and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
The applicable legal standards by which a court decides a summary judgment motion do not change when the parties file cross-motions for summary judgment. Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987); Southeastern Pa. Transp. Auth. v. Pennsylvania Pub. Util. Comm'n, 826 F. Supp. 1506 (E.D.Pa. 1993), aff'd, 27 F.3d 558 (3d Cir. 1994). Therefore, the standard described above will be applied to each party's motion for summary judgment.
A. Mrs. Dougherty's Motion for Summary Judgment
Under Pennsylvania law, there are two ways to revoke a designation of beneficiary contained in a life insurance policy which are relevant to this discussion. First, a policyholder can designate a new beneficiary by complying with the policy's terms pertaining to a change of beneficiary. Second, a policyholder can enter into an agreement with the named beneficiary by which the named beneficiary explicitly waives his or her interest in the insurance proceeds.
The estate has failed to produce evidence which raises a genuine issue of material fact as to whether Mr. Dougherty revoked his designation of Mrs. Dougherty as the beneficiary of the policies by either method.
1. Change of beneficiary
In order to change the beneficiary under the terms of an insurance policy, the policyholder must strictly comply with the policy's terms. Equitable Life Assurance v. Stitzel, 299 Pa. Super. 199, 203, 445 A.2d 523, 525 (1982) (citing Cody v. Metropolitan Life Insurance Company, 334 Pa. 137, 5 A.2d 887 (1939)). Under Pennsylvania law, the only exception to strict compliance with the policies terms arises when the policyholder had done everything possible to comply with the policy terms but has not succeeded in changing the beneficiary. Id. (citing Prudential Insurance Company of America v. Bannister, 448 F. Supp. 807 (W.D.Pa. 1978); Gannon v. Gannon, 88 Pa. Super. 239 (1926)). For the exception to apply, "there must be shown a positive, unequivocal act toward making the change, the mere declaration of intent to change the beneficiary is not enough." Id. (citing Garland v. Craven, 156 Pa. Super. 351, 41 A.2d 140 (1945)).
After conducting discovery, the estate has failed to point to evidence that Mr. Dougherty changed the beneficiary listed on the North American policies to someone other than Mrs. Dougherty. Nor can the Court find that Mr. Dougherty undertook "a positive, unequivocal act" toward effectuating such a change. The Court concludes, therefore, that there is no genuine issue of material fact as to whether Mr. Dougherty died without attempting to comply with the change of beneficiary provisions contained in the insurance policies.
Absent an actual change of beneficiary under the terms of the policies, the beneficiary designation can be revoked only when a beneficiary "explicitly waives his interest in the life insurance proceeds in [a] property settlement agreement." Layne v. Layne, 442 Pa. Super. 398, 403, 659 A.2d 1048 (1995) (quoting Stitzel, 299 Pa. Super. at 203); Roth v. Roth, 413 Pa. Super. 88, 604 A.2d 1033 (1991). Therefore, unless there is "express language in the settlement agreement by which the beneficiary designation was revoked," the named beneficiary is entitled to the proceeds. See Stitzel, 299 Pa. Super. at 203, 445 A.2d at 524- 25 (finding language relinquishing "any and all claims ... actions, causes of action" to be too general to serve as waiver).
The estate acknowledges that the settlement agreement did not contain express language revoking Mrs. Dougherty's rights as a beneficiary under the policy. Instead, the estate avers that, even in the absence of express language in the settlement agreement, the revocation occurred pursuant to a subsequent oral agreement.
While no Pennsylvania court has ever held that a revocation of a beneficiary must be in writing, all relevant cases have dealt with written contracts. Layne, 442 Pa. Super. 398, 659 A.2d 1048; Roth, 413 Pa. Super. 88, 604 A.2d 1033; Stitzel, 299 Pa. Super. 199, 445 A.2d 523. Therefore, it seems doubtful that an oral contract could succeed when Pennsylvania courts have found that a written contract without express language fails to revoke the rights of a beneficiary. However, even if the Court were to acknowledge that a revocation could occur by means of an oral contract, there is no evidence that Mrs. Dougherty used express language explicitly waiving her right to the proceeds of the policies during the formation of the alleged oral contract.
In demonstrating that a modification occurred, the estate relies upon: (1) the deposition of Mr. Heckler, Mr. Dougherty's attorney, in which Mr. Heckler testifies that (a) he believed a modification occurred when Mrs. Dougherty accepted cash in lieu of ownership of the policies, and (b) that Mr. Dougherty's intent in paying the cash value of the North American policies to Mrs. Dougherty was to maintain ownership of the policies; (2) various correspondence which forward a check from Mr. Dougherty to Mrs. Dougherty and make reference to Mrs. Dougherty accepting cash in lieu of ownership of insurance policies; and (3) the deposition of Patricia Bischoff, the executrix of Mr. Dougherty's estate and his wife at the time of his death, in which Patricia Bischoff confirms that Mr. Dougherty continued paying the premiums on the North American policies. Additionally, the estate points to conduct such as: (1) Mrs. Dougherty's acceptance of the cash value of the policies; and (2) her failure to enforce the provisions of the settlement agreement which required Mr. Dougherty to transfer ownership of the policies to her. None of this evidence, however, points to express language uttered by Mrs. Dougherty explicitly waiving her rights as a named beneficiary. Therefore, the Court finds that there is no material issue of fact
as to whether Mrs. Dougherty waived her right to receive proceeds under the policies as the named beneficiary.
B. The Estate's Summary Judgment Motion
As a non-moving party, Mrs. Dougherty's burden is to "make a showing sufficient to establish the existence of every element essential to [her] case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Mrs. Dougherty has proved every element essential to her case, i.e., that she was the named beneficiary on the policies at the time of Mr. Dougherty's death, by submitting as evidence the designation of beneficiary form which was in effect at the time of Mr. Dougherty's death. Furthermore, the estate admits that Mrs. Dougherty was the named beneficiary on the policies when Mr. Dougherty died. Therefore, the estate's motion for summary judgment is denied.
Betty R. Dougherty has demonstrated that there is no genuine issue of material fact in dispute with respect to her claim that as the named beneficiary, she is entitled to collect the proceeds of the two life insurance policies insuring James W. Dougherty's life. She has also demonstrated that she is entitled to judgment as a matter of law on that claim. Therefore, judgment will be entered in favor of Betty R. Dougherty and against the estate of James W. Dougherty.
AND NOW, this 11th day of December, 1997, after consideration of motion for summary judgment by Betty R. Dougherty (doc. no. 19), the response thereto by the estate of James W. Dougherty (doc. no. 25), motion for summary judgment by the estate of James W. Dougherty (doc. no. 20), the response thereto by Betty R. Dougherty (doc. no. 22), motion by the estate of James W. Dougherty to strike the affidavit of Betty R. Dougherty (doc. no. 24), and the response thereto (doc. no. 26), it is ORDERED that:
1. The motion for summary judgment by Betty R. Dougherty is GRANTED. JUDGMENT is entered in favor of Betty R. Dougherty and against the estate of James W. Dougherty for the reasons stated in the Memorandum issued by the Court this day;
2. The motion for summary judgment by the estate of James W. Dougherty is DENIED ;
3. The Court having reached its conclusion without relying upon the affidavit of Betty R. Dougherty, the motion by the estate of James W. Dougherty to strike such affidavit is DENIED AS MOOT ;
4. The Clerk of the Court is directed to pay Betty R. Dougherty the sum held in the registry of the Court after a period of ten days from the date of this Order has passed.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.