Opinion
Case No. C 04-04569 JL.
September 27, 2005
SEYFARTH SHAW LLP, Kurt A. Kappes, Robert B. Milligan, Sacramento, California, Attorneys for Plaintiff, ALLSTATE LIFE INSURANCE COMPANY, THE TRAVELERS INSURANCE COMPANY and THE TRAVELERS LIFE AND ANNUITY COMPANY.
LAW OFFICES OF STEVEN A. FABBRO, Steven A. Fabbro, San Francisco, California, Attorneys for Defendant, XANTHI AVDALAS.
STIPULATION FOR ENTRY OF JUDGMENT; [PROPOSED] JUDGMENT
Pursuant to Federal Rules of Civil Procedure 54, 57 and 58, Plaintiffs Allstate Life Insurance Company ("Allstate"), The Travelers Insurance Company ("TIC") and the Travelers Life and Annuity Company ("TLAC") (collectively, the "Plaintiffs") and Defendant Xanthi Avdalas ("Avdalas") hereby stipulate to entry of judgment in this action as follows and respectfully request that the Court enter the proposed judgment attached hereto:
1. On October 28, 2004, the Plaintiffs filed a complaint for interpleader and declaratory relief in this action.
2. This court has subject matter jurisdiction over this interpleader and declaratory relief action pursuant to Federal Rule of Civil Procedure 22, 28 U.S.C. § 2201(a), and 28 U.S.C. § 1332 (diversity jurisdiction), in that Allstate's citizenship is the state of Illinois and TIC's and TLAC's citizenship is the state of Connecticut, and plaintiffs' citizenship is diverse from the citizenship of each defendant, and the amount in controversy exceeds $75,000.
3. On or about March 14, 2003, the San Francisco Superior Court approved a settlement agreement between: (1) decedent Epaminondas Avdalas and Xanthi Avdalas, individually and as husband and wife, and Xanthi Avdalas, as Guardian Ad Litem of Epaminondas Avdalas; and (2) inter alia, Scottsdale Insurance Company, and Gulf Insurance Company. Scottsdale Insurance Company agreed to pay Xanthi Avdalas, as Guardian of Epaminondas Avdalas, $1,250 per month, 2% compounding annually, for the remainder of the natural life of Epaminondas Avdalas, guaranteed for a total of 180 months, commencing on or about April 15, 2003. Gulf Insurance Company agreed to pay Xanthi Avdalas, as Guardian of Epaminondas Avdalas, $1,250 per month, 2% compounding annually, for the remainder of the natural life of Epaminondas Avdalas, guaranteed for a total of 180 months, commencing on or about April 15, 2003. The agreement states that in the event Mr. Avdalas dies, payment will be made to the beneficiary, as designated in writing by Xanthi Avdalas.
Plaintiff Allstate
4. On or about March 14, 2003, pursuant to a Uniform Qualified Assignment, Allstate Assignment Company assumed Scottsdale Insurance Company's liabilities to make the periodic payments under the settlement agreement. Thereafter, plaintiff Allstate Life Insurance Company issued a single premium immediate life annuity ("annuity") under which it agreed to make the periodic monthly payments. A copy of the annuity, policy number 90 310 374, as well as the annuity application is attached as Exhibit A to the complaint. Epaminondas Avdalas is listed as the Measuring Life and the Payee as "Xanthi Avdalas, Guardian [sic] of Epaminondas Avdalas." On the annuity application information sheet, Xanthi Avdalas designated "Estate of Epaminondas Avdalas" as the beneficiary. Under the terms of the annuity, the payments will be made to the payee while the Measuring Life is alive. If the Measuring Life is not living, the payments will be made to the beneficiary.
5. Allstate commenced payments to the payee, defendant Xanthi Avdalas, on or about April 15, 2003. On February 12, 2004, Epaminondas Avdalas died. Allstate made payments to Xanthi Avdalas as payee in March, April and May 2004, before it learned of Mr. Avdalas' death on or about May 24, 2004. After learning of Mr. Avdalas' death, Allstate ceased making payments to Xanthi Avdalas. Following Mr. Avdalas' death, Xanthi Avdalas claimed, and continues to claim, that she is entitled to the proceeds of the annuity.
6. Allstate commenced this suit for interpleader and declaratory relief because it believed that it could not safely determine the proper beneficiary, or beneficiaries, of the annuity without risking exposure to multiple liabilities.
