Weymann v. Wilson, 69-464 Civ. T.

• Decision Date: 21 December 1970
• Docket Number: No. 69-464 Civ. T.,69-464 Civ. T.
• Citation: 320 F. Supp. 980
• Parties: Hannelore E. WEYMANN, Plaintiff, v. Mary C. WILSON and The United States of America, Defendants.
• Court: U.S. District Court — Middle District of Florida

320 F. Supp. 980

Hannelore E. WEYMANN, Plaintiff, v. Mary C. WILSON and The United States of America, Defendants.

No. 69-464 Civ. T.

United States District Court, M. D. Florida, Tampa Division.

December 21, 1970.

COPYRIGHT MATERIAL OMITTED

Margaret Deaton, Tampa, Fla., for plaintiff.

Albert M. Salem, Jr., Tampa, Fla., for defendant Mary C. Wilson.

Hugh N. Smith, Asst. U. S. Atty., Tampa, Fla., for defendant United States.

ORDER

KRENTZMAN, District Judge.

This came before the Court upon motions for summary judgment filed by all the parties. A hearing on plaintiff's motion was held October 5, 1970.

Rule 56(c), F.R.Civ.P., provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

I

The material facts in this action are undisputed. Plaintiff Hannelore E. Weymann was married to Herbert D. Wilson on May 9, 1962. In September, 1965, the Servicemen's Group Life Insurance program became available to men in uniform.¹ On October 14, 1965, Herbert D. Wilson, then an Air Force enlisted man elected to participate in the program and designated his mother and father as beneficiaries of the $10,000 policy.

On July 19, 1966, plaintiff Weymann and Herbert D. Wilson were divorced by the Hillsborough County, Florida, Circuit Court. Incorporated into the decree was a separation agreement between plaintiff and Herbert D. Wilson dated July 12, 1966. The agreement provided in part:

"The party of the first part Herbert D. Wilson shall keep in full force and effect a certain Government Life Insurance policy in the total amount of $10,000.00, with the party of the second part plaintiff being made irrevocable beneficiary and the three minor children of the parties as contingent beneficiaries."

Plaintiff's attorney furnished a copy of the divorce decree and the agreement to the Veterans Administration Center, Insurance Records Division, Philadelphia, Pennsylvania, on July 21, 1966. A cover letter requested that the decree and agreement be made part of the insurance file of Herbert D. Wilson. The letter did not state the policy number, the type of policy involved, or the serial number of Herbert D. Wilson. Following a diligent search, the defendant United States of America has been unable to locate any record of the original letter.

Herbert D. Wilson married defendant Mary C. Wilson in Tampa, Florida, on December 8, 1966. On May 19, 1967, Herbert D. Wilson executed a change of beneficiary form for the Air Force, by which he cancelled his previous designation of beneficiary. Under the provisions of 38 U.S.C. § 770(a), if no beneficiary has been designated, the proceeds of Servicemen's Group Life Insurance policies go to the widow, if there is one. Therefore, when Herbert D. Wilson cancelled all previous designations of beneficiary he was in effect making defendant Wilson his beneficiary.²

According to the affidavit of defend ant Wilson, filed October 19, 1970, the circumstances involved in the change of beneficiary were as follows:

"In May 1967 * * * my husband Herbert D. Wilson came home and showed your Affiant a form which he took from his pocket and unfolded. He said he had completed it in order to change the beneficiary of some insurance from his parents' name to mine. He handed me the form, explained the words `cancel any prior designation', and told me to put it with our valuable papers. I read the form front and back and understood that the effect of the designation was to make me the beneficiary of $10,000.00 worth of Servicemen's Group Life Insurance, and he assured me that this was the case. * * * On the date in May 1967 referred to hereinabove, was the only time before or after that day that Herbert D. Wilson and your Affiant ever discussed any insurance benefits. * * * He did not mention the Plaintiff or their children, and I never knew whether or not he carried any insurance for the benefit of any of them. We simply never discussed that subject."

Herbert D. Wilson died suddenly of anoxia following an automobile accident June 11, 1969, at Key West, Florida. Defendant Wilson, who had never seen the Servicemen's Group Life Insurance Policy or any certificate of coverage, was aided in making her claim by an Air Force officer. She received the $10,000 proceeds of the policy on August 3, 1969.

