15 N.W.2d 220 | Neb. | 1944
Lead Opinion
This action was brought by the administratrix of the estate of Armpstead F. Uptegrove, her deceased husband, to recover disability benefits allegedly due and accruing to him during his lifetime, under the provisions of an industrial group insurance contract. The cause was tried to a jury, but at'the conclusion of the evidence defendant moved to dismiss and plaintiff moved for judgment, whereupon the trial court discharged the jury and entered a judgment for plaintiff against defendant for the sum of $1,738 and costs, including the sum of $300' as attorney’s fees taxed as a part thereof. Defendant appealed to this court, presenting for decision the sole question of whether plaintiff is the real party in interest. We find that plaintiff as administratrix was the real party in interest and the proper person to maintain the action.
An examination of the record discloses that Armpstead F. Uptegrove, who died in the State Hospital on July 24, 1940, was employed by the Franklin Ice Cream Company, and its successor Beatrice Creamery, from 1921 until he was discharged in December, 1931. During most of this period he was a competent employee. However, for some months prior to the termination of his employment he manifested serious mental and physical decline which eventually resulted in his discharge. It appears from the evidence, without contradiction, that while he was insured and before age 60 he was totally and permanently disabled due to, or accompanied by, mental incapacity which prevented him from engaging in any occupation or from performing any work for compensation or profit from a period prior to December, 1931, and until his death.
During his employment he was insured under a group or master policy issued to his employer by defendant company, who also issued to him a certificate of participation, dated April 1, 1925, evidencing his contract which was in full force and effect at the time his disability occurred. After his death the certificate was found in the employee’s safety deposit box, to which his wife, the administratrix, did not theretofore have access.
In Hemmer v. Metropolitan Life Ins. Co., 131 Neb. 14, 267 N. W. 153, this court held: “When the certificate delivered to an employee, to certify that he is insured under a group or master policy issued to his employer, is also executed by the same insurance company which issued the
We must bear in mind that the insurance contract of the employee was dual in character, that is, it was insurance upon his life and against his disability. It provided for insurance upon his life in the sum of $1,500, payable after death to his wife, Inez V. Uptegrove, as beneficiary, but it also provided that if he suffered total and permanent disability as the result of injury or disease while insured and before age 60 he was to be paid by defendant during his lifetime certain disability benefits each month for a limited period of time in lieu of payment of the life insurance to his beneficiary after death. This action is to recover such disability benefits and not the life insurance. In this connection, it will be noted that all of the disability payments accrued and were due and payable to the insured employee before his death occurred. None of these payments were ever made by defendant, and the question is whether the administratrix of his estate can now recover them. The defendant contends that under the provisions of the contract the action can only be maintained by Inez V. Uptegrove in her individual capacity as beneficiary.
With reference to disability benefits, the certificate issued to the employee provides that defendant company “will pay to such employee, in lieu of the payment of the insurance under said policy at his death, equal monthly instalments, the number and amount of such instalments to depend upon the amount of insurance in force on the life of such employee at such date, as shown in the following table: Amount of Insurance $1,500 Number of Instalments 30 Amount of Each Instalment $51.75”. The group or master policy provides, “the Company will, in lieu of the payment at death of the insurance on the life of the said employee, as herein provided, pay equal monthly instalments, as hereinafter described, (as shown above) to the said Employee,
We are unable to give this construction to the contract. A beneficiary of an insurance contract is the person who is entitled to the proceeds or benefits which accrue and become payable under the contract. 29 Am. Jur., sec. 1271, p. 948; 2 Couch, Cyclopedia of Insurance Law, sec. 305, p. 809. Therefore, it may be rightly said that Inez V. Uptegrove, wife of the insured employee, was the beneficiary of the life benefits after his death, but the employee was himself the beneficiary of the disability benefits which accrued and became payable to him during his lifetime. Shea v. Aetna Life Ins. Co., 292 Mass. 575, 198 N. E. 909; Foster v. North Carolina Mutual Life Ins. Co., 150 S. C. 482, 148 S. E. 656.
