Opposition Brief — Egbert v. Martinez

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No. 5566 |

MARIE C. EGBERT MARTINEZ, Respondent,

Vv.

UNITED STATES OF AMERICA, Respondent,

and

ELSIE E. EGBERT, Petitioner.

ON ‘PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF OF RESPONDENT MARIE C. EGBERT MARTINEZ

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Richard S. Morris

Montgomery , Federici,

Andrews, Hannahs &

Morris

P. O. Box 2307

Santa Fe, N.M. 87501

Attorneys for Respon-

dent Marie C. Egbert

Martinez

Novenber 8, 1972

ae es eee he) ae

SUPREME COURT OF THE. UNITED. STATES.

October Term, 1972

No. 5566

MARIE C. EGBERT MARTINEZ, Respondent ,

Vv.

UNITED STATES OF AMERICA, Respondent,

and

ELSIE E, EGBERT, Petitioner.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF OF RESPONDENT MARIE C. EGBERT MARTINEZ

IN OPPCSITION TO PETITION FOR.

WRIT OF CERTIORARI

QUESTION PRESENTED

Whether the deceased veteran (the son

of the petitioner and the husband of the

respondent Martinez) manifested the requi-

site intent, and took action in accordance

with that intent, to change the. beneficiary

of a policy of National Service Life Insur-

ance from his mother (the original, pre-

marriage beneficiary) to his wife.

STATEMENT

In the trial of this case to the Dis-

trict Court both parties presented evidence

concerning (1) the intent of the deceased

veteran with respect to who, as between

the respondent and the petitioner, should

be the beneficiary of the policy, (2) the

belief of the decedent that he already had

taken sufficient action to designate his

wife, the respondent, as the beneficiary,

8nd (3) the decedent's additional, affirma-

tive acts to accomplish that intention.

These facts were discussed in the Memoran-

dum Opinion of the District court (Petition,

Appendix, p. 13) and the conflicting evi-

dence was resolved in favor of the respon-

dent, the Court stating:

