CORRECTED OPINION

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUDY L. SIMMONS,
Defendant-Appellant,

v.

KATRINA WOODARD, as
Administratrix of the Estate of
                                                               No. 99-1579
Roger J. Moore,
Defendant-Appellee,

and

PAN-AMERICAN ASSURANCE COMPANY,
Plaintiff.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CA-97-1201)

Argued: February 29, 2000

Decided: March 27, 2000
Corrected Opinion Filed: April 10, 2000

Before WILKINS, WILLIAMS, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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THIS OPINION REPLACES THE ONE ISSUED ON
MARCH 27, 2000
COUNSEL

ARGUED: Waldsee Merton Prunty, PRUNTY LAW OFFICES,
Huntington, West Virginia, for Appellant. Kelly Mondy Young,
LANE LAW FIRM, Charleston, West Virginia, for Appellee. ON
BRIEF: Gordon C. Lane, LANE LAW FIRM, Charleston, West Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Pan-American Assurance Company (Pan-American) initiated an
interpleader action, see Fed. R. Civ. P. 22, against Katrina Woodard,
as Administratrix of the Estate of Roger Moore, and Judy Simmons,
Moore's former wife, seeking to determine who between the estate
and Ms. Simmons was rightfully entitled to the $100,000 life insur-
ance proceeds from Roger Moore's insurance policy. The two
defendant-claimants each filed motions for summary judgment. On
March 31, 1999, the district court denied Ms. Simmons's motion and
granted Ms. Woodard's motion for summary judgment, ruling that
Mr. Moore's estate was entitled to the insurance proceeds. Ms. Sim-
mons filed a timely appeal. For the reasons stated below, we affirm.

I.

In January 1985, while living in Kentucky, Roger J. Moore took
out a life insurance policy with Pan-American Assurance Company
in which he was named the insured. The policy had a face value of
$50,000 with an additional accidental death benefit of $50,000. The
named beneficiary under the policy was his then-wife Judy Moore
(now Judy Simmons) and the policy listed the Moores as co-owners,
although it also listed Judy Moore as the contingent owner.

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Under the policy, only the owner or owners could change the bene-
ficiary. The owner could change the beneficiary

          at any time during the Insured's lifetime unless otherwise
          provided in the previous designation. The new designation
          must be made by a signed notice in satisfactory form to
          [Pan-American's] Home Office. The change will take effect
          on the date the notice was signed subject to any action taken
          by [Pan-American] before recording the change.

(J.A. at 23.)

On March 27, 1992, the Moores, then residents of West Virginia,
divorced in Cabell County, West Virginia. The property settlement
agreement approved in the final divorce decree did not expressly
mention the life insurance policy, but provided in relevant part:

           9. In further and complete consideration and satisfaction
          of her interest in the marital property, [Judy Moore] shall
          receive the sum of FIFTY THOUSAND DOLLARS
          ($50,000).

           ....

           14. Each party, except as hereinabove otherwise pro-
          vided, hereby releases and discharges completely and for-
          ever the other from any and all rights of past, present, [and]
          future support and division of property, right of dower, right
          to act, benefits, or privileges accruing to either party by vir-
          tue of said marriage relationship or otherwise and whether
          the same are conferred by the Statutory Law or the Common
          Law of West Virginia or any other state, or of the United
          States.

(J.A. at 77.) Pan-American was apparently never informed of the
Moores' divorce or the terms of the property settlement agreement.

After the Moores' divorce, Mr. Moore began to correspond with
Pan-American in an effort to change the beneficiary under the policy

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to help secure a loan from his bank. On September 18, 1992, Mr.
Moore sent a letter to Pan-American that provided:"Please send the
proper forms for me to change the beneficiary on this policy. I need
to make the Inez Deposit Bank[,] Inez, Ky. the payee on this policy.
Please attach this to my policy for the record if possible." (J.A. at 39.)
In response to Mr. Moore's letter, Pan-American sent a change-of-
beneficiary form to Judy Moore, rather than to Roger Moore, and the
form included a signature line for Judy Moore as owner, but not for
Roger Moore. By letter dated November 23, 1992, Roger Moore
again sought to change the beneficiary under his policy. His letter of
that date reads:

          To Whom It May Concern

           I am the sole owner of this policy and paid all the premi-
          ums for years. When [I] first took this policy I designated
          Judy L. Moore as beneficiary, now I am changing the bene-
          ficiary to Inez Deposit Bank, P.O. Box 365, Inez, Ky.
          41224.

           I have contacted legal coun[sel] and have been advised
          that since I am the sole owner of this policy I don't have to
          get Judy or anyone else to sign anything in the state of West
          Virginia. Judy L. Moore is not the owner, she was the bene-
          ficiary.

           A speedy reply would be appreciated.

(J.A. at 45.) Along with his letter of November 23, 1992, Mr. Moore
also returned the completed change-of-beneficiary form that Pan-
American had sent to Judy Moore in September 1992. On that form,
Mr. Moore signed his name on one of the witness lines (presumably
because the signature line, which he left blank, indicated that Judy
Moore was to sign there), wrote in Inez Deposit Bank on the line pro-
vided for "Assignee and/or Irrevocable Beneficiary," and provided the
signature of a witness.1
_________________________________________________________________
1 It appears that Pan-American did not receive this letter and its attach-
ments until December 30, 1992. Pan-American records also indicate that
it sent another change-of-beneficiary form to the Moores on December
8, 1992, and on this form both Judy Moore and Roger Moore were listed
as owners.

