The opinion of the court was delivered by: WEINER
This action was filed by the plaintiff, Marie Cipriani, ex-wife of Edward Cipriani, decedent insured, who claims to be the beneficiary of a life insurance policy issued by the defendant, Sun Life Insurance Co. of America ("Sun Life"), the proceeds of which were paid by the defendant to the decedent's mother, Margaret Cipriani. The defendant Sun Life filed a third-party complaint against third party defendant Margaret Cipriani. The case was bifurcated for trial by first trying the claim of the plaintiff against the defendant.
The plaintiff and Edward Cipriani were married on December 21, 1971. On July 27, 1976, upon written application of Edward Cipriani, the insured, the home office of Sun Life issued a policy of insurance, No. D764120, with subsequent endorsements dated October 27, 1976 and June 27, 1977. Edward Cipriani was both the owner of and the insured under that policy, and the policy designated the plaintiff as beneficiary.
On October 15, 1980 plaintiff and Edward Cipriani were divorced. On June 20, 1982, the insured died while the above-mentioned policy of insurance was still in effect.
Among the general provisions of the policy is the following:
While the insured is living and while the Policy continues in force, the Owner may change the beneficiary from time to time by written notice in form satisfactory to the Company, provided, however, that when a beneficiary has been designated irrevocably, such designation cannot be changed or revoked without such beneficiary's written consent. No change of beneficiary will take effect unless recorded by the Company at its Home Office. However, upon being so recorded any such change shall take effect as of the date the notice was signed, whether or not the Insured is living when the change is recorded, subject to any payment made or any action taken by the Company before such recording.
No change of beneficiary on Policy No. D764120 was ever recorded by the defendant at its home office. No original change of beneficiary form nor any copy of a change of beneficiary form has been produced by the defendant or any other person.
On August 24, 1982, September 23, 1982, October 15, 1982 and October 25, 1982 defendant's claim department wrote to plaintiff, stating, "We are writing to advise you of the current status of your pending claim. (Exhibits E, F, G and H).
On December 22, 1982, a Life Claims Examiner of defendant's claims department wrote to Mr. Edward J. Gilson, then attorney for decedent's mother, Margaret Cipriani, stating, inter alia, that "the beneficiary on Policy #D764120 is the ex-wife of the insured. Rather than the mother who is making claim." (Exhibit I).
On January 6, 1983, a Benefit Payment Request was approved for payment to plaintiff and a check voucher for the full amount of the proceeds of the policy was issued to Marie Cipriani, but was not paid to her. (Exhibits J, K).
On January 17, 1983, Sun Life issued a check to decedent's mother Margaret Cipriani in the amount of $34,589.72 for full payment of the proceeds due under Policy Number D764120.
Defendant has presented only the testimony of its three employees to attempt to prove that the insured executed a change of beneficiary form. Sun Life agent Elwood Schneider ("Schneider") testified that in January, 1982, Edward Cipriani asked him to change the beneficiary on his insurance policy number D764120 from his ex-wife, Marie Cipriani, to his mother, Margaret Cipriani. Schneider testified that he left a filled out change of beneficiary form with the insured's mother and asked her to witness her son Edward's signature on the form since he, Schneider would not be present when Edward signed the form. There was no testimony whatsoever as to the actual execution of the change of beneficiary form by the ...