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03/31/94 ALLSTATE LIFE INSURANCE COMPANY v. DIANE

March 31, 1994

ALLSTATE LIFE INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DIANE YURGIL, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ODAS NICHOLSON, JUDGE PRESIDING.

Campbell, Buckley, Manning

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Allstate Life Insurance Company ("Allstate") appeals an order of the circuit court of Cook County granting defendant Diane Yurgil's cross-motion for summary judgment on Allstate's action to recover a payment made to defendant as the beneficiary of an Allstate life insurance policy.

The record on appeal, compiled largely as a result of the parties' cross-motions for summary judgment, indicates the following facts. Yurgil's father, William Ramm, died on July 25, 1985. On July 30, 1985, Yurgil and her mother, Bertha Ramm, drove to Sun Electric Corporation in Crystal Lake, where William had been employed as an engineer. Yurgil stated in deposition testimony that while she and her mother were at Sun Electric Corporation, a man named Jim Lillie informed Yurgil and Bertha that they were named as equal beneficiaries under a life insurance policy issued by Allstate. Yurgil and Bertha were to receive $36,000 apiece under this policy.

Bertha indicated in deposition testimony that she did not remember much about the meeting because she was upset over the fact that Yurgil alone was to receive certain investments made by William. Indeed, Bertha indicated that she and Yurgil did not speak during the drive to Sun Electric Corporation. Bertha stated that she believed that the life insurance proceeds were hers because "when a husband dies, the proceeds, everything, is supposed to go to the wife." Bertha was dissatisfied that William had designated Yurgil as a beneficiary. Yurgil indicated in her deposition that the relationship between William and Bertha had been strained for 15 to 20 years.

Yurgil indicated that she contacted Lillie at some point during the next four weeks to request that her portion of the proceeds be sent directly to her house. According to Yurgil, Lillie agreed to this request. However, the record indicates that both $36,000 checks were mailed to Bertha in a single envelope. According to Bertha, she received the checks on September 12, 1985.

Bertha telephoned another of her daughters, Valerie Hartzell, at work. Bertha told Valerie that she had received checks made payable to Yurgil and herself. Valerie told Bertha that she would come home and take care of it." According to Bertha, Valerie came home and suggested that she would have Yurgil endorse the check made payable to Yurgil. Bertha accepted this suggestion.

According to Yurgil, Valerie came to her house, produced the check and told her she had to sign it. Yurgil asked why she had to sign and noted that the check was made payable to her. According to Yurgil, Valerie stated that the money did not belong to Yurgil. The two became involved in a heated argument. According to Yurgil, Valerie had also been estranged from William, and Valerie kept saying how unfair William had been. Eventually, Yurgil signed the check. Yurgil indicated that she did not feel physically threatened and did not know why she signed the check except that she feared that Bertha and Valerie would not leave her alone. Yurgil indicated that Valerie left immediately after obtaining the signature. Bertha indicated that Valerie returned to her home approximately an hour after she had departed.

The record indicates that Bertha later added her signature to the check made payable to Yurgil. A stamp on the reverse of the check indicates that it was cashed on September 13, 1985. The check made payable to Bertha was cashed on or about September 12, 1985.

On September 24, 1985, Yurgil wrote Lillie a letter requesting a copy of the check made payable to her as well as a list of beneficiaries. The record indicates that Yurgil received a letter from Lillie dated September 30, 1985, instructing Yurgil to contact Allstate. Yurgil then contacted Allstate on October 21, 1985, speaking to Ann Whitmore. In her deposition, Yurgil indicated that she did not remember exactly what she told Whitmore in this conversation. Yurgil stated that she did not remember whether she told Whitmore that she signed the initial check. Yurgil indicated that she told Whitmore that she did not receive her portion of the proceeds and that the check did not come to her house. Later in her deposition, Yurgil described the substance of the conversation:

"I told her * * * that I did not receive the benefits from the check and that the check was signed at that it was -- Bertha Ramm had signed it, and is it possible that there could be a stop payment put on it, and could you reissue me the other check because you did not send the first check to me as I requested and I asked her if this could be done.

She said, let me check and see if it's gone through, and I will call you back, and the she called me back, and she said, we have put a stop payment on it. We will reissue another check."

After making this statement, Yurgil again indicated in her deposition testimony that she did not recall the exact conversation she had with Whitmore. Yurgil filed an affidavit in support of her cross-motion for summary judgment on August 13, 1991, that expressly ...


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