DATE OF JUDGMENT: 09/30/2011.
HINDS COUNTY CIRCUIT COURT, HON. WINSTON L. KIDD,
TRIAL COURT ATTORNEYS: MICHAEL T. JAQUES, JASON E. DARE.
FOR APPELLANT: MICHAEL T. JAQUES.
FOR APPELLEES: MICHAEL JEFFREY WOLF, J. STEPHEN KENNEDY, GEORGE CLANTON GUNN, IV.
PIERCE, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.
ON WRIT OF CERTIORARI
¶1. In 1987, Joseph Bagley purchased a cancer and dread-disease policy through his friend and insurance agent, Jackie McPhail. The policy was issued by American
Heritage Life Insurance Company. McPhail worked as an independent insurance broker, and she was a registered agent with American Heritage at the time the policy was written. The policy indicates that Bagley purchased coverage concerning cancer and dread disease, a home- recovery rider, and a hospital intensive-care rider. Bagley also had an option to purchase life insurance; however, McPhail testified that Bagley did not purchase life insurance under this policy because he had purchased a separate life-insurance policy.
¶2. In 2008, Bagley was diagnosed with cancer. Bagley contacted McPhail to file a claim under the policy and to " change the beneficiary" of the policy from his estate to Michael and Betty Strait. McPhail testified that she had ceased writing policies for American Heritage; however, she still retained the authority to service Bagley's policy, and she acquired his written consent to receive information regarding his policy from the insurance company. While Bagley was in the hospital, McPhail met with him regarding changing the beneficiary of his cancer policy. McPhail presented an American Heritage change-of-beneficiary form, which Bagley ultimately signed. The signature was witnessed by Bagley's physician, a nurse, and McPhail. Bagley orally communicated that he wished for the beneficiary to be changed from his estate to the Straits. At the time that Bagley signed the form, the Straits had yet to be listed as beneficiaries on the form. McPhail met with the Straits after the form was signed to confirm their correct legal names to be placed on the change-of-beneficiary form at a later time. McPhail provided that she did not fully complete the form because she was attempting to contact American Heritage to confirm the correct procedure for completing the process; however, American Heritage's office was closed because of Hurricane Fay, and McPhail never succeeded in speaking with American Heritage regarding the matter. Bagley's physician, who witnessed Bagley signing the form, later communicated to Betty Strait that his attorney advised that the form could not be used because the Straits' names were not listed on the form prior to Bagley's signature. Betty Strait relayed this to McPhail, who then attempted to contact American Heritage's legal department. McPhail called the company on multiple occasions and left voicemail messages, but she never received a return phone call. Soon thereafter, Bagley passed away, and the form was never completed.
¶3. The estate was probated in Hinds County Chancery Court. McPhail worked with the estate to file a claim on the cancer and dread-disease policy. The Straits were named beneficiaries in Bagley's will. The record contains written correspondence by Betty Strait explaining that they were aware that the proceeds of the policy were now passing to Bagley's estate, through no fault of their own, and that they were not responsible for any final expenses not covered by the policy. From the record, it is clear that the Straits did not contest the passage of the policy proceeds to the estate at the time that the estate was being settled.
¶4. In 2009, proceeds totaling $44,973.50 were issued to Bagley's estate from the American Heritage policy. The executor of Bagley's will, William Kinstley, petitioned for the approval of the estate's final accounting, which included the policy proceeds. Kinstley submitted certain expenses to be paid from the estate, with the ...