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December 2, 1994


Appeal from Mobile Circuit Court. (CV-93-1424). Robert Kendall, Trial Judge.

As Amended December 2, 1994. Rehearing Denied January 6, 1995. Released for Publication May 24, 1995.


The opinion of the court was delivered by: Beatty

BEATTY, Retired Justice

Margaret Ann Coley appeals from a judgment notwithstanding the verdict granted by the trial court in favor of Margie Walker, as the administratrix of the estate of Willodean Duke Cray, deceased. This case is before this court pursuant to § 12-2-7(6), Ala. Code 1975. The trial Judge set aside the jury's decision that Mrs. Cray intended to change the beneficiary on a life insurance policy to designate Mrs. Coley as the sole beneficiary of the proceeds of the policy. We reverse and remand.

Willodean Cray was Margaret Ann Coley's aunt. Testimony adduced at trial indicated that the two women enjoyed a close relationship, similar to that of mother and daughter, and that the Coleys and Crays shared many activities as a family unit. The Crays did not have children. Mrs. Cray was apparently a generous woman, who freely provided material assistance and gifts to members of her family, especially to Mrs. Coley, her husband, and their children. Mrs. Cray's affection for, and generosity to, Mrs. Coley and her family were common knowledge within this family.

Willodean Cray died on December 30, 1992. No will was located, and, therefore, an administration of her estate was necessary. Margie Walker, Mrs. Cray's sister, and Nancy Duke, Mrs. Coley's sister and another of Mrs. Cray's nieces, were appointed co-administratrices of the estate.

Upon opening Mrs. Cray's safe deposit box, relatives found several insurance policies designating her estate as beneficiary, as well as the policy at issue in this case, a $40,000 life insurance policy written by the Prudential Insurance Company of America. Ms. Duke indicated that this policy had her sister's name on it. This policy was issued by Prudential in 1976 on Mrs. Cray's life. She was the owner, as well as the insured, and named as beneficiary her husband, William Tracy Cray.

After Mr. Cray's death in December 1991, Mrs. Cray's insurance agent, William Lemley, contacted her about changing the beneficiary designated in the policy. Mr. Lemley met with Mrs. Cray on February 24, 1992, at which time she purchased a $60,000 life insurance policy with Prudential on which she designated her estate as beneficiary. According to Mr. Lemley's testimony at trial, during his meeting with Mrs. Cray on February 24, she also signed a change of beneficiary form for her $40,000 insurance policy. The form itself is not dated. Mr. Lemley completed the form only to the extent that he printed Mrs. Cray's name and policy number on the first page and printed in the beneficiary designation section on the second page the name "Margaret D. Coley," the word "niece" to indicate Mrs. Coley's relationship to Mrs. Cray, and Mrs. Coley's age, "48." After he discussed with Mrs. Cray the need to change the beneficiary of the $40,000 policy, Mr. Lemley inserted Mrs. Coley's name on his own initiative because, he said, he knew that she was considered a favorite niece by Mrs. Cray. After he wrote Mrs. Coley's name on the form, Mrs. Cray stopped him and said that she wanted to add other nieces and nephews as beneficiaries because she wanted to "leave them all a little something." Mrs. Cray proceeded to sign the form, then instructed Mr. Lemley to hold it in his files until she compiled a list of the names she wanted to designate as beneficiaries.

From February through June 1992, Mr. Lemley contacted Mrs. Cray about completing the change of beneficiary form, but she always told him she was working on the list of names and not to rush her. In his last conversation with Mrs. Cray in June 1992, Mr. Lemley told her that he would hold the form in his files until she let him know who else she wanted to designate as beneficiary or beneficiaries thereon. After Mrs. Cray's death, he submitted the change of beneficiary form in his possession to Prudential for processing.

Mrs. Coley filed a claim for the insurance proceeds from the $40,000 Prudential policy after she learned of the existence of the policy and the form designating her as beneficiary. Ms. Duke testified that she was also of the opinion that Mrs. Coley should be entitled to the proceeds. Mrs. Walker, however, who was of the opinion that the insurance proceeds should be the property of the estate, filed a claim for the proceeds on behalf of the estate, in which Ms. Duke did not join. Mrs. Coley then filed suit against Prudential and Mrs. Walker. Prudential impleaded the insurance proceeds, plus interest, and Mrs. Walker cross-claimed.

The case was tried to a jury in the Circuit Court of Mobile County, Alabama, on May 4, 1994. At the close of Mrs. Coley's case, Mrs. Walker's attorney requested a directed verdict. Rather than enter a directed verdict, the trial Judge informed the parties that he intended to submit the case to the jury, but if the jury returned a verdict for Mrs. Coley, he was inclined to grant a judgment notwithstanding the verdict ("JNOV"). Mrs. Walker rested without putting on any evidence. After brief deliberations, the jury returned a verdict for Mrs. Coley. Counsel for Mrs. Walker made an oral motion for JNOV, which was granted by the trial Judge. This appeal followed.

A motion for JNOV challenging the sufficiency of the evidence is appraised by applying the substantial evidence rule. Med Plus Properties v. Colcock Constr. Group, Inc., 628 So. 2d 370, 373 (Ala. 1993); § 12-21-12(d), Ala. Code 1975. A post-judgment motion for JNOV, like a motion for a directed verdict presented during trial, is a procedural device used to challenge the sufficiency of the nonmoving party's evidence. Alabama Power Co. v. Williams, 570 So. 2d 589, 591 (Ala. 1990). The standard of review applicable to a motion for JNOV on appeal is identical to that used by a trial court in reviewing a motion for a directed verdict, and like a directed verdict, a JNOV is appropriate when the party with the burden of presenting evidence has failed to present substantial evidence in support of its position. Med Plus Properties, 628 So. 2d at 373-74; § 12-21-12(a) and (c), Ala. Code 1975. *fn1 When a trial court has denied a motion for a directed verdict, a motion for JNOV allows the court to reassess its prior decision. Carter v. Henderson, 598 So. 2d 1350, 1353 (Ala. 1992). The ultimate question as to either motion is whether the party bearing the burden of proof has presented sufficient evidence to allow submission of the case or issue to the jury for resolution of the factual dispute. Id. In reviewing a motion for JNOV, this court must view the evidence in a light most favorable to the party who secured the jury verdict and must consider those reasonable evidentiary inferences a jury could have drawn. Id. See also Cahaba Land Associates, Inc. v. Secor Bank, 619 So. 2d 1372, 1373 (Ala. 1993).

After reviewing the record in this case in the light most favorable to Margaret Ann Coley, we conclude that she presented evidence at trial sufficient to allow this case to be submitted to the jury. Mrs. Cray saw Mr. Lemley write Mrs. Coley's name on the change of beneficiary form, which Mrs. Cray then signed even though she expressed an intention to add other names later. On the same day, Mrs. Cray purchased another insurance policy on which she expressly designated her estate as beneficiary. Despite Mr. Lemley's subsequent communications with Mrs. Cray, she never instructed him to add any names other than Mrs. Coley's to the change of beneficiary form. After Mrs. Cray's death, the $40,000 policy at issue here was found in her safe deposit box with Mrs. Coley's name on it. The jury in this case could have drawn a reasonable inference from the evidence presented that Mrs. Cray decided during the interim between her meeting with Mr. Lemley on February 24 and her death that she did not want to add anyone else to the $40,000 policy and that the proceeds of the $60,000 policy designated for her ...

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