Opinion
FSTCV135014179S
05-06-2016
Genworth Life Annuity Ins. Co. v. Jean Walden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth B. Povodator, J.
Facts
On or about November 9, 2007, Jerry F. Walden submitted/signed an application for a variable annuity contract, which contract was to be issued by the plaintiff Genworth Life. The application listed Jerry Walden as the owner and annuitant, and the beneficiary identified on the application reportedly was " Mrs. Walden." After the application had been submitted to the plaintiff for processing and issuance of the annuity, the plaintiff contacted the agent/broker who had submitted the application on behalf of Mr. Walden (Mr. Dunn), and indicated that " Mrs. Walden" was an improper/adequate designation, and that some greater particularity was required if the annuity were to become operative.
The application was never offered as an exhibit in this case. As discussed below, a letter written by a representative of the plaintiff, in 2010, recited the history of the beneficiary designation (Exhibit A) and that history has not been contested by any of the parties but instead has been assumed to be accurate. (Many of the factual assertions in that letter have been incorporated by the parties into the pleadings.)
Specifically, the plaintiff told him that the money paid by Mr. Walden for the annuity could not be invested without a proper beneficiary designation, and that the money would have to be returned to Mr. Walden instead of being invested by the plaintiff if the situation were not corrected promptly (within five days of the payment by Mr. Walden). According to Exhibit A, Mr. Dunn was so informed on November 13, 2007.
In response, Mr. Dunn reportedly notified the plaintiff that the beneficiary designation should be " the estate of Jerry Walden." After receiving that directive, the plaintiff sent the completed contract to Mr. Walden, with a copy to the agent/broker. The contract was accompanied by a contract confirmation letter, and also included was a contract information summary. The policy and contract information summary incorrectly identified " Jerry N. Walden" as owner and annuitant, and indicated that the primary beneficiary was " the estate of Jerry N. Walden."
Again, the only evidence of this fact is the historical recitation in the 2010 letter, identified in footnote 1, and the subsequent statements in pleadings repeating the statement or its equivalent.
Approximately two months later Jerry Walden sent back to the plaintiff the executed contract confirmation letter. On that confirmation letter, he indicated that the correct owner and correct annuitant was Jerry F. Walton, but did not make any correction with respect to the middle initial in the designation of the beneficiary, i.e. out of a total of three incorrect middle initial designations, two were corrected on the form.
Approximately two years later, Jerry Walden passed away. In connection with funeral arrangements, the defendant Jean Walden executed paperwork identifying herself as the beneficiary, attempting to assign a portion of the annuity funds to the funeral home for funeral expenses. When the funeral home submitted the attempted partial assignment, the plaintiff advised the funeral home that Jean Walden was not the beneficiary, and that any claim for payment under the annuity would have to be submitted by the executor of the estate of Jerry Walden, which information was transmitted to Mrs. Walden.
The death certificate attached to Exhibit 3 indicates that he died on November 25, 2009.
Shortly thereafter, the plaintiff received a claim for payment signed by the executor of the estate (Exhibit 3), and eventually paid the proceeds of the annuity to Brian Walden as executor (Exhibit 4).
In connection with the administration of the estate, Jean Walden claimed that she was entitled to the full proceeds of the annuity. This did not become known to the plaintiff until Jean Walden commenced litigation against other Genworth entities in 2013 (in turn, claimed by them to be the wrong Genworth entities). Based on representations of her counsel that Jean Walden would be taking corrective action and pursuing a claim against the correct Genworth entity (the plaintiff, here), the plaintiff commenced this litigation. The plaintiff correctly has identified the proceeding as effectively a variation on an interpleader--there are competing claims to the proceeds of the annuity, and as the party subject to those competing claims and wishing to avoid a possibility of double-liability, the plaintiff seeks a declaration/determination from the court as to the proper recipient of the funds. (A prejudgment remedy, precluding the estate from distributing the funds, was entered in this case, such that the funds are being held pending an outcome of this litigation.)
Claims of the Parties
An appropriate starting point is to identify the claims/positions of the parties with somewhat more particularity.
The Plaintiff's Claims/Position
The plaintiff seeks declaratory relief, or other form of ratification/verification, confirming that it distributed the funds representing the proceeds of the annuity issued to Jerry Walden, to the proper party, i.e. Brian Walden as executor of the estate of Jerry Walden. This implicitly requires the court to treat the erroneous middle initial as a typographical or scrivener's error, rather than one of substance; otherwise it would require reformation of the annuity contract (which is an alternate route to the same result). In the alternative, should the court conclude that Jean Walden is the correct beneficiary, the plaintiff seeks imposition of a constructive trust on the proceeds already paid to the estate (and being held subject to a pre-judgment remedy).
Somewhat anticipating the claims of Jean Walden, the claims for declaratory relief include what amount to defenses to her expected claims: lack of standing, the statute of limitations, the parol evidence rule as well as a contractual integration clause, and the acceptance by Jerry Walden of the annuity with the designation of his estate as beneficiary.
The Estate's Claims/Position
Brian Walden, as executor of the estate of Jerry Walden, generally takes the same positions as does the plaintiff with respect to the claims of the plaintiff and expands on the defenses/responses to the claims of Jean Walden. The estate asserts that the claims of Jean Walden are barred by the applicable statute of limitations (and the equitable counterpart of laches), as well as the statute of frauds. While Mrs. Walden claims to rely upon the application which listed " Mrs. Walden" as beneficiary, that application was never offered into evidence and in any event, contract law precludes reference to the application when there was a resulting contract signed and approved by Jerry Walden--the contract itself is the final repository of the agreement between the plaintiff as issuer of the annuity and Jerry Walden as annuitant/purchaser.
To the extent that the claim of Mrs. Walden is that she is the proper beneficiary notwithstanding the contractual designation of the estate as beneficiary, she implicitly is seeking reformation. That is an equitable concept to which a statute of limitations generally does not apply.
The estate asserted eight special defenses directed to the plaintiff's complaint (#123.00), which apparently were abandoned prior to trial (#132.00). No evidence or argument was offered relating to any of the defenses, and at least some were improper, e.g., the failure to join beneficiaries under the estate, cf. Practice Book § 11-3. If not abandoned prior to trial, the court deems them to have been abandoned during the trial.
The estate also is pressing a cross claim against Jean Walden based on vexatious suit, where the underlying suit seems to be Walden v. Walden, FSTCV116008088S, which was withdrawn prior to trial (withdrawn on November 20, 2013, the date assigned for commencment of trial). He also invokes Walden v. Dunn, FSTCV136020794S, in which summary judgment had been granted in favor of all defendants (without active opposition from the plaintiff).
