Appeal by defendant Jean Bondurant from order entered 31
October 2002 by Judge Peter M. McHugh in Guilford County Superior
Court. Heard in the Court of Appeals 8 October 2003.
HILL, EVANS, DUNCAN, JORDAN & BEATTY, by William W. Jordan and
Richard T. Granowsky, for defendant appellant.
WYATT EARLY HARRIS WHEELER, L.L.P., by Jason Moss, for
Defendant Jean Bondurant (Bondurant) appeals from an order
of the trial court granting summary judgment to defendant Jack
Johnson Bollinger (Bollinger) in this interpleader action. For
the reasons stated herein, we affirm the order of the trial court.
The pertinent facts of the instant appeal are as follows.
Bondurant married Jimmie Castle Bollinger (Jimmie) on 30 November
1974. Jimmie purchased two life insurance policies in 1975 and1977. Both policies listed Bondurant as the beneficiary. Jimmie
and Bondurant subsequently divorced on 30 May 1989 and entered into
a settlement agreement on 4 October 1990, resolving in part the
equitable distribution claim. The settlement required Jimmie to
assign said insurance policies to Bondurant, who paid the policy
premiums until Jimmie's death. Pursuant to the settlement
agreement, Jimmie provided Bondurant with the original insurance
policies and original beneficiary endorsements, which listed
Bondurant as the beneficiary designee. However, without
Bondurant's knowledge, Jimmie changed the designated beneficiary
designees for said insurance policies before he entered into the 4
October 1990 settlement agreement with Bondurant. At the time of
the settlement agreement, the designated beneficiaries on the
policies were Jimmie's mother, Annie Laura Bollinger as primary
beneficiary, and Bollinger as contingent beneficiary. Annie Laura
Bollinger pre-deceased Jimmie, thus elevating Bollinger to the
status of primary beneficiary of said policies. Bondurant did not
change the beneficiary designation on either policy after the
settlement agreement assigned them to her.
After Jimmie died, both Bondurant and Bollinger petitioned
plaintiff, The Old Line Life Insurance Company of America (Old
Line), for the proceeds of said policies. Old Line commenced an
interpleader action to determine who was entitled to the insurance
proceeds at issue. Bondurant asserted a crossclaim against
Bollinger arguing that if the court found Bollinger had superior
legal title to the proceeds, the proceeds should be held in a
constructive trust for the benefit of Bondurant. Both Bondurantand Bollinger moved for summary judgment. The Honorable Peter M.
McHugh granted Bollinger's motion for summary judgment and
dismissed Bondurant's crossclaim. From the order granting summary
judgment to Bollinger and dismissing Bondurant's crossclaim,
Bondurant brings forth two assignments of error on appeal.
Bondurant argues that the trial court erred when it granted
Bollinger's motion for summary judgment and further that if
Bollinger is awarded the proceeds of said insurance policies, there
are genuine issues of material fact in dispute regarding whether
the money should be held in a constructive trust for the benefit of
 Summary judgment is appropriate when there is no genuine
issue of material fact and that any party is entitled to judgment
as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001);
Lorbacher v. Housing Authority of the City of Raleigh
, 127 N.C.
App. 663, 669, 493 S.E.2d 74, 77 (1997). The moving party must
establish that there is an absence of a triable issue of fact.
Moore v. Bryson
, 11 N.C. App. 260, 262, 181 S.E.2d 113, 114 (1971).
All evidence must be considered in the light most favorable to the
non-moving party. Burrow v. Westinghouse Electric Corp.
, 88 N.C.
App. 347, 350, 363 S.E.2d 215, 217, disc. review denied
, 322 N.C.
111, 367 S.E.2d 910 (1988).
Interpreting insurance policies is a matter of law. Trust Co.
v. Insurance Co.
, 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970);
Gilbert v. N.C. Farm Bureau Mut. Ins. Cos.
