Protective Life Insurance Company v. Betts et al

Filing 63

ORDER granting 44 Motion to Substitute Party, and granting 59 Motion for Summary Judgment. Defendants Elena Davis and Alberto Romero, Sr. are substituted in the place of Defendants Jeremy Bowers and the Estate of Alberto Romero, Jr. Signed by Magistrate Judge Julie S. Sneed on 4/17/2017. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PROTECTIVE LIFE INSURANCE
CORPORATION,
Plaintiff,
v.

Case No: 8:16-cv-1292-T-JSS

CHAD M. BETTS, JEREMY W.
BOWERS, ELENA L. DAVIS, ALBERTO
ROMERO, SR. and THE ESTATE OF
ALBERTO ROMERO, JR.,
Defendants.
___________________________________/
ORDER
THIS MATTER is before the Court on Defendants Jeremy Bowers’s and the Estate of
Alberto Romero, Jr.’s Motion to Substitute Parties Pursuant to Rule 26(c) (“Motion to Substitute”)
(Dkt. 44),1 and Defendants Jeremy Bowers’s and the Estate of Alberto Romero, Jr.’s Motion for
Summary Judgment (“Summary Judgment Motion”) (Dkt. 59). No response was filed to the
Summary Judgment Motion despite the Court’s, sua sponte, granting the parties an extension to
respond. (Dkt. 61.) For the reasons that follow, the Motion to Substitute is granted and the
Summary Judgment Motion is granted.
BACKGROUND
On October 16, 2000, Zurich Life Insurance Company of America issued a policy of life
insurance, Policy No. ZL6607105 (the “Policy”), to Alberto Romero, Jr. (the “Insured”), in the
face amount of $200,000. (Dkt. 1 ¶ 11; Dkt. 6-1.) Protective Life Insurance Corporation

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Defendant Chad Betts filed a response in opposition to the Motion to Substitute (Dkt. 45), which he later withdrew.
(Dkt. 62.) Accordingly, the Motion to Substitute is unopposed.

(“Protective”) is the successor-in-interest to the Policy. (Dkt. 1 ¶ 11.) In the application, the
Insured named his estate (“Estate”) as the primary, and only, beneficiary of the Policy. (Dkt. 61.)
On November 6, 2000, the Insured requested a change of his beneficiary designation
(“Request”), changing the primary beneficiary of the Policy in accordance with an accompanying
“Change of Beneficiary Attachment.” (Dkt. 6-2 at 2, 5.) While the Request accurately references
Policy No. ZL6607105 (Dkt. 6-2 at 2), the Change of Beneficiary Attachment references Policy
No. “ZL660715.” (Dkt. 6-2 at 5.) In the Change of Beneficiary Attachment, the Insured made the
following beneficiary designations: domestic partner Chad Michael Betts would receive 50%,
friend Jeremy Wade Bowers would receive 20%, father Alberto Romero, Sr. would receive 18%,
and sister Elena L. Davis would receive 12%. (Dkt. 6-2 at 5.) The Estate was not included as a
beneficiary in the Change of Beneficiary Attachment. (Dkt. 1 ¶ 16.)
The Insured died in Vedado, Havana Cuba, on January 8, 2015, and the proceeds of the
Policy became payable. (Dkt. 1 ¶ 16; Dkt. 6-3.) On November 30, 2015, Defendant Jeremy
Bowers, as personal representative of the Estate, filed a Petition for Order Authorizing Personal
Representative to Pursue Legal Action (“Petition”) in an action styled In re: Estate of Alberto
Romero, Jr., case no. 15-CP-000150, now pending in the Circuit Court for Hillsborough County,
Florida. (Dkt. 1 ¶ 17; Dkt. 6-4.) In the Petition, Bowers, as personal representative of the Estate,
seeks an order granting him leave to pursue the Estate’s rights to the Policy’s proceeds, and either
enjoining Protective from distributing the proceeds or requiring it to interplead the proceeds. (Dkt.
6-4.) In the petition, Bowers explained that the Estate filed a claim for the Policy’s proceeds,
which Protective denied, finding that the beneficiaries are those listed in the Change of Beneficiary
Attachment. (Dkt. 6-4 ¶¶ 5–6.)

