# Opposition Brief — Egbert v. Martinez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1555%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1093 ## Text 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. | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1555%3A1. Public record. Not legal advice.