Transamerica Life Insurance Co. v. Brickman et al

Filing 76

ORDER denying 72 motion to stay; denying 73 Motion for Protective Order. Signed by Magistrate Judge Thomas B. Smith on 6/30/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TRANSAMERICA LIFE INSURANCE
CO.,
Plaintiff,
v.

Case No: 6:15-cv-1919-Orl-41TBS

MARIA COPPEN BRICKMAN, JOSEPH
MICHAEL BRICKMAN, WILLIAM H.A
BRICKMAN, ROBERT JON BRICKMAN,
II , JONATHAN LOUIS BRICKMAN and
OTTO E. COPPEN,
Defendants.
ORDER
This case comes before the Court without a hearing on Defendant Maria Coppen
Brickman’s Motion to Stay the Action (Doc. 72) and Defendant Maria Coppen Brickman’s
Motion for a Protective Order and Temporary Stay of Discovery Pending the Court’s
Ruling on the Motion to Stay the Action (Doc. 73). Both motions are opposed (Docs. 7475).
Plaintiff brought this interpleader action for a judicial determination of who should
receive the proceeds of three life insurance policies (Doc. 1, ¶ 13). The Defendants are
the deceased-insured’s wife—Maria Coppen Brickman (the “Wife”)—as primary beneficiary
under the policies, and the deceased-insured’s children—Joseph Michael Brickman,
William H.A. Brickman, Robert Jon Brickman II, and Jonathon Louis Brickman (the
“Children”)—as contingent beneficiaries (Id., ¶¶ 2–6). The Wife has been indicted and is
currently incarcerated in Cherokee County, North Carolina awaiting trial for the murder of
the deceased-insured (Id., ¶¶ 2, 22–23; Doc. 71, ¶ 2; Doc. 72 at 3).

The parties seem to agree that Florida law governs this controversy. Florida
Statute § 732.802(3) provides that a named beneficiary of a life insurance policy “who
unlawfully and intentionally kills” the insured “is not entitled to any benefit under the ...
policy.” Relying on this statute, the Children have filed a crossclaim against the Wife for a
declaratory judgment that she is not entitled to the proceeds of the life insurance policies
because she unlawfully killed the deceased-insured (Doc. 46, ¶¶ 14-28). The Wife has
crossclaimed against the Children for a declaratory judgment that she is entitled to the
proceeds from the policies (Doc. 71 at 4-8).
The Wife is asking the Court to stay this case pending resolution of her criminal
case (Doc. 72). She argues that a stay is appropriate: (1) to promote judicial economy;
(2) to protect her Fifth Amendment privilege; (3) because until the criminal case is
decided the parties will be unable to complete discovery; and (4) the parties will not be
unfairly prejudiced by a stay (Id., at 4).
The Wife is also asking for a protective order or temporary stay of discovery until
the Court rules on her motion to stay this proceeding (Doc. 73). The Children have
served requests for admissions and interrogatories on the Wife which concern the
circumstances surrounding the deceased-insured’s death (Id., at 3; Doc. 73-2). The Wife
argues that if she is required to respond to this discovery, she will be forced to choose
between waiving her privilege against self-incrimination and losing this case (Doc. 73 at
4).
“The power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants. How this can best be done calls for the exercise of
judgment, which must weigh competing interests and maintain an even balance ” Landis

