Kubek v. Teachers Retirement, et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 9/30/2011. (br, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
RISOLETA M. KUBEK,
NORA KUBEK JONES,
CIVIL ACTION NO.
Alabama law for the conversion of her benefits under her
late ex-husband’s retirement and life-insurance policies.
Kubek alleges that her step-daughter, defendant Nora
Kubek Jones, converted these policies by forging “Limited
Cancellation” forms and exercising undue influence over
This court has jurisdiction under 28
U.S.C. § 1367 (supplemental).1
Based on an on-the-record
1. Initially, Kubek asserted federal claims with
jurisdiction based on 28 U.S.C. § 1331 (federal
question), but with her federal claims now resolved, see,
e.g., Kubek v. Teachers' Retirement System of Ala., 2008
stipulation at the pretrial conference to resolve the
conversion claim on the record without a jury trial and
after a full review of the record,2 this court now makes
the following findings of fact and reaches the following
conclusions of law on Kubek’s conversion claim.3
WL 696870 (M.D. Ala. 2008), only her state conversion
claim is left, with jurisdiction, as stated, resting on
§ 1367. Kubek also asserts diversity jurisdiction under
28 U.S.C. § 1332, but Kubek and Jones are not “diverse”
under § 1332 because Kubek is a dual American-Brazilian
citizen residing in Brazil. See Molinos Valle Del Cibao,
C. por. A. V. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011)
(holding that “an individual who is a dual citizen of the
United States and another nation is only a citizen of the
United States for the purposes of diversity jurisdiction
under § 1332(a)”).
2. There is a wrinkle, however: While Jones filed
an answer in August 2004, she has not made an appearance
since then. At the pretrial conference on September 26,
2011, Kubek waived her right to a jury trial. The court
finds that Jones’s absence constitutes a waiver of her
right to a jury trial.
See Southland Reship, Inc. v.
Flegel, 534 F.2d 639, 644-45 (5th Cir. 1976) (finding
waiver of right to jury trial when counsel participated
at hearing and failed to object); 9 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 2321
(3d ed. 2008) (“The right to jury trial also may be
waived as it has in many, many cases, by conduct.”).
On March 31, 2009, this court denied summary
Findings of Fact
Kubek’s conversion claim arises from her status as a
beneficiary under two policies.
First, Kubek was entitled to survivor benefits under
her ex-husband’s retirement policy.
While Alabama law
prohibited the ex-husband from changing the retirement
policy’s beneficiary, he did retain the right to cancel
Kubek alleges that Jones filed a forged
“Notice of Survivor Benefits Cancellation” form with the
received a pro-rata survivor benefit of $ 188.05 for the
ten days that her father was alive in June 2003.
Second, Kubek was listed as the beneficiary of her
ex-husband’s life-insurance policy.
Kubek alleges that
judgment in favor of Kubek and against Jones. Kubek v.
Jones, 2009 WL 903289 (M.D. Ala. March 31, 2009). More
recently, in September 2011, this court sua sponte issued
an order directing Kubek to show cause why summary
judgment should not be granted to Jones. On September
30, 2011, this court denied summary judgment in favor of
Jones and against Kubek.
Jones exercised undue influence to remove Kubek and name
Jones as the policy’s beneficiary.
Upon the ex-husband’s
death, the life-insurance policy paid out $ 60,000 in
benefits and $ 17.26 in interest.
The court finds that Jones engaged in forgery and
undue influence to obtain control unlawfully over these
With regards to the retirement policy, Kubek contends
that Jones used a fraudulently acquired power-of-attorney
to cancel her survivor benefits.
The disputed “Limited
Power of Attorney” form was signed in July 1999 and the
completed in November 1999.
seals of Tina Carter.
Both forms include notary
But Carter has submitted an
affidavit testifying that she did not notarize these
Kubek argues that these two forgeries cast
doubt on the veracity of the ex-husband’s signatures and
the documents as a whole.
The court agrees with this reading of the Carter
Kubek’s expense, and, given the undisputed evidence that
Carter’s notarizations were forged, it is clear that
Other evidence also points to Jones as the author of
For instance, the “limited power of attorney”
form includes handwriting that refers to the ex-husband
in the third person.
Doc. No. 178-3 (referring to
“royalties from his books published”) (emphasis added).
The court, therefore, concludes that the “Limited Power
Cancellation” forms fraudulently notarized by Tina Carter
are total forgeries and that Jones orchestrated this
scheme to benefit herself.
As to the life-insurance policy, Kubek asserts that
Jones exerted undue influence over the ex-husband when he
submitted a change-of-beneficiary form in September 2000.4
The court finds that the ex-husband, then 80 years
old, was in failing mental and physical health in 2000.
A November 21, 1999, letter from Jones to Kubek details
husband’s inability to care for himself, do his own
laundry, clean his home, and follow a proper diet.
states that her father’s health was “deteriorating” and
Additionally, the ex-husband’s death certificate shows
that he suffered from dementia at the time of his death
in June 2003.