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On January 11, 1993, Pan-American sent a letter addressed to both
Judy and Roger Moore in which Pan-American informed the Moores
that it was still awaiting receipt of the change-of-beneficiary form.
The Moores responded to this letter by replying on the lower portion
of the Pan-American letter, where they indicated that they had
enclosed a completed change-of-beneficiary form. This reply was
signed by Judy Moore, dated February 3, 1993, and contained a hand-
written note from Roger Moore in which he asked Pan-American to
"Please send me a copy of this policy showing Inez Deposit Bank as
the new beneficiary." (J.A. at 55.) Instead of enclosing a completed
change-of-beneficiary form, however, the Moores returned an "As-
signment of Policy as Collateral Security" form completed by Judy
Moore, assigning her interests in the policy to Inez Deposit Bank.2

On February 11, 1993, Pan-American sent the Moores another
change-of-beneficiary form and a change-of-ownership form. On
March 22, 1993, Pan-American sent the Moores a letter indicating
that it was awaiting receipt of the applications for change of benefi-
ciary and change of ownership. On April 26, 1993, Pan-American
sent another letter in which it indicated that because it had not
received the required documents to facilitate a change in the policy
it was closing its files. On May 14, 1993, Roger Moore sent a letter
to Pan-American in which he wrote:

          To Whom It May Concern

           I mailed another original to your company on 2-4-93, I
          can't understand why we are having such a hard time getting
          the beneficiary changed on this policy. I have another policy
          made to the Inez Deposit Bank, with this policy changed to
          them I will have enough coverage to cover my loan.

            Please help me get this taken care of. My banker is raising
           all kinds of hell for me to have enough insurance. If there
           is any problem please call me collect . . . .
_________________________________________________________________
2 It is unclear how Judy Moore came to send back this completed
assignment of collateral security form, but the most logical conclusion is
that Pan-American had incorrectly sent the Moores this form rather than
a change-of-beneficiary form in an earlier mailing.

                    5
(J.A. at 65.) On May 19, 1993, Pan-American sent the Moores a
change-of-ownership form and an assignment form, but apparently
not a change-of-beneficiary form. On June 22, 1993, Pan-American
notified the Moores by letter that it had not received the change-of-
ownership form or the assignment form. On July 25, 1993, Pan-
American notified the Moores, again by letter, that, having not
received the necessary documentation, it was closing its files.

Mr. Moore died intestate as a result of a drowning accident on May
20, 1997. Following Mr. Moore's death, Pan-American instituted an
interpleader action in an effort to determine whether Mr. Moore's for-
mer wife, Judy Moore (now Judy Simmons), or his estate is properly
entitled to Mr. Moore's insurance policy proceeds. Pan-American,
which did not contest that it owed the insurance proceeds to either
Mr. Moore's estate or his former wife, willingly put the money owed
under the policy in the court's registry. Mr. Moore's estate has appar-
ently satisfied all outstanding loan payments due to Inez Deposit
Bank.

Both Ms. Simmons and Ms. Woodard, the defendant-claimants,
filed motions for summary judgment. In ruling on Ms. Simmons's and
Ms. Woodard's motions for summary judgment, the district court
relied on Graham v. Graham, 465 S.E.2d 614, 617-18 (W. Va. 1995),
in first determining that ownership of a life insurance policy is a mari-
tal property right in West Virginia. The court held that Mr. Moore
received all ownership rights in the life insurance policy under the
terms of the divorce property settlement agreement with his former
wife. The court then ruled that Mr. Moore substantially complied with
the requirements for changing the beneficiary to Inez Deposit Bank
in satisfaction of both West Virginia and Kentucky law.3 The court
went on to hold that to the extent that Inez Deposit Bank was no lon-
ger owed any further payments from Mr. Moore's estate, the policy
proceeds would pass to Mr. Moore's estate. The district court thus
granted Ms. Woodard's motion for summary judgment and denied
Ms. Simmons's motion. Ms. Simmons filed this appeal, in which she
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3 The court analyzed the case under both West Virginia and Kentucky
law in order to avoid resolving the "thorny issue" of which state's law
rightfully applied under West Virginia choice-of-law rules. The parties
assert no challenge in this regard.

                    6
asserts that Mr. Moore did not effectively change the beneficiary on
the policy to Inez Deposit Bank and that she remains the proper bene-
ficiary. She also contends that the district court improperly failed to
apply the marshaling of assets doctrine.

II.

This Court reviews a grant of summary judgment de novo. See
Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997).
Summary judgment is appropriate if "`there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment
as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)). In determining whether there
is a genuine issue of material fact, the record is viewed in the light
most favorable to the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).

We have reviewed the record, briefs, and pertinent case law on this
matter, and we have had the benefit of oral argument. Our careful de
novo review persuades us that the rulings of the district court were
correct. Accordingly, we affirm on the reasoning set forth in the dis-
trict court's opinion. See Pan-American Assurance Co. v. Woodard,
No. CA-97-1201-3 (S.D. W. Va. Mar. 30, 1999).

AFFIRMED

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