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v. N. Am. Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “[T]he
supplicant for a stay must make out a clear case of hardship or inequity in being required
to go forward, if there is even a fair possibility that the stay for which he prays will work
damage to some one else.” Id. at 255.
“It is the rule, rather than the exception that civil and criminal cases proceed
together.” Am. Gen. Life Ins. Co. v. Jones, No. 08-0211-WS-B, 2008 WL 4949847, at *4
(S.D. Ala., Nov. 13, 2008) (quoting United States ex rel. Gonzalez v. Fresenius Med.
Care N. Am., 571 F. Supp. 2d 758, 761 (W.D. Tex. 2008)). “The Constitution does not
require a stay of civil proceedings pending the outcome of related criminal proceedings.”
Shell Oil Co. v. Altina Assocs., Inc., 866 F. Supp. 536, 540 (M.D. Fla. 1994). “Rather, a
court must stay a civil proceeding pending resolution of a related criminal prosecution
only when ‘special circumstances’ so require in the ‘interests of justice.’” United States
v. Lot 5, Fox Grove, Alachua Cty., Fla., 23 F.3d 359, 364 (11th Cir. 1994). See also
United States v. Little Al, 712 F.2d 133, (5th Cir. 1983). “The very fact of a parallel
criminal proceeding does not alone constitute ‘special circumstances.’” In re
Blankenship, 408 B.R. 854, 861 (Bankr. N.D. Ala. June 8, 2009).
“The [F]ifth [A]mendment privilege against self-incrimination permits a person ‘not
to answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in the future criminal proceedings.’”
SEC v. Wright, 261 F. App’x 259, 262-63 (11th Cir. 2008) (quoting Erwin v. Price, 778
F.2d 668, 669 (11th Cir. 1985)). “[T]he Fifth Amendment is violated when a person, who
is a defendant in both a civil and a criminal case, is forced to choose between waiving his
privilege against self-incrimination or losing the civil case in [summary proceedings].”
Shell Oil Co., 866 F. Supp. at 540 (citing Pervis v. State Farm Fire & Cas. Co., 901 F.2d

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944 (11th Cir. 1990) (alteration in original). “However, the blanket assertion of the
privilege against self-incrimination is an inadequate basis for the issuance of a stay.”
Wright, 261 F. App’x at 263 (citing Lot 5, 23 F.3d at 364). The Eleventh Circuit has
explained that a “court may deny a stay so long as the [Fifth Amendment] privilege’s
invocation does not compel an adverse judgment against the claimant.” Lot 5, 23 F.3d at
364. “Where the invocation of the Fifth Amendment privilege merely results in the loss of
a defendant’s most effective defense, not the automatic entry of summary judgment, the
exception to the general rule does not apply.” Id.
“In determining whether the invocation of the Fifth Amendment privilege would
result in an adverse judgment, the Court considers: 1) the extent to which issues in the
criminal case overlap with those presented in the civil case; 2) the status of the case,
including whether the defendants have been indicted; 3) the private interests of the
plaintiffs in proceeding expeditiously against the prejudice to the plaintiffs caused by the
delay; 4) the private interests and burden on the defendants; 5) the interest of the courts;
and 6) the public interest.” Regions Bank v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015
U.S. Dist. LEXIS 119410, at *8 (M.D. Fla. Sep. 8, 2015) (citing Coquina Invs. v. Rothstein,
No. 10-60786-Civ-COOKE/BANDSTRA, 2011 U.S. Dist. LEXIS 67968 (S.D. Fla. June 24,
2011)). See also Dean v. Douglas, No. 5:12-CV-120 (CAR), 2012 U.S. Dist. LEXIS
175006, at *9 (M.D. Ga. Dec. 11, 2012).
The criminal case and this case arise from a common nucleus of facts and there is
a clear overlap in the issues to be decided in the proceedings. The Court is unaware of
the status of the criminal case and does not know when it will be resolved.
Consequently, the Wife is asking for an indefinite stay which is a form of relief not favored
by the Court. In this case, Plaintiff has deposited the proceeds of the three insurance

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policies into the Court registry and was dismissed with prejudice (Docs. 60-62). All
remaining claims and defenses are set for trial during the trial term beginning April 3,
2017 (Doc. 56 at 2).
The Wife argues that the Children will not be prejudiced by an indefinite stay
because if she is found guilty, that decision will eliminate the need to litigate this
controversy (Doc. 72 at 7). Alternatively, if she is found not guilty, she asserts that most
of the facts and discovery in the criminal case will be available for use in this case (Id.).
Either way, she argues that a stay will benefit the Children (Id.). In almost every case,
delay is prejudicial to someone and here, it is the Children who say (without specifying
why) that they will be harmed. The Children also argue that a stay is unnecessary since
FLA. STAT. § 732.802(3) provides that “[i]n the absence of a conviction of murder in any
degree, the court may determine by the greater weight of the evidence whether the killing
was unlawful and intentional for purposes of this section.”
The Court has its own concerns about staying this action indefinitely. The Court
has a heavy caseload to manage and delaying this case will only add to its burden.
Delay would also disserve the public interest in the just, speedy, and efficient resolution of
this dispute. See FED. R. CIV. P. 1.
The Wife has not offered any evidence suggesting that this case was brought to
obtain evidence for her criminal prosecution or that the criminal case was unconstitutional
or inappropriately instituted. See Wright, 261 F. App'x at 263 (“Special circumstances”
may be established where there is “record evidence suggesting the Government had
brought the civil case solely to obtain evidence for the criminal prosecution or that the
criminal case … was unconstitutional or inappropriately instituted.”). See also Regions