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Further, in the Petition, Defendant Bowers argues, alternatively, that (1) the Estate is
entitled to 100% of the death benefit, per the original beneficiary designation, because the Change
of Beneficiary Attachment is void for failure to reference the correct policy number, (2) Defendant
Chad Betts’s 50% share is void because the designations in the Change of Beneficiary Attachment
were status-dependent and Betts did not have domestic partner status at the time of the Insured’s
death, and (3) Betts’s 50% share is void because Defendant Betts could not be located. (Dkt. 64.) Defendant Bowers further argues that if Betts’s share is void, that share should be payable
either to the Estate or to the remaining beneficiaries designated in the Change of Beneficiary
Attachment. (Dkt. 6-4.)
Protective initiated an interpleader action, admitting that the proceeds of the Policy are
payable, but contending that it “is unable to determine to whom” the proceeds should be paid.
(Dkt. 1 ¶ 20.) Therefore, Protective requested that it the Court accept payment of the proceeds
into the Court Registry, that the Court adjudicate the rightful recipient(s) of the proceeds, and that
the Court dismiss Protective from the action. (Dkt. 1 at 5.) The Court granted Protective’s motion
for leave to deposit the proceeds in the Court Registry, dismissed Protective as a named party, and
discharged Protective from all further liability related to the proceeds. (Dkts. 33, 34, 38.)
In the Motion to Substitute, Defendants Bowers and the Estate seek an order substituting
Defendants Romero, Sr. and Davis for Bowers and the Estate because Bowers and the Estate
assigned all their rights, claims, and interest in the Policy’s proceeds to Romero, Sr. and Davis.
(Dkt. 44.) Thus, Bowers and the Estate seek to be dismissed from the action. (Dkt. 44.) Similarly,
in the Summary Judgment Motion, Bowers and the Estate seek an order of summary judgment
dismissing them from the case because they have transferred their interests in the Policy’s proceeds
to Romero, Sr. and Davis, and thus are no longer indispensable parties to this action. (Dkt. 59.)

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APPLICABLE STANDARDS
Federal Rule of Civil Procedure 25(c) provides that “[i]f an interest is transferred, the action
may be continued by or against the original party unless the court, on motion, orders the transferee
to be substituted in the action or joined with the original party.” Fed. R. Civ. P. 25(c). “Rule 25(c)
applies only to transfers of interest occurring during the pendency of litigation and not to those
occurring before the litigation begins.” Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1407
(11th Cir. 1998); Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994) (“Rule
25(c) authorizes a substitution of parties after a transfer of interest has occurred.”).
It is within the court’s discretion to allow substitution. Nat’l Indep. Theatre Exhibitors,
Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 610 (11th Cir. 1984). Substitution under Rule
25(c) “is procedural only and does not affect the substantive rights of the parties which are
determined by state law.” Matter of Covington Grain Co., Inc., 638 F.2d 1357, 1361 (5th Cir.
1981);2 Barker v. Jackson Nat’l Life Ins. Co., 163 F.R.D. 364, 365 (N.D. Fla. 1995) (“Substitution
under Rule 25(c) is purely a matter of convenience, and regardless of whether substitution is
ordered, the respective substantive rights of the transferor or the transferee are not affected.”).
Summary judgment is proper if the movant shows “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A disputed fact is material if the fact “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. The
movant bears the burden of establishing the absence of a dispute over a material fact. Reynolds v.
Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir. 1993). In considering a summary

2

In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
precedent the decisions the former Fifth Circuit rendered prior to October 1, 1981.

