Opinion issued April 26, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00874-CV
ROTATING SERVICES INDUSTRIES, INC., Appellant
V.
SUE HARRIS D/B/A THE HARRIS AGENCY & NATIONWIDE INSURANCE COMPANY, Appellees
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2002-58721
O P I N I O N
The trial court resolved competing claims to proceeds of a life-insurance policy by rendering summary judgment in favor of appellees, Sue Harris d/b/a The Harris Agency and Nationwide Life Insurance Company, which had paid the proceeds to the widow of the insured, Kent A. Weightman, the owner of the policy, pursuant to a change-of-beneficiary designation submitted to, recorded by, and confirmed by Nationwide. The single issue of appellant, Rotating Services Industries, Inc., challenges Weightman’s widow’s right to the proceeds, on the grounds that an earlier change-of-beneficiary designation controls. We affirm.
Facts and Procedural Background
At age 44, Weightman applied for a Nationwide life policy through the Harris Agency. Weightman identified himself in the application as a 24-year employee and manager of Rotating Services, a turbine-repair business. Weightman named his “business partner,” Michael Fruger, the “irrevocable” beneficiary of the policy. Weightman did not name a contingent beneficiary. On October 28, 1997, Nationwide issued to Weightman a $100,000 “level-term to age 70” life policy, with an initial annual premium of $502.00. The policy identified Weightman as owner and named insured.
By operation of the “Owner and Beneficiary Provisions” of the policy, which identify the beneficiary and any contingent beneficiaries as those “named in the application,” Fruger was the sole beneficiary and, also, by Weightman’s handwritten notation, an irrevocable beneficiary. Both designations were subject to change, however, pursuant to provisions of the policy that authorized Weightman to change the designated beneficiary, provided that “[a]ny change” of beneficiary “be in a written form satisfactory to [Nationwide] and recorded” at its home office.
During the first year that the policy was in force, Nеlda Perez Leal became the owner and principal of the turbine-repair business. On October 29, 1998, the first day after the anniversary date of the policy, Weightman signed a Nationwide form requesting that the beneficiary of his policy be changed to “Rotating Services Industries, Inc.” (hereinafter Rotating Services). Leal added her signature as witness, and the change-of-beneficiary form was transmitted to Nationwide. A boxed caption on the face of the form states, “Please read instructions on reverse side,” but the summary judgment record contains only this single page of the applicatiоn.
On January 31, 2000, a Nationwide representative issued a notice to Weightman, which reads in part as follows:
A recent review of our records revealed that we received a change of beneficiary request in 1998 which was not processed.
We are unable to process the requested change as Michael Fruger is listed as the irrevocable beneficiary on our records and his signature is required to make any changes. Please complete the attached form and return it to us, with one copy of this letter, in the enclosed pre-addressed envelope. We will сhange the beneficiary designations once the forms are received and attested in our office.
Upon acceptance of the change, confirmation will be sent to you for your policy records.
Along with this notice, Nationwide forwarded to Weightman a form captioned “Application for Change of Beneficiary Designation.” This form had been partially completed by Nationwide with the typewritten names and personal identification information for Weightman’s wife, as the proposed beneficiary, and his two children, as the proposed contingent beneficiaries, as well as Weightman’s name, as the owner of the policy, and Fruger’s name, as the then designated irrevocable beneficiary. Instructions referenced in and attached to the form stated that the application revoked “ALL previous beneficiaries” and that the signatures of Weightman, as insured and owner, and of Fruger, as irrevocable beneficiary, were required to effect the change of beneficiary from Fruger to Weightman’s wife, as primary beneficiary, and his children, as contingent beneficiaries.
