dissenting.
This is a complex fact pattern in which State Farm should be entitled to the safe harbor of impleading the policy limits. While State Farm did not avail itself of this option until a couple of weeks after the 60-day period when it should have acted, State Farm delivered into the registry of the court, in addition to the face amount of the policy, interest on the face amount for that period, and explained its reason for that delay.
State Farm was presented with three claims upon the death of Ed. It did not matter to State Farm who received the proceeds; Ed had died so it owed the face amount of the policy to someone. But State Farm also realized it had a problem. In addition to having three claimants, State Farm knew that Ed had an agreement incident to divorce with one claimant that, to some extent, controlled the designation of beneficiaries under the life insurance policy. It also knew that Ed had recently attempted to make a change in primary beneficiaries to someone other than the ex-wife and that it had rejected that attempted change. Thus, when the issue of who to pay is examined from a reasonable person perspective based on the facts State Farm knew, there is no doubt that a high level of concern was entirely justified.
But the trial court’s and this Court’s analysis is tainted by Linda’s (the ex-wife) agreement with Toni (the widow). This agreement should not be allowed to impact the analysis in any way. I would, however, note that I believe the widow has admitted in her arguments and briefing, that the ex-wife’s rights are superior to her rights, if any, to the policy proceeds, even if they are limited rights.
Thus, footnote 4 is very telling to what is happening here. If the widow concedes that the designation of her as beneficiary is subject to the ex-wife’s interest, she is conceding that the change to make her the “primary beneficiary” did not really have that effect at all. The widow’s recognition of the ex-wife’s interest was a last minute deal made to avoid having the ex-wife’s interest undermine what the widow wanted to argue. Our analysis should focus on the legal issue without letting the side deal made between the widow and the ex-wife affect the result.
What the majority has actually done is to make the ex-wife the successor or secondary beneficiary in place of Lisa (the daughter), leaving the ex-wife’s interest undisturbed. Ed’s right to change the beneficiary was limited by the agreement incident to divorce, which his effort to designate the widow as primary beneficiary clearly violated. The violation was so clear, the widow capitulated the issue and the trial court imposed the constructive trust for the benefit of the ex-wife. This *792interest of the ex-wife is expressly recognized by the majority opinion but is an interest totally contrary to the beneficiary designation change signed by Ed.
And all of the problems discussed above are simply the prelude to why State Farm could not have possibly known, with any degree of reliability, who the rightful beneficiary of the policy was by the end of the 60-day period when it was time to pay-out on the policy. It has taken the majority a good deal of legal analysis and effort to explain why the widow was the beneficiary, but even then they must still recognize the interest of the ex-wife. How could State Farm have done this other than through the interpleader? Again, the concession in footnote 4 looms large in this result. There was no way State Farm could resolve the dispute between the various claimants, so it sought a safe harbor, an interpleader action. State Farm did not care who got the policy proceeds. But it did not want to pay out to the wrong person, only to find out later that it was going to have to pay someone else.
There is also a difference, or should be, in the analysis of who the beneficiary is versus who is recorded as the beneficiary. On the very form completed by Ed, the distinction is made as to being a recorded beneficiary. State Farm established that the ex-wife was never recorded by State Farm as the beneficiary. There is no evidence to the contrary.
I have endeavored to boil the issues in this case down to some rather simple questions:
1. Did Ed contractually give up the right to change the primary beneficiary? Yes. In the agreement incident to divorce, Ed gave up that right.
2. Was State Farm aware that Ed had given up the right to change the primary beneficiary? Yes. The transmittal letter returning Ed’s attempted designation of the ex-wife expressly noted the limitation on the ability to change the beneficiary. (See Appendix A). State Farm had also received and recorded a change of beneficiaries on another policy which expressly noted that the ex-wife was the “irrevocable beneficiary” of the policy. The ex-wife had been designated the primary beneficiary as follows: “LINDA MARTINEZ, 41, EX-WIFE, IN ACCORDANCE WITH PROVISIONS OF DIVORCE DECREE DATED 09-15-94.” (beneficiary designation form dated 9-23-94).
3. Was State Farm’s awareness sufficient to justify its refusal to accept Ed’s attempt to designate a new primary beneficiary? Yes. State Farm’s letter to Ed’s agent sought documentation to authorize the change. (See Appendix A).
