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New York Life Ins. Co. v. Henriksen

Court of Appeals of Indiana, Third District
May 27, 1981
421 N.E.2d 1117 (Ind. Ct. App. 1981)

Summary

holding that the beneficiary of a life insurance policy holds his interest under the policy upon a constructive trust for the estate of the insured

Summary of this case from Geo. Pfau's Sons Co., Inc. v. Neal

Opinion

No. 3-680A168.

May 27, 1981.

Appeal from the Superior Court, Lake County, James J. Richards, J.

Joel C. Levy and Glenn R. Patterson, Singleton, Levy, Crist Johnson, Highland, for appellant.

Robert A. Sowinski and T. Edward Ummel, Sowinski Easterday, Plymouth, Joseph V. Simanski, Feagler Simanski, Plymouth, for appellees.


ON PETITION FOR REHEARING

This Court, on January 28, 1981, reversed the judgment of the trial court and concluded that where the sole owner and beneficiary of a New York Life Insurance Company policy had murdered the insured, the insurer should be relieved of any liability on the policy proceeds. Ms. Lily Henriksen petitions for a rehearing of the appeal and urges that "if New York is not liable on the policy proceeds, it should be liable for all premiums paid in on the policy."

Initially, we note that Ms. Henriksen, as administratrix of the estate of the insured, Chester O. Henriksen, Jr., was the appellee in the initial appeal. In her representative capacity, she argued that the estate of the insured was entitled to receive the policy proceeds where there was no eligible beneficiary. In her petition for rehearing, Ms. Henriksen, in her individual capacity as owner's designee, not only challenges our opinion but seeks relief on a theory heretofore not argued. Such switching of interests is impermissible. Furthermore, Ms. Henriksen may not now raise a new argument or espouse a new theory. Any question which has not been briefed or argued in the briefs on appeal cannot be raised for the first time in a petition for rehearing. City of Indianapolis v. Wynn (1959), 239 Ind. 567, 159 N.E.2d 572. The petition is to be confined to those issues which were properly presented in the initial appeal and which were overlooked or improperly decided. Stucker v. College Life Ins. Co. of America (1965), 139 Ind. App. 422, 211 N.E.2d 320. As such, we will not consider Ms. Henriksen's contentions.

In her capacity as administratrix, Ms. Henriksen also attempts to re-argue issues which have been previously passed on by this Court.

Petition for rehearing is denied.

GARRARD, J., concurs.

HOFFMAN, P.J., dissents with opinion.


I would grant rehearing and affirm the trial court.

The trial court followed a Kentucky decision, National Life Ins. Co. v. Hood's Admr. (1963) 264 Ky. 516, 94 S.W.2d 1022, and not the New York decision as relied upon by the majority.

The Kentucky decision reaches a more fair and equitable result and is based upon sounder reasoning.

The Insurance Company should not be entitled to a windfall since it retained the premiums and now refuses to carry out its part of the bargain.


Summaries of

New York Life Ins. Co. v. Henriksen

Court of Appeals of Indiana, Third District
May 27, 1981
421 N.E.2d 1117 (Ind. Ct. App. 1981)

holding that the beneficiary of a life insurance policy holds his interest under the policy upon a constructive trust for the estate of the insured

Summary of this case from Geo. Pfau's Sons Co., Inc. v. Neal
Case details for

New York Life Ins. Co. v. Henriksen

Case Details

Full title:NEW YORK LIFE INSURANCE COMPANY, APPELLANT (PLAINTIFF BELOW), v. CHESTER…

Court:Court of Appeals of Indiana, Third District

Date published: May 27, 1981

Citations

421 N.E.2d 1117 (Ind. Ct. App. 1981)

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