Appeal by third-party defendant, Marcelle Saunders Light, from Davis, Judge. Judgment entered 26 January 1981 in Superior Court, Rockingham County. Heard in the Court of Appeals 9 December 1981.
Hedrick, Judge. Chief Judge Morris concurs. Judge Martin (Robert M.) dissents.
By entering summary judgment for the plaintiff, the trial judge obviously concluded from an examination of the pleadings, affidavits, and exhibits that there were no genuine issues of material fact, and that plaintiff was entitled as a matter of law to have the change of beneficiary form "reformed to speak the truth and to correct the mistake and inadvertent omission by inserting the appropriate numerals for the designation of the . . . supplemental insurance issued by defendant on the life of Luther Curtis Light under #14599" because of the "mutual mistake" of Luther Curtis Light and defendant. We agree that there are no genuine issues of material fact. Our review, therefore, is limited to determining whether the individual plaintiff or the third-party defendant is entitled to summary judgment.
The equitable remedy of reformation is available when, because of the mutual mistake of the parties, the agreement expressed in a written instrument differs from the actual agreement made by the parties. Durham v. Creech, 32 N.C. App. 55, 231 S.E.2d 163 (1977). The mistake of only one party to the instrument, if such mistake was not induced by the fraud of the other party, affords no ground for relief by reformation. Parker v. Pittman, 18 N.C. App. 500, 197 S.E.2d 570 (1973). The party asking for relief, by reformation of a written instrument, must prove, first, that a material stipulation was agreed upon by the parties to be incorporated in the instrument as written; and, second, that such
stipulation was omitted from the instrument by mistake, either of both parties, or of one party, induced by the fraud of the other, or by the mistake of the draftsman. Mattews v. Shamrock Van Lines, Inc., 264 N.C. 722, 142 S.E.2d 665 (1965). Equity will give relief by reformation only when a mistake has been made, and the written instrument, because of the mistake, does not express the true intent of both parties. Matthews v. Shamrock Van Lines, Inc., supra. "[R]eformation on grounds of mutual mistake is available only where the evidence is clear, cogent and convincing." Durham v. Creech, supra at 59, 231 S.E.2d at 166.
In the present case, the process of changing the beneficiary was the sole responsibility of the insured. The only part played by the insurance company was to provide the form for making any change desired by the insured. The form provided by the defendant company through its agent, Fieldcrest Mills, Inc., contained the following instructions:
This form is to be properly completed in duplicate and submitted to your employer so that the insurance records may be changed. . . .
Refer to your certificate(s) or to your Insurance Advisor for any questions. . . .
Insert all your Group Life and Group AD&D Policy and Certificate Numbers on which you want the beneficiaries changed.
Note: The change will be made only under the numbers shown.
The evidence offered in support of plaintiff's motion for summary judgment discloses that the omission of policy #14599 from the change of beneficiary form was due to the unilateral mistake of the insured, Luther Curtis Light. Assuming arguendo that the competent evidence in the record raises an inference that the insured intended to make the individual plaintiff the beneficiary of policy #14599, the nature of the act of changing the beneficiary is such as to preclude the insurance company's having any intention with regard thereto. Since the record discloses an absolute bar to plaintiff's claim to have the ...