Barber v. Woodmen of the World Life Insurance Society

364 S.E.2d 715, 88 N.C. App. 666, 1988 N.C. App. LEXIS 219
CourtCourt of Appeals of North Carolina
DecidedFebruary 16, 1988
DocketNo. 8729SC599
StatusPublished
Cited by4 cases

This text of 364 S.E.2d 715 (Barber v. Woodmen of the World Life Insurance Society) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. Woodmen of the World Life Insurance Society, 364 S.E.2d 715, 88 N.C. App. 666, 1988 N.C. App. LEXIS 219 (N.C. Ct. App. 1988).

Opinion

JOHNSON, Judge.

The facts are undisputed. On 15 October 1970, Leonard B. Barber, Jr., the original plaintiffs deceased husband, applied for and was granted membership in the Woodmen of the World Life Insurance Society. As a member, defendant issued two certificates of insurance on the life of Leonard B. Barber, Jr.: Certifi[668]*668cate No. 3050629 and Certificate No. 2455146. Both certificates were issued with the following designated as beneficiaries: Susan M. Barber, John S. Barber, and Robert D. Barber.

Upon the written application and request of the insured for a change of certificate and beneficiaries, certificate No. 3482260 was issued to replace certificate No. 2455146. The named beneficiaries on the new certificate were Elizabeth M. Barber, wife; John S. Barber, son; Robert D. Barber, son; and Susan M. Barber, daughter. On 23 May 1977, the insured submitted to defendant a written request by application to again change the named beneficiaries on certificate No. 3482260 to the following: Elizabeth M. Barber, wife, in one sum, if living; otherwise, to John S. Barber, son; Robert D. Barber, son; and Susan M. Barber, daughter, equally, in one sum.

On 30 May 1977, the insured, upon written application to defendant, requested a change of certificate No. 3050629 and its designated beneficiaries. In compliance with the insured’s request, defendant replaced certificate No. 3050629 with certificate No. 3485452 with the beneficiaries being designated as follows: Elizabeth M. Barber, wife; John S. Barber, son; Robert D. Barber, son; and Susan M. Barber, daughter.

On 18 July 1983, Leonard B. Barber, Jr. wrote the following letter to defendant requesting information regarding the status of the two policies.

July 18, 1983
RE: Woodman [sic] OF THE world-3485452 and 3482260
Dear Sirs:
Would you please give me the status of the above named policies with regard to net death benefit, total cash value, ownership and beneficiary designation. A prompt reply would be appreciated.
Sincerely,
Dr. Leonard Barber

On 27 July 1983, defendant answered with the following letter.

[669]*669July 27, 1983
213 NC
Leonard B. Barber, Jr. 820 Fleming
Hendersonville, NC 28739 Dear Sovereign Barber:
Certificate 3485452 " 3482260
Thank you for your letter.
Certificates 3485452 and 3482260 were issued to you effective April 1, 1977 for the face amounts of $81,400 and $8,140 respectively. The accidental death benefit was included when Certificate 3482260 was issued.
Effective August 1, 1983, the cash surrender values will be $10,943.36 on Certificate 3485452 and $1,106.90 on Certificate 3482260. The certificates have no indebtedness.
In the event these certificates become claims at this time, the beneficiary would receive $100,000 from Certificate 3485452 and $10,000 from Certificate 3482260.
The beneficiaries are Elizabeth M. Barber, wife, in one sum, if living, otherwise to John S. Barber, son, Robert D. Barber, son, and Susan M. Barber, daughter, equally, in one sum. Enclosed is a photocopy of the beneficiary endorsement for your information.
If we may be of service in the future, please write.
Fraternally,
(Mrs.) Kathy J. Cochran Certificate Change Section Membership Services Department
kjc/wb
enc.

The referred enclosed photocopied beneficiary endorsement reads:

[670]*6703482260
Beneficiary Endorsement
In accordance with the Application, payment of the Death Benefits shall be made as follows:
Elizabeth M. Barber, wife, in one sum, if living, otherwise to John S. Barber, son, Robert D. Barber, son, and Susan M. Barber, daughter, equally, in one sum.-

Leonard B. Barber, Jr. died 13 July 1985. Both certificates were in full force and effect at the time of his death. On 13 July 1985, certificate No. 3485452 in the amount of $100,000.00 designated Elizabeth M. Barber, wife; John S. Barber, son; Robert D. Barber, son; and Susan M. Barber, daughter as beneficiaries to share equally in the proceeds of the policy. On 13 July 1985, Certificate No. 3482260 in the amount of $10,000.00 carried an endorsement designating the following beneficiaries: Elizabeth M. Barber, wife, in one sum, if living; otherwise, to John S. Barber, son; Robert D. Barber, son; and Susan M. Barber, daughter, equally, in one sum.

By its first Assignment of Error, defendant contends that the court erred in allowing the original plaintiff to amend her complaint.

It is axiomatic that no appeal lies from an interlocutory order or ruling of the trial judge, and will be dismissed as fragmentary and premature unless the order or ruling deprives the appellant of a substantial right which he would lose if the order or ruling is not reviewed before, final judgment. G.S. 1-277; G.S. 7A-27; Black-welder v. State Dept. of Human Resources, 60 N.C. App. 331* 299 S.E. 2d 777 (1983). It is also well settled that an order of the trial court allowing a motion to amend the complaint is interlocutory and is not immediately appealable. Howard v. Ocean Trail Convalescent Center, 68 N.C. App. 494, 315 S.E. 2d 97 (1984). The order allowing the original plaintiff to amend her complaint does not deprive appellant of a substantial right which would be lost if not reviewed before final judgment on the original plaintiffs complaint. Therefore, defendant’s appeal from that portion of the trial court order allowing the original plaintiff to amend her complaint is dismissed as being premature.

[671]*671Next, defendant contends the trial court erred in granting the intervenors’ motion for summary judgment on policy No. 3485452.

Summary judgment is a drastic measure and should be considered with diligence. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E. 2d 361 (1975), aff’d, 290 N.C. 502, 226 S.E. 2d 321 (1976). It should be granted only when 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 judgment as a matter of law. Quail Hollow E. Condominium Ass’n v. Donald J. Scholz Co., 47 N.C. App. 518, 268 S.E. 2d 12, cert. denied, 301 N.C. 527, 273 S.E. 2d 452 (1980). An issue is material if the facts alleged would constitute a legal defense or would affect the result of the action. North Carolina National Bank v. Gillespie, 291 N.C. 303, 230 S.E. 2d 375 (1976).

It is undisputed that at the time of the insured’s death on 13 July 1985 both certificates, No. 3482260 and No. 3485452, were in full force and effect; that certificate No.

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Bluebook (online)
364 S.E.2d 715, 88 N.C. App. 666, 1988 N.C. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-woodmen-of-the-world-life-insurance-society-ncctapp-1988.