Weightman did not execute the partially completed form thаt accompanied the January 31, 2000 correspondence from Nationwide, but signed a Nationwide change-of-beneficiary form on July 27, 2000, in which he designated his wife as primary beneficiary and his two children as contingent beneficiaries. In accordance with instructions that accompanied the January 31, 2000 correspondence from Nationwide, this change-of-beneficiary form included the signature of Fruger, the “irrevocable” beneficiary designated in Weightman’s 1997 application. A Nationwide “Beneficiary Report,” dated August 15, 2000, recorded the requested changes of beneficiаries, and correspondence to Weightman of the same date confirmed the changes.
Weightman died on February 19, 2001. On March 27, 2001, his widow filed a request for payment of the life policy proceeds, which Nationwide issued on April 11, 2001.
On November 14, 2002, Rotating Services sued Nationwide and Harris, claiming that it was entitled to the proceeds of the policy because Nationwide and Harris “never completed” the 1998 change of beneficiary in favor of Rotating Services and because the 2000 change of beneficiary was “clearly forged.” Rotating Services’ live pleadings allege that Nаtionwide and Harris committed deceptive trade practices, negligence, bad faith, and breach of contract. Rotating Services also claimed that it could recover as a third-party beneficiary to the insurance-policy contract and that Nationwide was estopped to deny Rotating Services’ right to the policy proceeds.
Nationwide and Harris filed a joint motion asserting no-evidence and traditional grounds for summary judgment. In support of their traditional motion, Nationwide and Harris provided documentary evidence, consisting of authenticated exhibits thаt tracked the Weightman policy from application through issuance of the death-benefit check paid to his widow, as set out above. The documentary evidence included the 1998 single-page application to change the beneficiary to Rotating Services. Rotating Services responded and moved for continuance, to which Nationwide and Harris filed a reply. Rotating Services filed an amended response that included a cross-motion for summary judgment, to which Nationwide and Harris filed an additional reply. Rotating Services then filed an amended petition, after which the trial court rendered summary judgment.
Standard of Review—Traditional Summary JudgmentWe review summary judgments de novo. Provident Life & Accident Ins. Co.
v. Knott,
In reviewing a summary judgment, we assume that all evidence that favors the
non-movant, here Rotating Services, is true, and we indulge every reasonable
inference and resolve any reasonable doubt in the non-movant’s favor. See Sci.
Spectrum, Inc. v. Martinez,
Payment of Life-Policy Proceeds to Designated Beneficiary
A. No Vested Beneficiary Rights Arose until Weightman Died
The policy that insured Weightman’s life was a contract between him and
Nationwide. See Hernandez v. Gulf Group Lloyds,
1. No Separate Contract Controlled Beneficiary Designation
This Court’s O’Neill decision, which addressed rights of a beneficiary that
were conferred in a separate agreement incident to a divorce, see O’Neill, 544 S.W.2d
at 743–44, arose under the first condition for rights vested in a beneficiary, as
identified in Cates,
Rotating Services opposed Nationwide’s and the Harris Agency’s motion for summary judgment based in part on the affidavit of Leal, who became Rotating Services’ principal in summer 1998. Leal stated in her affidavit that Weightman notified her “in writing that he intended to change the beneficiary status of the life policy to my company, Rotating Services, Inc.” Leal attaсhed to her affidavit “a true and correct copy” of correspondence dated July 13, 1998, signed by Weightman, and directed “to whom it may concern,” which states,
I, Kent A. Weightman, hereby I’m [sic] changing Beneficiary on my policy # L032876420 from Michael Fruger to Nelda Leal’s new company Rotating Services Industries. Let this document serve as my good faith to the company. In case of my death, the company can hire someone to continue my work and also pay up on some debts that I owe the company.
