Metropolitan Life Insurance Company v. Dice et al

Filing 46

MEMORANDUM AND ORDER granting 43 Motion for Summary Judgment; denying 44 Motion for Summary Judgment. Defendants Denese Dice, Kelsie Dice, Britni Dice, Ashlie Smith (Dice), and Cheyenne Dice must submit a status report on or before 12/1/2014, consistent with this Order. Signed by District Judge Daniel D. Crabtree on 10/29/2014. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
METROPOLITAN LIFE INSURANCE
COMPANY,
Plaintiff,
v.
Case No. 13-2339-DDC-JPO
DENESE DICE, ET AL.,
Defendants.
____________________________________
MEMORANDUM AND ORDER
Plaintiff Metropolitan Life Insurance Company filed this case as an interpleader action
seeking a declaratory judgment determining the proper beneficiaries entitled to the proceeds of a
life insurance policy that it issued for Edna Jean Turgeon under the Federal Employees Group
Life Insurance Act (FEGLIA), 5 U.S.C. § 8701 et seq. After plaintiff deposited the proceeds of
the policy with the Court (see Doc. 30 and docket annotation of financial receipt dated
November 25, 2013), the Court dismissed plaintiff with prejudice from this action and
discharged plaintiff from liability arising from the life insurance benefits payable under the
FEGLIA life insurance policy as a consequence of Ms. Turgeon’s death (Doc. 36).
The matter is currently before the Court on Defendants Denese Dice, Kelsie Dice, Britni
Dice, Ashlie Smithy (Dice), and Cheyenne Dice’s (“the Dice Defendants”) Motion for Summary
Judgment (Doc. 43), and a Cross Motion for Summary Judgment (Doc. 44), filed by Albert E.
Grauberger, guardian ad litem for minors D.D., T.D., and M.S (“the Minor Defendants”). For
the reasons set forth below, the Court grants the Dice Defendants’ Motion for Summary
Judgment (Doc. 43), and denies the Cross Motion for Summary Judgment (Doc. 44), filed by
Albert E. Grauberger, guardian ad litem for the Minor Defendants.
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I.

Uncontroverted Facts

The parties have stipulated to the following facts in their Stipulated Facts (Doc. 35).
Edna Jean Turgeon (“the insured”) was employed by the United States Postal Service and was
insured under the Federal Employees’ Group Life Insurance Program underwritten by a policy
issued by plaintiff Metropolitan Life Insurance Company. On June 16, 1995, the insured
executed a Designation of Beneficiary form for her life insurance policy issued by plaintiff. On
the form, the insured listed her beneficiaries, with the shares to be paid to those beneficiaries as
follows:
Deneses (sic) Frances Dice
Kelsie Nichole Dice
Britni M. Dice
1. Unborne (sic) grandchild Dice
Ashlie D. Smithey (Dice)
Doris D. Turgeon

Daughter
Granddaughter
Granddaughter
Granddaughter
Granddaughter
Mom

5/10
1/5
1/5
1/5
1/5
1/51

Ex. 1 to Am. Compl. in Interpleader (Doc. 23-1). The insured and two witnesses signed the
Designation of Beneficiary form, which was submitted to the insured’s employer. There is no
record that the insured ever submitted a subsequent Designation of Beneficiary form.
Denese Dice is the insured’s only child. Doris D. Turgeon was the insured’s mother.
Doris D. Turgeon pre-deceased her daughter. The other four named individuals on the
Designation of Beneficiary form are the insured’s grandchildren and Denese Dice’s natural born
children.
On June 16, 1995 (the date the insured completed the Designation of Beneficiary form),
Denese Dice was pregnant. She gave birth to Cheyenne Dice in September 1995. Cheyenne
Dice was the insured’s only unborn grandchild in utero on June 16, 1995, and the only unborn

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The Court notes the insured made an error in her calculation of the proportional shares on the
Designation of Beneficiary form. The shares, as designated on the form, total 150% rather than 100% of
the insurance policy proceeds. The Court addresses this ambiguity in Part III.C below.

