RENDERED: APRIL 5, 2002; 2:00 p.m. NOT TO BE PUBLISHED NO CA MR OPINION AFFIRMING ** ** ** ** **

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1 RENDERED: APRIL 5, 2002; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth Of K entucky Court Of A ppeals NO CA MR NANCY GILL APPELLANT APPEAL FROM JESSAMINE CIRCUIT COURT v. HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NO. 00-CI BEN C. KAUFMANN APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: BARBER, McANULTY, AND SCHRODER, JUDGES. SCHRODER, JUDGE: Nancy Gill appeals a summary judgment entered in favor of appellee Ben C. Kaufmann which awarded Kaufmann the proceeds of a life insurance policy on Tommy Gill. Having concluded that summary judgment in favor of Kaufmann was proper, we affirm. Tommy Gill was a longtime employee of Ben Kaufmann. On February 17, 1986, Kaufmann purchased a $50,000 life insurance policy on the life of Tommy Gill. The policy was issued on or about March 28, 1986, and initially designated Nancy Gill, who was Tommy Gill s wife at the time, as the primary beneficiary. Kaufmann was the owner of the policy. Tommy and Nancy Gill were

2 divorced in October of On December 22, 1999, the insurer, Jefferson Pilot Financial Insurance Company (Jefferson Pilot), faxed a Beneficiary Change form to Kaufmann. Kaufmann, in his capacity as the owner of the policy, caused the form to be completed to reflect a change in the primary beneficiary from Nancy Gill to himself. The form was signed by Kaufmann, as the owner of the policy, and by a Heather McCracken as the witness, and dated December 22, Tommy Gill died on December 26, The completed and signed form was not received by Jefferson Pilot prior to the death. According to the deposition testimony of Janet Burke, a Jefferson Pilot employee acting as its corporate designated representative, Jefferson Pilot received the beneficiary change form in its Concord, New Hampshire home office by fax on January 5, Burke testified that she had no information or record indicating that Jefferson Pilot received a change of beneficiary form pertaining to the policy before January 5, Kaufmann and Nancy Gill both claimed entitlement to the entire proceeds of the insurance policy. On June 6, 2000, Jefferson Pilot filed an interpleader action naming Nancy Gill and Kaufmann as defendants. Kaufmann and Nancy Gill filed opposing motions for summary judgment, agreeing that the facts were undisputed, and each contending that he/she was entitled to summary judgment based on the language of the policy. Nancy Gill argued that, in order for a beneficiary change to be effective, the policy required the change form to be received by Jefferson Pilot prior to the insured s death, and Kaufmann argued that the -2-

3 policy required only that the form be signed prior to the death. On March 29, 2001, the court granted summary judgment in favor of Kaufmann, making no findings. This appeal followed. The standard of review of a trial court s granting of summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996). We are to view the record in the light most favorable to the party opposing the motion and resolve all doubts in its favor. Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991). We agree that the material facts are not in dispute, i.e., that Kaufmann was the owner of the policy which initially named Nancy Gill as primary beneficiary, that a beneficiary change form was signed by Kaufmann on December 22, 1999, that Tommy Gill died on December 26, 1999, and that the change form was not received by Jefferson Pilot until after Tommy Gill s death. The evidence is undisputed that the form was signed prior to the death of Tommy Gill. The sole issue on appeal, therefore, is whether the policy required the change form also to be received by the insurer (Jefferson Pilot) prior to the insured s (Tommy Gill s) death. The policy language at issue states as follows: Beneficiary - At any time prior to the death of the Insured, the Owner may name or change a revocable beneficiary. If no beneficiary has been named, the Owner will be the beneficiary. A change of the Owner or beneficiary must be made in writing. To be binding on the Company, the change must be signed by the Owner and any irrevocable -3-

4 beneficiary and must be filed at the Home Office. Any such change shall take effect as of the date it was signed, subject to any payment made or other action taken by the Company before the change was filed. Interpretation of a written instrument is a matter of law. Morganfield National Bank v. Damien Elder & Sons, Ky., 836 S.W.2d 893, 895 (1992). [W]here the terms of an insurance policy are clear and unambiguous, the policy should be enforced as written. Meyers v. Kentucky Medical Insurance Co., Ky. App., 982 S.W.2d 203, 210 (1997). See also Hendrix v. Fireman s Fund Insurance Co., Ky. App., 823 S.W.2d 937, 938 (1991). The policy language clearly and unambiguously states that a beneficiary change shall take effect as of the date it was signed, subject to any payment made or action taken before the change was filed. See Blount v. Bartholomew, 714 F. Supp. 252, 259 (E.D. Ky. 1988) (Noting how a subject to action taken before filing type of clause protects an insurer from double liability or multiple claims if, prior to a beneficiary change form being received by the insurance company, the company pays out proceeds to beneficiaries the insured no longer wished to designate as beneficiaries.) It is not contended that any payment was made or action taken by Jefferson Pilot prior to the fax copy being received by Jefferson Pilot on January 5, Although the policy requires the change to be filed at the home office to be binding on the company, contrary to Nancy Gill s assertion, the language does not require such filing to be prior to the death of the insured. It is undisputed that Jefferson Pilot received a -4-

5 fax copy of the change form in its home office on January 5, The beneficiary change form was signed by Kaufmann, the policy s owner, and dated December 22, 1999, four days before Tommy Gill s death. Under the facts of this case, per the plain language of the policy, the change was therefore effective as of that date. Accordingly, the trial court properly granted summary judgment in favor of Kaufmann. The order of the Fayette Circuit Court is affirmed. BARBER, JUDGE, CONCURS. McANULTY, JUDGE, DISSENTS AND FILES SEPARATE OPINION. McANULTY, JUDGE, DISSENTING BY SEPARATE OPINION: The policy in question provides in pertinent part that an owner may... change a revocable beneficiary at any time prior to the death of the insured. Further, the change... must be filed at the Home Office. Therefore, under the clear and unambiguous terms of the contract of insurance, the owner of the policy must effect a change of beneficiary prior to the death of the insured by filing same at the home office of the company. This did not happen. Consequently, Kaufman should not benefit from his failure to comply with the requirements of the contract. Where the terms of an insurance policy are clear and unambiguous, the policy should be enforced as written. Meyers v. Kentucky Med. Ins. Co., Ky. App., 982 S.W.2d 203, 210 (1997). I would reverse the judgment and direct the Jessamine Circuit Court to order the proceeds of the policy be paid to the named beneficiary. Therefore, I dissent. -5-

6 BRIEF FOR APPELLANT: Charles C. Adams, Jr. Lexington, Kentucky BRIEF FOR APPELLEE: Charles G. Wylie Lexington, Kentucky -6-