Plaintiffs TIC and TLAC
7. On or about March 14, 2003, TLAC assumed Gulf Insurance Company's liabilities to make the periodic payments under the settlement agreement, using a single premium immediate life annuity ("annuity") to be issued by TIC. A copy of the annuity application is attached as Exhibit B to the Complaint. The application lists Epaminondas Avdalas as the Measuring Life, and the payee as "Xanthi Avdalas, as Guardian [sic] of Epaminondas Avdalas." The annuity application designates the Estate of Epaminondas Avdalas as beneficiary. The annuity itself was never actually issued because TIC did not receive papers finalizing Xanthi Avdalas' status as legal guardian. A copy of contract number 4950NW55450, which was to be issued and under which TIC operated as if it had been issued, is attached as Exhibit C to the Complaint. The contract lists Epaminondas Avdalas as the Measuring Life, the Payee as "Xanthi Avdalas, as Guardian of Epaminondas Avdalas," and the beneficiary as "Estate of Epaminondas Avdalas." The contract specifications state, "If the Measuring Life dies before a minimum 180 payments have been made, the remaining payments will continue to the beneficiary."
8. Though the annuity was never formally issued, TIC commenced payments to the payee, defendant Xanthi Avdalas, on or about April 15, 2003, as if the annuity had been issued. On February 12, 2004, Epaminondas Avdalas died. TIC made payments to Xanthi Avdalas as payee on March 15, 2004, April 15, 2004 and May 15, 2004, before it learned of Mr. Avdalas' death on or about May 24, 2004. After learning of Mr. Avdalas' death, TIC ceased making payments to Xanthi Avdalas. Following Mr. Avdalas' death, Xanthi Avdalas claimed, and continues to claim, that she is entitled to the proceeds of the annuity.
9. TIC and TLAC commenced this suit for interpleader and declaratory relief because it believed that it could not safely determine the proper beneficiary, or beneficiaries, of the annuity without risking exposure to multiple liability.
Recitals
10. The parties hereby stipulate that Xanthi Avdalas is the proper beneficiary of the annuities and that Avdalas should continue to receive payments under the annuity policies until they expire under their own terms.
11. Avdalas' sons have executed releases, attached hereto as Exhibit A, absolving Allstate, TIC and TLAC of any liability arising out of Avdalas' receipt of payments under the annuity policies.
12. Avdalas warrants that there is no executor for the Estate of Epaminondas Avdalas, and that it is not contemplated that his estate will pass through probate.
13. Avdalas has warranted that there are no parties, creditors or otherwise, with an interest in the annuity polices and Avdalas has agreed to indemnify Allstate, TIC and TLAC for any subsequent claims brought against them arising out their payments to Avdalas for the annuities, attached hereto as Exhibit B.
14. The parties hereby request that the Court enter the attached proposed judgment, declaring that Xanthi Avdalas is the proper beneficiary of the annuities and that Avdalas should continue to receive payments under the annuity policies until they expire under their own terms. Should Avdalas die prior to the expiration of the annuity policies, Avdalas irrevocably designates George Avdalas and Konstantine Avdalas, her sons, or their representative share to their heirs, as the beneficiaries of the payments under the annuity policies. Payments should be made in equal (50%) shares to George Avdalas and Konstantine Avdalas, or their representative share to their heirs, under the annuity policies until they expire under their own terms.
15. Plaintiff Allstate shall release to Xanthi Avdalas all accrued, unpaid payments from June 15, 2004 up to and including September 15, 2005, pursuant to the terms set forth above in Paragraph 3 in the amount of $20,553.00 ($1275.00 per month for the months of June 2004 through and including March 2005, and $1300.50 per month for the months of April 2005 through and including September 2005), and Plaintiff Allstate shall resume payments to Avdalas pursuant to the terms of the underlying settlement agreement and the annuity.
16. Plaintiffs TIC and TLAC shall release to Xanthi Avdalas all accrued, unpaid payments from June 15, 2004 up to and including September 15, 2005, pursuant to the terms set forth above in Paragraph 3 in the amount of $20,553.00 ($1275.00 per month for the months of June 2004 through and including March 2005, and $1300.50 per month for the months of April 2005 through and including September 2005), and Plaintiffs TIC and TLAC shall resume payments to Avdalas pursuant to the terms of the underlying settlement agreement and the annuity.
17. The parties hereby agree to bear their own costs and fees.
[Proposed] Judgment
Having considered the foregoing stipulation, and good cause appearing, the Court hereby enters judgment as follows:Defendant Xanthi Avdalas is the proper beneficiary of the annuities in this action and Avdalas should continue to receive payments under the annuity policies until they expire under their own terms.
Should Avdalas die prior to the expiration of the annuity policies, Avdalas irrevocably designates George Avdalas and Konstantine Avdalas, her sons, or their representative share to their heirs, as the beneficiaries of the payments under the annuity policies. Payments should be made in equal (50%) shares to George Avdalas and Konstantine Avdalas, or their representative share to their heirs, under the annuity policies until they expire under their own terms.