The explicitly-stated reason for the lack of opposition was that the current case was already pending and would provide a better vehicle for resolving the dispute among the parties. See, #112.00 in FSTCV136020794S, the full text of which states; " The Plaintiff does not object to Summary Judgment on behalf of the Genworth Defendants as the pending case GENWORTH LIFE Et Al. v. WALDEN, JEAN Et Al., with docket No. FST-CV13-5014179-S will resolve the same issue as this case."
Somewhat inconsistently, in his post-trial brief, the executor states that because this action is still pending, he cannot pursue a vexatious suit claim, but only an abuse of process claim. If the executor intends to rely upon this case as part of the cross claim asserted against Jean Walden, there is no distinction between vexatious suit and abuse of process with respect to the need for a final disposition; see, MacDermid, Inc. v. Leonetti, 158 Conn.App. 176, 184-85, 118 A.3d 158 (2015).
Jean Walden's Claims/Position
As already noted, the position of Jean Walden is that she is the proper beneficiary under the annuity. She claims that there was an improper change of beneficiary, based on the change from the application's identification of the beneficiary as " Mrs. Walden" to the contractual designation of Jerry N. Walden, without any paperwork directing such a change. She also claims that the discrepancy with respect to the middle initial cannot be ignored and discounted/disregarded as a mere scrivener's error or typographical error. As already noted, her insistence that she is the proper beneficiary necessarily implicates a claim for reformation.
Before proceeding further, the court notes that at the proverbial last minute, the plaintiff sought to amend its answer so as to deny (instead of admit) the allegation in the operative complaint (¶ 7) that the plaintiff had been asked/directed to change the designation of the beneficiary to the estate of Jerry Walden (#135.00). As pointed out in the motion to strike filed by the plaintiff, the counterclaim filed by Jean Walden contains a statement substantially indistinguishable from the allegation she was attempting to deny. At argument on the motion on May 2, 2016, the plaintiff agreed that the motion to strike the defense could be granted, noting that the evidence at trial (the only evidence, Exhibit A) supported such a statement; as a result, ¶ 7 of the claim is admitted by the defendant Jean Walden.
" On November 13, 2007, Phillip Dunn advised Genworth that the beneficiary designation should be 'The Estate of Jerry Walden.'"
" On November 13, 2007, [Phillip Dunn] ordered that the beneficiary be changed to the 'The Estate of Jerry Walden' after an alleged phone call between [Phillip Dunn] and the defendant Jean Walden's husband." The only material distinction appears to be the recitation of " an alleged phone call" from Jerry Walden as the basis for the change.
Discussion
While obviously an oversimplification, the case boils down to determining the proper treatment of competing errors or irregularities in a contract setting, and an annuity contract in particular--as between an error (typographical error?) relating to a middle initial, and an earlier but patently improper (explicitly rejected) imprecise designation of the beneficiary (only the last name provided, with a prefix " Mrs."), which should the court deem to be controlling? What was the intent of the now-deceased annuitant? What is the proper remedy?
Changing the beneficiary from the estate of the decedent to the decedent's wife clearly would require reformation; would changing the middle initial of the individual whose estate was to be beneficiary rise to the level of reformation or is it too inconsequential to need such a formalized remedy under these circumstances? If reformation is the proper remedy, it must be established by clear and convincing evidence; Lopinto v. Haines, 185 Conn. 527, 533-36, 441 A.2d 151 (1981); Czeczotka v. Roode, 130 Conn.App. 90, 97-98, 21 A.3d 958 (2011). However, there is authority that relatively trivial corrections may not require formal reformation, Williston on Contracts, § 70:24.
As something of a threshold matter, everyone is (or appears to be) in agreement that the designation of a middle initial " N" was an error had to have been an error. If the issue only were changing the middle initial, then as discussed below, there would be a virtual certainty that the middle initial needs to be changed, far beyond clear and convincing evidence. If the issue is whether the proper beneficiary is the estate or the surviving spouse, the change would be of a different order of magnitude/materiality, and the burden of proof (as well as the scope of available proof) becomes critical.
In late 2007, in the context of the annuity contract formation process, the plaintiff immediately took the position that the designation of the beneficiary as " Mrs. Walden" needed to be corrected as it was improper and unacceptable. Through some process of unknown regularity (Mrs. Walden claims it was effectively an improper change of beneficiary), the beneficiary designation was changed to a seemingly more precise " Jerry N. Walden, " with a presumably-unnoticed error with respect to the middle initial; the relevant Jerry Walden had a middle initial of " F."
A central and undisputed (indisputable) fact is that Jerry Walden indicated needed corrections to his middle initial in some of the places where the paperwork contained the wrong middle initial, but he did not correct the use of an erroneous middle initial in the place where, arguably, it was most important (at least for this dispute), i.e. the designation of the beneficiary. Not surprisingly, the parties have different opinions as to how the court should deal with that omission.
Again, Jean Walden claims that the original designation of the beneficiary (on an application) as " Mrs. Walden" is controlling under these circumstances; there is no (known) Jerry N. Walden, and the change in beneficiary from the designation on the application to the erroneous " Jerry N. Walden" on the contract itself was an improper change of beneficiary. Jean Walden notes that middle initials are not of trivial significance, and in appropriate circumstances, different middle initials can be critical, e.g. two recent presidents whose only distinction in terms of name were their middle initials (which in turn were not totally dissimilar--George W. Bush and George H.W. Bush).
The parties agree that no one knows a Jerry N. Walden, and the parties agree that they do not know of an estate of a Jerry N. Walden. In other words, everyone agrees that any reference to " Jerry N. Walden" had to have been a mistake. For purposes of this dispute, Jerry Walden = Jerry F. Walden, but does Jerry N. Walden = Jerry F. Walden?
The plaintiff and the estate take the position that the erroneous middle initial is so patently an error that it should be disregarded, as it is/was obvious that the intent of Jerry Walden was to name his own estate as beneficiary, as reflected by his signature on the confirmation letter.
It is unfortunate, of course, that after his death, there have been ongoing and protracted disputes involving Jerry F. Walden's surviving family members, including at least two prior actions in this courthouse, and a perceived threat of additional litigation leading to an application filed by the executor seeking to enjoin commencement of additional litigation (#146.00). (The executor Brian Walden is the decedent's son, but not the son of his widow, Jean Walden.)
