10-3426-cv
Jan Nesom v. Charles Thomas Straney

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 27th day of September, two thousand eleven,

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________________________

JAN NESOM,
                               Defendant-Appellee,

                         -v-                                                 10-3426-cv

CHARLES THOMAS STRANEY, MICHAEL STRANEY,
JOANNE STRANEY, RACHEL STRANEY, JEFFREY
ALAN STRANEY, NAOMI P. STRANEY,

                               Counter-Defendants-Appellants.1


Appearing for Appellee:        Scott Barbour, McNamee, Lochner, Titus & Williams, P.C.
                               Albany, N.Y.

Appearing for Appellants:      Marc Goldberg, Phillips Lytle, LLP. Albany, N.Y.

       Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).




       1
         We direct the Clerk of Court to amend the official caption of this case to reflect the
parties’ designations herewith.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellants moved for summary judgment as to the effect of a divorce settlement
agreement on several life insurance policies’ beneficiary designations. They sought to have all
policy proceeds distributed to certain of the appellants and to invalidate the designation of
appellee as a beneficiary of the policies. Appellee filed a cross motion for summary judgment
seeking to have the policy proceeds distributed in accordance with the beneficiary designations
made by the now-deceased policy holder. Appellants’ motion for summary judgment was denied,
and appellee’s cross motion for summary judgment was granted. On appeal, appellants assert
that summary judgment should have been granted in their favor. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        Appellants first assert that the parties to the settlement agreement agreed that their four
children could be the only beneficiaries to their parents’ life insurance policies. The parties
agreed that the agreement was to be construed according to Virginia law. Accordingly, we must
apply that state’s requirements: “[W]here an agreement is complete on its face, is plain and
unambiguous in its terms, the court is not at liberty to search for its meaning beyond the
instrument itself.” Berry v. Klinger, 

, 796 (Va. 1983) (alteration in original)
(quoting Globe Iron Constr. Co. v. First Nat’l Bank of Bos., 

, 634 (Va. 1965))
(internal quotation mark omitted). The plain language of the settlement allows for the possibility
of beneficiaries other than the children of the parties to the settlement. Likewise, the agreement
places no limitation on how those beneficiaries would be permitted to use their proceeds. There
is no question of material fact as to these issues; summary judgment in favor of appellee was
appropriately granted.

         Appellants also assert that the agreement’s provision that “[l]ife insurance coverages in
favor of the children as beneficiaries may be ratably reduced by 25% as each child attains the
age of twenty-three” means that no child can be completely eliminated from coverage, whatever
their age. Virginia's highest court has stated that courts are "to construe a contract as a whole,
considering every word and every paragraph, if there is a sensible construction that can be
given." Dowling v. Rowan, 

, 518 (Va. 2005) (emphasis added). Here, the only
sensible construction of the ambiguous "ratable reduction" provision is that the parties intended
to remove each child from coverage at the age of 23. There are no genuine questions of material
fact as to this issue. Summary judgment for appellee was appropriately granted.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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