New York Life Insurance Co. v. Henriksen

421 N.E.2d 1117, 1981 Ind. App. LEXIS 1432

Opinions

STATON, Judge.

ON PETITION FOR REHEARING

This Court, on January 28,1981, reversed the judgment of the trial court and concluded that where the sole owner and beneficiary of a New York Life Insurance Company policy had murdered the insured, the insurer should be relieved of any liability on the policy proceeds. Ms. Lily Henriksen petitions for a rehearing of the appeal and urges that “if New York is not liable on the policy proceeds, it should be liable for all premiums paid in on the policy.”

Initially, we note that Ms. Henrik-sen, as administratrix of the estate of the insured, Chester 0. Henriksen, Jr., was the appellee in the initial appeal. In her representative capacity, she argued that the estate of the insured was entitled to receive the policy proceeds where there was no eligible beneficiary. In her petition for rehearing, Ms. Henriksen, in her individual capacity as owner’s designee,¹ not only challenges our opinion but seeks relief on a theory heretofore not argued. Such switching of interests is impermissible. Furthermore, Ms. Henriksen may not now raise a new argument or espouse a new theory. Any question which has not been briefed or argued in the briefs on appeal cannot be raised for the first time in a petition for rehearing. City of Indianapolis v. Wynn (1959), 239 Ind. 567, 159 N.E.2d 572. The petition is to be confined to those issues which were properly presented in the initial appeal and which were overlooked or improperly decided. Stucker v. College Life Ins. Co. of America (1965), 139 Ind.App. , 211 N.E.2d 320. As such, we will not consider Ms. Henriksen’s contentions.

Petition for rehearing is denied.

GARRARD, J., concurs. HOFFMAN, P. J., dissents with opinion.

1 . In her capacity as administratrix, Ms. Henrik-sen also attempts to re-argue issues which have been previously passed on by this Court.