UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-30370 Summary Calendar
HARTFORD LIFE & ACCIDENT INSURANCE CO.
Plaintiff,
versus
BETTY K. WILMORE
Defendant-Appellant -Cross-Appellee,
ANGELINE BOATRIGHT
Defendant-Appellee -Cross-Appellant.
Appeals from the United States District Court For the Western District of Louisiana (No. 99-CV-2033)
January 4, 2002
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Plaintiff Hartford Life & Accident Insurance Co. brought
this interpleader action to resolve competing claims to the
proceeds of two insurance polices it issued to Bartley P.
Wilmore. The competing parties, Wilmore’s mother, Betty K.
Wilmore, and his ex-wife, Angeline Boatwright, each moved for
summary judgment on their respective claims. The district court
concluded that Wilmore’s mother was entitled to the proceeds of
the accidental death and disability policy, but that Wilmore had
failed to effect a change in beneficiaries to the life insurance
policy and that Boatwright was therefore entitled those proceeds.
We affirm the district court’s judgment for Wilmore’s mother, but
we vacate its judgment for Boatwright and render for Betty
Wilmore instead.
BACKGROUND
Wilmore worked for Albertson’s from 1990 until his death in
1999. Through Albertson’s, Wilmore obtained accidental death and
disability and life insurance policies issued by Hartford.
Albertson’s acted as the policyholder and administrator to the
two plans. The record indicates that up until 1995 Boatwright
was listed as the primary beneficiary on both polices and
Wilmore’s mother, the residual beneficiary. Wilmore and
Boatwright divorced in 1996. Shortly before, in a hand-written
letter dated May 25, 1995, sent via facsimile, Wilmore requested
that Albertson’s remove Boatwright as beneficiary to both
-2- policies effective immediately. Albertson’s placed the facsimile
in Wilmore’s personnel file where it remained until shortly after
his death.
The insurance proceeds, $45,000 under life plan and $5,000
under the death and disability plan, were deposited into the
registry of the court, and Hartford was dismissed from the
action. Both parties made timely appeals from the judgment of
the district court.
DISCUSSION
Claims disposed of on summary judgment are reviewed de novo.
See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998). “Summary judgment is appropriate, when, viewing
the evidence in the light most favorable to the nonmoving party,
the record reflects that no genuine issue of any material fact
exists, and the moving party is entitled to judgment as a matter
of law.” Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205
(5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986)).
This matter is governed by the Employee Retirement Income
Security Act (“ERISA”). The question who succeeds to benefits
from an ERISA-governed plan turns, first, on the plan’s plain
meaning, and then, second, on ERISA itself and on federal court
interpretations thereunder. See Brandon v. Travelers Ins. Co.,
18 F.3d 1321, 1325 (5th Cir. 1994). With respect to Wilmore’s
-3- life insurance plan, the plan provides that the beneficiary may
be changed at any time by “(1) making such change in writing on a
form acceptable to The Hartford; and (2) filing the form with the
Policyholder.” The district court suggested that the form used
to change beneficiaries must be one pre-approved by Hartford, and
that Wilmore’s facsimile was not such a form. This
interpretation of the life plan is not supported by its plain
language, however. The plan says that the change in
beneficiaries must be made on an “acceptable” form. An
acceptable form is one that is “capable or worthy of being
accepted.” See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 11 (1981).
An “approved” form, on the other hand, is one that has been
proven as being correct. See id. at 106. The plan’s use of
“acceptable” suggests that some unapproved forms might suffice
for changing beneficiaries, a construction more in accord with
the plain meaning of the plan.
We note that Albertson’s plan administrator testified that
Hartford would not have considered Wilmore’s facsimile an
acceptable form. But there is no evidence to support her belief
as to what the insurance company would or would not have done in
this particular situation, and as the administrator herself
testified, whether the form is acceptable is a question reserved
for Hartford, not Albertson’s. We also note that the
administrator testified that it was her department’s practice to
-4- send the insured a change-of-beneficiary card after receiving
notice of the insured’s intent to affect a change. But the
record in this case does not indicate whether a card was ever
sent or whether Wilmore ever received one or even knew of the
department’s practice.
There being insufficient evidence to conclude whether
Wilmore was in compliance with the life plan’s plain meaning, and
there being no statutory provisions under ERISA governing change-
of-beneficiary procedures,1 we turn to federal common law and the
doctrine of substantial compliance. Substantial compliance is
aimed at giving “effect to an insured’s intent to comply when
that intent is evident.” See Phoenix Mutual, 30 F.3d at 566.