Plaintiff Allstate shall release to Xanthi Avdalas all accrued, unpaid payments from June 15, 2004 up to and including September 15, 2005, pursuant to the terms set forth above in Paragraph 3 in the amount of $20,553.00 ($1275.00 per month for the months of June 2004 through and including March 2005, and $1300.50 per month for the months of April 2005 through and including September 2005), and Plaintiff Allstate shall resume payments to Avdalas pursuant to the terms of the underlying settlement agreement and the annuity.
Plaintiffs TIC and TLAC shall release to Xanthi Avdalas all accrued, unpaid payments from June 15, 2004 up to and including September 15, 2005, pursuant to the terms set forth above in Paragraph 3 in the amount of $20,553.00 ($1275.00 per month for the months of June 2004 through and including March 2005, and $1300.50 per month for the months of April 2005 through and including September 2005), and Plaintiffs TIC and TLAC shall resume payments to Avdalas pursuant to the terms of the underlying settlement agreement and the annuity.
The parties are to bear their own costs and fees.
IT SO ORDERED.
Exhibit A RELEASE
I, KONSTANTINE AVDALAS, am the child of decedent Epaminondas Avdalas. I have read the complaint in Allstate Life Insurance Co., et al. v. Xanthi Avdalas, et al., Case No. C 04-04569 JL, and I am familiar with the parties' dispute. I have read and understand the stipulation for entry of judgment that the parties have entered in this action. I agree that my mother Xanthi Avdalas is the proper beneficiary of the annuities at issue in the case and that Xanthi Avdalas should continue to receive payments under the annuity policies until they expire under their own terms. I do not claim any interest in the annuities unless or until my mother Xanthi Avdalas dies before the expiration of the terms of the annuities. I hereby release Allstate Insurance Company, the Travelers Insurance Company, the Travelers Life and Annuity Company and their predecessors and successors in interest for any liability arising of out their payments to Xanthi Avdalas under the annuity policies. Dated: 9-14-05
KONSTANTINE AVDALAS
RELEASE
I, GEORGE AVDALAS, am the child of decedent Epaminondas Avdalas. I have read the complaint in Allstate Life Insurance Co., et al. v. Xanthi Avdalas, et al., Case No. C 04-04569 JL, and I am familiar with the parties' dispute. I have read and understand the stipulation for entry of judgment that the parties have entered in this action. I agree that my mother Xanthi Avdalas is the proper beneficiary of the annuities at issue in the case and that Xanthi Avdalas should continue to receive payments under the annuity policies until they expire under their own terms. I do not claim any interest in the annuities unless or until my mother Xanthi Avadalas dies before the expiration of the terms of the annuities. I hereby release Allstate Insurance Company, the Travelers Insurance Company, the Travelers Life and Annuity Company and their predecessors and successors in interest for any liability arising of out their payments to Xanthi Avdalas under the annuity policies. Dated: September 15, 2005
GEORGE AVDALAS
Exhibit B XANTHI AVDALAS' REPRESENTATIONS AND WARRANTIES AND AGREEMENT TO INDEMNIFY
I, Xanthi Avdalas, make the following representations and warranties and agreement to indemnify Allstate Insurance Company, the Travelers Insurance Company, the Travelers Life and Annuity Company and their predecessors and successors in interest.I have read the complaint in Allstate Life Insurance Co., et al. v. Xanthi Avdalas, et al., Case No. C 04-04569 JL, and I am familiar with the parties' dispute. I have willingly entered into the stipulation for entry of judgment in this action. I am the proper beneficiary of the annuities at issue in the case and I should continue to receive payments under the annuity policies until they expire under their own terms. I am not aware of anyone claiming any interest in the annuity policies. I have two children. My children George Avdalas and Konstantine Avdalas do not claim any interest in the annuity polices. I warrant that there are no parties, creditors or otherwise, with an interest in the annuity policies.
There is no executor for the Estate of Epaminondas Avdalas and it is not contemplated that his estate will pass through probate. If my husband's estate does pass through probate, I agree to sign and be bound by the attached representations and warranties and agreement to indemnify as well as the stipulation for entry of judgment.
Should anyone claim any interest in the annuity policies, I agree to defend, indemnify and hold Allstate Insurance Company, the Travelers Insurance Company, the Travelers Life and Annuity Company and their predecessors and successors in interest harmless from and against any demands, claims, liability, suits, damages, and actions brought against them arising from or relating to, either directly or indirectly, any payments made to Xanthi Avdalas under the annuity policies and payments made to my beneficiaries George Avdalas and Konstantine Avdalas should I die prior to the expiration of the annuity policies. The duty to defend includes the duty to pay reasonable attorneys' fees incurred in defending such claims and the duty to indemnify includes the duty to pay any amount imposed by an administrative agency or judgment or settlement reached in a court action.
I declare under penalty of perjury under the laws of the United States that the foregoing representations and warranties are true and correct and I agree to be bound by the terms of this agreement.