Following the death of Herbert D. Wilson on June 11, 1969, plaintiff's attorney wrote a number of letters in connection therewith. On June 30, 1969, a letter was sent to defendant Wilson concerning matters of Herbert D. Wilson's estate. No mention of any insurance was made. Also on June 30, 1969, a letter was sent to defendant Wilson's attorney inquiring into the assets of the estate. In his reply dated July 1, 1969, the attorney wrote:

"There is one other item of property in this estate consisting of a National Service Life Insurance policy on the life of the decedent in the amount of $10,000.00, which shows Mrs. Wilson as the beneficiary of the policy. I pointed out to Mrs. Wilson that whether or not the proceeds of the policy belong to her or to Mrs. Wilson's sic ex-wife, your client, will, of course, depend on a decision of the Court based upon the agreement between Mr. Wilson and his ex-wife and the Final Decree of Divorce which incorporated the terms of that agreement."

On July 25, 1969, plaintiff's attorney wrote the defendant Wilson and asked for surrender of the policy, which, on the basis of the July 1 letter quoted above, was referred to as a National Service Life Insurance policy.³ On August 28, 1969, a letter was sent to the defendant Wilson stating that if the policy were not returned within ten days, a legal action would be forthcoming.⁴ At this time, the proceeds of the policy had already been paid.

On July 19, 1969, plaintiff's attorney wrote to the Veterans Administration. The letter stated:

"The purpose of this letter is to put your office on notice of a claim to the proceeds of a certain National Service Life Insurance Policy on the life of Herbert D. Wilson on behalf of his former wife, Hannelore Wilson (now Weymann). This claim is based upon an agreement entered into between my client, Hannelore E. Wilson (Weymann) and Herbert Dennis Wilson on July 12, 1966, as part of divorce proceedings then pending between them. This Agreement was made a part of the Final Decree of Divorce between these two parties, entered by Judge James S. Moody of the Circuit Court * * *. I enclose copies of this divorce decree and agreement.

My client does not have the life insurance policy, nor does she have any record of its number, and we are assuming that the policy was in the possession of Herbert Dennis Wilson, and may now be in the possession of his second wife, who is now his widow, Mrs. Mary C. Wilson."

The Veterans Administration replied July 29, 1969, stating that there was no record of insurance having been issued to Herbert D. Wilson under either the National Service Life Insurance or United States Government Life Insurance programs.⁵ When plaintiff's attorney wrote again, the Veterans Administration replied on October 9, 1969:

"A complete review of our files indicates that the veteran had no National Service Life Insurance in force on the date of his death. There is also no record of the veteran having ever applied for National Service Life Insurance."

II

This action was commenced on November 7, 1969. Because of plaintiff's incorrect belief as to the type of policy involved, jurisdiction was founded upon 38 U.S.C. § 784, which grants the District Court jurisdiction of claims relating to National Service Life Insurance and United States Government Life Insurance. Actually, jurisdiction is pursuant to 38 U.S.C. § 775, which provides:

"The district courts of the United States shall have original jurisdiction of any civil action or claim against the United States founded upon this subchapter the subchapter relating to Servicemen's Group Life Insurance, 38 U.S.C. §§ 765-776."

The complaint is in four counts. Count 1 alleges that (a) defendant Wilson conspired with Herbert D. Wilson to cause herself to be named as beneficiary, and (b) the United States of America, being on notice of the decree of the Hillsborough County Circuit Court, did disregard such notice and pay over the proceeds to defendant Wilson. Count 2 alleges that both defendants converted the proceeds of the policy, which rightfully belonged to plaintiff, to the use of defendant Wilson.

Count 3 alleges that defendant Wilson received the proceeds of the policy, although they belonged to plaintiff, and asks that the Court impose a constructive trust thereon for the benefit of plaintiff. Count 4 alleges that the United States has failed to make payment to plaintiff of the proceeds of the policy.

In her Reply Memorandum, filed October 26, 1970, plaintiff asks that defendant Wilson's written motion for summary judgment, filed October 19, 1970, be stricken. The motion will be denied.

Although all three parties have moved for summary judgment, the Court will deal principally with plaintiff's motion. For the reasons which follow, plaintiff's motion will be denied, and defendants' motions will be granted.

III

The Servicemen's Group Life Insurance program was authorized by Public Law 89-214, passed September 29, 1965. The Servicemen's Group Life Insurance Act comprises 38 U.S.C. §§ 765-776. The pertinent provisions of the Act are as follows. The Veterans Administrator is authorized to purchase from life insurance companies a policy or policies of group life insurance. 38 U.S.C. § 766(a). The life insurance company or companies issuing the policies are to establish an administrative office at a place designated by the Administrator. 38 U.S.C. § 766(b).

The policies may not exceed $10,000 and are to insure the lives...