4. Kubek relies on a undue-influence theory because
a superceding power-of-attorney granted Jones authority
over the ex-husband’s affairs and there is no evidence in
the record to support a claim that this second power-ofattorney is a forgery. (Doc. No. 106-8).
Conclusions of Law
To prevail on a claim of conversion under Alabama
common law, Kubek must establish that there was “(1) a
wrongful taking; (2) an illegal assertion of ownership;
(3) an illegal use or misuse of another's property; or
(4) a wrongful detention or interference with another's
Drennen Land & Timber Co. v. Privett, 643
So. 2d 1347, 1349 (Ala. 1994); see also Greene County Bd.
of Educ. v. Bailey, 586 So. 2d 893, 898 (Ala. 1991) (“The
gist of the action is the wrongful exercise of dominion
over property to the exclusion or in defiance of a
plaintiff’s rights, where the plaintiff has a general or
special title to the property or the immediate right to
In Alabama, a beneficiary’s interest in an insurance
policy can form the basis for a claim of conversion.
Williams v. Prudential Insur. Co. Of America, 470 So. 2d
“correctly argue[d] that an insurance policy may be the
subject of conversion”).
While an action for conversion
for money is generally barred, “if the money at issue is
capable of identification, then a claim of conversion may
treated the plaintiff’s interest in an insurance policy
as the property that is converted.
Williams, 470 So. 2d
Here, Kubek has satisfied her claim of conversion. As
to the retirement policy, Jones appropriated $ 188.05 of
removal of Kubek as beneficiary resulted in the loss of
all future survivorship payments.
See Greer v. Carl
Johnson Motor Co., 114 So. 2d 907, 910 (Ala. 1959)
(noting that the destruction of property satisfies a
claim of conversion).
Jones’s fraud in obtaining the
Benefits Cancellation” forms constitutes a conversion of
Kubek’s survivor benefits.
As to the life-insurance policy, Jones’s acquisition
of the death benefit was the product of undue influence.
Under Alabama common law, in “transactions inter
beneficiary is the dominant party, the law raises a
beneficiary the burden of repelling such presumption when
Wolfe v. Thompson, 235
the transaction is assailed.”
So. 2d 878, 882 (Ala. 1970).
The beneficiary must
demonstrate that the “transaction was fair, just, and
equitable in every respect.”
Id. at 882-83.
Chandler v. Chandler, 514 So. 2d 1307,
1308 (Ala. 1987).
Moreover, if the evidence makes it
appear that the child is the “dominant spirit” in the
relationship, the burden shifts to the child to show that
the transaction was fair and just.
Kubek has established that Jones was the “dominant
spirit” in relation to her father.
As detailed above,
the ex-husband was in poor health and suffering from
dementia in the final years of his life.
served as his primary care-giver in Texas.
Furthermore, the correspondence that initiated the
change-of-beneficiary process used hand-written fax cover
sheets depicting a dog and cartoon characters.
correspondence between the ex-husband and his insurance
provider used type-written letters.
The difference is
The fax correspondence raises the specter that
Jones controlled the change-of-beneficiary process to
benefit herself and that her father had become dependent
Thus, the court finds that Kubek has established a
presumption of undue influence.
Jones’s general denial
and subsequent unresponsiveness are insufficient to rebut
this presumption. As the life-insurance policy’s change-
of-beneficiary form was the product of undue influence,
Jones unlawfully converted Kubek’s death benefits.
damages for the conversion of personal property is the
value of the property as of the date of the conversion
with interest at an annual rate of 6 % from the date of
Edwards v. Vanzant, 492 So. 2d 990, 994
Kubek’s entitlement under the retirement policy needs
to be calculated based upon the survivor benefit paid to
Jones: a pro rata amount of $ 188.05 for the ten days the
ex-husband was alive in June 2003.
The per diem rate for
the policy, therefore, was $ 18.81.
Under the retirement
policy, Kubek was entitled to receive a lifetime monthly
Using actuarial tables submitted by
the plaintiff, the court has calculated Kubek’s life
The court awards no punitive damages.
expectancy to be 19.24 years at the time of her exhusband’s
benefits amounted to $ 132,095.11.6
Under the life-insurance policy, Kubek is due what
Jones received in payment: $ 60,000 in benefits and
$ 17.26 in interest.
entitled to 6% annual interest over 8 years and 3 months.
Kubek’s interest on the conversion comes to $ 95,095.62.
Kubek’s total damages, therefore, amount to $ 287,207.99.
* * *
In sum, the court finds that Kubek has established
her claim of conversion against Jones and is entitled to
The court’s survivor benefits calculation is
based upon Kubek’s life expectancy at the time of the exhusband’s death and necessarily includes the benefits
($188.05) already paid to Jones that were due to Kubek.
damages of $ 287,207.99.
An appropriate judgment will be
DONE, this the 30th day of September, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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