Case Information
*1 IN THE UTAH COURT OF APPEALS
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Rhonda H. Malloy, individual; ) MEMORANDUM DECISION Rhonda H. Malloy, personal )
representative Estate Dan ) Case No. Malloy (deceased), )
) Appellant, ) F I L E D
) (October 2012) v. )
)
Mary Beth Malloy, ) ) Appellee. )
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Second District, Ogden Department, Honorable Ernest W. Jones
Attorneys: Jason C. Hunter John V. Mayer, Salt Lake City, Appellant
Jonathan Bachison, Ogden, Appellee
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Before Judges Thorne, McHugh, Christiansen.
THORNE, Judge: Rhonda H. Malloy (Plaintiff) appeals Order Granting
Summary Judgment, dismissed claim proceeds life insuring her deceased husband, Dan Malloy (Husband). order. *2 ¶2 Husband married appellee Mary Beth Malloy (Defendant) in July 1989. In August 1989, Husband purchased a $50,000 Federal Employees’ Group Life Insurance (FEGLI) policy through his employer. At time, Husband a FEGLI Life Insurance Election form (the form), as well as a Designation Beneficiary form (the beneficiary form) naming Defendant as policy’s sole beneficiary. April 2004, Husband and Defendant divorced, but Husband did not change or cancel his designation Defendant as beneficiary his FEGLI policy. June 2006, Husband married Plaintiff. A little over three years later, on
September 2009, Husband died. Husband did change cancel his 1989 Defendant policy’s beneficiary prior death, and paid $50,000 benefit Defendant pursuant beneficiary form. sued Defendant, asserting several causes action an attempt recover proceeds from
¶4 At issue this appeal Plaintiff’s claim that, pursuant section Defendant automatically revoked of Defendant states, Section policy. beneficiary relevant part, “Except a instrument, . . . marriage revokes any revocable . disposition or record indicate whether this marriage, subsequent Plaintiff, produced children. contains copy actual form, signed by Husband dated August 1989. Neither party submitted copy Husband’s However, submitted blank Life Insurance Election last revised June along stating that Husband would signed form detailing Defendant’s counsel’s efforts determine form substantively similar one Husband actually signed use June form below, she appeal June form representative document Husband 1989. other causes action, alleging breach contract claims arising decree, are at issue appeal.
appointment of property made a former spouse a 2012). Code .” In opposition motion for summary judgment on this claim, Defendant provided the district court a copy a insurance that stated, “A does not invalidate a designation that names your former spouse beneficiary. You need to complete new [Designation Beneficiary] remove spouse.” U.S. Office Personnel Mgmt., Federal Employees’ Group Life Insurance (FEGLI) Program Handbook (2008), available at http://www.opm.gov/insure/life/fegli/handbook.asp (last visited Oct. The district court granted summary judgment Defendant. Memorandum
Decision, district court determined “governing instrument” Husband’s policy “the policy and which incorporated reference form.” court further determined “says does invalidate designation beneficiary” this language “contrary general rule [Utah Code section 804], states revoke designation beneficiary.” Therefore, utilizing statute’s “express terms” exception, court did revoke Defendant express different result. this determination, court entered summary judgment favor of ¶6 On several issues challenging entry summary judgment. district lacked authenticated, manual constitute “governing instrument” Code ‐ instruments contain no language providing would not be revoked upon divorce.
statutes cited opinion been amended relevant way since divorce, cite version convenience reader.
¶7 regard to Plaintiff’s to authentication “‘broad discretion to admit or exclude evidence [we] will disturb its ruling only abuse discretion.’” State v. Gallup UT ¶ 12, P.3d (quoting Daniels Gamma W. Brachytherapy, LLC UT 256). On Plaintiff argues there was “no supporting affidavit or other appropriate evidence demonstrating reliability [the manual].” However, manual is government publication, no such supporting evidence is required to establish its authenticity. See R. Evid. 902(5) (“The following items evidence are self authenticating; they require no extrinsic evidence authenticity in order to be admitted: . . . Books, pamphlet[s], or other publication[s] purporting be issued by public authority.”). no abuse discretion in determination authentic, particularly in its current publication United States Office Personnel Management’s website. See http://www.opm.gov/insure/life/fegli/handbook.asp (last visited Oct.
