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PHILLIPS v. CONTINENTAL ASSURANCE COMPANY (06/16/67)

decided: June 16, 1967.

PHILLIPS, APPELLANT,
v.
CONTINENTAL ASSURANCE COMPANY



Appeal from judgment of County Court of Allegheny County, No. 892 of 1960, in case of Regina Phillips v. Continental Assurance Company.

COUNSEL

Ernest L. Butya, with him Joseph I. Lewis, for appellant.

Blair S. McMillin, with him Reed, Smith, Shaw & McClay, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Montgomery and Jacobs, JJ., dissent.

Author: Watkins

[ 210 Pa. Super. Page 179]

This is an appeal from the judgment of the County Court of Allegheny County in an assumpsit action by a beneficiary under an insurance policy in favor of the defendant-appellee, Continental Assurance Company and against the plaintiff-appellant, Regina Phillips. The matter was submitted to the court below for determination of a question of law as applied to an agreed stipulation of facts.

The stipulated facts are summarized as follows: John Bolzan the assured decedent became a beneficiary member of International Workers Order, Inc., under a Five hundred ($500) dollar death certificate. This company was liquidated and the defendant company assumed its obligation and issued an Assumption Certificate which constitutes the policy at issue. The date of the original certificate was prior to September 1, 1954. On July 30, 1956, the insured requested "without the right to revoke and change any beneficiary" that Anthony and Mary B. Szuszkiewicz be designated as beneficiaries under the certificate. The defendant complied with this request on August 6, 1956. On March 17, 1958, a premium payment on behalf

[ 210 Pa. Super. Page 180]

    of the insured was made by the plaintiff. On April 26, 1958, the insured requested that the plaintiff be designated as beneficiary under the certificate. On May 5, 1958, defendant company complied with this request. The insured died on May 24, 1958 while the certificate was in effect. The Szuszkiewiczs brought suit in the County Court against the defendant for the death benefits. The defendant's motion to interplead the present plaintiff was denied and, subsequently, judgment was entered for the Szuszkiewiczs and was later paid and satisfied.

The question of law that is the subject of this appeal is whether under the agreed facts Regina Phillips is entitled to payment of the proceeds of the policy by the company, despite payment already made to the Szuszkiewiczs. The court held she was not and entered judgment in favor of the insurance company.

We agree with the court below that the law is clear in Pennsylvania that: "If the policy designates the beneficiary without making any provision for a change of beneficiary, the interest of the designated beneficiary is vested at the time the policy takes effect, and no action of the insured or insurer can destroy such interest although, of course the insured may allow the policy to lapse or the insurer may defeat his right to recovery because of breach of condition of the policy." Goldin, The Law of Insurance in Pennsylvania, ยง 833, pp. 705-706. This takes care of the vested claim of the Szuszkiewiczs but does not decide whether the company by its acceptance of the change of beneficiary waived the provision of the policy as to change of beneficiary and by estoppel created a liability by it to the plaintiff.

In Smith v. Metropolitan Life Ins. Co., 222 Pa. 226, 71 A. 11 (1908), the husband designated his wife as beneficiary. The wife predeceased the husband who ...


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