Appeal by plaintiff from Ellis, Judge. Judgment entered 9 June 1981 in District Court, Wayne County. Heard in the Court of Appeals 1 April 1982.
Arnold, Judge. Judge Webb concurs. Judge Clark dissents.
Plaintiff's only assignment of error is that the trial court erred in granting summary judgment for defendant. Plaintiff contends that he, rather than defendant, was entitled to summary judgment in his favor.
It is not disputed that in 1976 defendant insurance company received a signed and witnessed change of beneficiary form designating plaintiff's wife as beneficiary of the insurance policy. The signature on the form purported to be that of the insured.
Plaintiff argues, however, that receipt of this form did not excuse defendant from liability for its allegedly wrongful payout to plaintiff's estranged wife because:
1. The insured did not sign the form;
2. Even if the insured did sign, the signature was ineffective because of the insured's incompetence;
3. Plaintiff's wife had no insurable interest in the insured's life.
While we are not unsympathetic to the wrong allegedly suffered by plaintiff at the hand of his former wife, we can find nothing in the record to support his claim against the insurance company. The change of beneficiary form appeared in all respects to have been properly executed and contained nothing which might have placed defendant on notice of forgery or undue influence. Indeed, we must reluctantly conclude that plaintiff himself was in a far better position to foresee his wife's action and to protect his interests therefrom than was defendant. By his own admission, plaintiff had demanded that his wife surrender the policy to him after their separation and she had refused. Following the death of the insured, more than one month passed before defendant issued a check to plaintiff's wife as beneficiary. Yet, at no time before or after the death of the insured did plaintiff notify the insurance company of his wife's wrongful possession of the policy, or of his continuing claim thereto. We must conclude, therefore, that defendant reasonably relied on the apparent validity of the change of beneficiary form and had no notice, actual or constructive, of the alleged disability of the insured to make such a change, or of unlawfulness due to the purported beneficiary's alleged lack of an insurable interest.
With regard to the issue of competency, we find that plaintiff has failed to make allegations of fact in his affidavit which would support a finding in his favor. Absent some forecast of evidence which would support plaintiff's claim, the court could not consider his allegation that the insured lacked legal capacity to change the beneficiary of the policy on his life.
Finally, as to the question of insurable interest, we agree that plaintiff's wife may have lacked an interest in the life of the insured upon which the original issuance of the policy could have been based. However, once a policy has been lawfully issued, it will not be rendered unlawful because the insured designates a beneficiary who could not have ...