Walden v. Walden, FSTCV116008088S (withdrawn prior to trial). See, also, Walden v. Dunn, FSTCV136020794S (suit against agent/broker and purported issuer of annuity-summary judgment as to all defendants).
The plaintiff and the executor of the estate generally are in agreement with respect to the propriety of the issuance of a check for the proceeds of the annuity to the executor of the estate. They are united in their opposition to the position of Jean Walden. Since in a practical sense, Jean Walden is saying that the plaintiff " got it wrong, " a useful starting place is the statement of her position as articulated in her reply brief (#151.00), identifying precisely what it is that she believes was done improperly. The court will quote essentially the entire argument contained therein:
It is undisputed that the CONTRACT DATE is 11/09/2007. That is the date of the contract in Plaintiff's Exhibit 1 and 2. It is undisputed that the Plaintiff insurance company's own definition per Exhibit 1, page GEN000017 that a Contract date is " the date the contract is issued and become effective." It is undisputable that " Mrs. Jean Walden" was named as the beneficiary when the contract was issued and when the contract became effective on 11/09/2007 as proven by the letter from GENWORTH to Mr. Rubino entered into evidence as Plaintiff's Exhibit 7, page GEN0000082 or GEN000085 and as Defendant's Exhibit A. It is also undisputed by GENWORTH'S own letter to Mr. Rubino that it accepted a beneficiary change without a writing in contravention of its policy as stated in page GEN000019 of Plaintiff's Exhibit 1 " The Beneficiary, The primary beneficiary and any contingent beneficiary can be named in any application for this Contract or by sending a written request to our Home Office." It is also undisputed by evidence introduced by the Plaintiff's GENWORTH that it issued the check to someone other than the beneficiary; it issued the check to " The Estate of Jerry F. Walden" when its own contract and paperwork shows that the check should have been issued to " The Estate of Jerry N. Walden."
The Plaintiff and the other Defendant have been arguing for years that the fact that Mr. Walden corrected his name in three places on the confirmation letter is proof that he did review the confirmation page and wanted the beneficiary change as he left it unchanged; We now know that Mr. Walden did not look at the beneficiary because had he done so, he would have changed his middle initial as he did in the other three places. The Court is left with two choices which are:
1) to reform the contract to reflect the true intention of Mr. Walden which is to have " Mrs. Walden" as the beneficiary. " Where an insured under a life insurance policy told the insurer to change the listed beneficiary to the insured's wife, the insurer failed to make the change and issued a new certificate listing his sisters, the beneficiaries the insured had named before his marriage. In a contest between the sisters and the widow, the court granted reformation of the policy to state the true intention of the insured, " Prudential Ins. Co. v. Glasgow, 208 F.2d 908 (2d Cir. 1953), cited by Restatement of (Second) of Contracts, section 46.1 and 46.2 " Rights, Remedies, and Powers of a Beneficiary."
Here, the Plaintiff or the other Defendant offered no evidence that a change of beneficiary was requested by Mr. Walden. Instead, the evidence presented shows that Mr. Dunn (the broker) made a phone call to change the beneficiary and the Plaintiff GENWORTH accepted the change of beneficiary without a written request signed by Mr. Walden which is the reason this case is in front of the Court.
2) If the Court is not inclined to reform the contract to reflect 'Mrs. Walden' as the beneficiary, it is left with one choice which is to order the check to be issued according to the exact words of the contract which is " The Estate of N. Walden" and not " The Estate of F. Walden" which would leave the funds in limbo and which would still require reformation of the contract.
As stated in the Defendant's closing, George H.W. Bush is not George W. Bush and Brian G. Walden is not Brian Jean Walden. Similarly, Jerry F. Walden is not Jerry N. Walden; therefore, the Plaintiff GENWORTH should have never issued a check to " The Estate of Jerry F. Walden" as it is not the named beneficiary on the contract. Clearly, the contract in this case [is in] need of reformation and in either case, the reformation must be to 'Mrs. Walden' as the beneficiary since it is the only true beneficiary that existed and the time of the formation of the contract and still exist today.
" GEN######" is the format for the Bates-stamp page designations used in this case.
Two marginally legible copies of the document were submitted as part of Exhibit 7; a more legible copy was later offered and admitted as Exhibit A.
Almost at the outset, there are problems with Mrs. Walden's recitation. She states that " [i]t is undisputable that 'Mrs. Jean Walden' was named as the beneficiary when the contract was issued and when the contract became effective on 11/09/2007 as proven by the letter from GENWORTH to Mr. Rubino . . ." It is disputed in at least two respects, and indeed that is part of the problem: " Mrs. Jean Walden" was not listed as the beneficiary on the application, but rather (according to Exhibit A) " Mrs. Walden" was the identified-intended beneficiary, and there was no evidence that the annuity ever was actually issued with " Mrs. Walden" as the named beneficiary. " Mrs. Walden" was the proposed beneficiary but that was deemed insufficiently specific, and it is not difficult to understand such a position--even within the confines of the family, such a designation could include the mother of Jerry Walden (if she were alive--and the company might not know) and could include his son's wife (if he were married). Conversely, if the designation had been more specific, i.e. " Mrs. Jean Walden, " it is highly unlikely that this dispute ever would have arisen--there would have been no reason for the plaintiff to seek any change in the designation of the beneficiary, and presumably the annuity would have been issued without the need for further input.
Another possible and potentially troublesome complication if the generic " Mrs. Walden" had been left in place--to the extent that the executor was the son of Jerry Walden but not of Jean Walden, Brian's mother also might be known as " Mrs. Walden" (and additional examples are not hard to imagine).
As pointed out by the plaintiff and the executor of the estate, the actual application has not been presented to the court as an exhibit. The only evidence relating to the application, and the events immediately after the plaintiff had received the application, is in the form of the recitation set forth in Exhibit A, a letter from the plaintiff dated July 22, 2010, almost 3 years after the application had been submitted (November of 2007). Since it is the only evidence available, the court will recite that narrative of events:
An application for Mr. Jerry Walden was submitted to our company on 11/09/2007. This application listed Jerry Walden as the Owner and Annuitant, and the Beneficiary as Mrs. Walden. On 11/09/2007, our office contacted the broker . . . to clarify this beneficiary designation. We could not accept a beneficiary designation without a full name. A message was left for him to return our call.
