Sun Life Assurance of Canada (U.S.) v. Barnard

652 So. 2d 681, 94 La.App. 1 Cir. 0402, 1995 La. App. LEXIS 658, 1995 WL 124639
CourtLouisiana Court of Appeal
DecidedMarch 3, 1995
DocketNo. 94 CA 0402
StatusPublished
Cited by5 cases

This text of 652 So. 2d 681 (Sun Life Assurance of Canada (U.S.) v. Barnard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sun Life Assurance of Canada (U.S.) v. Barnard, 652 So. 2d 681, 94 La.App. 1 Cir. 0402, 1995 La. App. LEXIS 658, 1995 WL 124639 (La. Ct. App. 1995).

Opinion

|2LeBLANC, Judge.

This concursus involves two conflicting claims to the proceeds of a life insurance policy. The trial court concluded the insured, Charles Barnard, effectively changed his beneficiary from his wife, Estelle Barnard, to a friend, Carole Cole. The trial court’s judgment also dismissed Ms. Cole’s suit against the insurance agent who prepared the disputed change of beneficiary form. We reverse for the following reasons.

FACTS

Charles Barnard was the named insured on a $40,000.001 life insurance policy issued by Sun Life Assurance Company of Canada. On February 19, 1991, a change of beneficiary form naming Mrs. Estelle Barnard as the policy’s beneficiary was filed with Sun Life. Mr. Barnard died of Hodgkin’s disease on October 6, 1991, after a lengthy illness.

On or about October 7, 1991, Sun Life was contacted by Taylor Bernard, Jr. (hereafter Taylor Bernard), Mr. Barnard’s insurance agent,2 who informed Sun Life that the insured had executed a new change of beneficiary form naming Carole Cole as his beneficiary. At that time, Taylor Bernard stated that the form was executed on September 3, 1991, but that he inadvertently failed to send it to Sun Life. Mr. Bernard explained that he discovered the unmailed form still in a file when he examined Mr. Barnard’s insurance files upon learning of his death.

Although Sun Life initially indicated the change of beneficiary form was acceptable, it declined to pay the proceeds to Ms. Cole when it learned of a competing claim to the policy proceeds by Mrs. Barnard. Consequently, Sun Life invoked the present con-cursus proceedings and deposited the policy proceeds in the court registry. A separate suit was subsequently filed by Ms. Cole seeking recovery against defendant, Taylor Bernard, in the |3event that the attempted change of beneficiary was found ineffective. [683]*683The concursus proceeding and Ms. Cole’s suit were consolidated for trial.

ACTION OF THE TRIAL COURT

Following trial on October 18 and 19,1998, the court rendered judgment finding the change of beneficiary valid and awarding the policy proceeds on deposit to Carole Cole. Additionally, the judgment dismissed Ms. Cole’s suit against Taylor Bernard. Mrs. Barnard now appeals the concursus judgment awarding the policy proceeds to Ms. Cole. A separate appeal was taken by Ms. Cole from that portion of the judgment dismissing her suit against Taylor Bernard. Ms. Cole argues that, in the event the con-cursus judgment is reversed, she is entitled to judgment against Taylor Bernard for his negligence in handling the change of beneficiary.

CONCURSUS

The applicable policy provision governing changes of beneficiaries provides, in pertinent part:

The request [for a change of beneficiary] has to be filed at our Office and must be in written form satisfactory to us. Your request will then be effective as of the date you signed the form....

In this case, Taylor Bernard filled out the form naming Ms. Cole as the new beneficiary, as directed by the insured, and Mr. Barnard’s signed it three times at different places on the form. Although the form is dated September 3, 1991, in three places, a question was raised at trial as to whether the form was actually executed on this date.

During trial, the court made several comments indicating it believed the date of the form’s execution was irrelevant. It is unclear whether the trial court in fact made a finding as to the specific execution date.3 In any event, we disagree with the trial court’s conclusion that the date was irrelevant for two reasons: (1) the policy itself requires a fixed date for the change of |4beneficiaries form; and, (2) a date is necessary in order that all parties have an opportunity to present evidence on the issue of the insured’s competency at the time he signed the form.

At trial, Mrs. Barnard introduced the deposition of Dr. Gerald P. Miletello, Mr. Barnard’s treating physician, regarding the issue of Mr. Barnard’s mental competency. Mr. Barnard was seen by Dr. Miletello at his office on September 3, 1991, the date written on the disputed form. Dr. Miletello testified that Mr. Barnard’s condition was such that he would not have treated him that day if he had not been accompanied by his wife. Dr. Miletello stated emphatically that he did not believe Mr. Barnard was competent to make a change of beneficiary or to make any decisions of a financial nature on September 3, 1991. He described Mr. Barnard as being agitated, depressed and almost hostile at times that day. Dr. Miletello attributed Mr. Barnard’s condition to his heavy use, and sometimes abuse, of multiple drugs and the “overall debilitated state that comes as a result of the illness.”

Taylor Bernard, who was the only witness to the execution of the change of beneficiary form, did not dispute Dr. Miletello’s assessment of Mr. Barnard’s competency on September 3,1991. Rather, Taylor Bernard testified that Dr. Miletello’s assessment caused him to realize that the date on the form was probably incorrect, since Mr. Barnard’s condition was good on the day the form was signed. Therefore, Taylor Bernard reasoned that the form must have been executed on a date other than September 3, 1991.

If not for the testimony of Mrs. Estelle Barnard, which corroborates the improbability of the form having being signed on September 3, 1991, Taylor Bernard’s testimony to that effect would be entitled to little, if any, weight.4 However, in view of the [684]*684^unequivocal medical testimony that Mr. Barnard was not mentally competent on September 3, 1991, it would have been to Mrs. Barnard’s advantage if that date was established as the date of the form’s execution, since mental incompetence would invalidate the form. Taylor Bernard testified that the form was executed in Mr. Barnard’s office. Nevertheless, Mrs. Barnard testified that Mr. Barnard, who was unable to get around by himself, did not go anywhere on September 3, 1991, other than to Dr. Miletello’s office. Since Mrs. Bernard’s testimony in this regard was testimony against her own interest, it is entitled to heavy weight.

When Mrs. Barnard’s testimony is considered together with the other evidence presented, the record clearly establishes the change of beneficiary form was not executed on September 3, 1991, despite the fact that date is written on the form several times.5 However, while the record refutes September 3, 1991, as the date of the form’s execution, it does not give any indication of the actual date of its execution. Taylor Bernard was unable to specify even the month in which the form was signed. Basically, he testified he did not know when the form was executed, although he believes it was prior to a request for an audit of Mr. Barnard’s policies, which was made on August 13, 1991.

Since the record reveals September 3, 1991, was not the actual date the form was executed and no other date can be established therefrom, the change of beneficiary form must be treated as undated. We believe this deficiency is fatal to the validity of the form, since we find the applicable policy provision clearly requires that the change of beneficiary form be dated. Although the policy provision in question does not specifically state the written form must be dated, it does provide that the change of beneficiary shall be effective from the date it is signed.

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Bluebook (online)
652 So. 2d 681, 94 La.App. 1 Cir. 0402, 1995 La. App. LEXIS 658, 1995 WL 124639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sun-life-assurance-of-canada-us-v-barnard-lactapp-1995.