COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60373 ALLSTATE LIFE INSURANCE CO. : : Plaintiff : : JOURNAL ENTRY vs. : and : OPINION ARISTEA PARIANOS LARDNER : : Defendant-appellee : : vs. : : JOSEPH M. LARDNER, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT APRIL 16, 1992 OF DECISION : _______________________ CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 090,330 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For defendant-appellee: For defendants-appellants: ROBERT S. PASSOV JOSEPH P. TULLEY Attorney at Law Attorney at Law 75 Public Square, #914 38021 Euclid Avenue Cleveland, Ohio 44113 Post Office Box 867 Willoughby, Ohio 44094 - 2 - PARRINO, J.: On April 19, 1985, Allstate Life Insurance Company ("Allstate") filed a complaint for interpleader and declaratory judgment. Therein, it was stated that in February, 1979, Allstate issued a double indemnity life insurance policy in the face amount of $15,000 to George Lardner. Defendant-appellee Aristea Parianos Lardner, the wife of George Lardner, was named as beneficiary. On February 21, 1984, George was shot to death at his home by intruders. Subsequent to his death, Allstate received a change of beneficiary form purported to be signed by the insured on or about February 10, 1983. By virtue of the change of beneficiary form the defendants-appellants, the Lardner brothers, claimed to be entitled to the life insurance proceeds. Allstate deposited the insurance policy proceeds which were in excess of $30,000 with the clerk of courts. Allstate was then dismissed from the suit and the instant action proceeded between Aristea Parianos Lardner and the Lardner brothers. During the course of the proceedings both parties filed motions for summary judgment. The trial court granted summary judgment in favor of the Lardner brothers. Subsequently, the trial court decision granting summary judgment was reversed and the cause remanded by this court in Allstate Life Insurance Company v. Aristea Parianos Lardner and Joseph Lardner, et al (Nov. 17, 1988), Cuyahoga App. No. 54575, unreported. - 3 - On July 31, 1990, the case proceeded to trial by jury. At trial the following evidence was adduced. On or about February 2, 1979, Allstate issued a life insurance policy in the face amount of $15,000 to George Lardner naming Aristea as the primary beneficiary. On February 3, 1983, Aristea instituted an action for divorce against her husband, George Lardner, which was pending at the time of his death. Upon his request George Lardner was furnished an official Allstate Insurance Company change of beneficiary form by his insurance agent, Ron Suhar, dated February 10, 1983. The change of beneficiary form included the policy number, the name of the insured, the new beneficiaries listed as Joseph, Michael, Robert and Richard Lardner, and blank lines for signatures of the policy holder and a witness. Thereafter, on or about February 10, 1983, George Lardner executed the official change of beneficiary form at his home in the presence of Craig Reber. At trial, Mr. Reber verified that he did in fact witness George Lardner's signature. The insured continued to pay the premiums on the subject policy until his death on February 21, 1984. Following the insured's death, the change of beneficiary form was submitted to Allstate's agent by the insured's father. The agent then forwarded the change of beneficiary form, Lardner's death certificate and the death claim forms to the Allstate life insurance claims office. The life insurance claims office received the change of beneficiary form on or about April 18, 1984. - 4 - Following trial the jury returned a verdict in favor of Aristea Parianos Lardner. The trial court promptly entered judgment in accordance with the jury's verdict, from which the Lardner brothers bring this timely appeal. The first and second assignments of error challenge the jury's decision that the executed change of beneficiary form did not effectuate a change in beneficiaries from Aristea Parianos Lardner to the Lardner brothers. They provide: I. THE VERDICT AND JUDGMENT IN FAVOR OF DEFENDANT ARISTEA PARIANOS LARDNER ARE TOTALLY UNSUPPORTED BY THE EVIDENCE. II. THE VERDICT AND JUDGMENT IN FAVOR OF ARISTEA PARIANOS LARDNER ARE NOT SUSTAINED BY THE EVIDENCE AND ARE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. The Lardner brothers contend that George Lardner clearly indicated his intention that they should receive the proceeds from the subject insurance policy by executing the change of beneficiary form approximately one year prior to his death. Further, they contend that George substantially complied with the conditions set forth in the policy of insurance regarding change of beneficiaries by requesting and executing a change of beneficiary form. Thus, it is argued that they are entitled to the proceeds of the subject policy. In Rindlaub v. The Travelers Ins. Co. (1963), 175 Ohio St. 303, paragraph two of the syllabus provides: Where an insured during his lifetime communicated to the insurer his clearly - 5 - expressed intent to name certain new beneficiaries and the insurer has interpleaded and deposited the policy proceeds in court, such expressed intention of the insured will be determinative of the rights of contesting claimants to the policy proceeds, notwithstanding the absence of the written approval by the insurer required by the provisions of the policy. Further, Arnold