On 11/13/2007, the broker called back and did not have the first name of this individual and stated he would call back. At that time, we advised him that the SEC required the funds be invested within five days and the funds would have to be returned if we did not settle the outstanding matter of the beneficiary name. That same day, [the broker] called our office and asked us to change the beneficiary designation to " the estate of Jerry Walden."(The narrative then goes on to describe the contract having been mailed to Jerry Walden, and his eventual return of a signed copy of the contract confirmation letter, which will be discussed in some detail, below.)
The clear import of that recitation is that although the application and necessary funds had been received on November 9, 2007, and that date-ofreceipt dictated a designation of the contract date as being November 9, 2007, the finality of the issuance of the annuity was contingent upon the plaintiff being provided with a suitable and acceptable designation of the beneficiary: " We could not accept a beneficiary designation without a full name, " followed by " and the funds would have to be returned if we did not settle the outstanding matter of the beneficiary name."
As a corollary of the recitation in the preceding sentence that the designation of " Mrs. Walden" was not acceptable and therefore the contract was not truly final unless and until greater specificity as to beneficiary designation was provided: that means that it cannot even be said that " [Mrs. Walden] was named as the beneficiary when the contract was issued" because the position of the plaintiff was that " Mrs. Walden" had to be replaced by a more-specific (acceptable) designation of beneficiary or the funds would be returned (negating the existence of any contract). In other words, there could be no issued annuity based on a proposed beneficiary identified as " Mrs. Walden." If something was being changed, it was not the designation of the beneficiary in an existing annuity contract but rather the name of the proposed beneficiary in an application for an annuity.
The position of the plaintiff, that it would have to return the funds (per SEC requirements) if the beneficiary designation were not addressed within 5 days of receipt of the funds, means that it did not perceive there to be a final and enforceable agreement between the parties as of November 9, 2007, notwithstanding the nominal contract date of November 9, 2007. That is established as a reasonable inference, and perhaps the only reasonable inference, from the perceived inability to invest the funds until the beneficiary issue was resolved.
That, however, undermines the claim of Jean Walden that there was an improper change of beneficiary. A " change" of beneficiary assumes, necessarily, that there was an initial designation of a beneficiary. If the contract had not been final and enforceable until a more detailed beneficiary designation were provided, then provision of that more detailed beneficiary designation would not have been a change in beneficiary but rather a cure of a defect in initial designation of the beneficiary. It would be analogous to a situation in which an application had omitted a beneficiary designation, or the beneficiary designation was so scrawled or smeared as to be unreadable; until the problem was corrected, no annuity contract could be issued and there was no initial beneficiary designation that could be changed within the meaning of that term under the contract.
Further, the contract language does not state in absolute terms that changes can only be requested in writing, although certainly there would be reasons for an issuer of an annuity to insist on such a formality. (This case is a perfect example of the problems that can arise if there is an inadequate " paper trail" relating to initial designation and/or change of designation of beneficiary.) As quoted above, the basic provision states: " The Beneficiary. The primary beneficiary and any contingent beneficiary can be named in any application for this Contract or by sending a written request to our Home Office." The immediately-following provision relating to changing the beneficiary is without any explicitly-absolute terms or conditions: " During the Annuitant(s)'s life, you can change the Owner(s) and any beneficiary if you reserved this right . . . To make a change, send a written request to our Home Office. The request and the change must be in a form satisfactory to us." The requirement that a request and change " must be in a form satisfactory to us" suggests at least some level of flexibility. Again, however, this only is of concern if the situation involved a true change in beneficiary; that is not what occurred. The fact that in curing a defective and unacceptable initial designation, a change may have been made, does not alter the primary purpose having been to cure a defect in that initial designation of the beneficiary. (And the repeated refrain: Jerry Walden signed his approval of the terms of the annuity, identifying his estate (if with an incorrect middle initial) as the beneficiary.)
The foregoing only addresses the first part of the problem, i.e. whether Jean Walden is or should be deemed the proper beneficiary. The second part of the problem is the designation of Jerry N. Walden as the owner and as the annuitant and as the person whose estate would be the beneficiary. The defendant, Jean Walden, insists that the incorrect middle initial is a material defect that cannot be ignored. Related, to the extent that the court might be inclined to reform the contract to refer to Jerry F. Walden, the claim is that there is an insufficient basis for such a reformation.
At this point, the court must identify a basic flaw in the approach taken by Jean Walden-\consistent with the oft-made observation that the manner in which an issue is framed can influence the outcome.
The manner in which Jean Walden has framed the case implicates the logical fallacy of false dilemma (false dichotomy). The choice for the court is not limited to Jean Walden as beneficiary or the nonexistent estate of Jerry N. Walden as beneficiary, as has been argued by Jean Walden (and quoted above). Rather, there are at least three, and depending on formulation, perhaps as many as four options.
1. Is the middle initial " N" a matter of substance (material error) or simply an obvious typographical or scrivener's error?
Everyone appears to be in agreement that the middle initial " N" was a mistake.
a) If it is just a typographical or scrivener's error, the error can be ignored (" corrected") without any need for satisfying a burden of proof).
b) If it is a material matter, requiring reformation:
i. Has Jean Walden met her burden of proving that the error affects the entire designation of the estate as beneficiary such that the court should revert to a claimed earlier intent to name her as beneficiary? OR
ii. Has the plaintiff (and the estate) met their implicit burden of proof that the middle initial should be corrected from " N" to " F?" OR
iii. If no one has satisfied the requisite burden of proof for reformation (clear and convincing evidence), does the designation of " estate of Jerry N. Walden" as beneficiary remain unchanged, and if so, what does that mean?
If in fact the court were to agree that the issue is reformation of the contract, then certain hurdles would have to be surmounted. The court however does not believe that the erroneous middle initial is a matter of substance necessitating invocation of the law relating to reformation of a contract, but rather perceives it to be a fairly obvious if persistent typographical or scrivener's error.
The parties generally have focused on the second page of Exhibit 2, the contract information summary form on which Jerry Walden corrected two of the three references to Jerry N. Walden. He did so by writing Jerry F. Walden next to the erroneous typed references to Jerry N. Walden. The corrected entries identified Jerry N. Walden as the owner and annuitant. No correction was made to the beneficiary designation as the estate of Jerry N. Walden.
The court has identified only two reasonable inferences that can be drawn from the failure to correct that the third reference to Jerry N. Walden, i.e. the estate of Jerry N. Walden being designated as the beneficiary. Either Jerry Walden did not see the designation at all, or he saw that his estate had been designated as beneficiary but did not notice that it included an incorrect middle initial. (It would not be reasonable to consider that he might have noticed the incorrect middle initial but chose not to correct it-\when he had corrected two other similar errors on the same page.)
Note that if it were a reasonable inference, it would imply that his perception was that it was a trivial error, not even needing correction.
The second of these possible inferences is clearly unhelpful to Jean Walden. It would confirm the belief that Jerry Walden had, in fact, intended to name his estate as the beneficiary, rather than having intended to name his wife as beneficiary, and he simply had missed a typographical/scrivener's error.
The first inference, however, is insolubly ambiguous. If he did not notice that there was a designation of beneficiary on that page, then his failure to correct the designation would not signify anything about his intent as to beneficiary. That, however, would require a further assumption-\despite having signed the confirmation letter indicating that he had reviewed the information summary, and despite having noticed and corrected two relatively minor errors, he somehow missed a major error, i.e. the mistaken designation of the estate, instead of his wife, as beneficiary.
The problem, of course, is that if the court were to engage in the exercise of assuming that Jerry Walden did not notice the beneficiary designation at all, and then trying to determine what he would have done if he had noticed that designation, the court would be engaging in speculation rather than drawing reasonable inferences. Had the " error" not been in the designation of the estate as beneficiary, but in the initial and flawed attempt to designate " Mrs. Walden" as the beneficiary? Had he simply changed his mind as to designation of beneficiary, by the time he had been informed of the problem with " Mrs. Walden" as beneficiary (assuming that he had made that initial designation)?
Indeed, in connection with such deconstructive analysis of the documents, would an individual filling out forms relating to something of this significance-\the purchase of a substantial annuity (the initial purchase payment is indicated to have been $500,000) refer to his wife as " Mrs. Walden" rather than using her first name as part of her designation as beneficiary? (It would make more sense if the form had been filled out by someone else, actually or ostensibly acting on his behalf, but without intimate familiarity with the Walden family.)
Of necessity, the court is limited to the evidence presented to it. Mr. Dunn, the broker, was a party (defendant) in earlier litigation, and the court has no way of knowing whether he was deposed in that case, or otherwise provided information relevant to the issues before this court. The court knows nothing of what Mr. Dunn has said or would say relating to these matters, and his conduct clearly was central to an understanding of what happened in mid-November of 2007. He is the one who apparently submitted the application on behalf of Mr. Walden. He was the one initially contacted by the plaintiff about the lack of a first name (or other more specific designation) with respect to the beneficiary. He is the one who appears not to have known the first name of " Mrs. Walden" and he is the one who later told the company to change the beneficiary designation to " the Estate of Jerry Walden." (All of this is stated in, or inferable from, Exhibit A.) The only evidence relating to Mr. Dunn (other than Exhibit A) was testimony that he had gone to the Walden home on November 9, 2007 with the application form for execution (signing) and completion to the extent needed (beneficiary designation?). There was no testimony as to whether the application had been filled out partially ahead of time, and if so, the extent of information that already had been entered.
Indeed, the recitation in Exhibit A states that Mr. Dunn had told the company to change the designation to " the Estate of Jerry Walden." -\is that an accurate and materially complete recitation, or is it an inaccurate (or imprecise/incomplete) recitation of instructions to the extent that it does not recite any middle initial (and if a middle initial had been given, was it " F" or " N")?
The testimony of Mrs. Walden was that Mr. Dunn had come to the home to have the papers " signed for beneficiary." It is not clear whether that was intended to mean that the application with the beneficiary designation was to be signed, or whether the visit was to obtain a beneficiary designation and have the application signed.
Again, the court must decide the case based on the evidence presented. As against the unanswered questions, the court is faced with a document indicating that Jerry Walden had approved of the contract generated by the plaintiff, subject only to correction of the middle initial (in two of the three locations on the contract information summary page). Unless the middle initial were deemed to be material the court is compelled to conclude that he approved the designation of his estate as beneficiary.
With respect to the materiality of the erroneous initial, the court has little trouble in concluding that it was not material. The argument of the defendant, Jean Walden, that " George H.W. Bush is not George W. Bush and Brian G. Walden is not Brian Jean Walden. Similarly, Jerry F. Walden is not Jerry N. Walden" is clever, and in an appropriate circumstance, might be persuasive. This is not a situation, however, where it is persuasive.
The executor of the estate, Brian Walden, was asked questions relating to his name, in order to establish part of the foundation for this argument.
The most obvious distinction is that this case does not require the court to choose between two actual " candidates" for the person of interest, e.g., George H.W. Bush as opposed to George W. Bush. No one is claiming that there is a Jerry N. Walden of possible interest/applicability. The current situation is more akin to a letter or document sent to George N. Bush at the home address of either George Bush-\there would be a strong presumption that the middle initial would have been an error. And, the act of the recipient in responding, including making corrections relating to the identity of the recipient, would tend to confirm that the recipient had been the intended recipient or at least believed he was the intended recipient.
Note that this tends to undercut (if mildly) the implicit claim of Jean Walden that " Mrs. Walden" was a sufficiently-precise designation of her as beneficiary. Using her President-Bush-based example, a reference to " George Bush" or " President George Bush" would be inherently ambiguous, and a reference to " Mr. Bush, " even if limited to the context of intra-family matters, would be impossibly imprecise (as there are others describable as " Mr. Bush, " e.g., Jeb Bush).
Everywhere in Exhibit 1 and Exhibit 2 (the contract documents relating to the annuity) where there is a reference to Jerry Walden, an erroneous middle initial of " N" was used. Thus, on the second page of Exhibit 1, where the only printing is the name and address of the person contracting with the plaintiff (presumably identifying the client-recipient of the document), the initial is present. Further in the package, there are two letters dated November 13, 2007, again addressed to Jerry N. Walden. All of these incorrect identifications of Jerry Walden contain the correct address for Jerry F. Walden-\Jerry Walden did not correct the address on the contract information form, and the same address appears on his death certificate (part of Exhibit 3). All of these materials were sent to the address of Jerry F. Walden, were received by Jerry F. Walden, and to the extent responses were solicited or appropriate, responses were made by Jerry F. Walden.
This is in addition to the testimony during the trial that no one knew of anyone by the name of Jerry N. Walden (with an emphasis on the middle initial). The company was writing to a Jerry Walden, concerning a policy issued to a Jerry Walden, who lived at the address of Jerry F. Walden. There is no reasonable possibility much less probability that the Jerry Walden to whom the company had issued an annuity-\identified as Jerry F. Walden-\was anyone other than Jerry F. Walden.
" It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom, " American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 778, 607 A.2d 418 (1992); see, also, State v. Siering, 35 Conn.App. 173, 184, 644 A.2d 958 (1994) and cases cited therein. There may well be a person with the name " Jerry N. Walden" who is/was not the Jerry Walden of concern in this case. But a reference to the Jerry N. Walden identified as living on Ivy Street in Stamford in the 2007 time frame was, well clearly (to the point of functional certainty), the same person as the Jerry F. Walden who lived on Ivy Street in Stamford in the 2007 time frame. Similarly, the Jerry F. Walden who partially corrected references in Exhibit 1 and Exhibit 2 to Jerry N. Walden was clearly (and again, essentially to a practical certainty), the same person as the Jerry N. Walden to whom the documents were sent. Certainly, if there had been a Jerry N. Walden and a Jerry F. Walden, both living at the Ivy Street address, someone would have known of his existence. This equivalence of Jerry N. Walden and Jerry F. Walden goes well beyond clear and convincing proof; there is no rational alternative.
Our courts have disregarded far more substantial misidentifications (misnomers); see, e.g., Andover Limited Partnership v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995) (instead of town, the Board of Tax Review had been named as defendant in tax appeal under General Statutes § 12-117a); Pack v. Burns, 212 Conn. 381, 562 A.2d 24 (1989) (instead of Commissioner of Transportation as named defendant, suit commenced against non-existent " State of Connecticut Transportation Commission"). Here, no one was misled, or reasonably could have been misled, by the erroneous middle initial used in describing Jerry Walden of Ivy Street in Stamford.
If the change of middle initial were deemed substantial enough to require reformation, the result would be the same. For the reasons discussed above, there can be no question that the middle initial of " N" was a mistake; no one involved in this case knows of a Jerry N. Walden, and especially a Jerry N. Walden who just happened to live at the same address as Jerry F. Walden (and whose mail relating to the subject annuity was sent to, and answered by, Jerry F. Walden). This far exceeds clear and convincing proof that the middle initial " N" was an error and should have been " F" -\based on the evidence, it probably would be irrational to believe that " N" was anything other than a mistake (typographical or scrivener's error).
The court cannot lose sight of the fact that there are, in effect, two competing claims for reformation (if the middle initial is a material matter). It is a virtual certainty that the middle initial " N" was an error. Jean Walden, however, claims that the proper reformation would be to substitute her name for the designation of the estate of Jerry Walden as the beneficiary. Based on the evidence presented, the court cannot conclude that she has established that the intent of her husband was other than as reflected on the forms he reviewed and signed, especially to the heightened standard of clear and convincing evidence.
It is theoretically possible that both claims for reformation could have merit. Clearly the middle initial needs to be changed, but it is also possible that Jean Walden could establish that the intent of Jerry Walden was to name her, rather than his estate (however denominated), as the beneficiary. In such a scenario, the claim of Jean Walden necessarily would take precedence (if proven).
The court must emphasize the qualifier--" based on the evidence." There was no testimony from Mr. Dunn. The original application was not offered; the only information relating to the application was from a letter written years later, identifying a material flaw in the beneficiary designation as set forth in the initial application (" Mrs. Walden"). Speculation as to what might have happened is easy but impermissible. Jerry Walden signed his approval of a contract identifying his estate as the beneficiary, subject to an incorrect middle initial. There was no evidence to indicate that naming his estate as beneficiary was a mistake and contrary to his intent, as of the time that he signed the documentation that he returned to the plaintiff indicating his approval (subject to indicated corrections). While it might be a reasonable inference that he did not see the designation on the contract information form--reasonable because he had corrected two other instances of his name with an incorrect middle initial but did not correct the incorrect middle initial on the beneficiary designation--that does not provide a basis for inferring that the estate was not intended to be the beneficiary.
This case is a good example of why a heightened standard is appropriate for claims of reformation. Jerry Walden is not available to testify as to his intent. He reviewed documents and, as of record, approved of the designation of his estate as beneficiary (albeit with an erroneous middle initial). Each of the defendants has a personal interest in the outcome--Jean Walden is claiming 100% of the value of the annuity, and the executor, through the estate, would personally receive a percentage of the value of the annuity as the son of Jerry Walden.
The paucity of evidence would seem to preclude even a preponderance of the evidence standard in favor of Jean Walden. Did Jerry Walden fill out the application on his own, or was the form filled out by Mr. Dunn (or someone else) based on information actually or purportedly obtained from Jerry Walden? For example, it seems highly unlikely that Jerry Walden would have answered a question as to beneficiary designation with " Mrs. Walden" --he might have answered " my wife" or something else, but " Mrs. Walden" seems to be implausible. But it is " equally speculative" to wonder whether there had been no information as to beneficiary designation such that Mr. Dunn (or someone else) simply assumed that Jerry Walden would have wanted his wife as beneficiary, and without knowledge of the first name, simply filled in " Mrs. Walden." Was the beneficiary designation of the estate actually based on a communication (directive) from Jerry Walden, or was it a change made without such input in order to keep the transaction from unraveling? (" New" information would be needed in order to insert the first name of Mrs. Walden, but no new information would be needed to designate Jerry Walden's own estate as beneficiary.)
The point of this exercise is to demonstrate that the court understands the possible concerns and motivations of Jean Walden, but the only potentially-persuasive evidence supports the positions of the estate and the plaintiff. A letter (years later) reciting an inability to accept (process) an application containing a too-imprecise designation of the beneficiary is minimally probative of an intent to name Jean Walden, but it is not enough to overcome the explicit designation of the estate, as confirmed by the written confirmation signed by Jerry Walden.
Accordingly, the court concludes that the plaintiff is entitled to declaratory relief, that it distributed the proceeds to the proper beneficiary, the estate of Jerry F. Walden. The middle initial is deemed corrected as a scrivener's error, or if deemed more substantial and not subject to correction in that manner, based on the plaintiff and defendant estate having established grounds for reformation of the middle initial by clear and convincing evidence.