Dated: 9-14-05
Xanthi Avdalas
XANTHI AVDALAS Due Date: June 15, 2004 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191639 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ___________ Net Check Amount $1,275.00
This is for the payment due on June 15, 2004.
XANTHI AVDALAS Due Date: July 15, 2004 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191640 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ___________ Net Check Amount $1,275.00
This is for the payment due on July 15, 2004.
XANTHI AVDALAS Due Date: August 15, 2004 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191641 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ___________ Net Check Amount $1,275.00
This is for the payment due on August 15, 2004.
XANTHI AVDALAS Due Date: September 15, 2004 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191642 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ___________ Net Check Amount $1,275.00
This is for the payment due on September 15, 2004.
XANTHI AVDALAS Due Date: October 15, 2004 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191643 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ___________ Net Check Amount $1,275.00
This is for the payment due on October 15, 2004.
XANTHI AVDALAS Due Date: November 15, 2004 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191644 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ___________ Net Check Amount $1,275.00
This is for the payment due on November 15, 2004.
XANTHI AVDALAS Due Date: December 15, 2004 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191645 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ______________ Net Check Amount $1,275.00
This is for the payment due on December 15, 2004.
XANTHI AVDALAS Due Date: December 15, 2005 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191646 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ______________ Net Check Amount $1,275.00
This is for the payment due on January 15, 2005.
XANTHI AVDALAS Due Date: December 15, 2005 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191647 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ______________ Net Check Amount $1,275.00
This is for the payment due on February 15, 2005.
XANTHI AVDALAS Due Date: March 15, 2005 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191648 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,275.00 ______________ Net Check Amount $1,275.00
This is for the payment due on March 15, 2005.
XANTHI AVDALAS Due Date: April 15, 2005 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191649 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,300.50 ______________ Net Check Amount $1,300.50
This is for the payment due on April 15, 2005.
XANTHI AVDALAS Due Date: May 15, 2005 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191650 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,300.50 _____________ Net Check Amount $1,300.50
This is for the payment due on May 15, 2005.
XANTHI AVDALAS Due Date: June 15, 2005 2227 24TH AVE, Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191651 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,300.50 ___________ Net Check Amount $1,300.50
This is for the payment due on June 15, 2005.
XANTHI AVDALAS Due Date: July 15, 2005 2227 24TH AVE, Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191652 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,300.50 ___________ Net Check Amount $1,300.50
This is for the payment due on July 15, 2005.
XANTHI AVDALAS Due Date: August 15, 2005 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191653 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,300.50 ___________ Net Check Amount $1,300.50
This is for the payment due on August 15, 2005.
XANTHI AVDALAS Due Date: September 15, 2005 2227 24TH AVE. Issue Date: September 15, 2005 SAN FRANCISCO CA 94116-1747 Check Number: 2191654 Contract Number: 90310374 Annuitant Name: Epaminandas Avdalas
*** EXPLANATION OF BENEFITS ***
Total Gross Amount $1,300.50 ___________ Net Check Amount $1,300.50
This is for the payment due on September 15, 2005.
the beneficiaries of the payments under the annuity policies. Payments should be made in equal (50%) shares to George Avdalas and Konstantine Avdalas, or their representative share to their heirs, under the annuity policies until they expire under their own terms.
15. Plaintiff Allstate shall release to Xanthi Avdalas all accrued, unpaid payments from June 15, 2004 up to and including September 15, 2005, pursuant to the terms set forth above in Paragraph 3 in the amount of $20,553.00 ($1275.00 per month for the months of June 2004 through and including March 2005, and $1300.50 per month for the months of April 2005 through and including September 2005), and Plaintiff Allstate shall resume payments to Avdalas pursuant to the terms of the underlying settlement agreement and the annuity.
16. Plaintiffs TIC and TLAC shall release to Xanthi Avdalas all accrued, unpaid payments from June 15, 2004 up to and including September 15, 2005, pursuant to the terms set forth above in Paragraph 3 in the amount of $20,553.00 ($1275.00 per month for the months of June 2004 through and including March 2005, and $1300.50 per month for the months of April 2005 through and including September 2005), and Plaintiffs TIC and TLAC shall resume payments to Avdalas pursuant to the terms of the underlying settlement agreement and the annuity.
17. The parties hereby agree to bear their own costs and fees.
DATED: September __, 2005 SEYFARTH SHAW LLP As to Form Only By ______________________ Robert Milligan Attorneys for Plaintiff ALLSTATE LIFE INSURANCE COMPANY, THE TRAVELERS INSURANCE COMPANY and THE TRAVELERS LIFE AND ANNUITY COMPANY
DATED: September 11th 2005 ALLSTATE LIFE INSURANCE COMPANY
By ______________________
ALLSTATE LIFE INSURANCE COMPANY