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child referenced in the Designation of Beneficiary form. Afterwards, Denese Dice gave birth to
three additional children, D.D., T.D., and M.S, who are represented by the guardian ad litem in
this action. None of the three additional children are referenced in the Designation of
Beneficiary form.
The insured died on September 26, 2012. On July 12, 2013, plaintiff filed the present
declaratory judgment action, naming Denese Dice, Kelsie Dice, Britni Dice, Ashlie Smithy
(Dice), and Cheyenne Dice as defendants. Plaintiff filed an Amended Complaint in Interpleader
(Doc. 23) on October 23, 2013, adding as a defendant Albert Grauberger, as guardian ad litem
for D.D., T.D., and M.D., minors. Plaintiff filed this action seeking a declaratory judgment
identifying the proper beneficiaries of the insured’s life insurance policy and those entitled to the
policy proceeds.
II.

Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). When it applies this standard, the Court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010) (citing Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1245–46 (10th Cir. 2010)). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson,
477 U.S. at 248)).

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The moving party bears “both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2003)). To meet this burden, the moving
party “need not negate the non-movant’s claim, but need only point to an absence of evidence to
support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d
1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial as to those
dispositive matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Thomas v. Wichita Coca-Cola Bottling
Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Rather, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
The Court applies this same standard to cross motions for summary judgment. Each
party bears the burden of establishing that no genuine issue of material fact exists and its
entitlement to judgment as a matter of law. Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1148 (10th Cir. 2000). Cross motions for summary judgment “are to be treated
separately; the denial of one does not require the grant of another.” Buell Cabinet Co. v.

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Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). But where the cross motions overlap, the Court
may address the legal arguments together. Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149,
1155 (D. Kan. 2010) (citation omitted). In this case, the legal issues and arguments presented by
each summary judgment motion are the same. Therefore, the Court addresses the legal issues
together.
III.

Discussion

“FEGLIA establishes a life insurance program for federal employees.” Metro. Life Ins.
Co. v. Bush, 154 F.3d 1149, 1151 (10th Cir. 1998) (citing Dean v. Johnson, 881 F.2d 948 (10th
Cir. 1989)). FEGLIA requires the payment of life insurance benefits, upon an employee’s death,
in accordance with a specified “order of precedence.” 5 U.S.C. § 8705(a). FEGLIA sets forth
the following “order of precedence”:
First, to the beneficiary or beneficiaries designated by the [insured] in a signed
and witnessed writing received before death in the employing office . . . . For this
purpose, a designation, change, or cancellation of beneficiary in a will or other
document not so executed and filed has no force and effect.
Second, if there is no designated beneficiary, to the widow or widower of the
employee.
Third, if none of the above, to the child or children of the employee and
descendants of deceased children by representation.
Fourth, if none of the above, to the parents of the employee or the survivor of
them.
Fifth, if none of the above, to the duly appointed executor or administrator of the
estate of the employee.
Sixth, if none of the above, to other next of kin of the employee entitled under the
laws of the domicile of the employee at the date of his death.
5 U.S.C. § 8705(a) (emphasis added).

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In 1966, Congress added to FEGLIA the language that is italicized above (“[A]
designation . . . not so executed and filed has no force and effect.”). Bush, 154 F.3d at 1151.
Before that amendment, some courts considered the insured’s “manifest intent” in determining
the proper beneficiary under the life insurance policy. Id. (citing Sears v. Austin, 292 F.2d 690
(9th Cir. 1961)). But the Tenth Circuit has explained,
The 1966 [FEGLIA] amendment foreclosed such inquiries into manifest intent:
“The equities in Sears may have prompted the court of appeals to disregard the
civil service regulation and the general intent of the statute in order to comply
with the insured’s wishes, but the precedent established in that case could, if
generally followed, result in administrative difficulties for the Civil Service
Commission and the insurance companies and, more important, seriously delay
paying insurance benefits to survivors of Federal employees. ‘To clarify
Congress’ intent, [the 1966 amendment to section 8705] rewrites section 4 to state
clearly that the order of precedence set out in that section shall prevail over any
extraneous document designating a beneficiary unless the designation has been
properly received in the employing office or by the Civil Service Commission.’”
Id. at 1151–52 (quoting Ward v. Statton, 988 F.2d 65, 67 (8th Cir. 1993) (quoting S. Rep. No.
1064, 89th Cong., 2d Sess. 2 (1966), reprinted in 2 U.S.C.C.A.N.2070, 2071)).
Therefore, the Court must strictly construe the beneficiary designation provision of
FEGLIA. See Metro. Life Ins. Co. v. Hurford, 983 F.Supp. 1045, 1047 (D. Kan. 1997)
(explaining that “strict compliance with the statute in designating a beneficiary is now required:
‘Congress intended to establish, for reasons of administrative convenience, an inflexible rule that
a beneficiary must be named strictly in accordance with the statute irrespective of the equities in
a particular case.’” (quoting Metro. Life Ins. Co. v. Manning, 568 F.2d 922, 926 (2d Cir. 1977)
(further citations omitted)).
Here, the insured completed a Designation of Beneficiary form listing the following
beneficiaries: Denese Dice (daughter), Kelsie Nichole Dice (granddaughter), Britni M. Dice
(granddaughter), “1. Unborne (sic) grandchild Dice” (granddaughter), Ashlie D. Smithey (Dice)

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(granddaughter), and Doris D. Turgeon (mom). Under 5 U.S.C. § 8705(a), the life insurance
proceeds are payable to the beneficiaries designated by the insured on this form. However,
because the parties dispute the proper interpretation of certain language in the Designation of
Beneficiary form, they request the Court decide two issues. First, the Court must determine
whether the fourth-named beneficiary, “1. Unborne (sic) grandchild Dice”, refers to Cheyenne
Dice, the insured’s only unborn grandchild in utero on the date the insured completed the form,
or whether it refers to a “class of beneficiaries” that includes other after-born grandchildren.
Second, the Court must determine whether the 1/5 share designated to Doris D. Turgeon lapsed
when she predeceased the insured. The Court addresses each issue in turn below.
A. The Fourth-Named Beneficiary Refers Only to Cheyenne Dice and Not a
Class of Beneficiaries.
The insured named “1. Unborne (sic) grandchild Dice” as the fourth-named beneficiary
on the Designation of Beneficiary form that she completed on June 16, 1995. The Dice
Defendants argue that this designation refers to Cheyenne Dice, the only unborn grandchild in
utero on the date that the insured completed the form. Indeed, the parties have stipulated that
Cheyenne Dice is “the only unborn grandchild referenced in the Designation of Beneficiary”
form. Stipulated Facts (Doc. 35 at ¶ 5). In contrast, the Minor Defendants contend that, with the
designation of this fourth-named beneficiary, the insured intended to create a “class of
beneficiaries” that included all future born grandchildren, “not just the unborn grandchild
referenced [in the form] and who was born approximately four months later.” Cross Mot. for
Summ. J. (Doc. 44 at 2). The parties have stipulated, however, that none of the three additional
children born to Denese Dice after the insured completed the Designation of Beneficiary form is
referenced on that form. Stipulated Facts (Doc. 35 at ¶ 6).

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Both sets of defendants refer the Court to 4 Steven Plitt et al., Couch on Insurance §
59:27 (3d ed. June 2014), which states:
An unborn child may be provided for in a regular life policy, even though the
child is not specifically named, so that whether an afterborn child will be
considered to be part of a beneficiary class of “children” is generally dependent
on: (1) whether the interests of the beneficiaries are considered to vest at the time
they are initially named; (2) public policy; and (3) the insured’s intent.
The Minor Defendants argue that these three factors support a finding that the insured created a
class of beneficiaries because: (1) the interests of the beneficiaries did not vest at the time they
were initially named but instead vested when the insured died; (2) public policy favors
supporting all of the insured’s grandchildren rather than those who were living at the time of the
designation; and (3) the insured intended that all of her grandchildren benefit equally from the
insurance policy. But as the Dice Defendants argue, the section recited above states that an
unborn child may be named as a beneficiary as part of a “beneficiary class of ‘children.’” Id.;
see also Thomas v. Leake, 3 S.W. 703, 705 (1887) (holding that a life insurance policy naming
the insured’s “children” as beneficiaries included after-born children).
Here, the insured did not list a beneficiary class of “children” or “grandchildren” with her
designation. Instead, she named only one unborn grandchild. The insured’s use of the singular,
“grandchild,” instead of the plural, “grandchildren,” shows that she did not create a class of
beneficiaries with this designation. Moreover, the insured identified the unborn grandchild as
her “granddaughter” on the form, providing yet more support for the conclusion that the insured
designated only the one unborn granddaughter, Cheyenne Dice, as a beneficiary and not a class
of beneficiaries. Because the insured did not create a class of beneficiaries with the designation,
the Court declines to consider the three factors listed in Couch on Insurance § 59:27, as recited
above.