v. Newcomb (1922), 104 Ohio St. 578, paragraph three of the syllabus states: In order to effect a change of the beneficiary named in the insurance policy or certificate the insured must follow and substantially comply with the method prescribed in the rules, regulations and by- laws of the association. In Arnold, the insured executed and delivered to his wife a change of beneficiary form some ten months prior to his death. The wife failed to forward it to the home office of the insurer claiming ignorance and inadvertence. Despite the wife's failure to forward the change of beneficiary form to the insurer, the Ohio Supreme Court found that the provisions of the contract were substantially complied with. Moreover, the provisions in a policy of insurance regulating the mode and manner of making a change of beneficiary are for the benefit of the insurance company and may be waived by it. Atkinson v. Metropolitan Life Ins. Co. (1926), 124 Ohio St. 109. In the event of a controversy between a former named beneficiary and a new beneficiary, if the insurance company interpleads in an action by a claimant to recover the proceeds of the policy, it thereby waives any interest in the outcome of the action, and - 6 - thereupon, the cause shall proceed between the respective claimants uninfluenced by any rights or interests of the insurance company. Id., at paragraph five of the syllabus. After reviewing the relevant case law, we determine that in order to effect a change of the beneficiary named in the insurance policy an insured must clearly express his intent to name certain new beneficiaries and accomplish such in a manner which substantially complies with the method prescribed within the policy. Initially, we must determine the intent of the insured. In the instant case, George Lardner requested that his insurance agent, Ron Suhar, transmit for his execution a change of beneficiary form naming his brothers Joseph, Michael, Robert and Richard Lardner as new beneficiaries. As requested, Mr. Suhar transmitted the change of beneficiary form which named the Lardner brothers as new beneficiaries on or about February 10, 1983. Thereafter, George Lardner officially executed the change of beneficiary form in the presence of Craig Reber, who witnessed Mr. Lardner's signature. In light of the above, we conclude that George Lardner's request, receipt and execution of the change of beneficiary form clearly expressed his intent to name his brothers as new beneficiaries thereby replacing his wife with whom divorce proceedings were pending. Thus, we find that it was Mr. Lardner's intent to name his brothers as new beneficiaries and - 7 - the evidence does not support the jury's conclusion in Interrogatory No. 1 that George Lardner did not have the present intention to change the beneficiary at the time of his death. Further, in our opinion Lardner's failure to submit the change of beneficiary form to Allstate during the one year period prior to his death does not constitute competent, credible evidence upon which a jury could reasonably determine that he did not have the present intention to change the beneficiary at the time of his death, where as here, there is nothing in the record showing a change of intent. Next, we must determine whether the insured substantially complied with the method prescribed for the change of beneficiaries contained in the insurance policy. The Change of Ownership or Beneficiary clause of the subject policy provides: Unless you provide otherwise, you may change the owner or beneficiary of this policy during the insured's lifetime. Changes must be made by written request to Allstate, and Allstate may require return of this policy for endorsement. Upon written acceptance by Allstate, the change will take effect as of the date you signed the request, subject to any payments made or other action taken by Allstate before its acceptance of the change. A reading of the above provision leads us to the conclusion that it does not require an insured to submit a written request for a change of beneficiaries to Allstate nor that Allstate accept the written request prior to the insured's death. Rather, it simply requires that the insured sign a request for a change - 8 - of beneficiary during his or her lifetime. It further provides that the change will take effect as of the date the insured signed the request. In light of the above interpretation, we conclude that George Lardner substantially complied with the terms for the change of beneficiaries contained within the subject policy by requesting, receiving and executing the change of beneficiary form naming his brothers as beneficiaries. His failure to submit the request to Allstate does not change our conclusion. Cf. Arnold, supra. Consistent with the foregoing, we conclude the jury's verdict is not supported by competent, credible evidence and may thus be reversed as being against the manifest weight of the evidence. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. The insured's failure to submit the change of beneficiary form to the insurer during the one year period prior to his death does not, standing alone, defeat the insured's intent. Arnold, supra. Accordingly, the first and second assignments of error are sustained. In that this was a jury case, this court may not enter final judgment on the weight of the evidence but must remand the cause for a new trial. App. R. 12(D); Hanna v. Wagner (1974), 39 Ohio St. 2d 64. The third assignment of error provides: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS-APPELLANTS IN ALLOWING TESTIMONY REGARDING THE POLICE INVESTIGATION OF THE POLICYHOLDER'S DEATH, ON THE BASIS THAT SUCH - 9 - TESTIMONY WAS IRRELEVANT, INCOMPETENT AND INFLAMMATORY, AND DESIGNED SOLE TO AROUSE THE SYMPATHY, PASSION AND PREJUDICE FOR DEFENDANT-APPELLEE. The appellants argue that the trial court erred in permitting Officer Guhiardo, a custodian of Cleveland police records, from reading the police report concerning the investigation of George Lardner's homicide at trial. Specifically, appellants object to the report's reference to George Lardner's prior arrests, including a 1976 arrest for possession of marijuana, a 1983 arrest for domestic violence, and a 1984 arrest for carrying a concealed weapon. Appellants also object to the report's statements that Lardner was in possession of over $2,500 and a large amount of cocaine at the time of his death and that the F.B.I. received an anonymous tip that he was trafficking in cocaine. Appellants argue Officer Guhiardo's testimony was irrelevant and therefore should have been excluded. Rulings on the admission or exclusion of evidence, based on relevancy, are committed to the sound discretion of the trial court and will not be disturbed absent a clear showing of abuse of discretion. Renfro v. Black (1990), 52 Ohio St. 3d 27, 32. Relevant evidence means evidence having a tendency to make the existence of any fact that is of consequence to the determinations of the action more or less probable than it would be without the evidence. Evid. R. 401. - 10 - "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Evid. R. 403(A). Under Evid. R. 403, a trial court has broad discretion in the admission and exclusion of evidence, and unless it has clearly abused its discretion thereby materially prejudicing a party, this court should be slow to interfere. State v. Maurer (1984), 15 Ohio St. 3d 239, 264. Although the statements contained in the police report tend to establish that George Lardner was or should have been aware of the possibility of personal harm prior to his death and, therefore, should have taken the appropriate actions to ensure that his intended beneficiaries receive the insurance proceeds, the reports probative value is substantially outweighed by the danger of unfair prejudice. The potential for unfair prejudice is great, where as here, the report references Lardner's prior arrests, his possession of a large amount of cocaine, and an indication that the F.B.I. received an anonymous tip that he was trafficking in cocaine. Given the inflammatory nature of the report, we conclude that the trial court abused its discretion in allowing its contents to be read into evidence. Thus, we sustain the appellants' third assignment of error. The fourth and final assignment of error provides: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS-APPELLANTS IN SUBMITTING A SPECIAL - 11 - INTERROGATORY TO THE JURY OVER THE OBJECTION OF DEFENDANTS-APPELLANTS IN THAT SUCH INTER- ROGATORY WAS CONFUSING AND HAD THE EFFECT OF SUPERSEDING AND NULLIFYING PROPER INSTRUCTIONS AS TO THE LAW OF OHIO WHICH HAD PREVIOUSLY BEEN GIVEN TO THE JURY VERBALLY. Appellants assign as error the trial court's submission of Interrogatory No. 2 to the jury over appellants' objections. Specifically, appellants argue Interrogatory No. 2 is premised upon an incorrect statement of law. Appellants' argument lacks merit. Civ. R. 49(B) provides in relevant part: The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. Counsel shall submit the proposed interrogatories to the court and to opposing counsel at such time. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law. The requirement of Civ. R. 49(B) to submit proposed written interrogatories to the jury is mandatory. Ragone v. Vitali & Beltrami, Jr., Inc. (1975), 42 Ohio St. 2d 161, paragraph one of the syllabus. However, the trial court retains the discretion to review and approve the form and content of submitted interrogatories. Id. The contested interrogatory provides as follows: - 12 - Do you find that George G. Lardner did everything that he could do to effect the Change of Beneficiary? Contrary to appellants' argument, we find that Interrogatory No. 2 is premised upon a correct statement of law contained in Benton v. United Insurance Co. of America (1959), 110 Ohio App. 151. Thus, the trial court did not abuse its discretion in submitting the interrogatory to the jury. Moreover, the jury's finding that Lardner did not do everything that he could do to effectuate the change of beneficiary is not necessarily inconsistent with our finding that Lardner clearly intended to name his brothers as new beneficiaries thereby replacing his estranged wife. There is absolutely nothing in the record which would tend to negate Lardner's clearly expressed intent to name his brothers as new beneficiaries after he executed the change of beneficiary form. Thus, appellants' fourth assignment of error is overruled. Judgment reversed and cause remanded for new trial. - 13 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., ANN McMANAMON, J., CONCURS. JUDGE THOMAS J. PARRINO* (*SITTING BY ASSIGNMENT: Thomas J. Parrino, Retired of the Court of Appeals of Ohio, Eighth Appellate District) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .