English v. English

237 S.E.2d 555 (1977)

Lizzie W. ENGLISH v. Gloria Jean ENGLISH.

No. 764SC1027.

Court of Appeals of North Carolina.

October 5, 1977.

*557 Wells, Blossom & Burrows, by Richard L. Burrows, Wallace, for plaintiff.

Canoutas & Carter, by Stuart V. Carter, Wilmington, for defendant.

MARTIN, Judge.

In assigning error to the trial court's ruling on the respective motions for summary judgment, plaintiff contends in the first instance that the trial court went beyond the record and found factsspecifically, insured's intentcontrary to the function of the trial court on a motion for summary judgment. It is well established that on a motion for summary judgment the court is called upon not to decide issues of fact, but to determine whether there exists a genuine issue as to any material fact. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Kessing v. Mortgage Co., 278 N.C. 523, 180 S.E.2d 823 (1971); Furst v. Loftin, 29 N.C.App. 248, 224 S.E.2d 641 (1976). However, in the instant case we find, and plaintiff does not contend otherwise, that the sole issue submitted by stipulation of the parties to the trial court was a proper question for summary judgment. Thus, the questionable findings of fact made by the trial court have no effect on this appeal and are irrelevant to our decision. See Lee v. King, 23 N.C.App. 640, 209 S.E.2d 831 (1974).

The only question which this Court must now decide is whether the April/May 1975 insurance review form was sufficient to change the beneficiary under the insured's policy within the meaning of the policy requirement of "written notice." This presents an issue of law which must be determined by application of relevant insurance principles.

At the outset, we note that defendant appellee has relied extensively on the doctrine of "substantial compliance" as applied to change of beneficiary situations. This equitable principle is applicable where an insured, under an insurance policy providing specific and clear requirements for effectuating a change of beneficiary, has less than completely complied with these requirements in an attempt to change the beneficiary of his policy. Where it appears that the insured has done all that he reasonably could do to comply with the specific policy provisions but was unable to fully comply by reason of circumstances beyond his control, the courts will give effect to the intention of the insured and hold that the change of beneficiary has been accomplished. Meadows Fertilizer Co. v. Godley, 204 N.C. 243, 167 S.E. 816 (1933); Teague v. Pilot Life, 200 N.C. 450, 157 S.E. 421 (1931); Wooten v. Order of Odd Fellows, 176 N.C. 52, 96 S.E. 654 (1918); see Annot., 19 A.L. R.2d 5 (1951). Defendant argues, in support of the trial court's ruling, that insured failed to comply with specific policy requirements by not executing the change of beneficiary form and did not do all that he reasonably could do to comply with this requirement in that insured made no effort to file such a form in the nearly two months which transpired before his death.

It is plaintiff's contention that the foregoing application of the substantial compliance doctrine is based upon defendant's improper assumption that execution of the change of beneficiary form provided by Provident is specifically required to effectuate a change of beneficiary under the policy in question. She argues that a proper interpretation of the policy provisions relating to changing beneficiaries reveals that "written notice," signed and delivered to the employer, will effectuate a change of beneficiary. Accordingly, she contends that the insurance review form on which insured clearly designated plaintiff as beneficiary fully complied with the written notice requirement, and thereby entitles plaintiff to a judgment in her favor as a matter of law. We must agree.

*558 A fundamental rule in the construction of insurance contracts is that common, nontechnical terms are to be given their plain and ordinary meanings, absent a special definition of the term in the policy. Trust Co. v. Insurance Co., 276 N.C. 348, 172 S.E.2d 518 (1970); Peirson v. Insurance Co., 249 N.C. 580, 107 S.E.2d 137 (1959); DeBerry v. Insurance Co., 33 N.C.App. 639, 236 S.E.2d 380 (1977). Examining the pertinent policy language in light of this rule, we are unable to hold that "written notice" must be restrictively construed to mean notice only on the forms provided by Provident. We are not unmindful of the language in the first sentence which authorizes an insured to designate a beneficiary by filing "a form satisfactory to the Provident." However, it does not follow that this same restriction is to be implied in the next sentence which speaks specifically to changing the beneficiary "by giving written notice." Moreover, language following the written notice requirement which provides that "the change [of beneficiary] will become effective on the date the request is signed..." is inconsistent with the notion that an official change of beneficiary form provided by Provident must be obtained and properly filed in order to effectuate a change of beneficiary.

In so construing the language of the policy before us, we hold that the issue submitted to the trial court should have been decided in plaintiff's favor. Accordingly, we reverse and remand the matter for entry of judgment in accordance with this opinion.

Reversed and remanded.

PARKER and ARNOLD, JJ., concur.