Claim of Brian Walden, Executor
As noted earlier, in addition to contending that the estate is the proper beneficiary, the executor of the estate is pressing a cross claim against Jean Walden based on vexatious suit. Two underlying proceedings have been identified: Walden v. Walden, FSTCV116008088S, which was withdrawn prior to trial (withdrawn on November 20, 2013, the date assigned for commencement of trial), and Walden v. Dunn, FSTCV136020794S, in which summary judgment had been granted in favor of all defendants (without active opposition from the plaintiff). He also makes reference to the current action, and although recognizing that it is premature to assert a vexatious suit claim based on this proceeding, seems to be claiming that he is entitled to pursue an abuse of process claim based on the current action. However, as previously stated, there is no distinction between vexatious suit and abuse of process with respect to the need for a final disposition; see, MacDermid, Inc. v. Leonetti, 158 Conn.App. 176, 184-85, 118 A.3d 158 (2015); therefore, this case cannot be a basis for a claim of abuse of process any more than it can be a basis for a claim of vexatious suit.
At argument on May 2, 2016 on other issues, Jean Walden argued that the estate effectively had abandoned its claims of vexatious suit. The court recognizes the minimalist approach taken by the estate relating to this issue, but it is discussed if briefly and therefore cannot be deemed abandoned.
The explicitly-stated reason for the lack of opposition was that the current case was already pending and would provide a better vehicle for resolving the dispute among the parties. See, #112.00 in FSTCV136020794S, the full text of which states: " The Plaintiff does not object to Summary Judgment on behalf of the Genworth Defendants as the pending case GENWORTH LIFE Et Al. v. WALDEN, JEAN Et Al., with docket No. FST-CV13-5014179-S will resolve the same issue as this case."
The elements of a claim of vexatious suit are well established:
1) Mrs. Walden commenced and prosecuted the underlying action(s) against the executor;
2) the underlying action(s) was/were commenced and prosecuted against him without probable cause;
3) the underlying action(s) was/were commenced and prosecuted against him with malice;
4) the underlying action(s) was/were finally terminated in a manner favorable to the executor; and
5) the commencement and prosecution of the underlying action(s) against him, without probable cause and with malice, legally caused him to suffer at least some of the injuries or losses complained of in his cross complaint.
The first element is not subject to dispute. Mrs. Walden commenced the actions. In a sense, they both were terminated in favor of the executor. The granting of summary judgment is inherently favorable to the prevailing party; however, given the rationale proffered, i.e. the existence of a better vehicle for determination of the issues, it is at least subject to challenge. Under the circumstances, the court deems it to have been a favorable outcome.
The withdrawal of a proceeding on the eve of trial, outside the context of a settlement or other justification or consideration, at least presumptively is a favorable disposition to the defendant in that earlier proceeding. In Centrix Management Company, LLC v. Valencia, 145 Conn.App. 682, 76 A.3d 694 (2013), the issue was the availability of attorneys fees (pursuant to General Statutes § 42-150bb) to a tenant who had successfully defended a summary process action, specifically obtaining a dismissal of the proceedings. While this court is reluctant to read too much into what might be characterized as a secondary (policy-based) argument getting minimal attention, the dismissive tone is certainly suggestive:
[The landlord] also claims that providing attorneys fees to tenants under § 42-150bb would be poor public policy because it would encourage claims of inadequate service of process and consequently lead to more dismissals, and would discourage withdrawals. This court is not convinced by either of these speculative and unsupported assertions. 145 Conn.App. at 690.
Again, the court does not claim that this constitutes a holding or even a minimally-detailed analysis of public policy as applicable to the issue, but it does reflect a perception of a near--equivalence between dismissals and withdrawals--dispositions that are favorable to a party being sued without resolving the merits of the dispute. This is in contrast to a withdrawal pursuant to an agreed resolution of a dispute; see, e.g., Romanczak v. Avalonbay Communities, Inc., 122 Conn.App. 499, 505 n.7, 998 A.2d 272 (2010), citing Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983), (withdrawal pursuant to agreement does not inherently make defendant prevailing party). Cf. Connecticut Housing Finance Authority v. Alfaro, 163 Conn.App. 587 (2016) (factual issue as to whether withdrawal is favorable outcome for purposes of General Statutes § 42-150bb.) (The court notes that status as a prevailing party under § 42-150bb may well implicate a higher standard than is required for a favorable outcome for purposes of a claim of vexatious suit.) Under the circumstances presented, and in the absence of any proffered explanation as to why the withdrawal did not constitute a favorable outcome to the executor, the court finds that the withdrawal of that earlier proceeding was favorable.
The issues of malice and lack of probable cause, however, are not so easily resolved in favor of the executor. The court already has identified questions surrounding what Mr. Dunn did and did not do in early to mid-November of 2007. A fairly quick change from a seemingly puzzling (in the sense of missing the first name) beneficiary designation of " Mrs. Walden" to a different and misidentified designation of " the estate of Jerry N. Walden" as the beneficiary, would seem to have been a reasonable basis for questioning what actually had transpired.
The absence of probable cause often is linked to malice--a lack of probable cause is at least suggestive of an improper motivation. A person acts with malice when she acts primarily for an improper purpose--that is, for a purpose other than that of securing the proper adjudication of the claim on which the action is based. A person acts with malice towards another person when she acts primarily out of hatred for or ill will. The court finds it especially difficult to find malice in these circumstances; however flimsy the executor may think her case to have been, Jean Walden clearly was seeking precisely what was claimed in her litigation i.e. to receive the proceeds from the subject annuity. (Note that this also is essentially is dispositive of any claim of abuse of process--the litigation was commenced for precisely the purpose stated, i.e. recovering the proceeds from the annuity.)
Finally, there's the issue of damages. The executor sought to reserve the right to present damages in the form of legal costs associated with the current proceeding, but has earlier noted, unless and until this case is concluded with finality, it is premature to be asserting a claim of vexatious suit as well as a claim of abuse of process. Therefore, any damages claims would have to be based on already-concluded litigation. While it may be common practice to reserve until the conclusion of the trial and offer of evidence/proof relating to legal fees incurred in the ongoing proceeding, which the court understands to have been the focus of that statement of the executor, there is no reason why any legal fees or other expenses allegedly incurred in fully-concluded proceedings could not have been presented during the evidentiary phase of this proceeding. No evidence of damages was presented relating to costs incurred as a result of the already-concluded litigation.
For all these reasons, the court cannot find that the executor has proven a claim of vexatious suit and cannot find that the executor has proven a claim of abuse of process with respect to any of the already-concluded matters. Again, it is premature to address any claim based on the disposition of this case, prior to final disposition (including appeal periods).
See, Keller v. Beckenstein, 122 Conn.App. 438, 444-45, 998 A.2d 838 (2010).
