Carl W. Dalton, Jr. v. Cornel Leblanc, 350 F.2d 95, 10th Cir. (1965)

350 F.
2d 95
Carl W. DALTON, Jr., Appellant,

v.
Cornel LeBLANC, Appellee.
No. 7825.
United States Court of Appeals Tenth Circuit.

Aug. 9, 1965, Rehearing Denied Sept. 13. 1965.
1
William B. Jones, Tulsa, Okl., for appellant.
Norma F. Wheaton, Thomas R. Brett, Tulsa, Okl., for appellee.
Before MURRAH, Chief Judge, HILL, Circuit Judge, and DAUGHERTY,

District Judge.
DAUGHERTY, District Judge.
This appeal involves a determination as to which of two rival claimants is

entitled to the proceeds of a life insurance policy. The First United Life
Insurance Company of Gary, Indiana, issued a policy of life insurance to
Anthony Joseph Blanchard. Cornel LeBlanc, one of the rival claimants and a
nephew of Blanchard, was the named beneficiary. The insurance policy
authorized the insured to change the beneficiary upon written notice to the
Company, accompanied by the policy for endorsement of the change thereon
by the Company, and unless so endorsed the change will not take effect.1
The insured wrote the Company a letter requesting a change of beneficiary

from LeBlanc to a friend, Carl W. Dalton, Jr., the other rival claimant. The
policy did not accompany the letter and was never furnished to the Company.
At all times the policy was in the possession of the insured. This letter also
forwarded to the Company three coupons which the insured desired redeemed.
Four days later the Company wrote the insured in response to the above
mentioned letter, sending him the proceeds of two of the three coupons and
returning the third coupon with advice that it was not yet valid. This answering
letter was sent by the accounting department of the Insurance Company. In this
letter no mention was made regarding the requested change in beneficiaries. No
further communications were had between the insured and insurer. The insured
was killed in an accident approximately six months after this exchange of
letters.
7
This litigation eventually followed in which the Company paid the policy
proceeds into court and was discharged of all liabilities by agreement of the
parties. The matter was then submitted to the court for decision on Motions for
Summary Judgments filed by LeBlanc and by Dalton with the factual
stipulations contained in the pretrial order. The trial court held in favor of
LeBlanc and this appeal was taken by Dalton.
It is well settled that a change of beneficiary can only be effected by following

the method set out in the insurance contract. Carson v. Carson, 166 Okl. 161, 26
P.2d 738. However, a liberal construction should be given to the policy
provisions regarding a change of beneficiary if the intent of the insured is clear
and the insured did all reasonably within his power to effectuate the change.
O'Neal v. O'Neal, 193 Okl. 146, 141 P.2d 593. Also see Roberts v. Johnson (10
C.A.) 212 F.2d 672, and Bowser v. Bowser, 202 Okl. 97, 211 P.2d 517. It is
also fundamental that an insured is chargeable with knowledge of the terms of
his insurance policy, and has the duty to read and know the contents thereof,
and is bound by the legal effect of its terms and provisions. Badgett v.
Oklahoma Life Insurance Co., 176 Okl. 86, 54 P.2d 1059.
Employing these legal principles, the trial court found that the insured had not
done all reasonably within his power to effectuate the change of beneficiary
since at all times he had the insurance policy in his possession and could have
forwarded the same to the Company for the required endorsement thereon of
the desired change as prescribed by the terms and provisions of the insurance
contract itself.
10
In O'Neal, supra, the insured wanted to change his beneficiary from wife to
sister. He so wrote the Company. The Company advised him of the need to
send it the policy. The policy was in the possession of the wife of the insured
and not in the possession of the insured. The Company then with this
knowledge asked the insured for the address of the wife in order that it could
request the policy from her. This address was furnished. The Company wrote
the wife but the insured died before she received the request. The evidence was
in dispute regarding a request by the insured to his wife for the policy before he
sent in his application for a change of beneficiary. The trial court resolved this
disputed issue of fact in favor of the wife to the effect that no such request was
ever made on the wife for the possession of the insurance policy by the insured
prior to his death. On these factual findings the court held that the insured had
not done all reasonably in his power to effectuate the desired change of
beneficiary.
11
In Carson, supra, the insured wanted to change his beneficiary from wife to
mother. A requested change was sent to the Company. The Company
responded requesting the policy for the required endorsement of beneficiary
change thereon. The wife had possession of the insurance policy. The evidence
was in conflict about the insured making demand on the wife for the insurance
policy. An attorney friend of the insured said he so wrote the wife. The wife
denied getting this letter and denied any request or demand on her by anyone
for the insurance policy prior to the death of the insured. The court resolved
this evidentiary dispute in favor of the wife and held that the insured had not
done all reasonably within his power to effect the desired change of beneficiary
and thereby had abandoned the same.
12
In Bowser, supra, a former wife of the insured had possession of the policy in
which she was the named beneficiary. The insured desired to change his
beneficiary from the former wife to his present wife and his three children. In a
change of beneficiary application to the Company, the insured advised the
Company that his former wife had the policy. The Company called for the
policy to effectuate the desired change of beneficiary. Thereupon, the insured
demanded the policy from his former wife, wihout success, obtained the advice
of an attorney with reference to his predicament and eventually filed a lawsuit
against his former wife for possession of the insurance policy, but the insured
died shortly after filing such suit. The wife contended that the policy was
accessible to the insured at all times in a drawer in their former home. The
court, however, found that in fact the wife had the possession of the insurance
policy and further that the insured had done all reasonably possible to effectuate
the change of beneficiary and approved the change minus the policy under the
exception to the general rule that the mode set out in the policy must be
followed to effectuate a change of beneficiary.
13
In the case before us the insured did not have the difficult problem the insureds
had in O'Neal, Carson and Bowser. Here, Blanchard, the insured, had physical
possession of the insurance policy at all times, and in the policy was a pertinent
paragraph seting out and explaining the prescribed procedure to be followed by
the insured to effectuate a desired change of beneficiary. All Blanchard had to
do was read the policy which he had in his possession and follow its provisions
by forwarding the application to change the beneficiary, accompanied by the
insurance policy, to the Company as required by the policy itself to effectuate
or bring about a desired change of beneficiary. The trial court held that
Blanchard had not done all reasonably within his power to effectuate a change
of beneficiary in accordance with the insurance policy's own requirements, and