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Bank, 2015 U.S. Dist. LEXIS 119410, at *9; Am. Gen. Life Ins. Co. v. Jones, No. 08-0211WS-B, 2008 U.S. Dist. LEXIS 92850, at *20 (S.D. Ala. Nov. 13, 2008).
The ultimate question is whether the Wife’s assertion of her right against selfincrimination will result in the automatic entry of summary judgment for the Children.
“The law in the Eleventh Circuit requires consideration of whether, as a result of invoking
the privilege, the defendant faces certain loss of the civil proceeding on summary
judgment if the civil proceeding were to continue.” Court-Appointed Receiver of Lancer
Mgmt. Grp., LLC, v. Lauer, No. 05-60584-CIV-MARRA, 2009 WL 800144, at *2 (S.D. Fla.
Mar. 25, 2009). “[U]nder the standard set by the Eleventh Circuit, the mere possibility of
disadvantage in a civil proceeding, such as that which might result from this adverse
inference, is insufficient to justify a stay at this point in time.” Id., at 3.
In her answer to the original complaint, the Wife affirmatively alleged that she “did
not unlawfully and intentionally kill” the deceased-insured (Doc. 71 at 4). The Children
have propounded an interrogatory to the Wife asking that she state all facts evidencing
and supporting this assertion (Doc. 73-2 at 7). They have also asked her to state all
facts evidencing her denial that she murdered the deceased-insured, and that she
provide all facts as to how the shooting of the deceased-insured took place (Id., at 8, 11).
In requests for admissions, the Children have asked the Wife to admit that she aimed the
gun that shot the deceased-insured; that she intended to shoot; that she pulled the
trigger; that she fired the gun; that she was not acting in self-defense; and that the
deceased-insured died from the gunshot (Doc. 73-2 at 2-3).
If the Wife asserts the privilege against self-incrimination in response to the
Children’s discovery that will likely result in the imposition of an adverse inference against
her. See Regions Bank, 2015 U.S. Dist. LEXIS 119410, at *7 (quoting United States v.

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Single Family Residence & Real Prop., 803 F.2d 625, 629 n.4 (11th Cir. 1986)). The
adverse inference will not automatically result in the entry of summary judgment against
the Wife. As the court in a similar case observed “a beneficiary’s asserting the Fifth
Amendment privilege in response to discovery may result in an adverse inference against
the beneficiary and, therefore, provides only tenuous support for a stay.” West Cost Life
Ins. Co. v. Longboat, No. 8:09-cv-2159-T-23TBM, 2010 WL 4942146, at *1 (M.D. Fla.
Nov. 29, 2010).
After due consideration the Court finds that there are no special circumstances or
threat of substantial and irreparable prejudice warranting a stay of this action.
Accordingly, the Wife’s motion for a stay of this case pending the resolution of her
criminal case is DENIED. If at a later stage in this case, when the record is more fully
developed, it appears that the Wife’s invocation of her Fifth Amendment privilege against
self-incrimination will result in the certain entry of summary judgment against her, then
she may reassert her motion for a stay.
The Wife has also requested a protective order and temporary stay of her
obligation to respond to the Children’s discovery pending the Court’s ruling on her motion
to stay the entire case. The Court having denied that motion, the Wife’s motion for a
protective order and temporary stay is also DENIED.
DONE and ORDERED in Orlando, Florida on June 30, 2016.

Copies furnished to Counsel of Record

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