COURT OF APPEALS DECISION DATED AND FILED December 18, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. This is a dispute over the proceeds of a life insurance policy owned by Timothy Johnson at his death.[1] Robyn Blodgett, Timothy’s sister, appeals a summary judgment concluding Jeanine Johnson, Timothy’s ex-wife, is the rightful beneficiary. Blodgett argues the court erred in excluding her affidavits under the dead man’s statute, Wis. Stat. § 885.16, and the affidavits create a material dispute as to whether Timothy intended Jeanine remain beneficiary of the policy when the two divorced. We agree with Blodgett, reverse the judgment, and remand for further proceedings.
Background
¶2 Timothy died in September 2005. At the time of his death, he owned a life insurance policy issued by Farmer’s New World Life Insurance with a death benefit of $50,000. Jeanine was listed as primary beneficiary, and Blodgett was listed as contingent beneficiary. The policy was issued in 1989, while Timothy and Jeanine were married. Timothy and Jeanine divorced in March 2000.
¶3 Two circuit court actions were filed to determine the correct beneficiary, one by Jeanine and one by Farmer’s Insurance. The two cases were consolidated. Jeanine moved for summary judgment, arguing the available evidence conclusively showed Timothy intended Jeanine remain beneficiary of the policy after the divorce. See Wis. Stat. § 854.15(5)(f) (1999-2000).[2]
¶4 As support for her motion, Jeanine included a May 2004 letter from Timothy to Farmer’s Insurance purportedly showing Timothy intended she remain beneficiary. Jeanine also included an affidavit by Timothy’s attorney in the divorce. The attorney said Timothy told him he wished to keep Jeanine the beneficiary of the policy as a way of thanking her for taking care of him after the divorce.[3] Finally, Jeanine included her own affidavit, in which she said she and Timothy continued to live together after the divorce and agreed to keep their life insurance beneficiaries the same as they had been before the divorce.
¶5 Blodgett filed a response that included four affidavits. The first affidavit was her own, in which she said Timothy told everyone present at a party in 2001 that he was going to take care of her after he died. The second affidavit, by Blodgett’s husband Marvin, repeated Blodgett’s account of the 2001 party. Marvin also said he and Timothy had been good friends, and Timothy told him numerous other times he intended Blodgett to be beneficiary of the policy. The third affidavit, by one of Timothy’s friends, Pamela Ristola, essentially repeated Blodgett’s account of the 2001 party. The final affidavit was by Mary Turri, who dated Timothy on and off after his divorce. Turri said during that time Timothy made a number of statements to her indicating he wanted Blodgett to receive the insurance proceeds when he died. She also recalled an incident in 2000 in which Timothy told the group at an Alcoholics Anonymous meeting that the only good thing to come out of his divorce was that he would be able to give money to Blodgett when he died.
¶6 The circuit court granted Jeanine’s motion for summary judgment. The court concluded Blodgett’s affidavits were barred under Wis. Stat. § 885.16, the dead man’s statute, and without them no genuine issue of material fact existed as to Timothy’s intent.[4] The court concluded Jeanine had met her burden of proving Timothy intended her to remain beneficiary after the divorce. See Wis. Stat. § 854.15(5)(f).
Discussion
¶7 We review summary judgments without deference to the circuit
court, using the same methodology. Green Spring Farms v. Kersten, 136
¶8 In
this case, Timothy is presumed to have revoked the beneficiary designation in
favor of Jeanine when the two divorced. See
Wis. Stat. § 854.15(3)(a). In order to overcome that presumption, Jeanine has the
burden of proving Timothy intended her to remain beneficiary after the
divorce. See Wis. Stat. § 854.15(5)(f). She therefore is entitled to summary judgment
only if the summary judgment submissions leave no dispute that Timothy intended
she remain beneficiary after the divorce.
¶9 Jeanine argues no dispute exists because Blodgett’s
affidavits are barred by the dead man’s statute, Wis. Stat. § 885.16.
The dead man’s statute disqualifies witnesses from testifying to a “transaction
or communication” between themselves and a deceased person under certain
circumstances. Wis. Stat. § 885.16.
The statute bars only testimony by a witness with a “present, certain, and vested” interest
in the outcome of the proceeding. Gerczak
v. Gerczak, 2005 WI App 168, ¶14, 285
¶10 Under this rule, a child of a party may testify even though the
child could potentially receive the proceeds of the suit through gift or inheritance
at some future point. Nale
v. O’Dell, 61
¶11 In this case, Blodgett is a party who stands to gain the death
benefit of the life insurance policy.
She therefore will “gain or lose by the direct legal operation and
effect of the judgment,” and is subject to the dead man’s statute. See
id.,
¶14. However, the same cannot be said of
Marvin Blodgett, Ristola, or Turri. Marvin
does not stand to gain or lose directly in this case, since any recovery by his
wife will be her individual property. See Wis.
Stat. § 766.31(7)(a). The
possibility that he may receive some part of the proceeds in the future through
election or inheritance is not sufficient to make him subject to the
statute.
By the Court.—Judgment reversed and cause remanded for further proceedings.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2]
[3] According to Jeanine’s affidavit, Timothy suffered from cirrhosis of the liver and became dependent on her for his care after the divorce.
[4] The court also held that in the alternative Jeanine was entitled to summary judgment because Blodgett’s affidavits were “not inherently trustworthy or credible.” On appeal, Jeanine does not argue she is entitled to summary judgment on this ground.
[5] Jeanine
argues the dead man’s statute disqualifies all witnesses except those with an
“adverse interest” to the party calling them.
She relies on a case in which we held that a party could not invoke the
dead man’s statute to avoid testifying when called adversely. See
Bell
v. Neugart, 2002 WI App 180, ¶¶8, 21-22, 256 Wis. 2d 969,
650 N.W.2d 52. However,