we agree. In short, he had failed to read his policy and he had failed to forward
the policy to the Company for the endorsement of change. Both were within his
unquestioned capabilities.
14
But there is another facet to this litigation. Dalton asserts that the Insurance
Company waived the policy requirement that the policy be furnished to it to
effectuate a change in beneficiaries and is estopped to deny an effective change
in beneficiaries because the Company failed to write or notify Blanchard when
he requested the change of beneficiary without furnishing the insurance policy
that he should forward the policy to the Company for an endorsement thereon
changing the beneficiary as required by the policy provisions.
15
The authorities hold that the change of beneficiary provisions by which a mode
or method of changing beneficiaries is prescribed in an insurance policy are for
the protection of the insurance company to avoid double liability, and that the
company may waive these provisions prior to the time that interests may
become vested in the proceeds of the insurance policy by the death of the
insured. Carson v. Carson, supra.
16
In O'Neal, Carson and Bowser, supra, the question of such a waiver by the
insurance company was of little or no concern because in each case the
insurance company requested that it be furnished with the insurance policy for
the purpose of endorsing the desired change of beneficiary. In the case before
us the insurance company received the requested change of beneficiary from
the insured without the policy and then remained silent, not answering the letter
containing the requested change of beneficiary except as to the other matter
(coupons) contained therein.
17
The insurance policy involved here contained a provision that the insurance
contract could not be varied or altered or its conditions waived or altered in any
respect except by the written agreement of the Company.2 There is no such
written agreement in this case. Moreover, to constitute a waiver there must be
an intentional relinquishment of a known right. 56 Am.Jur., Waiver, Sec. 12.
The trial court found that here there was no evidence that the Company
intended to waive the provision in the policy calling for the surrender of the
insurance policy in order to effectuate a change of beneficiaries, and points out
that the insurance policy did not require a demand from the Company for the
policy and that mere silence is not a waiver unless there is a duty or obligation
to speak. 56 Am.Jur., Waiver, 12 to 17, incl. We must agree with this position
for the prescribed duty here was on the insured by virtue of the provision of the
insurance contract. And, the payment of the policy proceeds into court by the
Company after this litigation was initiated (and of course after the death of the
insured) does not constitute a waiver under Oklahoma law. Carson v.
Carson,supra; Harjo v. Fox, 193 Okl. 672, 146 P.2d 298, 302.
18
Closely akin to the claim of waiver is the claim of equitable estoppel raised by
Dalton. In the absence of a duty to speak, there can be no estoppel. The
Company did not affirmatively act to form the basis of an estoppel. There being
no duty to act and the responsibility involved being placed squarely on the
insured by the insurance contract, mere silence by the Insurance Company will
not permit the application of estoppel in this matter. Sarkeys v. Russell, Okl.,
309 P.2d 723.
19
The case is affirmed.
The change of beneficiary provision of the policy reads as follows:

'Change of Beneficiary-- The Insured may from time to time change the
beneficiary unless otherwise provided herein or by endorsement hereon,
provided that, if there be an existing assignment of this Policy, consent of the
assignee to such change shall be required. Every change of beneficiary must be
made by written notice to the Company at its Home Office accompanied by this
policy for endorsement of the change hereon by the Company, and unless so
endorsed the change shall not take effect. After such endorsement, the change
will relate back to and take effect as of the date the Insured signed said written
notice of change whether the Insured be living at the time of such endorsement
or not but without prejudice to the Company on account of any payment made
by it before receipt of such written notice at its Home Office.'
This provision in the contract reads as follows:

'The Contract-- This Policy, together with the application therefor, shall
constitute the entire contract between the parties thereto. All statements made
by the Insured shall, in the absence of fraud, be deemed representations and not
warranties, and no statement shall void this Policy or be used in defense of any
claim hereunder unless it is contained in the written application therefor, copy
attached and made part hereof. No agent can make, alter or discharge this
contract or extend the time for payment of premiums, nor can this contract be
varied or altered or its conditions waived or altered in any respect except by the
written agreement of the Company in compliance with the law of the State in
which the contract is issued, signed by the President, a Vice-President, or
Secretary, whose authority will not be delegated.'

Carl W. Dalton, Jr. v. Cornel Leblanc, 350 F.2d 95, 10th Cir. (1965)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Carl W. Dalton, Jr. v. Cornel Leblanc, 350 F.2d 95, 10th Cir. (1965)

Uploaded by

Copyright:

Available Formats

350 F.

Carl W. DALTON, Jr., Appellant,

United States Court of Appeals Tenth Circuit.

William B. Jones, Tulsa, Okl., for appellant.

Norma F. Wheaton, Thomas R. Brett, Tulsa, Okl., for appellee.

Before MURRAH, Chief Judge, HILL, Circuit Judge, and DAUGHERTY,

DAUGHERTY, District Judge.

This appeal involves a determination as to which of two rival claimants is

The insured wrote the Company a letter requesting a change of beneficiary

It is well settled that a change of beneficiary can only be effected by following

of beneficiary in accordance with the insurance policy's own requirements, and

The case is affirmed.

The change of beneficiary provision of the policy reads as follows:

This provision in the contract reads as follows:

You might also like