Claim of Jean Walden
Defendant Jean Walden claims that she is the proper beneficiary, and that the designation of the estate as beneficiary constituted an impermissible change in beneficiary. The court has discussed, in detail, why it believes that the change of beneficiary provision is inapplicable. The defendant relies upon a secondary source of information that the application had indicated that she was to be the beneficiary, but the designation of " Mrs. Walden" was unacceptable to the plaintiff to the point that it was prepared to cancel the transaction if it was not provided--in a timely (brief) manner--with a proper beneficiary designation. Therefore, the annuity never was issued with " Mrs. Walden" named as beneficiary such that there was no beneficiary designation to change. Further, Jerry Walden approved of the annuity as issued, subject to changing the middle initial in two out of three locations, and the annuity as issued named his estate as the beneficiary. Whether corrected as an obvious scrivener's error or as a matter of reformation, it is clear that the designation of Jerry N. Walden was intended to be Jerry F. Walden.
Thus, the burden was on Jean Walden to prove that it had not been the intent of Jerry Walden to name his own estate as beneficiary, and prove it by clear and convincing evidence. The only evidence of his intent in that regard was the reference in Exhibit A to an unaccepted/unacceptable designation of " Mrs. Walden" in the application for the annuity. Accepting that as indicative of his original intent, there is the far-more-persuasive evidence that he approved of the contract, as issued, naming his estate (again, with the wrong middle initial) as the beneficiary (which designation, in turn, was supported by Exhibit-A-based evidence that the company had been instructed to make that designation after refusing to accept " Mrs. Walden" as a proper beneficiary designation).
As discussed earlier, these repeated problems raise questions as to what actually happened, but the court cannot speculate; it is required to make its decision based on the evidence and reasonable inferences from the evidence. Mrs. Walden may have believed that she had been designated as beneficiary, but that is not how the annuity actually was issued, and was not the subject of a correction by Mr. Walden when he reviewed the information sheet for accuracy. There was no evidence that in the approximate two years between issuance of the annuity and his death, he made any attempt to change the beneficiary, and no evidence that he ever complained that a mistake had been made in designating his estate as beneficiary.
With the paucity of evidence relating to contract formation, and the persuasive existence of approval of the annuity contract as finally issued (again, recognizing that only two of three erroneous middle initial designations were corrected), the court cannot conclude that there is clear and convincing evidence that the intent of Jerry Walden was not properly reflected in the annuity contract's designation of his estate as beneficiary. There may be suspicions, speculation, etc., but there is too much of a gap between the objective and persuasive evidence confirming the annuity as issued, and the inconclusive evidence claimed to justify reformation as to Jean Walden as beneficiary, to afford her any relief.
Conclusion
Jean Walden clearly thinks that something went wrong, when an annuity was issued to her late husband, Jerry Walden, in November of 2007. As discussed above, it seems highly unlikely that Jerry Walden would have directed his beneficiary to be identified as " Mrs. Walden" when/if the intended beneficiary was his wife, and it is highly unlikely that he would have misidentified his own middle initial. In the face of such irregularities, Jean Walden can hardly be faulted for suspecting something more than just sloppiness. Her suspicions, however, do not rise to the level of proof.
Quite simply, there is no path, based on the evidence, to Jean Walden receiving the full proceeds of the annuity. She has not presented the court with clear and convincing evidence that the designation of the estate of Jerry Walden--regardless of middle initial--was not the intent of Jerry Walden and that the contract should be reformed to name her as beneficiary (based on proof by clear and convincing evidence that that was his intent). The evidence of an initial intent to name her as beneficiary was secondary in nature, i.e. Exhibit A. Against that is the fact that the policy was actually issued naming the estate as beneficiary, coupled with the history recited in Exhibit A, and confirmed by the signature of Jerry Walden on the contract confirmation letter (Exhibit 2) with middle initial corrections on the contract information summary page and no change to the designation of the estate as beneficiary on that same page (again, recognizing that he did not change the erroneous middle initial in that designation).
The court believes that the erroneous middle initial is a scrivener's error that can be disregarded. If it requires reformation to change, the burden of proof has been satisfied, as everyone is in agreement that no one knows of a Jerry N. Walden, and as discussed above, Jerry F. Walden live at the address to which the paperwork was sent, responded to the letter seeking confirmation of contract information, etc., all of which clearly, convincingly, and indeed perhaps beyond a reasonable doubt, demonstrates that the middle initial " N" should have been " F."
Finally, even if an argument of Jean Walden--which the court has considered to be primarily a rhetorical argument--were taken as an actual contention, i.e. that the only choice is either she is the beneficiary or " the estate of Jerry N. Walden" is the proper beneficiary, the nonexistence of a known " Jerry N. Walden" or " estate of Jerry N. Walden" would be of no assistance to her. As reflected in the " Genworth Life and Annuity Insurance Company Death Provisions Endorsement" (Exhibit 1 at GEN000038), the contract sets forth a hierarchy with respect to beneficiary. " At the death of [the owner or annuitant] the person or entity first listed below who is alive or in existence on the date of that death will become the Designated Beneficiary:
(1) Owner or Joint Owner;
(2) primary beneficiary;
(3) contingent beneficiary;
(4) Owner's or Joint Owner's Estate."
According to the annuity contract, Jerry Walden was both the owner and annuitant such that when he died, alternative #1 could not be applicable. If the primary beneficiary did not exist (" estate of Jerry N. Walden"), and there is no indication of a contingent beneficiary having been named (Exhibit 2 indicates " none" for contingent beneficiary), the beneficiary under the contract would become the estate of Jerry F. Walden, under the final alternative (#4)--since there is no question that Jerry F. Walden was the owner of the annuity (as corrected via Exhibit 2) at the time of his death.
Thus, whether as a matter of correcting a scrivener's error, or as a matter of reformation of the middle initial, or as a matter of contract interpretation in the absence of any other existing contractually-designated (recognized) beneficiary, the estate of Jerry F. Walden was the proper recipient of the proceeds of the annuity contract.
Therefore, judgment is entered in favor of the plaintiff with respect to its application for declaratory relief, affirming/confirming that the settlement proceeds properly were distributed to the executor of the estate of Jerry F. Walden. The court declines to enter conditional alternative relief (constructive trust) in light of that conclusion.
With respect to the claims of the defendant Jean Walden, directed to the plaintiff and the defendant executor of the estate of Jerry F. Walden, judgment enters in favor of the plaintiff and the defendant executor.
With respect to the cross claim of the executor of the estate of Jerry F. Walden, directed to Jean Walden, judgment enters in favor of Jean Walden.