* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-31050

Summary Calendar

_____________________

NEW YORK LIFE INSURANCE COMPANY

Plaintiff - Appellee

v.

JANE DESHOTEL

Defendant

and

JUNE G SMITH

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(94-CV-3278-R)

_________________________________________________________________

March 22, 1996

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

June G. Smith appeals the district court's denial of her

motion for summary judgment and the granting of summary judgment
2

in favor of Jane Deshotel in an interpleader proceeding brought

by New York Life Insurance Company ("New York Life") to determine

the proper beneficiary of several life insurance policies

purchased by Rodney Smith. We affirm. 

I. BACKGROUND

Rodney Smith purchased five life insurance policies from New

York Life between 1964 and 1974. The original beneficiary listed

on each policy was his wife, June Smith. In September 1991, the

Smiths separated after thirty-one years of marriage. Two years

later, Rodney Smith was diagnosed with terminal cirrhosis of the

liver. He designated his half-brother, Donald Kelley, to aid him

in his business affairs during his illness. 

On February 14, 1994, Rodney Smith's insurance agent, Thomas

C. Klotz, received a change of beneficiary form designating

Kelley and Jane Deshotel--a high school and college friend of

Rodney Smith--as co-beneficiaries of Rodney Smith's life

insurance policies. Klotz sent the form to New York Life's

Customer Service Office (the "CSO") in Dallas, for processing. 

On February 17, Klotz received another change of beneficiary form

signed by Rodney Smith--this time indicating Kelley as the sole

beneficiary. The next day, in Klotz's presence, Rodney Smith

executed a change of beneficiary form designating Jane Deshotel

as sole beneficiary. This change of beneficiary was received and

processed by the CSO on February 24.
 

2 The insurance contract between Rodney Smith and New

York Life provided in pertinent part:

3

Rodney Smith died on May 6, 1994. June Smith alleges that,

before he died, Rodney Smith made one final change to his

policies. According to June Smith, on March 11, 1994, Rodney

Smith signed a change of beneficiary form designating her as the

sole beneficiary. She contends that he instructed Kelley to hold

onto the form until further notice, and that later, on the day of

his death, Rodney Smith directed Kelley to submit the final

change of beneficiary form to New York Life. Kelley states that

he mailed the form to the office of insurance agent Linwood

Broussard. Broussard's office manager testified that she

received the change of beneficiary form. However, the form was

never received or processed by the CSO, and consequently, the

records of the CSO continued to indicate that Jane Deshotel was

the sole beneficiary.

When New York Life received beneficiary claims from both

Jane Deshotel and June Smith, it instituted an action for

interpleader under Federal Rule of Civil Procedure 22. New York

Life deposited with the court the policy proceeds plus interest--

$106,397.51. New York Life was granted summary judgment

dismissing it from the interpleader action. Jane Deshotel and

June Smith filed cross motions for summary judgment. The

district court found that Rodney Smith and New York Life had

contracted that changes in beneficiary would not be enforceable

absent recordation of the change at the CSO.2 The court
While the Insured is living, the beneficiary

designation can be changed from time to time by written

notice in form satisfactory to the Company. No such

change will take effect unless recorded in the records

of the Company at its Home Office. Upon being so recorded, the

change will be effective as of the date the notice was signed,

whether or not the Insured is living when the change is recorded,

subject to any payment made or other action taken by the Company

before such recording.

4

determined that as a matter of law Rodney Smith had not strictly

complied with the policy. Therefore, on September 12, 1995, the

district court rendered summary judgment in favor of Jane

Deshotel, decreeing her the owner of the insurance proceeds. 

On September 26, 1995, June Smith filed a motion for a new

trial. Treating it as a motion to alter or amend the judgment

under Federal Rule of Civil Procedure 59(e), the district court

denied the motion. June Smith appeals.

II. ANALYSIS

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994). 

First, we consult the applicable law to ascertain the material

factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.

1992). We then review the evidence bearing on those issues,

viewing the facts and inferences to be drawn therefrom in the

light most favorable to the nonmoving party. Lemelle v.

Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC v.

Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114 S.
5

Ct. 2673 (1994). Summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c).

Louisiana law requires strict compliance with the terms of

the insurance policy to effect a change of beneficiary. Giuffria

v. Metropolitan Life Ins. Co., 178 So. 368, 369-70 (La. 1937)

(holding that, although insurer had notice of change of

beneficiary, change was unenforceable because insured died before

policy was forwarded to home office for the required company

endorsement); New York Life Ins. Co. v. Murtagh, 69 So. 165, 166

(La. 1915) (holding that change of beneficiary form was

unenforceable where it was received at insurer's branch office

but was never received at home office as the policy required);

and Morein v. North Am. Co. for Life & Health Ins., 271 So. 2d

308, 316 (La. App. 3 Cir. 1972) (holding that request for change

of beneficiary submitted by insured to insurer's local agent was

not sufficient to effect change because no written request was

ever received by home office as required by the policy), writ

denied, 273 So. 2d 845 (La. 1973). The rule of strict

construction followed in Louisiana is based on the theory that

the insurance policy is a contract which constitutes the law

between the parties. Wickham v. Prudential Ins. Co., 366 So. 2d

951, 953 (La. App. 1 Cir. 1978). Every provision of an insurance
6

policy must be construed as written. Sun Life Assurance v.