The promise of defendant to pay disability benefits was made to the employee. He is the person thus insured under the contract and his substantive rights to payment of all the installments became fixed when he suffered the permanent, total disability during the life of the certificate and survived the 30-months’ period of their duration. Not having been paid by the company to him^or the person designated by him for that purpose, then upon his death these rights passed to his administratrix. Because of mental incapacity of the employee all of the conditions precedent to recovery of disability benefits were not complied with during his lifetime, but this was impossible under the circumstances and does not preclude recovery by the administratrix who seasonably after his death, and after obtaining knowledge of her legal rights, made necessary proof and claim upon defendant for payment. Trucken v. Metropolitan Life Ins. Co., 303 Mass. 501, 22 N. E. 2d 120; Shea v. Aetna Life Ins. Co., supra. It is generally held that a pol
We find no conflict between the certificate and the group or master policy. The provision relied upon by defendant, which appears only in the master policy, is simply a facility of payment clause in which the option of payment is by agreement confined to a person to be designated or to one already designated by the insured to' receive payment' for him. The words “beneficiary of record” appearing therein have no significance except as an agency or a person designated to whom payment might be made for the insured. Carruth v. Aetna Life Ins. Co., 157 Ga. 608, 122 S. E. 226. The defendant company could have paid the disability benefits to the “beneficiary of record” in good faith and acquitted itself of liability to the employee or his guardian during his lifetime or his representative after his death, but it neglected to do so.
While the phraseology of facility of payment clauses which appear generally in industrial insurance policies is not always identical, their definition, purpose, and legal effect are ordinarily the same. Courts have looked upon them with favor and they should be liberally construed. A facility of payment clause is merely an appointment, by agreement between the parties, of persons who may receive payment of the benefits or proceeds accruing under the contract, give receipt therefor to the insurer, in good faith discharge it from liability, and thereafter hold the amount received for the benefit of the person ultimately entitled thereto. It affords a ready method of raising money for the support, maintenance, and medical care of the disabled insured employee, but it has been generally held that such a clause is for the benefit of the insurer, to be exercised at its option, to enable it to make prompt payment without the expense of guardianship or administration proceedings,
Without doubt, the provision relied upon by defendant means that if the employee is totally and permanently disabled, but mentally competent, the company will make the scheduled payments to him. In such case, only the employee, if living, or his representative after his death, could maintain an action to recover them. Defendant concedes as much. However, if he were so disabled, and mentally competent, but had designated a person to whom such payments might be made for him, the company could in good faith make the payments to such designated person and be relieved of liability, but if it refused to do so, then only the employee, if living, or his representative after his death, could maintain an action to recover them. If, as in the
It follows that the judgment of trial court was right, and it is affirmed.
Affirmed.
Dissenting Opinion
dissenting.
We are in accord here upon the proposition that, by statute, “Every action must be prosecuted in the name of the real party in interest, * * * .” Comp. St. 1929, sec. 20-301; and that, by decision, “The real party in interest * * * is the person entitled to the avails of the suit.” Kinsella v. Sharp, 47 Neb. 664, 66 N. W. 634.
We are in accord on the proposition that “When the certificate delivered to an employee, to certify that he is insured under a group or master policy issued to his employer, is also executed by the same insurance company which issued the group policy, then such policy, the application therefor, the certificate given the employee, and all amendments and riders attached to each, together constitute the entire contract between the employee and the insurance carrier.” Hemmer v. Metropolitan Life Ins. Co., 131 Neb. 14, 267 N. W. 153. We are not in accord upon the construction to be given, under the above rule, to the group policy and the certificate involved in this action, and hence are not in accord upon the proposition that Mrs. Uptegrove, as administratrix, is entitled to maintain this action and receive the “avails of the suit.”