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Also, FEGLIA prohibits the Court from attempting to discern the insured’s “manifest
intent” in her designation. Bush, 154 F.3d at 1151–52. Instead, the Court must strictly construe
the beneficiary designation provision of FEGLIA without regard for the equities of the situation.
Hurford, 983 F.Supp. at 1047. Under this standard, the Court construes the language of the
designation form as naming only the one unborn grandchild—Cheyenne Dice—because the form
references only the one grandchild in utero on the date when the insured completed the
designation form, specifically identifies her as a “granddaughter,” and makes no reference to any
other after-born grandchildren.
In reaching this conclusion, the Court is persuaded by the reasoning of a recent opinion
from the District of Columbia. In Metropolitan Life Insurance Company v. Barbour, 614 F.
Supp. 2d 47 (D.D.C. 2009), the insured completed a Designation of Beneficiary form that named
her daughter, Jennifer G. Barbour, as the sole beneficiary of a life insurance policy under
FEGLIA. Id. at 50. On the designation, the insured referred to her daughter as “trustee” but the
daughter had never served as a trustee of a trust. Id. at 50, 52. The court found that, while this
designation created some initial confusion, “the inclusion of an improper title in connection with
the name of a beneficiary does not ipso facto result in the invalidation of the designation form.”
Id. at 52. Instead, the court explained “the material inquiry is whether the designation form
sufficiently identifies the beneficiary in accordance with the statutory requirements set forth in
FEGLIA.” Id. at 52–53 (citations omitted). The court found that “no question [existed about]
the identity of the person designated—despite the introduction of an improper title—because Ms.
Barbour was identified by name (‘Jennifer G. Barbour’), address, and relationship to the
Decedent (‘daughter’).” Id. at 53. The court also refused to make any finding about what the

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insured may have intended by ascribing her daughter the title of “trustee” because it appeared
that Jennifer Barbour was identified as the sole beneficiary of the insurance policy proceeds. Id.
Similarly, in this case, while the insured’s designation may have created some initial
confusion, no reasonable basis exists to question that the identity of the person named as “1.
Unborne (sic) grandchild Dice.” The parties have even stipulated that his description refers to
Cheyenne Dice. Stipulated Facts (Doc. 35 at ¶ 5). And, like the court in Barbour, this Court
refuses to discern the insured’s intent in naming the beneficiaries on the Designation of
Beneficiary form. While the insured provided for all living and in utero grandchildren at the
time she completed the form, the Court declines to speculate that the insured intended to include
all after-born grandchildren in the designation for two reasons.
First, the insured made no reference to additional after-born grandchildren on the form,
and second, she never completed a subsequent form naming additional grandchildren. Instead,
the Court relies on the plain language of the designation that names one unborn grandchild,
which the parties agree refers to Cheyenne Dice. Therefore, the Court concludes that the fourthnamed beneficiary on the Designation of Beneficiary form refers only to Cheyenne Dice and
does not create a class of beneficiaries that includes after-born Minor Defendants.
B. Doris D. Turgeon’s Share Lapsed When She Predeceased the Insured,
and Her Share Must Be Distributed Equally Among the Surviving
Beneficiaries.
In the Amended Complaint in Interpleader, plaintiff Metropolitan Life Insurance
Company asserts that “it is not clear amongst whom the 1/5 portion designated to the [insured’s]
predeceased mother should be distributed.” Am. Compl. in Interpleader (Doc. 23 at ¶ 19). The
Dice Defendants argue that Ms. Turgeon’s share lapsed when she predeceased the insured and