4. Is it the fact that Ed had surrendered the right to designate the primary beneficiary or State Farm’s awareness of that surrender that allows State Farm to reject Ed’s purported/attempted primary beneficiary change? It does not matter because State Farm was aware of the surrender of the right. But even if State Farm was not aware, the fact that Ed had given up that right, should have the same effect. As in libel/slander, truth should be a defense; and the truth is that Ed had given up the right to change the primary beneficiary. Therefore, his effort to designate the widow as primary beneficiary is not effective to accomplish that purpose.
5. What is different between Ed’s earlier designation of the daughter as compared to his subsequent attempt to designate the widow as a beneficiary of the policy?
*793a. Under the agreement incident to divorce, Ed expressly had the right to designate the remainder beneficiary, so the designation of the daughter as the successor beneficiary did not violate the agreement.
b. Under the agreement incident to divorce, Ed expressly agreed that the ex-wife would be the beneficiary of the policy. Thus, Ed’s attempt to designate the widow as the only beneficiary violated the agreement incident to divorce.
6. What was the effect of Ed’s attempted designation of the widow as the primary beneficiary? If it had any effect, the ex-wife remained the primary beneficiary under the law and the daughter remained the remainder/successor beneficiary. But as the designated primary beneficiary, the widow held the ex-wife’s interest under a constructive trust.
Finally, it is interesting to note that, under the majority’s analysis, State Farm was supposed to know the widow’s claim was the proper claim of the three submitted. But this is only because the widow agreed to recognize and protect the ex-wife’s interest, and the trial court and this Court included that protection in their judgments and analysis of the designation of beneficiary that Ed made. Only with 20/20 hindsight could State Farm have avoided that problem, because it was a problem not resolved until well after the interpleader had been filed.
The competing interest of the ex-wife was memorialized in the trial court’s judgment in the form of a constructive trust. There was certainly no way for State Farm to know, at any time prior to the hearing, that the ex-wife was going to capitulate and accept a limitation on her previously claimed interest. And in today’s litigation environment, is it any wonder that State Farm would be cautious in the payout of $500,000?
Given that the ex-wife’s interest in the policy was sufficiently strong to not only work a deal with the widow, but also to have that agreement included in the trial court’s judgment, State Farm was surely justified in its reluctance to simply pay over the funds to the widow. Until that settlement between the ex-wife and the widow was reached, there was no claim on the policy, according to the widow’s theory, that would have allowed the ex-wife to have any interest in the policy.
On the facts of this case, the determination that the delay in filing the interpleader was unreasonable is against the great weight and preponderance of the evidence. Indeed, I find no evidence to suggest, or that would support the inference, that State Farm unreasonably delayed the filing of the interpleader. Further, it is impossible to square what the majority has determined is an unreasonable delay in filing the interpleader action in this case, with what they held was not an unreasonable delay in filing an interpleader in Avila v. Christopher, No. 10-04-00021-CV, 2005 WL 1531170, 2005 Tex.App. LEXIS 5038 (Tex.App.-Waco June 29, 2005, no pet. h.)
If I had to reach the issue, I would also hold that the penalty was improperly calculated. State Farm paid the policy proceeds and interest into the registry of the court shortly after the 60-day deadline and explained the reason for the delay. Given that even this Court recognized the need to protect the ex-wife’s interest by the imposition of a constructive trust, I fail to see how State Farm could be assessed the interest penalty through the date of the judgment.
For the foregoing reasons, I respectfully dissent.
*794Appendix A
The text of the letter to Ed’s State Farm agent returning the attempted change of beneficiary to the widow is as follows:
Dear Warren:
We received a request to change the beneficiary on the above mentioned life insurance policy. We are unable to process this request since it is prohibited by the insured’s divorce decree dated 9/15/94.
We currently show the primary beneficiary as “Linda Martinez in accordance with Divorce Decree dated 9/15/94”. Therefore, since he is asking to remove the former spouse and name his current spouse as primary, we need Court documentation stating that he has the right to remove the former spouse. Since we cannot process this change, we are returning the original request to you.
The beneficiary designation for this policy remains unchanged.
If you have questions or need assistance in completing the form, please contact your State Farm agent or this office.
Sincerely,
Barbara Keck
L/H Policyholder Serv Asst IV