Barnard, 652 So. 2d 681, 684 (La. App. 1 Cir. 1995). For

example, "if the policy provides that a change of beneficiary is

not effective until the policy itself is endorsed, strict

construction requires just that." Wickham, 366 So. 2d at 953. 

We discussed Louisiana's rules regarding a change of

beneficiary in American Gen. Life Ins. Co. v. Fine, 944 F.2d 232,

234-35 (5th Cir. 1991). In Fine, although the insurer had not

given its written approval as required by the policy, the

district court found that the insured had complied with all the

requirements of the policy and, therefore, enforcement of the

contested change of beneficiary was not barred as a matter of

law. Id. (reversing the district court, however, because genuine

issues of material fact existed as to whether the insured

intended to change beneficiaries). This finding paralleled that

of two Louisiana state court cases: Woodmen of the World Life

Ins. Soc'y v. Hymel, 544 So. 2d 664, 667-70 (La. App. 3 Cir.),

writ denied, 551 So. 2d 629 (La. 1989); and Philadelphia Life

Ins. Co. v. Whitman, 484 So. 2d 266, 268 (La. App. 3 Cir. 1986). 

With regard to what is required of a policy holder, these two

cases speak in terms of substantial compliance. Fine, 944 F.2d

at 234. Substantial compliance cases fall into two categories: 

(1) cases where the original beneficiary wrongfully interfered

with the insured's compliance; and (2) cases such as Woodmen and

Whitman where "the insured complied with the requirements on the

face of the policy, but some internal procedure of the insurance
7

company was not completed." Id. We concluded in Fine that--

although framed in the language of substantial compliance--cases

such as Woodmen and Whitman are actually strict compliance cases. 

Id. "The lesson of Woodmen and Whitman is that Louisiana

requires strict compliance by the insured with the policy

requirements." Id. at 235. 

June Smith argues that the case at bar parallels Woodmen and

Whitman. Despite the fact that Rodney Smith's March 11, 1994

change of beneficiary form was never recorded at the CSO, June

Smith argues that it is not unenforceable as a matter of law

because, she contends, Rodney Smith strictly complied with the

terms of the policy. We find, however, that this case is

distinguishable from Woodmen and Whitman. In Woodmen, "all

policy requirements were met in order to change the
 

3 The insurance policy in Woodmen read as follows, in

pertinent part:

The member can change the beneficiary at any time by

sending a signed and dated written request to the Home

Office. When the change has been received at the Home

Office it will take effect as of the date the request

was signed.

Woodmen, 544 So. 2d at 669. The insured indicated a change of

beneficiary on an application to increase the amount of his

insurance. Because no specific form was required for the written

notice, the court ordered judgment in favor of the second

beneficiary. Id. at 669-70.

 

4 The insurance policy in Whitman read as follows, in

pertinent part:

Each Employee shall have the right to designate a

Beneficiary upon becoming insured under this Group

Policy and to revoke at any time any previous

designation and make a new designation by giving through the

Owner written notice to the Company at its Home Office.

Whitman, 484 So. 2d at 268. A change of beneficiary was

indicated on a questionnaire that was signed by the insured,

dated, and mailed to the insurer's home office. Upon receipt of

the questionnaire, the insurer forwarded a change of beneficiary

card to the insured for completion and signature but the insured

died before it was received. The Court of Appeal of Louisiana,

Third Circuit, held that the insured had satisfied the policy

requirement for changing beneficiaries. Id. at 267-68.

8

beneficiary."3 544 So. 2d at 670. The same is true of Whitman.

4

484 So. 2d at 267-68. 

The instant case has more in common with Morein and Wickham. 

As the Woodmen court explained: "In Morein, a written request

for a change of beneficiary was never sent to the home office of

the company, as required by the policy." Woodmen, 544 So. 2d at

670. "In Wickham, the insured failed to comply with the policy

requirement for change of beneficiary of submitting the policy

with the request in order that the policy may be endorsed." Id.
9

Under the law of Louisiana, Rodney Smith did not strictly

comply with the terms of the insurance policy. "To effect a

change of beneficiary, where the assured has the right to make

such a change, the designation of the new beneficiary must be in

the method pointed out in the contract." Murtagh, 69 So. at 166

(quoting 25 Cyc. 893, 894). In this case, the policy stipulated

that no change of beneficiary "will take effect unless recorded

in the records of the Company at its Home Office." June Smith

does not dispute that the March 11, 1994 change of beneficiary

form was not recorded at the home office of New York Life. We

conclude that as a matter of law the March 11, 1994 change of

beneficiary form is not enforceable.

III. CONCLUSION

For the foregoing reasons, the order of the district court

denying June Smith's motion for summary judgment and granting

summary judgment in favor of Jane Deshotel is AFFIRMED.