The doctrine requires that “an insured intend to change his
beneficiary and that he take positive action to effectuate that
intent. . . .” Id. at 565. With respect to the life plan, the
evidence shows that Wilmore intended to change beneficiaries.
His facsimile is addressed to “Albertson’s Employee Benefits
Department,” has “Bartley Wilmore” as the sender, and lists his
Social Security number. See Letter from Bartley P. Wilmore to
Albertson’s Employee Benefits Department (May 25, 1995)). It
requests that his wife and two step children be removed from his
1 See Emard v. Hughes Aircraft Co., 153 F.3d 949, 957 (9th Cir. 1998); Equitable Life Assurance Soc. v. Crysler, 66 F.3d 944, 948 (8th Cir. 1995); Phoenix Mutual Life Ins. Co. v. Adams, 30 F.3d 554, 562 (4th Cir. 1994); Krishna v. Colgate Palmolive Co., 7 F.3d 11, 14 (2d Cir. 1993).
-5- “insurance coverage plan as well as any life insurance benefits
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-30370 Summary Calendar
HARTFORD LIFE & ACCIDENT INSURANCE CO.
Plaintiff,
versus
BETTY K. WILMORE
Defendant-Appellant -Cross-Appellee,
ANGELINE BOATRIGHT
Defendant-Appellee -Cross-Appellant.
Appeals from the United States District Court For the Western District of Louisiana (No. 99-CV-2033)
January 4, 2002
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Plaintiff Hartford Life & Accident Insurance Co. brought
this interpleader action to resolve competing claims to the
proceeds of two insurance polices it issued to Bartley P.
Wilmore. The competing parties, Wilmore’s mother, Betty K.
Wilmore, and his ex-wife, Angeline Boatwright, each moved for
summary judgment on their respective claims. The district court
concluded that Wilmore’s mother was entitled to the proceeds of
the accidental death and disability policy, but that Wilmore had
failed to effect a change in beneficiaries to the life insurance
policy and that Boatwright was therefore entitled those proceeds.
We affirm the district court’s judgment for Wilmore’s mother, but
we vacate its judgment for Boatwright and render for Betty
Wilmore instead.
BACKGROUND
Wilmore worked for Albertson’s from 1990 until his death in
1999. Through Albertson’s, Wilmore obtained accidental death and
disability and life insurance policies issued by Hartford.
Albertson’s acted as the policyholder and administrator to the
two plans. The record indicates that up until 1995 Boatwright
was listed as the primary beneficiary on both polices and
Wilmore’s mother, the residual beneficiary. Wilmore and
Boatwright divorced in 1996. Shortly before, in a hand-written
letter dated May 25, 1995, sent via facsimile, Wilmore requested
that Albertson’s remove Boatwright as beneficiary to both
-2- policies effective immediately. Albertson’s placed the facsimile
in Wilmore’s personnel file where it remained until shortly after
his death.
The insurance proceeds, $45,000 under life plan and $5,000
under the death and disability plan, were deposited into the
registry of the court, and Hartford was dismissed from the
action. Both parties made timely appeals from the judgment of
the district court.
DISCUSSION
Claims disposed of on summary judgment are reviewed de novo.
See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998). “Summary judgment is appropriate, when, viewing
the evidence in the light most favorable to the nonmoving party,
the record reflects that no genuine issue of any material fact
exists, and the moving party is entitled to judgment as a matter
of law.” Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205
(5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986)).
This matter is governed by the Employee Retirement Income
Security Act (“ERISA”). The question who succeeds to benefits
from an ERISA-governed plan turns, first, on the plan’s plain
meaning, and then, second, on ERISA itself and on federal court
interpretations thereunder. See Brandon v. Travelers Ins. Co.,
18 F.3d 1321, 1325 (5th Cir. 1994). With respect to Wilmore’s
-3- life insurance plan, the plan provides that the beneficiary may
be changed at any time by “(1) making such change in writing on a
form acceptable to The Hartford; and (2) filing the form with the
Policyholder.” The district court suggested that the form used
to change beneficiaries must be one pre-approved by Hartford, and
that Wilmore’s facsimile was not such a form. This
interpretation of the life plan is not supported by its plain
language, however. The plan says that the change in
beneficiaries must be made on an “acceptable” form. An
acceptable form is one that is “capable or worthy of being
accepted.” See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 11 (1981).