This court has said: “The proceeds of a life insurance policy in which a third person is named beneficiary belong exclusively to such beneficiary as an individual; they are
There is no material dispute in the evidence. The defendant, hereinafter called the insurer, in 1925 issued a group insurance policy, containing total and permanent disability provisions, on the lives of the employees of the Franklin Ice Cream Company. At the same time, there was issued to plaintiff’s intestate, as such an employee, a certificate that he was insured under the group policy. He will hereafter be referred to as the insured.
The insurance was in force in December, 1931, when the insured was discharged from his employment. Thereafter, he did not secure any permanent employment, and died on July 24, 1940.
The group policy contained a provision that “The Company will issue to the Employer, for delivery to each Employee * * * an individual Certificate setting forth a statement as to the insurance protection to which such Employee is entitled, the beneficiary to whom payable, * * * ” and other matters.
The policy further contained a provision that. “Upon receipt, * * * of due proof that any Employee, * * * has become totally and permanently disabled, as the result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, the Company will, * * * pay equal monthly instalments, as hereinafter described, to the said Employee, or to a person designated by him for the purpose, or, if such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record of the said Employee.” (Emphasis supplied.)
The certificate which was issued to the insured provided that “under and subject to the terms and conditions of” the
Following the insured’s death, Mrs. Uptegrove found the certificate in a bank box, to which she had not had access during his lifetime. Inquiry first was made in her name.
Plaintiff filed her petition herein alleging, among other things, that the insured’s employment ceased in December, 1981, or January, 1932; that at that time he “was mentally incompetent and insane and remained so during the remainder of his lifetime” and “at the time of the termination of his employment the said Armpstead F. Uptegrove was totally and permanently, both physically and mentally, disabled.”
The insurer by its answer specifically denied that allegation. The insurer further pleaded that “the benefits from said policy of insurance, if any are due, are payable to Inez Y. A. Uptegrove and not the plaintiff herein.”
At the trial plaintiff established, as found by the general finding of the trial court, that Mr. Uptegrove was totally and permanently disabled, both physically and mentally, as of December, 1931.
The insurer contends that the controlling policy language applicable to the facts here is that part quoted herein, which provides that the total and permanent disability benefits shall be payable “to the beneficiary of record” if “such disability is due to, or is accompanied by, mental incapacity,” and it being established that the insured was both mentally and physically totally disabled from December, 1931, these payments were under the policy terms payable to Mrs. Uptegrove individually, she being the “beneficiary of record.”
Plaintiff relies upon the language of the certificate and argues that under the certificate these monthly payments in any event are payable to the insured; that, being payable to the insured in his lifetime and not having been so paid, they are payable to his estate; and that, therefore, the administratrix is a proper party plaintiff.
We are not here concerned with the life insurance provisions of this policy, but with the disability provisions, and
The majority set out certificate and policy provisions. They say that a beneficiary is the person entitled to the proceeds “which accrue and become payable under the contract.” Agreed. But who is the beneficiary “under the contract?” They answer that not by resort to, or analysis of, the contract, but by resort to the decisions of the courts in two cases, and hold that Mrs. Uptegrove was beneficiary of the life benefits after Ms death, but the insured was himself the beneficiary of the benefits which accrued and became payable to him during his lifetime. The case of Shea v. Aetna Life Ins. Co., 292 Mass. 575, 198 N. E. 909, cited by the majority, obviously is not in point here. There the application, which was held to be a part of the insurance contract, named the wife as “death beneficiary.” Here, there is no such limitation. There, the court said: “No person is specifically named in the insurance contract as the beneficiary of disability benefits payable thereunder. Neither the employer nor the plaintiff’s wife is so named. * * * And the plaintiff’s wife, though named as ‘death beneficiary’ under the insurance contract, is not for that reason also the beneficiary of disability benefits. * * * The clear implication from the contract of the company with the plaintiff for insurance against his own disability, which names no peneficiary for disability benefits, is that the plaintiff is such beneficiary.” (Emphasis supplied.) But here, as I will presently point out, a person is named as beneficiary under the contract for disability benefits, under the conditions proved by plaintiff, and plaintiff, as administratrix, is not that beneficiary. Foster v. North Carolina Mutual Life Ins. Co., 150 S. C. 482, 148 S. E. 656, is likewise cited by the majority. This was a suit to recover sick benefits. The policy named the plaintiff as beneficiary of death benefits. It provided that sick benefits should be paid to the insured. The court held that the plaintiff, not being the named beneficiary of sick benefits, could not recover. I find nothing in the opinion to support the majority. It is against them in
Now let us do what the majority in their opinion do not do, and examine the contract entered into by the insured and the insurer to determine what obligations the insurer assumed, and to whom it contracted to pay benefits. It is that contract that is binding upon the insurer, and it is that contract that courts are bound to follow. To whom are the benefits “payable under the contract” ?