10

her share must be distributed equally among the surviving beneficiaries listed on the Designation
of Beneficiary form. The Minor Defendants agree with the Dice Defendants on this issue.
Under FEGLIA, an insurer must pay group life insurance proceeds “to the person or
persons surviving at the date of [the insured’s] death, in the following order of precedence . . . .”
5 U.S.C. § 8705 (emphasis added). Therefore, under the plain language of the statute, Ms.
Turgeon is not entitled to her share because she did not survive the insured.
In addition, the Designation of Beneficiary form completed by the insured states: “[I]f
more than one beneficiary is named, the share of any beneficiary who may predecease [the
insured] . . . shall be distributed equally among the surviving beneficiaries.” Ex. 1 to Am.
Compl. in Interpleader (Doc. 23-1). Therefore, under the plain language of the form, Ms.
Turgeon’s share must be distributed equally among the surviving beneficiaries because she
predeceased the insured. See Metro. Life Ins. Co. v. O’Ferrall Ochart, 635 F. Supp. 119, 121–22
(D.P.R. 1986) (where an insured under FEGLIA designated an 80 percent share of the life
insurance policy proceeds to his wife and a 20 percent share to Alberto O’Ferrall Ochart and the
wife predeceased the insured, the court held that neither the wife’s estate nor her minor daughter
were entitled to the proceeds but rather O’Ferrall Ochart was entitled to the entire amount
because he was the only surviving beneficiary and the designation form read: “If more than one
beneficiary is named, the share of any beneficiary who may predecease [the insured] shall be
distributed equally among the surviving beneficiaries, or entirely to the survivor.”).
Thus, the Court determines that Ms. Turgeon’s interest in the insurance policy proceeds
terminated on her death because she predeceased the insured. Consequently, the Court must
distribute the share designated to Ms. Turgeon equally among the other surviving beneficiaries,

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that is, the other five individuals named on the Designation of Beneficiary form—Denese Dice,
Kelsie Dice, Britni Dice, Ashlie Smithy (Dice), and Cheyenne Dice.2
C. The Ambiguity of the Proportional Shares on the Designation of
Beneficiary Form
As noted above, the Designation of Beneficiary form contains an ambiguity about the
shares to be paid to each designated beneficiary. On that form, the insured designated that
Denese Dice receive 5/10 of the proceeds and that the remaining five-named beneficiaries each
receive 1/5 of the proceeds. The total of these proportional shares, as designated by the insured,
amounts to 150% rather than 100% of the insurance policy proceeds.
Plaintiff did not raise this issue in its request for declaratory relief, and none of the
defendants discuss this discrepancy in their summary judgment motions. But, the Court must
resolve this issue before ordering the disbursement of the life insurance proceeds to each
designated beneficiary in the appropriate proportional share.
Judge Lungstrum faced a similar ambiguity in a Designation of Beneficiary form in
Metropolitian Life Insurance Company v. Hurford, 983 F. Supp. 1045 (D. Kan. 1997). In that
case, the insured completed a Designation of Beneficiary form that designated “all” of the shares
of his life insurance policy proceeds to his wife and “1-Quarter” of the proceeds to each of his
four children. Id. at 1046. Thus, the insured assigned 200% of the insurance policy proceeds to
Because Doris Turgeon’s interest in the proceeds of the insurance policy terminated when she
predeceased the insured, the Court determines that neither she nor her estate requires representation in this
action. In Metropolitian Life Insurance Company v. Blyther, 964 F. Supp. 2d 61 (D.D.C. 2013), an
insured named her son as one of several beneficiaries to the proceeds of a FEGLIA life insurance policy.
Id. at 64. However, the son predeceased the insured. Id. at 65. The parties identified the son’s daughter
(the insured’s granddaughter) as having a potential interest in the life insurance proceeds. Id. at 68–69.
But the Court held that the son’s interest in the insurance proceeds terminated upon his death under the
terms of the life insurance policy because he had predeceased the insured. Id. at 69. Therefore, the son’s
daughter, whose only possible interest in the insurance proceeds would have been derived from her father,
had no cognizable interest in the proceeds and did not need to have representation in the action to resolve
the distribution of those proceeds. Id. Likewise, here, Ms. Turgeon’s interest in the insurance proceeds
lapsed when she predeceased the insured. Therefore, her estate does not have a cognizable interest in the
proceeds and it need not be represented in this lawsuit.
2