An “approved” form, on the other hand, is one that has been
proven as being correct. See id. at 106. The plan’s use of
“acceptable” suggests that some unapproved forms might suffice
for changing beneficiaries, a construction more in accord with
the plain meaning of the plan.
We note that Albertson’s plan administrator testified that
Hartford would not have considered Wilmore’s facsimile an
acceptable form. But there is no evidence to support her belief
as to what the insurance company would or would not have done in
this particular situation, and as the administrator herself
testified, whether the form is acceptable is a question reserved
for Hartford, not Albertson’s. We also note that the
administrator testified that it was her department’s practice to
-4- send the insured a change-of-beneficiary card after receiving
notice of the insured’s intent to affect a change. But the
record in this case does not indicate whether a card was ever
sent or whether Wilmore ever received one or even knew of the
department’s practice.
There being insufficient evidence to conclude whether
Wilmore was in compliance with the life plan’s plain meaning, and
there being no statutory provisions under ERISA governing change-
of-beneficiary procedures,1 we turn to federal common law and the
doctrine of substantial compliance. Substantial compliance is
aimed at giving “effect to an insured’s intent to comply when
that intent is evident.” See Phoenix Mutual, 30 F.3d at 566.
The doctrine requires that “an insured intend to change his
beneficiary and that he take positive action to effectuate that
intent. . . .” Id. at 565. With respect to the life plan, the
evidence shows that Wilmore intended to change beneficiaries.
His facsimile is addressed to “Albertson’s Employee Benefits
Department,” has “Bartley Wilmore” as the sender, and lists his
Social Security number. See Letter from Bartley P. Wilmore to
Albertson’s Employee Benefits Department (May 25, 1995)). It
requests that his wife and two step children be removed from his
1 See Emard v. Hughes Aircraft Co., 153 F.3d 949, 957 (9th Cir. 1998); Equitable Life Assurance Soc. v. Crysler, 66 F.3d 944, 948 (8th Cir. 1995); Phoenix Mutual Life Ins. Co. v. Adams, 30 F.3d 554, 562 (4th Cir. 1994); Krishna v. Colgate Palmolive Co., 7 F.3d 11, 14 (2d Cir. 1993).
-5- “insurance coverage plan as well as any life insurance benefits
effective immediately.” Id. Although the facsimile does
evidence intent to drop Boatwright and her children, we concede
that it does not evidence any intent to change the beneficiary to
Wilmore’s mother. But this deficiency is remedied by Wilmore’s
mother being the residual beneficiary, “The person designated in
a life-insurance policy to receive the proceeds if the primary
beneficiary is unable to do so,” BLACK’S LAW DICTIONARY 149 (7th ed.
1999)(defining “contingent beneficiary”). We therefore conclude
that the above shows Wilmore’s intent to replace Boatright and
her children with Wilmore’s mother as beneficiary to the life
plan. We also conclude that Wilmore’s facsimile to Albertson’s
constituted the positive action necessary to effectuate his
intent.
We now consider the district court’s determination that
Wilmore effectuated a beneficiary change to his accidental death
and disability plan. That plan permits a change of beneficiary
by giving a “written request to the policy holder” and provides
that the change takes effect on the date it is executed,
“regardless of whether [the insured is] living when the policy
holder receives it.” The district court concluded that the
facsimile, which purported to remove Boatwright from Wilmore’s
“insurance coverage plan as well as any life insurance benefits,”
was effective as to the death and disability plan. In light of
-6- that plan’s provision for changing beneficiaries, which is less
particular than the similar provision contained in the life plan,
we agree. As with the life plan, Wilmore’s mother was listed as
a contingent beneficiary, and this fact, coupled with his evident
intent to remove Boatwright, suffices to effect a change in
beneficiaries. If Wilmore’s purported change was not consistent
with the letter of the death and disability plan, then it was
certainly in substantial compliance with it. We therefore affirm
the district court’s determination that Wilmore’s mother is
entitled to the proceeds of the death and disability plan.
CONCLUSION
For the foregoing reasons, we VACATE the district court’s
entry of judgment for Boatwright and RENDER judgment for Betty
Wilmore instead. As to the district court’s entry of judgment
for Wilmore, we AFFIRM.
-7- APPENDIX
-8-