, 155 N.C. App. 400, 403,574 S.E.2d 115, 118 (2002), aff'd per curiam
, 357 N.C. 244, 580
S.E.2d 691-92 (2003). It is well settled that an insurance policy
is a contract and its provisions govern the rights and duties of
the parties thereto. Gilbert
, 155 N.C. App. at 403, 574 S.E.2d at
118 (quoting Fidelity Bankers Life Ins. Co. v. Dortch
, 318 N.C.
378, 380, 348 S.E.2d 794, 796 (1986)).
To determine the intent of
the policy, our courts look to the language of the policy itself.
Rouse v. Williams Realty Bldg. Co.
, 143 N.C. App. 67, 69, 544
S.E.2d 609, 612, aff'd per curiam
, 354 N.C. 357, 554 S.E.2d 337
(2001). If the policy is clear, the courts may not, under the
guise of an ambiguity in the policy, rewrite the contract.
, 155 N.C. App. at 403, 574 S.E.2d at 118.
The pertinent policy provisions in the instant appeal are as
The beneficiary is as designated in the
application for this policy, unless changed.
The beneficiary may be changed while the
insured is living, by written notice on a form
satisfactory to the Company . . . The
beneficiary at the insured's death will be as
provided in the beneficiary designation then
. . . .
The rights of the owner and any beneficiary
are subject to the rights of any assignee of
record with the Company.
The rights of the assignee are further defined in the assignment
contract signed by Jimmie and an agent for the insurance company.
The undersigned hereby assigns, transfers and
sets over all rights, titles, interests andincidents of ownership in said policy unto
said Assignee(s) as the separate property and
estate of said Assignee(s) with the right to
exercise all rights, benefits, privileges and
options contained therein to receive dividends
or any cash, loans or other values, if any, to
change the beneficiary
, to assign the policy,
and to agree with the Company as to any
release, modification or amendment to said
policy . . .. (emphasis added).
Bondurant argues that as assignee of the policies, she holds
superior title to the proceeds. Although the rights of the
beneficiary are subject to the rights of the assignee on record,
the policy clearly states that the right to change the beneficiary
designation ceases upon the death of the insured. Thus, although
Bondurant had the right to designate herself as beneficiary to said
policies before Jimmie's death, she could not do so after he died.
At the moment of Jimmie's death, Old Line was required to grant the
proceeds of said policies to Bollinger as the beneficiary on record
at the time of Jimmie's death. As the policy is clear and
unambiguous, we must follow the language of the contract. We hold
that the trial court properly granted Bollinger's motion for
summary judgment, as there is no genuine issue of material fact as
to Bollinger's entitlement to the proceeds.
 In Bondurant's second assignment of error, she argues that
even if Bollinger is awarded the proceeds, there is a genuine issue
of material fact regarding whether the proceeds should be held in
constructive trust for her benefit. We disagree.
By definition, a constructive trust arises when one obtains
the legal title to property in violation of a duty he owes to
another. Constructive trusts ordinarily arise from actual orpresumptive fraud and usually involve the breach of a confidential
relationship. United Carolina Bank v. Brogan
, 155 N.C. App. 633,
635, 574 S.E.2d 112, 114 (2002) (citations omitted). Constructive
trusts are imposed to prevent the unjust enrichment of a party to
property he acquired through fraud, breach of duty, or some other
circumstance making it inequitable for him to retain it. Brogan
155 N.C. App. at 636, 574 S.E.2d at 115.
In the case sub judice
, there is no evidence in the record
that Bollinger colluded with Jimmie to fraudulently transfer the
insurance proceeds to Bollinger upon Jimmie's death. Furthermore,
Bondurant has had no relationship with Bollinger since her divorce
from Jimmie, and there is no indication that the relationship
between Bondurant and Bollinger was ever of a confidential nature.
Bondurant has adequate remedies at law to pursue claims of fraud
against Jimmie's estate or Bollinger personally. Thus, we conclude
that the circumstances as alleged herein, even taken in the light
most favorable to Bondurant, do not give rise to a constructive
Judges HUDSON and ELMORE concur.
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