Opinion
CIVIL ACTION No. 00-2412-KHV
November 15, 2002
MEMORANDUM AND ORDER
New York Life Insurance Company filed this interpleader action to determine who is entitled to proceeds from an insurance policy on the life of Betty J. Boorigie. This matter is before the Court on the Motion Of William J. Kelly, Conservator For Marijke E. Boorigie, For An Order Directing That Funds Now Held In The Registry Of The Court Be Paid To Movant (Doc. #22) filed September 17, 2002, which the Court construes as a motion for summary judgment. For reasons set forth below, the Court sustains the motion.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof"Applied Genetics Int'l Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The non-moving party may not rest on its pleadings but must set forth specific facts.Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Factual Background
For purposes of this motion, the following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to the non-moving party. Fred E. Boorigie, Jr.
On March 28, 1996, New York Life Insurance Company (NYL) issued a life insurance policy to Betty J. Boorigie. On December 23, 1998, she died intestate. Fred E. Boorigie, her husband, was the primary beneficiary under the policy. Marijke Boorigie, their minor child, was the contingent beneficiary. On May 10, 2000, Mr. Boorigie was convicted of first degree premeditated murder of Mrs. Boorigie.
On May 11, 2000, the District Court of Montgomery County, Kansas appointed William J. Kelly as conservator for Marijke Boorigie. Mr. Kelly filed a claim under the policy, asserting that Mr. Boorigie could not receive benefits because he had been convicted of feloniously killing his wife. See K.S.A. § 59-513. On September 14, 2000, NYL filed this interpleader complaint, alleging that if Mr. Boorigie prevailed on appeal, he might be entitled to the policy proceeds.
On October 28, 2000, the Court ordered NYL to pay into the Court's registry the policy death benefits. On January 12, 2001, the parties "agreed that at such time as the appeal of Mr. Boorigie has been affirmed and the mandate of the Supreme Court filed, then the proceeds would be paid to Marijke Boorigie." Report Of Parties' Planning Meeting (Doc. #18) filed January 16, 2002 at 3. On March 8, 2002, the Kansas Supreme Court affirmed Mr. Boorigie's murder conviction. See State v. Boorigie, ___ Kan. ___, 41 P.3d 764 (2002). Mr. Boorigie did not file a petition for writ of certiorari with the United States Supreme Court.
On September 17, 2002, Mr. Kelly filed a motion on behalf of Marijke Boorigie, seeking to have the policy proceeds distributed to him.
Analysis
Mr. Kelly argues that K.S.A. § 59-513 bars Mr. Boorigie from receiving the policy proceeds. That section provides:
No person convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will by intestate succession, as a surviving joint tenant, as a beneficiary under a trust or otherwise from such other person any portion of the estate or property in which the decedent had an interest. When any person kills or causes the killing of such person's spouse, and then takes such person's own life, the estates and property of both persons shall be disposed of as if their deaths were simultaneous pursuant to the provisions of K.S.A. 58-708 to 58-718, inclusive, and amendments thereto.
On October 15, 2002, the Court sustained the motion to withdraw by counsel for Mr. Boorigie. See Order (Doc. #30). To date, Mr. Boorigie has not filed any opposition to Mr. Kelly's motion to release funds, but the Court will construe his letter request for appointment of counsel as his opposition brief. Mr. Boorigie maintains that his appeals have not been exhausted because he can appeal the decision of the Kansas Supreme Court to a federal court or may file a claim for ineffective assistance of counsel.
See Letter (Doc. #26) filed September 30, 2002. In a separate order, the Court overruled Mr. Boorigie's request for appointment of counsel. See Order (Doc. #28) filed October 9, 2002.
The Court rejects Mr. Boorigie's argument. First. Mr. Boorigie ignores his stipulation that "at such time as [his conviction] has been affirmed and the mandate of the Supreme Court filed, then the proceeds would be paid to Marijke Boorigie." Report Of Parties' Planning Meeting (Doc. #18) filed January 16, 2002 at 3. Moreover, his conviction for murder is now "final" under Kansas law. The Kansas Probate Code does not specify when a murder conviction triggers the prohibition of K.S.A. § 59-513, but states with similar statutes have specified that a "final judgment" of a murder conviction is conclusive under such statutes See e.g., Ala. Code § 43-8-253(e) (1975); Fla. Stat. § 732.802(5) (Supp. 1991); Neb. Rev. Stat. § 30-2354(e) (1989); see also La.Rev.Stat. § 22:613(D)(1)(a) (West Supp. 1991) ("final judgment" triggers statute); N.D. Cent. Code § 30.1-10-03(7) (1976) (after appeal rights exhausted, judgment of conviction conclusively establishes decedent's killer). The Court believes that Kansas courts would follow this principle. See Prudential Ins. Co. of Am. v. Tull, 524 F. Supp. 166, 171 (E.D. Va. 1981) (under insurance forfeiture provision, person not "convicted" until Virginia Supreme Court has affirmed conviction): Sportsservice Corp. v. Dept. of Pub. Safety, 293 So.2d 530, 534 (La.Ct.App. 1974) (if legal determination of guilt is statutory test for some noncriminal penalty, courts should interpret word "conviction" to ensure that legal determination of guilt has been made with some reasonable certainty and finality).
Mr. Boorigie does not deny that his criminal conviction is a "final judgment" under Kansas law. He has exhausted all direct appeals and has not sought a writ of certiorari in the United States Supreme Court. At this point, he may rely only on a collateral challenge based on unspecified arguments. The Kansas legislature did not intend the courts to indefinitely delay distribution of life insurance proceeds until every potential collateral challenge can be litigated by a convicted defendant. Accordingly, Mr. Kelly's motion for distribution of the proceeds, which the Court construes as a motion for summary judgment, is sustained.
Of course, if Mr. Boorigie does prevail on such a challenge and the collateral proceeding establishes his innocence, he may be able to file a motion for relief from the Court's judgment under Rule 60, Fed.R.Civ.P.
IT IS THEREFORE ORDERED that the Motion of William J. Kelly, Conservator For Marijke E. Boorigie. For An Order Directing That Funds Now Field In The Registry Of The Court Be Paid To Movant (Doc. #22) filed September 17, 2002, which the Court construes as a motion for summary judgment, be and hereby is SUSTAINED.
The Clerk is directed to pay the funds deposited from this case into the Court's registry as follows:
1. To the Clerk of the District Court for the District of Kansas, a sum equal to ten percent of the income earned subsequent to the deposit of said funds into the Court's registry; and
2. To William J. Kelly as Conservator for Marijke E. Boorigie, the remaining funds.IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
DECISION BY THE COURT. This action came to decision by the Court. The issues have been considered and a decision has been rendered.IT IS ORDERED AND ADJUDGED pursuant to the Memorandum And Order filed November 15, 2002, the Motion of William J. Kelly, Conservator For Marijke E. Boorigie. For An Order Directing That Funds Now Held In The Registry Of The Court Be Paid To Movant, which Court construes as a motion for summary judgment, is SUSTAINED.
The Clerk is directed to pay the funds deposited in the Court's registry to The Clerk of the District Court for the District of Kansas, the sum equal to ten percent of the income earned subsequent to the deposit of said funds into the Court's registry and the remainder to William J. Kelly as Conservator for Marijke E. Boorigie.