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Transamerica Advisors Life Insurance Co. v. Marsch

United States District Court, M.D. Louisiana

March 22, 2017

TRANSAMERICA ADVISORS LIFE INSURANCE COMPANY
v.
COLYNN MARSCH, ET AL.

          RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is defendant-in-interpleader Colynn Marsch's Motion for Partial Summary Judgement. (R. Doc. 21). Defendants-in-interpleader Marlene Berard and Lester Berard (collectively, the “Berards”) have filed an Opposition. (R. Doc. 23). Plaintiff-in-interpleader Transamerica Advisors Life Insurance Company (“Transamerica”) has filed a response indicating it takes no position on the instant motion, other than to provide that should the motion be granted, Ms. Marsch and Transamerica have stipulated that Transamerica is entitled to recover $8, 250.00 in attorney's fees and costs from the funds that are on deposit. (R. Doc. 24). Ms. Marsch has filed a Reply. (R. Doc. 27). The Reply does not challenge Transamerica's assertion regarding agreed upon attorney's fees and costs.

         I. Background

         This is a statutory interpleader action brought by Transamerica against Ms. Marsch and the Berards. (R. Doc. 1, “Compl.”). Transamerica seeks discharge of its liability in connection with a flexible premium variable deferred annuity contract, contract number M940498891, issued to Gordon G. Tarver (“Mr. Tarver”) on February 17, 1994, and payable on his death. (R. Doc. 1-2 at 6-26; the “Annuity”). Transamerica asserts it is unable to establish the proper party to receive the Annuity's proceeds in light of the competing claims of the defendants-in-interpleader. (Compl. ¶ 18). The following facts are not in dispute:

         Mr. Tarver initially named his daughter, Ms. Marsch, as the beneficiary of the Annuity's proceeds. (R. Doc. 21-1 at 1).

         On August 19, 2015, Mr. Tarver executed a durable power of attorney naming Marlene Berard as his Agent. (R. Doc. 1-2 at 32-35, “Power of Attorney” or “POA”). The Power of Attorney grants Mrs. Berard the power “[t]o apply for, purchase, maintain and/or deal with insurance and annuity contracts, insurance policies, including life insurance upon [Mr. Tarver's] life or the life of any other appropriate person and to make any elections and disclaimers under such policies.” (POA, ¶ 7). The Power of Attorney also provides, however, that Mrs. Berard “may not, unless specifically authorized by this document, . . . gift, appoint, assign or designate any of [his] assets, interest or rights, directly or indirectly, ” to herself, her creditors, or her estate. (POA, ¶ 15).

         On or about November 18, 2016, after providing Transamerica with a copy of the Power of Attorney, Mrs. Berard sent an executed Annuity Policy Change Form to Transamerica, requesting that she be named the sole beneficiary on the Annuity. (Compl. ¶ 11, R. Doc. 1-2, at 37-40).

         On December 12, 2015, Mr. Tarver died testate. He bequeathed all of this property to Lester Berard. (R. Doc. 1-2 at 52).

         On December 16, 2015, Transamerica wrote to Mrs. Bernard and informed her that it was “unable to accept the beneficiary designation as indicated on the request” because the Power of Attorney did not allow her to make beneficiary changes. (R. Doc. 1-2 at 42).

         On January 5, 2016, the 33rd Judicial District Court, Allen Parish, Louisiana, issued a Judgment of Possession providing that all insurance companies having in their possession any money or property belonging to Mr. Tarver's succession were required to provide such money or property to Mr. Berard. (R. Doc. 1-2 at 49-50).

         On January 11, 2016, Mr. Berard made a demand for the benefits of the Annuity from Transamerica, providing a copy of the Judgment of Possession. (Compl., ¶ 15).

         On January 26, 2016, Ms. Marsch made a demand for the benefits of the Annuity from Transamerica, providing a Non-Spouse Individual Annuity Claimant's Statement. (R. Doc. 1-2 at 55-59).

         On February 3, 2016, Mrs. Berard sent a letter to Transamerica demanding the benefits of the Annuity. (R. Doc. 2-1 at 61-68). In the letter, Mrs. Berard discusses her attempts to name herself as beneficiary of the Annuity's proceeds.

         Transamerica initiated this interpleader action on April 19, 2016. (R. Doc. 1). Ms. Marsch filed an Answer on May 17, 2016. (R. Doc. 8). The Berards filed an Answer and Counterclaim on July 1, 2016. (R. Doc. 11). In their Counterclaim, the Berards assert that Transamerica breached its fiduciary duty owed to Mr. Tarver by failing to communicate with Mr. Tarver in a ...


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