dissenting.
I respectfully dissent from the views expressed by the majority. The facts on the record give rise to conflicting inferences *1014which cannot properly be resolved by summary judgment. In granting summary judgment in favor of Theresa June Wire-man, the majority has resolved factual conflicts; such action is not within our purview.
The central issue in this appeal is whether Randy Joe Wireman designated a benefi-clary of his group life insurance policy. Resolution of the issue focuses on the union application that Randy Joe Wireman filled out which contained a blank following the word "Beneficiary." The majority holds that Randy Joe Wireman clearly designated a beneficiary of his life insurance policy by writing Theresa June Wireman's name in that blank. The answer is not as abvious as the majority indicates and requires that conflicting inferences be resolved.
The general rule in Indiana is that the policy requirements for designating a beneficiary must be substantially complied with. Hoess v. Continental Assurance Co. (1960), 130 Ind.App. 562, 164 N.E.2d 125; see Elliott v. Metropolitan Life Ins. Co. (1946), 116 Ind.App. 404, 64 N.E.2d 911. However, an exception may be made where the insured has done everything he can. Hoess v. Continental Assurance Co., supra. Whether the insured did everything within his power is a question of fact. See, Borgman v. Borgman (1981), Ind.App., 420 N.E.2d 1261, 1263 (trans. denied).
This case was submitted for summary judgment on stipulated facts, accompanied by a copy of the union application, and stipulated testimony. The union form itself gives rise to conflicting inferences which are not dispelled by the stipulated facts and cannot be resolved by this Court. On one hand, as the trial court noted, the only form Randy Joe Wireman signed did not mention the insurance policy. Fairchild argues that the space on the form labelled "Benefi-clary" really meant "Next-of-Kin." This argument gains credence when we consider the lack of any evidence that Randy Joe Wireman even knew that any insurance policy existed. Furthermore, stipulated testimony by an employee of Employees Life indicates that another form designating a beneficiary should have been filed and that the company considered that additional form plus the policy to constitute the entire contract. Randy Joe Wireman did not fill out an additional form. This evidence allows a reasonable inference to be drawn that Randy Joe Wireman either was not requesting that his mother be the beneficiary of his life insurance policy or had not done everything he could to make such a designation. See Borgman v. Borgman, supra.
On the other hand, Employees Life admits that Randy Joe Wireman automatically became covered when he became a member of the union. The policy does not require that the designation be made on a form provided by Employees Life. It appears from the record that the form was held by the union; this would satisfy the policy's requirement that the request be filed with the union or with Employees Life. The inference can be drawn that, by designating a "Beneficiary" on his union form, he intended to make his mother the beneficiary of the policy which accompanied his union membership. A further inference may be drawn that, by filling out the union form, Randy Joe Wireman did everything within his power to designate a beneficiary of his insurance policy. See Borgman v. Borgman, supra.
The majority asserts that the latter conclusion is clear and must be reached as a matter of law. However, the former conclusion was the one reached by the trial court. Moreover, the insurance company brought this action rather than pay the proceeds of the policy to Theresa June Wireman, an action which indicates that the majority's conclusion was not so clear to the company. To reach its result, the majority must assume that Randy Joe Wireman knew about the insurance policy and intended his form to constitute the "request" sufficient to designate a beneficiary under the terms of the insurance policy. It is not within the province of this Court to read the deceased's mind; we have no erystal ball. This issue cannot be decided as a matter of law because conflicting inferenc*1015es as to Randy Joe Wireman's state of mind must be resolved; therefore summary judgment is not appropriate. I dissent and would reverse and remand for further proceedings consistent with this opinion.