Jackson National Life Insurance Company v. Kipper-Tomke et al

Filing 71

ORDER denying 59 Defendant Katie Kathleen Krumm's Motion for Attorneys' Fees and Costs Pursuant to D.C.COLO.LCivR 54.3. By Magistrate Judge Boyd N. Boland on 12/30/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00810-BNB-MJW
JACKSON NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation,
Plaintiff,
v.
KAREN KIPPER-TOMKE,
KRISTA N. KIPPER-TOMKE, and
KATIE KATHLEEN KRUMM,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Defendant Katie Kathleen Krumm’s Motion for Attorneys’
Fees and Costs Pursuant to D.C.COLO.LCivR 54.3 [Doc. # 59, filed 11/4/2013] (the “Motion
for Attorneys Fees”). The Motion for Attorneys fees is unfounded and is DENIED.
This case began as an interpleader. The interpleader plaintiff, Jackson National Life
Insurance Company (“Jackson Life”), issued an annuity to Craig Tomke. Mr. Tomke died on
December 12, 2012. The annuity listed Mr. Tomke’s daughters, Katie Kathleen Krumm
(“Kathleen”) and Krista Kipper-Tomke (“Krista”), as the primary beneficiaries. Mr. Tomke’s
wife at the time of his death, Karen Kipper-Tomke (“Karen”), made a claim under the annuity,
writing to Jackson Life:
As a result of reviewing the above referenced annuity transferred
from Bankers Life and Casualty I am contesting its validity as to
the time & date the contract was signed, the beneficiaries are
assigned with no witnesses and no Notary Public present for true
and correct facts. My husband was very sick. Hospice was with
us all last year.

Enclosed please find a Court Authorization for Financial
Disclosure signed buy Craig T. Tomke in Routt County Court,
Case No. 12DR60. I was still Craig’s wife at the time of his death
on December 12, 2012. We were married in 1998. As you are
also aware Colorado is a 50/50 state. Katie Krumm has been out
of his trust for many years for various money reasons. She just
cam back into his life the beginning of 2012.
The Automatic temporary Injunction - by order of the Court reads:
You are restrained from transferring, encumbering, concealing or
in any way disposing of, without the consent of the other party or a
Order of the Court, any marital property, except in the usual course
of business or for the necessities of life. Each party is required to
notify the other party of any proposed extraordinary expenditures
and to account to the court for all extra ordinary expenditures
made after the injunction is in effect.
Karen’s Letter [Doc. # 59] at p. 12 of 65.
Based on Karen’s Letter, Jackson Life responded that it “is not in a position to judge the
merits of the rival claims” and that it would commence an interpleader through which those
claims could be resolved. Jackson Life’s Letter [Doc. # 59] at p. 37 of 65.
After depositing the disputed res into the registry of the court, Jackson Life sought to be
dismissed and the award of its attorneys fees in commencing the interpleader action. Motion
[Doc. # 39]. Kathleen initially opposed Jackson Life’s fee application, arguing that it was
excessive. Response [Doc. # 37]. Subsequently, however, all parties stipulated to the dismissal
of Jackson Life and to the award of its fees in the amount of $12,202.50, “which are to be paid
out of the policy benefits deposited with the Registry of the Court.” Stipulation [Doc. # 45] at
¶3.
The parties eventually stipulated to the dismissal of this case, preferring to have the
matter resolved in the District Court of Routt County, Colorado, where Mr. Tomke’s estate is

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being probated. Stipulation for Dismissal [Doc. # 54]. Now, Kathleen seeks an order of this
court “(1) directing [Karen] to reimburse the Interpleader Fund for all of the fees and costs paid
to counsel for Jackson [Life]; and (2) directing [Karen] to pay [Kathleen’s] reasonable attorneys’
fees and costs for defending this action. . . .” Motion for Attorneys Fees [Doc. # 59].
In support of the Motion for Attorneys Fees, Kathleen relies principally on PrudentialBache Securities, Inc. v. Tranakos, 593 F. Supp. 783 (N.D. Ga. 1984), and cases cited there. In
Tranakos, the trial court ruled:
Typically, the award [of the interpleader plaintiff’s attorneys fees
and costs], if made, is imposed against the party who has benefited
from the interpleader action (and taken out of the interpleader
fund); however, in some cases, a court may tax the losing claimant
directly when his or her conduct justifies doing so.
* * *
[T]he court finds that the United States should be taxed with these
fees and costs because it is the “losing claimant” in this action and
because it acted unreasonably in trying to enforce the notices of
levy once it had in its possession evidence which established that
Tranakos was not the beneficial owner of the accounts. . . . The
levies were eventually released based on information known to the
IRS long before the February, 1983, “final demands” were made
and long before the instant interpleader action was commenced.
Id. at 785-87.
Kathleen already has agreed and stipulated that the attorneys fees and costs incurred by
Jackson Life “are to be paid out of the policy benefits deposited with the Registry of the Court.”
Stipulation [Doc. # 45] at ¶3. She has asserted no grounds that would justify revoking her
previous stipulation.
Nor do I find that Karen’s conduct in this case was unreasonable and justifies shifting to
her the attorneys fees of either Jackson Life or Kathleen. It is apparent that there is a dispute
among Karen, Kathleen, and Krista as to which among them is entitled to the annuity res,
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whether based on the state divorce injunction, Mr. Tomke’s competency to designate
beneficiaries, Karen’s entitlement to an elective share, or otherwise. Kathleen’s strategy has
been to obtain control of those proceeds while the dispute is resolved, risking waste. See
Defendant Katie Kathleen Krumm’s Motion to Dismiss [Doc. # 47] at pp. 7-8 (arguing that “if
this Court dismisses the Complaint and the request for a stay contained therein, then this Court
should order Defendants Kathleen Krumm and Krista Kipper-Tomke each to submit a separate
proposed order and completed IRS Form W-9 in compliance with D.C.COLO.LCivR 67.2(d),
which proposed order shall direct the release of the half of the interpleader fund to the Defendant
submitting the Order”). Karen, by contrast, has taken reasonable steps to protect the res of the
annuity in a court registry until the dispute is resolved.
Nor is it apparent that Karen’s various early claims to invalidate the designation of
Kathleen and Krista as beneficiaries were meritless. In particular, there has been no
determination that Mr. Tomke was competent at the time he designated beneficiaries, and the
evidence relied on by Kathleen to show competency is far from indisputable.
IT IS ORDERED that the Motion for Attorneys Fees [Doc. # 59] is DENIED.
Dated December 30, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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