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judgment motion, all evidence is viewed in the light most favorable to the non-movant. Id. Once
the moving party requests summary judgment on the absence of necessary evidence, the nonmoving party must “go beyond the pleadings and . . . designate specific facts showing that there is
a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Additionally, the court must ensure that the motion is supported by evidentiary materials
and, in its order, must “indicate that the merits of the motion were addressed.” Dunlap v.
Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988); see also United States
v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th
Cir. 2004) (providing that the district court cannot grant summary judgment on the mere fact that
a motion for summary judgment is unopposed).
ANALYSIS
“Generally, all contractual rights are assignable unless the contract prohibits assignment,
the contract involves obligations of a personal nature, or public policy dictates against
assignment.” Hall v. O’Neil Turpentine Co., L.V. McClendon Kennels, Inc. v. Inv. Corp. of S.
Florida, 490 So. 2d 1374, 1375 (Fla. 3d DCA 1986); Abraham K. Kohl, D.C. v. Blue Cross & Blue
Shield of Florida, Inc., 955 So. 2d 1140, 1143 (Fla. 4th DCA 2007); Classic Concepts, Inc. v.
Poland, 570 So. 2d 311, 313 (Fla. 4th DCA 1990).
An assignment “transfers all the interests and rights to the thing assigned, and permits the
assignee to stand in the assignor’s shoes and enforce the contract against the original obligor or in
his own name.” Cableview Commc’ns of Jacksonville, Inc. v. Time Warner Cable Se. LLC, No.
3:13-CV-306-J-34JRK, 2014 WL 1268584, at *3 (M.D. Fla. Mar. 27, 2014) (internal quotations
omitted). Thus, the assignor retains no right to enforce the contract after assignment. Id.

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Here, in the Court’s exercise of its discretion, substitution is warranted under Rule 25(c),
as it will streamline, rather than disrupt, the issues in this case. See Nat’l Indep. Theatre Exhibitors,
748 F.2d at 610 (11th Cir. 1984) (holding that the district court did not err in denying substitution
because it would be disruptive to the case’s orderly administration); Barker, 163 F.R.D. at 366
(N.D. Fla. 1995) (denying substitution because it “may require that the trial be postponed, or
perhaps that the case be dismissed”). And, importantly, substitution recognizes and effectuates
the assignment executed by Bowers, individually and as personal representative of the Estate,
Davis, and Romero, Sr. (Dkt. 60). See Hansen v. Wheaton Van Lines, Inc., 486 F. Supp. 2d 1339,
1346 (S.D. Fla. 2006) (“By assigning all such rights, Plaintiff has no standing to pursue the instant
action. Once the assignor assigns its rights to pursue a claim against a third party to another, the
assignor retains no right to sue the third party. An assignment transfers all rights in the thing
assigned.”).
Further, summary judgment as to Bowers and the Estate is appropriate because the
assignment (Dkt. 60) demonstrates that Bowers and the Estate assigned their rights to the Policy’s
proceeds. It is undisputed that the assignment is valid. (Dkt. 60 ¶¶ 2–3; Dkt. 60, Ex. A.) See Fed.
R. Civ. P. 56(e)(2) (providing that if a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact, then the court may consider the fact undisputed
for purposes of the motion); § 733.612(5), Fla. Stat. (explaining that the powers of a personal
representative include “dispos[ing] of an asset”); Baker v. Vidoli, 751 So. 2d 608, 610 (Fla. 2d
DCA 1999) (recognizing the personal representative’s authority to sell the estate’s securities).
Therefore, as a matter of law, Bowers and the Estate have no interest in the Policy’s proceeds, and,
thus, no interest in this proceeding. Hansen, 486 F. Supp. 2d at 1346; Cableview, 2014 WL
1268584, at *3.

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Accordingly, it is
ORDERED:
1.

Defendants Jeremy Bowers’s and the Estate of Alberto Romero, Jr.’s Motion to

Substitute Parties Pursuant to Rule 26(c) (Dkt. 44) is GRANTED. Defendants Elena Davis and
Alberto Romero, Sr. are substituted in the place of Defendants Jeremy Bowers and the Estate of
Alberto Romero, Jr.
2.

Defendants Jeremy Bowers’s and the Estate of Alberto Romero, Jr.’s Motion for

Summary Judgment (Dkt. 59) is GRANTED.
DONE and ORDERED in Tampa, Florida, on April 17, 2017.

Copies furnished to:
Counsel of Record

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