¶8 Plaintiff there competent iteration effect when FEGLI documents submitted an affidavit her counsel district court, listing counsel’s efforts establish provenance by contacting various offices consulting website. On appeal, challenges affidavit hearsay it contained “verbal assurances third parties” regarding manual. See generally Evid. (“Hearsay admissible except these rules.”). fails acknowledge third parties identified were
federal employees who had made statements counsel their role as employees. Such statements appear fall hearsay rule “statements public offices agencies, setting forth . For only, accept implicit assertion 804’s requirement instruments be “executed” is synonymous requirement such instruments be “signed.” Utah 804(1)(d) 2012) (“‘Governing instrument’ means governing his spouse.”). *5 activities the office agency.” See id. 803(8); re W.S. , 939 P.2d 201 (Utah Ct. App. 1997) (“Because the information upon the pre ‐ disposition report came government employees pursuant their employment duties the report properly admitted pursuant Rule 803(8).”). Plaintiff raised no argument the statements contained counsel’s affidavit fall within rule 803(8)’s the hearsay rule. Accordingly, assume the district court considered the making decision the manual had adequate foundation.
¶10 Plaintiff next argues court erred concluding the manual “governing instrument” for Utah Code 75 ‐ 2 ‐ The Uniform Probate Code’s general definition instrument includes insurance policies. See Code § 75 1 ‐ 2012) (defining “governing instrument”). 75 2 804 further defines governing “a instrument the spouse.” Id. 804(1)(d). Plaintiff insurance because it is merely administrative agency’s interpretation and never “executed” manual. ¶11 However, court was “incorporated reference” Peterson & Simpson IHC Health Servs., Inc. (discussing incorporation reference). form stated, under heading Instructions Employees, “For further information, consult Handbook (RI 26) the Plaintiff .).” (RI Booklet court’s no statements affidavit, if admissible, are sufficient demonstrate adequate manual. To extent briefing suggests version manual may contained same version, presented relevant change between present. contains only photocopies five pages which
(continued...) *6 determination that language incorporated the Handbook—the manual—into election form. the absence adequately briefed argument court’s ruling error, we will not disturb that ruling. See App. P. 24(a)(9) (“The shall contain the contentions reasons the appellant respect the issues presented, with citations to the authorities, statutes, parts the record on.”); Bolliger v. Bolliger 2000 ¶ 27, 997 903 (“Because respondent does not those findings on we do not disturb the trial award petitioner.”).
¶12 There dispute Husband signed, thereby executed, his form well prior his Defendant. Accepting the court’s determination the incorporated reference into form, constitutes “a governing the divorced his former spouse,” see § 75 ‐ 2 ‐ 804(1)(d). Further, manual’s “divorce does invalidate names your spouse as beneficiary” clearly satisfies section ‐ 804’s exception “the express terms instrument.” id. 804(2); Buchholz Storsve SD 101, N.W.2d (stating, interpreting identical statutory provision, “We hereby interpret statute require contain express terms referring divorce, specifically stating beneficiary will remain designated beneficiary despite divorce”). express terms incorporation “express terms” and Defendant’s revoke policy. (...continued) may may represent complete form represented contain terms apparently relied referenced manuals explain those terms Husband. Because application statutory exception instrument, reach argument preempts revocation provisions Plaintiff’s
(continued...) *7 ¶13 For reasons expressed above, we conclude demonstrated error consideration ultimate summary judgment ruling. Accordingly, we judgment favor ____________________________________
William A. Thorne Jr., Judge
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¶14 WE CONCUR:
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Carolyn B. McHugh, Judge
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Michele M. Christiansen, Judge
(...continued) 804(8)(b) creates private state law cause action event federal preemption. While address these issues, do recent decision policies preempted both revocation private cause action provision Virginia statute similar Utah’s Maretta Hillman S.E.2d (Va.