Unlike in O’Neill, this correspondence did not constitute a “separate contract”
thаt vested rights to the proceeds of Weightman’s policy in Rotating Service. Though
it recites Weightman’s stated intent, on July 13, 1998, to benefit Rotating Services,
the correspondence does not confer a permanent, “irrevocable” designation of
Rotating Services as a beneficiary under the life policy, because the correspondence
neither reflects nor suggests that Weightman also decided to surrender his undisputed
right, expressly conferred by the terms of the policy, to change beneficiaries in the
future. Accordingly, the summary judgment record of this case does not show or
suggest that a separate contract forbade or restricted the rights afforded Weightman,
as insured and owner of the policy, to modify the provisions of the policy that
authorized him to change beneficiaries. Thus, the first condition for rights vested in
a beneficiary does not apply to Rotating Services. See Cates,
2. Weightman Retained Continuing Right to Change Beneficiaries
A prohibition stated in the policy, the second possibility under which Rotating Services could have attained rights as a beneficiary, also does not apply. See id. It is undisputed that the terms of the policy issued to Weightman recognized his continuing authority to change policy beneficiaries and that no policy provision restricts Weightman’s rights as to Rotating Services. Though Weightman identified Rotating Services as his employer in his application, the policy does not refer to Rotating Services specifically or provide any restriction that applied or can be construed as applying any benefit to Rotating Services, as explained more fully below.
3. No Beneficiary Vested until Weightman Died
Weightman’s death, the last possible condition under which rights might vest
in a named beneficiary, did not occur until February 19, 2001. See Volunteer State
Life,
B. Rights of Owner and Insurer Relating to Change of Beneficiary
The terms of the policy determine not only the right of the owner, Weightman,
to change beneficiaries, but also the right of the insurer, Nationwide, to question the
validity of the owner’s change of beneficiary. See Martinez, 50 Tex. Sup. Ct. J. at
407–08,
Martinez, like this case, involved competing claims to the proceeds of a life
policy, the terms of which required that a request for a change of beneficiary be
written “in a form acceptable” to the insurer. Martinez,
Rotating Services argues that the change-of-beneficiary form that Weightman
signed on October 29, 1998 to designate Rotating Services a beneficiary (the 1998
change) was in substantial compliance with Nationwide’s requirements, that
Nationwide accepted Weightman’s form, or, alternatively, that Nationwide had no
basis on which to reject it. Rotating Services relies on the Court’s opinion in
Gladding v. Prudential Ins. Co. of Am.,
The only summary judgment evidence of Weightman’s October 1998 change is the single-page change-of-beneficiary form that he signed and Leal witnessed. Rotating Services contends that Nationwide accepted this change by emphasizing that the face of this form contains a captioned, preprinted rectangle in which the signature of the Nationwide corporate secretary appears. The caption within this rectangle states, “FOR HOME OFFICE USE ONLY” and “Agreed to for Nationwide Life Insurance Company.” Rotating Servicеs relies on this signature, which appears to be preprinted on the form, to support its contention that Nationwide accepted Weightman’s October 1998 change of beneficiary. Blanks within the captioned box, marked “Attest” and “Date,” however, are blank. Moreover, in contrast to the “Beneficiary Report” that Nationwide issued to Weightman on August 15, 2000, Nationwide did not confirm any change of beneficiary in favor of Rotating Services. Rotating Services’ summary-judgment evidence does not, therefore, demonstrate or suggest that Nationwide accepted and recorded Weightman’s January 1998 change, as required by the policy provisions. To the contrary, on January 31, 2000, Nationwide had notified and instructed Weightman, as insured and undisputed owner of the policy, that both his signature and the signature of Fruger, the previously designated irrevocable beneficiary, were required to accomplish a change of beneficiary from Fruger.
Regardless, the summary-judgment evidence conclusively establishes that Nationwide not only accepted and recorded, but also confirmed the change-of-beneficiary designation that Weightman executed on July 27, 2000, to change the beneficiary from Fruger, as “irrevocable” beneficiary, to Weightman’s wife, as beneficiary, and his children, as contingent beneficiaries. Nationwide did not accept the 1998 change and did not record it, on the grounds that the signature of Fruger, who at that time was the sole, irrevocable beneficiary, was missing. But, even if Nationwide had deemed the 1998 change-of-beneficiary acceptable and had also recorded that change, Weightman still retained the right, as owner of the life policy and pursuant to the policy’s “Owner and Beneficiary” provisions, to change the beneficiary yet agаin in July 2000.
