this appeal.
At the time of the assignment the designated beneficiary of each policy was Clarice Ulery, who was then the wife of the insured. She predeceased him and he married appellant Lennie Ulery, who is his widow. The policies each contain a provision whereby upon the death of a designated beneficiary prior to death of the insured, the interest of such beneficiary vests in the insured. These provisions became operative by reason of Ulery's failure to designate a beneficiary in the stead of his first wife, Clarice, and upon his death the amount of the obligations due and payable by Asphalt Paving, Inc., to the assignees of said policies was and remains greater than the proceeds of the policies.
The appellants acknowledge by the complaint that the assignees are entitled to receive the entire proceeds of the respective policies for application, however, on their claims against the appellee, Asphalt Paving, Inc., and the co-plaintiff assignees acknowledge thereby that appellants are entitled to be subrogated to their claims against the appellee to the extent that the proceeds of said insurance are applied on account of appellee's obligations to the assignees.
Appellants claim to derive their interests under Section 222.13, Florida Statutes 1957, F.S.A., 1 the pertinent provisions of which are as follows:
'Whenever any person shall die in this state leaving insurance on his life, the said insurance shall inure exclusively to the benefit of the child or children and husband or wife of such person in equal portions, or to any person for whose use and benefit such insurance is declared in the policy; * * * provided further, however, that whenever the insurance is for the benefit of the estate of the insured or is payable to the estate or to the insured, his executors, administrators or assigns, and in the event the insured should die intestate or die leaving a will which does not specifically bequeath the proceeds of any insurance in effect on the life of the decedent, such proceeds of any policy in effect at the time of the death of the insured and made payable as above provided, shall be paid to the personal representative of the decedent's estate, and such payment shall discharge the insurer from any further liability under the policy.' (Emphasis added.)
The assignments of the policies in suit provide that any claims thereunder against the insurer should be 'subject to proof of interest by the assignee' of the policy. Demand was made upon the insurer to pay the policies of insurance and it refused to do so.
Upon the foregoing facts, plaintiffs sought a decree (1) determining their respective rights under the mentioned policies of insurance, (2) requiring the insurer to pay the proceeds thereof to the assignees for application on appellee's indebtedness, (3) subrogating the widow, children, and administratrix of the decendent to the rights of the assignees against the appellee to the extent the insurance proceeds are used for that purpose, and (4) by way of supplemental relief, sought judgments as follows: (a) against the insurer and in favor of Orr & Company, Inc., for the $25,000 maturity value of the policy assigned to it; (b) a judgment against the insurer and in favor of Westfield Corporation for the $25,000 maturity value of the policy assigned to it; and (c) consequent upon those judgments, and necessarily contingent upon payment thereof, a judgment in favor of appellants and against the appellee, Asphalt Paving, Inc., for $50,000, constituting the sum of the proceeds of the insurance policies so applied in payment of the debt for which appellee is primarily liable.
Appellee's motion to dismiss the complaint is bottomed on the ground that the complaint contains no allegations which would legally or equitably entitle the widow or heirs or the executrix of Crawford Ulery to be subrogated to any claims of the plaintiff against the defendant-appellee, Asphalt Paving, Inc., or to have any judgment against it. The order granting the motion recites:
'The assignments of the two policies each assigned 'all dividend, benefit and advantage to be had or derived therefrom'. The Supreme Court has held that an assignment of a life insurance policy as collateral, which contains that language, operated not only as an assignment, but also constituted a change of beneficiary from the executors or administrators of the insured to the designated assignee only. Bancroft v. West, 128 Fla. 193, 174 So. 327.
'The Court is of the opinion that neither the widow nor the children of Crawford E. Ulery nor his executrix had any property rights in said insurance policies or their proceeds and that there is no basis upon which any of them may be subrogated to any rights which Orr & Company and Westfield Corporation may...
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...is conventional, in which case the right arises by reason of contract between the parties." And the court in Ulery v. Asphalt Paving, Inc., 119 So.2d 432 at 436 (Fla. 1st DCA 1960) Subrogation, a creation of equity, is founded on the proposition of doing justice without regard to form, and ......
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Legal theories & defenses
...to pay a legal obligation which ought to have been met, either wholly or partially, by another. Source Ulery v. Asphalt Paving, Inc. , 119 So.2d 432, 436 (Fla. 1st DCA 1960). See Also 1. McKenzie Tank Lines, Inc. v. Empire Gas Corporation , 538 So.2d 482 (Fla. 1st DCA 1989), rev. denied , 5......