Opinion
Civil No. AMD 03-81, EXEMPT FROM ECF/CM
January 20, 2004
MEMORANDUM OPINION
On January 9, 2003, Federal Kemper Life Assurance Company ("Federal Kemper") filed its Interpleader Complaint in this action, naming three defendants, Caron Beth Finglass ("Caron"), a resident and citizen of Virginia, Dean Scott Finglass ("Dean"), a resident and citizen of Florida, and Karen Ann Leimbach ("Leimbach"), a resident and citizen of Maryland. The claims giving rise to the complaint arise out of a dispute over a $100,000 life insurance policy issued by Federal Kemper (or its predecessor) to Carl W. Finglass ("Carl"). In short order after the case was filed, the court entered orders: (1) permitting the deposit of the policy proceeds into the registry of the court; (2) enjoining the prosecution of any action against Federal Kemper by defendants, and requiring the defendants to interplead and proceed in this action; and (3) denying Leimbach's motion for reconsideration of the order allowing the interpleader action to proceed. Thereafter, the court issued a scheduling order and (more or less) discovery proceeded in accordance therewith. Discovery has now concluded and Leimbach has filed a motion for summary judgment, to which claimant Dean Finglass has filed an objection. For the reasons stated herein, the court shall grant the motion for summary judgment and enter its judgment of interpleader.
The undisputed facts may be pieced together from the filings of the parties. The decedent, Carl, is the father of Dean and Caron. Leimbach was Carl's friend, and perhaps his fiance. On May 25, 1994, Federal Kemper issued life insurance policy number FK2217495 having a face amount of $100,000 to Carl, as policy holder/owner. The original beneficiaries were the three claimants named here: Caron, Dean, and Leimbach. The policy permitted the owner to change beneficiaries during its term. A change of beneficiary was effective upon the date such change was signed by the owner, provided that Federal Kemper was given notice of and had recorded the change.
Between May 10, 2002, and September 16, 2002, during a time when Carl was suffering from cancer, Federal Kemper received a series of beneficiary changes. First, effective on May 10, 2002, a change form added "Estate of Carl Finglass" as a beneficiary. Second, effective on September 6, 2002, a change form (received from Carl's attorney) removed "Estate of Carl Finglass" as a beneficiary and added Gloria Finglass ("Gloria") Carl's aunt, as a beneficiary. As of the September 6, 2002, change, the policy proceeds were allocated as follows: Gloria: 10%; Caron, Dean, and Leimbach: 30% each. Finally, effective on September 16, 2002, a change form (received by fax from Gloria) reallocated the percentages of policy proceeds among the beneficiaries as follows: Gloria: 10% (no change); Caron: 20% (reduced from 30%); Dean: 10% (reduced from 30%); and Leimbach: 60% (increased from 30%).
Carl died at age 65 on September 18, 2002. Gloria was named personal representative of his estate. In October 2002, Federal Kemper issued checks on behalf of the named beneficiaries but, for reasons not disclosed in the record, it did so in accordance with the September 6, 2002, change form rather than the September 16, 2002, change form, i.e., the company paid 10% of the proceeds to Gloria, and 30% of the proceeds to Caron, Dean, and Leimbach, respectively. Carl's attorney (now representing Gloria) retained the 10% share paid on behalf of Gloria (there had been no change in her percentage), but he returned the checks for Caron, Dean, and Leimbach. He directed Federal Kemper to reissue checks in accordance with the September 16, 2002, change form, namely, 20% to Caron, 10% to Dean, and 60% to Leimbach. On the advice of its general counsel, Federal Kemper declined to do so and filed this interpleader action.
Thus, 90% of the policy proceeds (plus interest) was paid into the registry of the court. Although Caron filed an answer insisting that she remains interested in this case, she has not actively participated in these proceedings and did not file an opposition to Leimbach's motion for summary judgment. Dean has proceeded pro se. Only Leimbach has been represented by counsel. The gravamen of the parties' dispute is whether Carl actually signed the September 16, 2002, change form which decreased his children's shares of the policy proceeds while doubling Leimbach's, and if so, whether he had the mental capacity to effect the change.
In support of her motion for summary judgment, Leimbach has set forth, in affidavits executed under penalty of perjury by persons having personal, first hand knowledge of the circumstances, precisely the events surrounding the execution of the final change form only a day or so before Carl's death. The record reflects that the relationship between Carl and his children was estranged in September 2002. In contrast, the record shows that Carl was grateful to Leimbach for her care and attention during his final illness. The undisputed facts show that neither Caron nor Dean was present in Maryland during Carl's final illness. Moreover, there is undisputed evidence that Carl had charged more than $10,000 on his credit cards on behalf of Dean, who was going through a difficult divorce during this period. In short, in addition to an affidavit from Carl's aunt Gloria (who did not benefit from the September 16, 2002, change), affidavits from Carl's brother, Carl's sister-in-law, a nurse who was a friend of Carl, and a friend who had known Carl since 1995, attest that during the period of September 16-18, 2002, Carl was mentally alert and aware of his decisions, despite his illness, and they support Leimbach's assertion that Carl personally, knowingly and voluntarily executed the September 16, 2002, change form.
Against this array of evidence, Dean has been able to mount scant countervailing evidence. First, he has produced a document, not under oath, from a questioned document examiner, who opined that, from her examination of copies of the September 16, 2002, change form and copies of other documents containing Carl's signature, "the evidence supports my opinion that the signature of Carl W. Finglass that appears on the [September 16, 2002, change form] is not genuine." This opinion is said to be "subject to examination of the original [change form]." In any event, as this document is not submitted under the penalty of perjury, it is not capable of generating a genuine dispute of material fact.
Second, Dean bemoans the fact that Gloria Finglass and Carl's brother, Barry Finglass, neither of whom is a party to this case, have failed to answer his interrogatories. Aside form the fact interrogatories are not a discovery device available for use in respect to non-parties, see Fed.R.Civ.P. 33 ("Interrogatories to Parties"), it seems clear that the only relevant information to be provided by Gloria and Barry has been set forth in their affidavits and none of it is helpful to Dean's apparent theory that Carl either did not sign the September 16, 2002, change form or that, if he did, he lacked the capacity to effect a voluntary and knowing change of percentages to be paid to the beneficiaries under the policy. In sum, Dean's speculative belief that his father did not intend to reduce the allocation of policy proceeds to his children and to increase the allocation to Leimbach fails as a matter of law. A judgment of interpleader follows.
ORDER and JUDGMENT OF INTERPLEADER
This court having fully considered the complaint of interpleader filed by Federal Kemper Life Assurance Company and the answers thereto, and this court having fully considered the motion for summary judgment filed by claimant Karen Ann Leimbach, and the opposition thereto filed by claimant Dean Scott Finglass, and being fully informed in the premises, hereby, this 20th day of January, 2004, ORDERS, ADJUDGES AND DECREES:(1) That the motion for summary judgment (Paper Nos. 34,38) is GRANTED; and it is further ORDERED
(2) That the CLAIMANTS SHALL RECEIVE FROM THE CLERK FROM THE FUNDS PREVIOUSLY DEPOSITED BY ORDER OF THIS COURT THE FOLLOWING SHARES:
• DEAN SCOTT FINGLASS: ELEVEN POINT ELEVEN PERCENT (11.11%)
• CARON BETH FINGLASS: TWENTY-TWO POINT TWENTY-TWO (22.22%)
• KAREN ANN LEIMBACH: SIXTY-SIX POINT SIXTY-SIX PERCENT (66.66%); and it is further ORDERED
(3) That the Clerk shall retain from the deposited funds the customary amount retained for fees and expenses; and it is further ORDERED
(4) That in the exercise of an informed discretion, no allowance is made to Federal Kemper Life Assurance Company for its minimal fees and costs;
(5) That the Clerk shall CLOSE THIS CASE and TRANSMIT copies of this Order and the foregoing Memorandum Opinion to all counsel and pro se parties.