We conclude that Rotating Services had no vested rights to the policy proceeds and that Weightman’s alleged compliance with the policy’s change-of-beneficiary requirements in 1998 is immaterial, because Weightman later exercised his right as owner of the policy to change his designated beneficiary. Accordingly, we consider and apply these determinations as we below whether Nationwide and Harris conclusively established their right to summary judgment as a matter of law on Rotating Services’ causes of action.
C. Contract-Related Claims
Rotating Services is not a party to the insurance contract, which arose only
between Weightman and Nationwide, see Hernandez,
Rotating Services nоnetheless contends that Nationwide and Harris breached contractually based duties owed to Rotations Services because (1) Nationwide improperly rejected Weightman’s 1998 change-of-beneficiary form, (2) Rotating Services was a third-party beneficiary to the contract of insurance, and (3) Weightman intended to benefit Rotating Services through the 1998 change of beneficiary.
1. Wrongful Rejection of 1998 Change of Beneficiary?
As shown above, the summary judgment record shows that Nationwide rejected Weightman’s 1998 attempt to change the beneficiary of the policy from Fruger, his previously designated, irrevocable beneficiаry, to Rotating Services because the change-of-beneficiary form that would have accomplished that change did not show that Fruger consented to the change. The summary judgment record also shows that Nationwide rejected the attempted 1998 change pursuant to the provisions of its insurance contract with Weightman and, therefore, that Fruger remained the irrevocable beneficiary until Weightman changed that designation with Fruger’s consent. The summary judgment record thus fails to raise a genuine issue of material fact to support Rotating Services’ claim that Nationwide or Harris brеached any contractually based duty to Rotating Services when it rejected Weightman’s attempted change of beneficiary in 1998.
2. Rotating Services a Third-Party Beneficiary?
Nationwide and the Harris Agency also negated any benefit owed to Rotating
Services as a third-party beneficiary of the contract between Weightman and
Nationwide. One who is not a party to a contract, but who might receive an
incidental benefit from the contract as a third party, cannot rely on the possibility of
benefit as a basis on which to enforce the contract. MCI Telecomms. Corp. v. Tex.
Utils. Elec. Co.,
Nationwide’s and the Harris Agency’s summary judgment evidence conclusively established that (1) Weightman did not enter its contract of insurance with Nationwide for the benefit of Rotating Services, but for the benefit of Weightman’s then-named beneficiary, Fruger, and (2) regardless of whether Weightman substantially complied with the change-of-beneficiary provisions of the policy and whether Nationwide accepted the 1998 change, any intent to secure a benefit to Rotating Services that may have arisen through that change was destroyed when Weightman changed his beneficiary designation in 2000, with the required consent of Fruger, and Nationwide accepted and recorded that change.
3. Intent to Benefit Rotating Services?
Rotating Services also opposed Nationwide’s and the Harris Agency’s motion
for summary judgment based on the affidavit of Leal, who was Rotating Services’
principal when Weightman died. Through her affidavit, Leal relied on a July 13,
1998 statement by Weightman, in which he recorded his intent to change the
beneficiary of his policy from the designated, “irrevocable” beneficiary, Fruger, to
Rotating Services, Inc. As addressed above, nothing in Weightman’s “to whom it
may concern” correspondence suggests that it operated to confer a permanent,
“irrevocable” designation of Rotating Services as beneficiary under the life policy,
becausе Weightman did not also surrender, and thus modify, the right conferred by
the policy to change beneficiaries in the future. Because Weightman retained his
right under the policy to change beneficiaries, any benefit inuring to Rotating
Services remained a mere possibility and thus did not give rise to a material issue of
fact concerning Rotating Services’ status as a third-party beneficiary. See MCI
Telecomms Corp.,
We therefore hold that Nationwidе and the Harris Agency established their right to traditional summary judgment on Rotating Services claims for breach of contract.