"The evidence shows that the in-

~~~sured not only intended to sub-

___ Stitute his wife as beneficiary

“under the policy, but also that

~-2=

~~ “he committed sufficient: affirma-

tive acts to manifest that intent.

ened Re SR Bo EO Ep aes 35°

; # es

3 "The Court finds that the insured

oeec? Intended to change the beneficiary

on his policy from his mother to

-feso0 > his wife’ ana carried out sufficient

affirmative acts in performance

thereof so that his clear intent

Should be carried out." (Memoran-

‘\ dum Opinion of District Court, pp.

zy. Petition, Appendix, pp. 15,

Servos The Court Of Appeals affirmed the

judgment of the District Court. (Petition,

Appendix, page 17).

4 ARGUMENT

(2° Both the District Court and the Court

‘of Appeals recognized that the dispute

between the parties was factual. Both

Courts recognized the applicability of the

general rule that the insured's intent must

be manifested in his acts in order to ac-

compli sh &@ change of beneficiary, and both

Courts recognized that the sufficiency of

those acts must be determined upon the

ee hee Pt

a

facts of ‘the Dentinuigr case.

On the individual facts of this case,

the District Court having accorded complete

credibility to respondent's witnesses, there

- ¢an.be no serious question as to the correct.

ness of. the District Court's decision.

There. is no asserted conflict of decision

between the Courts of Appeal, but only

asserted differences in the results reached

in various District. Court cases which, by

the very nature of the question, turn upon

diverse factual situations, Manifestly,

there is: no. important question of federal

law requiring decision by this Court.

ZI.

THE: DECISION OF THE DISTRICT COURT

WAS CLEARLY CORRECT

— insurance policy i nioaeed in this

case was issued to the decedent in 1947

at which ‘time he designated his mother, the

petitioner, as beneficiary . The decedent

talhabinar¥1bd\'to:'the:respondent-an 1954 and

ogenntned*eobuntsi his death in 1968,

‘09 After his. marriage to the respondent

~ the: insured: completed a record of emergency

data Cone designating his wife, the respon-

dent as beneficiary of unpaid pay and al-

lowances, and-believed that by such action

he had effected a change in beneficiary

of his insurance policy.

After learning of his terminal illness

(leukemia), the insured consulted a V.F.W.

service representative, told the represen-

tative of his intent and past action taken

‘to c change beneficiary, and completed and

signed & proper change of beneficiary forn,

in the presence of the representative,

designating the respondent as the bene-

ficiary of the insurance policy. Although

this form could not be located following

the death of the insured, other disinterested

witnesses confirmed that the insured had

=5e

el

told’ them ‘he’ had been: to: the V.F.W.:and hed

done everything necessary to: designate the

Pespondent as ‘beneficiary of. the: subject

-poliey,. which was. the-cnly life: insurance |

owned bythe insured. These witnesses,

including the V.F.W. service representa-

tive, were accorded complete credibility

An the. District. Court's Memorandum Opinion,

. (Petition, Appendix, p. 16)

IL.

~eTHE DECISION OF THE COURT. OF APPEALS

WAS CLEARLY CORRECT

| Both the District Court and the Court

of ‘Appeals ecognized and applied the

7 proper Legal standard as announced in

“Wiley v. United States, 399 F.2d 844 (10th

Cir. 1968), to wit (pp. 846-47):

This. gears has on ‘many occasions

.«)eonsidered the factors that are

. necessary. in order to sustain a

«ojo benefielary. change of this type.

_ We. have adopted the substantial

» gompliance doctrine under which

-attempts by an insured to change

the beneficiary will be liberally

construed if the intention to

-) -‘"@ffectuate the change is. comp1li-

- “mented by an affirmative act

» Peaponably tending to manifest

such intent. "

Saha

“The wW wazey case followed several prior

Taliicwe of the Court of Appeals for the

Tenth Circuit, including Collins v. United

States, 161 F.2qa 64 (1947), cert. denied

331 U.S. 859, and Bradley v. United States,

143 F.2d 973 (1944), cert. denied 323 U.S.

793.

Recognizing that the proper legal stan-

dard had been applied by the District Court

‘and that the dispute was factual, the Court

“of Appeals, upon consideration of the com-

plete record, upheld the findings and

“aftirnec the judgment of the District Court.

In ‘view of the nature of the dispute, the

Court of Appeal's action granting Appellee' s

Motion to Affirm was entirely proper and

Vaapiobpiate: Chicago, Rock Island & Pac.

Ry. Co. v. Devine, 239 U.S. 52.

~

axe } pat til. 4

NO CONFLICT OF DECISION EXISTS

The cases involving change of bene-

ficiary of National Service Life Insurance

are collected in an annotation at 2 A.L.R.

24 489 where it is recognized that under

the general legal standard requiring evi-

dence of intent coupled with affirmative

action to accomplish that intent, the var-

ious decisions are based on the particular

facts of the individual cases. Although

the annotation attempts to classify the

decisions into "strict" and "liberal"

‘categories based upon the degree of affirma-

tive action necessary to effect a change

of beneficiary, it is recognized that the

*“@egree to which intent is clearly proven

is the predominant factor, even in those

* @ecisions purporting to follow the "strict"

rule. See, e.g., Hawkins v. Hawkins, 271

F.24 870 (Sth Cir. 1950).

-8-

_Petitioner has not cited any conflict

decision among the Courts of Appeal and

whatever conflicts exist among the District

Gourt decisions are more readily determined

by factual analysis than by the application

of differing legal standards.

IV.

THE PETITION DOES NOT PRESENT AN

IMPORTANT QUESTION OF FEDERAL LAW

Although this case, and this type of

— is extremely important to the liti-

~~. it does not present an important .

‘question of federal law in that each case

Must be decided on its individual facts

under broad principles which already are

well defined. It is neither necessary nor

advisable for the Court to attempt further

seresth tea of these principles in this

ete Upon the foregoing, respondent submits

-9-

that the Petition for a Writ of Ce

Respondent also submits that the P f.

tion should be denied on the ground that ‘i

was not timely filed, the Court of Appeals

having entered its order denying appellant’,

Petition for Rehearing on July 14, 1972,

and the Petition herein -heving been filed ~

on October 13, 1972. i

Respectfully submitt. |