There are three conditions set out in the policy under which the insurer contracts to make disability payments. Beneficiaries are named in each case.
The first set of facts is that where the insured “has become totally and permanently disabled, as the result of bodily injury or disease,” the insurer will pay to the insured or to a person designated by him certain monthly payments. The insured made no designation of a person to receive the payments.
The second set of facts is that where the total and permanent “disability is due to, or is accompanied by, mental incapacity,” then the payments are to be made “to the beneficiary of record of the said Employee.” (Emphasis supplied.) This set of facts includes the first plus “mental incapacity.” The “beneficiary” named in the certificate is “Inez V. A. Upte'grove.”
The third provision (to be set out hereafter) is that if the insured dies during the period of permanent and total disability, any installments remaining unpaid at the date of death shall be commuted and paid “in one sum to the beneficiary.”
Plaintiff proved the factual condition of the second provision, i. e., she alleged and proved permanent and total disability plus “mental incapacity,” but she did not bring the action in her own behalf as “beneficiary of record,” for the obvious reason that as to her individual suit, the statute of limitations would be a defense. The majority combine the second factual situation, which they find to be true,
It is not necessary to go to the books to find out who is meant by “beneficiary” or “beneficiary of record.” The insured named Mrs. Uptegrove as beneficiary and the insurer agreed to it. If Mrs. Uptegrove is the “beneficiary” named in the certificate, and the beneficiary under the life provisions, as the majority hold, and under the third disability provision, is she not also the beneficiary under the second provision? Does the word “beneficiary” in several instances mean Mrs. Uptegrove, and in one other mean the insured ? The contract does not say so, and it controls. Had the parties so intended, they could have easily provided that in the case of mental incapacity, the guardian of the insured or some designated person, such as the wife, was to receive the payments for the insured. They did not so provide. The contracting parties did not overlook the possibility of a condition arising where the interest of a beneficiary should become the interest of the insured. They provided that “In case of the death of any individual named as beneficiary, the interest of such beneficiary shall vest in the Employee by whom he was designated.”. A similar provision is in the certificate. They did not provide that the interest of the beneficiary, in the event the insured became disabled as the result of mental disability, should vest in and be for the benefit of the insured.
The policy clearly says that these payments are to be made to the insured if he becomes totally and permanently disabled without “mental incapacity”; to the beneficiary (Mrs. Uptegrove) if the disability is due to or accompanied by “mental incapacity”; to the beneficiary if the insured dies before all payments are made; to the beneficiary if death benefits accrue. Why should not the contract be enforced as máde?
The majority, on the authority of the two cases above reviewed, determine early in their opinion that the “employee was himself the beneficiary of the disability benefits which accrued and became payable to him during his lifetime”
They proceed further and say: “The promise of defendant to pay disability benefits was made to the employee.” Agreed. “He is the person thus insured under the contract and his substantive rights to payment of all the installments became fixed when he suffered the permanent, total disability during the life of the certificate and survived the 30-months’ period of their duration.” This begs the question we have to determine. The fact that he is the “insured” does not ipso facto make him the “beneficiary” contrary to the terms of the insurance contract. This statement ignores the “due to, or is accompanied by, mental incapacity” provision of the policy, upon which the insured relies and the clause which we have to construe. The issue here is so made that the clause cannot.be deleted and properly decide the case. The majority further say: “Not having been paid by the company to him or the person designated by him for that purpose, then upon his death these rights pass to his administratrix.” This, of course, is on the basis that he is the beneficiary, as well as the insured — but who was “the person designated by him for that purpose.” Outside of the policy, he designated no one to receive payments for him. Within the policy he designated no one to receive the payments for him. The policy does not say that, if he is mentally incapacitated, the payments shall be made to “the beneficiary of record for the benefit of and for the insured.” The majority read into the policy language that is not there, and make the “beneficiary” in this one instance an agent or trustee of the insured. Had the parties so desired, they could have so provided. They did not, and it is not contended from anything in evidence or in the policy that they so intended.