E. “Forgery” and “Incapacity” Allegations Not Dispositive
Leal also averred in her affidavit that Weightman suffered a “debilitating stroke” in November 1999 that rendered him “unable to talk or write.” Rotating Services contends that Weightman’s signature on the 2000 change-of-beneficiary form is necessarily forged as a result, that Weightman lacked capacity to make the 2000 change, and, therefore, that fact issues arise concerning the change-of-beneficiary form that Weightman signed on July 27, 2000.
Even if true, Leal’s allegations do not give rise to mаterial fact issues concerning Rotation Services’ right to the proceeds of Weightman’s life policy. Leal’s allegations would attain materiality only if we assume that Weightman’s 1998 attempt to change his beneficiary was valid—a contention that we have already rejected. Consequently, establishing either that Weightman lacked capacity or that the 2000 change-of-beneficiary form were forged would not result in any benefit to Rotating Services. Instead, Weightman’s original designation of Fruger as irrevocable beneficiary would remain unchanged. Rotating Services challenges tо Weightman’s signature and his capacity are thus immaterial to this lawsuit and raise no triable issues of material fact.
G. Rotating Services was Not a DTPA Consumer
The summary judgment record conclusively establishes that, despite claims that
it paid Weightman’s premiums, Rotating Services’ only relationship to the insurance
contract between Weightman and Nationwide was as a potential, but failed,
beneficiary of the $100,000 life proceeds. Settled Texas law recognizes that a party
whose only relation to an insurance policy is to seek policy proceeds is not a
“consumer.” Transp. Ins. Co. v. Faircloth,
The trial court properly rendered trаditional summary judgment in favor of Nationwide and the Harris Agency on Rotating Services’ DTPA claims.
H. No Duty Owed to Rotating Services
Nationwide and the Harris Agency moved for traditional summary judgment
on Rotating Services’ negligence claim on the grounds that it owed no duty to
Rotating Services as a matter of law. See Mission Petroleum Carriers, Inc. v.
Solomon,
I. Estoppel to Deny Coverage, Waiver, and Reliance
After Nationwide and Harris filed their second reply to Rotаting Services’ response to their motion for summary judgment, Rotating Services filed an amended pleading claiming that Nationwide was estopped to deny benefits and had waived any right to deny paying the policy proceeds to Rotating Services, and that Rotating Services had relied to its detriment on future payment of the proceeds of the policy. Nationwide and the Harris Agency did not file an amended motion for summary judgment to address these claims.
A defendant who does not amend or supplement its motion for summary
judgment to address claims asserted in a plaintiff’s amended pleading is gеnerally not
entitled to a summary judgment on the plaintiff’s entire case. See Blancett v.
Lagniappe Ventures, Inc.,
An amended or supplemental motion for summary judgment is not always
necessary, however, when the amended petition essentially reiterates previously
pleaded causes of action. See Fraud-Tech, Inc. v. Choicepoint, Inc.,
By establishing that Rotating Services was not entitled to the proceeds of the
Weightman policy as a matter of law, Nationwide and Harris necessarily established,
in additiоn, that the policy provided no coverage to Rotating Services as a beneficiary
of the proceeds and therefore established, in addition, that Rotating Services could
not assert either estoppel, waiver, or reliance as a basis for seeking the policy
proceeds. See id. Nationwide’s and Harris’s motion was thus sufficient to defeat
those claims without the need to file an additional motion for summary judgment.
Farah,
We overrule Rotating Services’ sole issue.
Conclusion
We hold that the trial court properly rendered traditional summary judgment in favor of Nationwide and the Harris Agency and, therefore, we need not address Rotating Services’ contentions that challenge the summary judgment on “no evidence” grounds.
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.