United States District Court, M.D. Louisiana
RULING ON MOTION FOR PARTIAL SUMMARY
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
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.
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:
Tarver initially named his daughter, Ms. Marsch, as the
beneficiary of the Annuity's proceeds. (R. Doc. 21-1 at
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,
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).
December 12, 2015, Mr. Tarver died testate. He bequeathed all
of this property to Lester Berard. (R. Doc. 1-2 at 52).
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).
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).
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).
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
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.
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 ...