The majority then state: “We find no' conflict between the certificate and the group or master policy.” If there is no such conflict, then it is because the language in the certificate to the effect that in the event the insured becomes totally and permanently disabled, the insurer will pay “to such employee” the disability benefits, is not in conflict with the provision that in the event of mental incapacity, the payments are to be made to the beneficiary of record, and the latter provision becomes one modifying the first. Under the rule stated in Hemmer v. Metropolitan Life Ins. Co., supra, that construction seems proper.
The majority then state that the provision relied on by the insurer “is simply a facility of payment clause in which the option of payment is by agreement confined to a person to be designated or to one already designated by the insured to receive payment for him.” As already pointed out,
The majority, without analyzing the clause and without more, discuss the terms and effects and benefits of a facility of payment clause. I shall not enter into- that. The majority do not show upon what basis this language becomes a facility of payment clause. And that is the question that is to be determined before the effect of such a clause need be • considered. A facility of payment clause is one which, within limits, “ * * * confers on the company an option as to whom it will make payment.” 31 C. J., sec. 7, p. 969. Generally, they are of two classes: Either the insurer has an option to pay to one whom it considers equitably entitled thereto, or is confined to certain designated classes. 29 Am. Jur., sec. 1278, p. 954; 135 A. L. R. 956. Such a clause permits the insurer to make payment to any one of two or more beneficiaries, under any one condition or set of facts. 31 C. J., sec. 7, p. 969; 29 Am. Jur., sec. 1278, p. 953. The fact that a policy provides for the payment of benefits to different beneficiaries- under different sets of facts does not make a facility of payment clause out of the provisions, and does not authorize either the insurer or a-court to pick out a named beneficiary under one set of facts, and make that beneficiary the beneficiary also under another set of facts, and that contrary to the language of the policy. This court in Weddle v. Prudential Ins. Co., 130 Neb. 744, 266 N. W. 624, said: “The ‘facility of payment’ clause provides that the company may or may not elect to pay to another equitably entitled to the benefit, rather than the
The majority then dispose of the facility of payment clause discussion with the statement: “ * * * this cause must now be disposed of as if there were no facility of payment clause.” Just how much of the clause they thus read out of the policy and refuse to apply is not clear. The minimum language'so deleted would be: “Or, if such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record of the said employee,” leaving the clause so as to provide that the monthly payments shall be made to the insured or to a person designated by him (and no person has been designated). With that language removed (and I do not agree it should be), the payments not having been made, and the insured dead, to whom does the policy say the payments shall be made? As pointed out, the majority, without reference to the policy, have assumed that they then become payable to. the administratrix. However, the policy provides: “The first monthly instalment will be paid upon receipt of due proof of total and permanent dis
One thing further requires notice. The majority say that
I have no doubt but that insurer could have paid the benefits to the “beneficiary of record” and acquitted itself of liability, and that had it done so, this litigation would not have followed. But the insurer recognized that the law gave it a defense, in the statute of limitations, to the claim of the “beneficiary of record.” It did not waive that defense. The courts have no right or power to compel it to do so. Neither do the courts have the right or the power to compel the insurer to pay the insured’s estate money which, save for the statute of limitations, it was clearly obligated to pay to the beneficiary of record, Mrs. Uptegrove. Courts have no right or power to compel one party to pay money to another party, except by the processes and for the reasons authorized by law. In my judgment, the decision of the majority is wrong.