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the five beneficiaries named on the form. Id. After he completed the form, the insured divorced
his wife and married Nina F. Hurford. Id. After the insured died, Ms. Hurford, as the insured’s
widow, submitted a claim for the insurance policy proceeds and argued that the Designation of
Beneficiary form was invalid because it contained an ambiguity purporting to assign 200% of the
proceeds among the five named beneficiaries. Id. at 1047–48.
Judge Lungstrum disagreed with Ms. Hurford that the Designation of Beneficiary form
was invalid and instead concluded that the form strictly complied with the statutory requirements
that the insured designate beneficiaries in a “‘signed and witnessed writing received before death
in the employment office.’” Id. at 1047 (quoting 5 U.S.C. § 8705(a)). The court found that the
statute contains no requirement that the insured complete an “unambiguous” designation, and
therefore, an “ambiguity concerning the particular distribution of the proceeds among the named
beneficiaries does not bear on the designation’s strict compliance with the statutory
requirements.” Id. The court also noted that Ms. Hurford had failed to provide “any authority
supporting the proposition that an ambiguity not touching one of those [statutory] requirements
invalidates the designation,” and the court was not aware of any such authority either. Id.
Therefore, Judge Lungstrum refused to invalidate the Designation of Beneficiary form based on
the ambiguity in the insured’s designation purporting to assign 200% of the insurance proceeds
among five named beneficiaries. Id. at 1048.
Judge Lungstrum further recognized that the ambiguity gave rise only to a possible
dispute among those defendants named on Designation of Beneficiary form. Id. at 1048. But,
even under those circumstances, the insured had a valid Designation of Beneficiary form and Ms.
Hurford was not entitled to any of the proceeds because she was not a named beneficiary on the
form. Id. Despite the ambiguity on the form, the defendants named on the Designation of

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Beneficiary form reached an agreement that the shares would be divided equally among the five
named beneficiaries, and the court agreed to honor that agreement. Id.
Following Judge Lungstrum’s reasoning in Hurford, the Court declines to find that the
ambiguity in the insured’s Designation of Beneficiary form invalidates the designation. Rather,
the form complies with the statutory requirements of 5 U.S.C. § 8705(a), and is therefore a valid
designation. However, the Court recognizes that the ambiguity in the insured’s Designation of
Beneficiary form may create a dispute among the five surviving beneficiaries named on that
form about the appropriate apportionment of the insurance proceeds. At this stage, the Court
declines to discern the insured’s intent in allocating the shares as stated on the Designation of
Beneficiary form. Instead, the Court encourages the five surviving beneficiaries named on the
form—Denese Dice, Kelsie Dice, Britni Dice, Ashlie Smithy (Dice), and Cheyenne Dice—to
attempt to reach an agreement about the amount of each share to be distributed to each
beneficiary.3 The Court requires these defendants to submit a status report to the Court, on or
before December 1, 2014, describing the five surviving beneficiaries’ attempts to reach an
agreement on this issue. If they are unable to reach an agreement, the Court will order additional
briefing on this issue and set the matter for ruling by the Court.
IV.

Conclusion

For the reasons set forth above, the Court determines that the insured’s designation of “1.
Unborne (sic) grandchild Dice” refers to Cheyenne Dice, the insured’s only unborn grandchild in
utero on the date the insured completed the form. The Court also concludes that Doris D.
Turgeon forfeited her share of the life insurance policy proceeds when she predeceased the

3

In this case, one attorney represents the five surviving beneficiaries named on the Designation of
Beneficiary Form. The Court’s request for the five surviving beneficiaries to confer about an agreement
on the remaining issue may, or may not, present an ethical issue for counsel to consider. The Court
entrusts this consideration to counsel’s sound and thoughtful discretion.

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insured. Therefore, the Court concludes that five beneficiaries—Denese Dice, Kelsie Dice,
Britni Dice, Ashlie Smithy (Dice), and Cheyenne Dice—are entitled to the proceeds of the
insured’s life insurance policy. As explained above, the Court is unable to determine on the
current record the share that each of the five beneficiaries is entitled to receive because of the
ambiguity on the Designation of Beneficiary form. The Court orders the parties to attempt to
reach an agreement on this issue and to file a status report with the Court on or before December
1, 2014.
IT IS THEREFORE ORDERED BY THE COURT THAT Defendants Denese Dice,
Kelsie Dice, Britni Dice, Ashlie Smithy (Dice), and Cheyenne Dice’s Motion for Summary
Judgment (Doc. 43) is granted.
IT IS FURTHER ORDERED THAT the Cross Motion for Summary Judgment filed by
Albert E. Grauberger, guardian ad litem for minors D.D., T.D., and M.S. (Doc. 44) is denied.
IT IS FURTHER ORDERED THAT Defendants Denese Dice, Kelsie Dice, Britni
Dice, Ashlie Smithy (Dice), and Cheyenne Dice must submit a status report on or before
December 1, 2014, consistent with this Order.
IT IS SO ORDERED.
Dated this 29th day of October, 2014, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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