Nationwide Life Insurance Company v. Martinez et al

Filing 37

ORDER re 36 Stipulation re Dismissal. IT IS SO ORDERED. All claims in this action by and against Nationwide Life Insurance Company and American Funeral Financial, LLC are DISMISSED with prejudice. The Colley defendants have until 6/12/17 to file an amended answer and crossclaim against Martinez. Failure to file a crossclaim by that date will result in the dismissal of this entire case for lack of a pending claim. Once the crossclaim has been filed, the remaining parties may move for a referral to a magistrate judge for a settlement conference. Signed by Judge Jennifer A. Dorsey on 6/1/17. (Copies have been distributed pursuant to the NEF - MR)

Case 2:16-cv-01845-JAD-NJK Document 36 Filed 05/18/17 Page 1 of 4

1 Dana A. Dwiggins, Esq., Bar No. 7049
[e-mail]

2 Jeffrey P. Luszeck, Esq. Bar No. 9619
[e-mail]

3 SOLOMON DWIGGINS & FREER, LTD.
9060 West Cheyenne Avenue

4 Las Vegas, Nevada 89129

Telephone: [phone]

5 Facsimile: [phone]
6

Attorneys for Defendant Lynn Martinez

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

10 NATIONWIDE LIFE INSURANCE
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12
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CASE NO. 2:16-cv-01845

COMPANY,

Plaintiff,

STIPULATION FOR ORDER
STIPULATIONAND ORDER
DISCHARGING NATIONWIDE
LIFE INSURANCE COMPANY
AND FOR DISMISSAL

vs.
LYNN MARTINEZ, AMERICAN

14 FUNERAL FINANCIAL, LLC,

DIANE COLLEY, MICHELLE

15 COLLEY, MELISSA COLLEY and
16

MEGAN COLLEY,

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ECF No. 36

Defendants.

This Stipulation is entered by and between the following parties, by and
through

their

respective

counsel:

Nationwide

Life

Insurance

Company

(“Nationwide”), Lynn Martinez (“Martinez”), America Funeral Financial, LLC
(“AFF”), Diane Colley, Michelle Colley, Melissa Colley and Megan Colley
(collectively, the “Colleys”).
FACTS
1.

On or about November 30, 1992, Nationwide issued its Life Insurance

Policy Number L030421220 (the “Policy”), to David Colley. David Colley was
both the owner of and insured under the Policy.
2.

In his application for the Policy, Mr. Colley listed his then spouse,
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Case 2:16-cv-01845-JAD-NJK Document 36 Filed 05/18/17 Page 2 of 4

1 Defendant Diane Colley, as the primary beneficiary under the Policy. Mr. Colley
2 listed his daughters, Michelle Colley, Melissa Colley and Megan Colley, as
3 contingent beneficiaries.
4

3.

On or about October 16, 2015, Nationwide received an Application for

5 Change of Beneficiary Designation by which Mr. Colley requested that the primary
6 beneficiary under the Policy be changed to Lynn Martinez, “girlfriend/fiancé,” and
7 that the contingent beneficiaries be changed to Robert R. Roik, “friend,” Lisa
8 Johnson, “friend,” Jeffrey Strough, “friend,” and Jayme Strough, “friend.”
9 Mr. Colley’s signature is dated October 16, 2015, and his signature witnessed by
10 Carla Roik on December 1, 2015.
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4.

Mr. Colley died on March 4, 2016.

12

5.

On March 8, 2016, Nationwide received an “Insurance Assignment”

13 from Defendant AFF purporting to assign $11,738.80 in Policy death benefits to
14 AFF. The Assignment Form is signed by Defendant Lynn Martinez and is dated
15 March 7, 2016.
16

6.

On or about April 11, 2016, Nationwide received a Life Beneficiary

17 Claim Form from Defendant Lynn Martinez, requesting payment of the Policy’s
18 death benefits to her.
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7.

On or about April 19, 2016, Nationwide received a letter from Diane

20 Colley, indicating that Mr. Colley was placed into a nursing home in October, 2015,
21 due to his condition of a “brain tumor” and that he “was not able to make clear
22 decisions.” Diane Colley questioned the October, 2015, change of beneficiary to
23 Defendant Lynn Martinez because “Mr. Colley was being manipulated in his
24 condition.” Diane Colley requested that Nationwide immediately investigate this
25 matter.
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8.

As a result of the foregoing, Nationwide is unsure as to whom should

27 receive the Policy’s death benefits.
28

9.

Nationwide is, and always has been, ready, able and willing to pay the
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Case 2:16-cv-01845-JAD-NJK Document 36 Filed 05/18/17 Page 3 of 4

1 death benefits due under the Policy to the person(s) who may be lawfully entitled to
2 receive them.

Nationwide, however, is unable to determine who is entitled to

3 receive the death benefits payable under the Policy, as between the Defendants,
4 without being faced with the real and reasonable potential of multiple claims and
5 liability under the Policy.
6
7

STIPULATION
10.

Nationwide is a disinterested stake holder and has no interest in the

8 death benefits payable under the Policy.
9

11.

Nationwide shall pay $11,738.30 to the Payne & Fears LLP Client

10 Trust Account on behalf of AFF from the Policy proceeds.

Nationwide shall

11 deposit the remainder of the Policy proceeds with the Clerk of the Court.
12

12.

Martinez and the Colleys shall separately litigate their rights to the

13 Policy proceeds. Specifically, the Colleys shall amend their answer and add a
14 counterclaim stemming from their belief that the change of beneficiary designation
15 to the Nationwide policy is inappropriate, at which time Martinez shall file her
16 answer.
17

13.

Nationwide will be released, discharged and forever acquitted from

18 any and all liability in connection with, arising out of, or relating to the issuance of
19 the death benefits payable under the Policy, upon payment of the $11,738.30 to
20 AFF and the remainder of the Policy proceeds to the Clerk of the Court.
21

14.

This action shall be dismissed with prejudice, as to Nationwide and

22 AFF, only, with each to bear its own attorneys’ fees and costs.
23

15.

Following the dismissal of Nationwide and AFF with prejudice, the

24 Colleys and Martinez shall litigate their claims regarding the payment of the
25 remaining Policy proceeds.
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16.

That after the Colleys amend their answer and add the counterclaim as

27 referenced above, the Colleys and Martinez request that this matter be referred to a
28 Magistrate Judge for a settlement conference.
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Case 2:16-cv-01845-JAD-NJK Document 36 Filed 05/18/17 Page 4 of 4

1 DATED: May 18, 2017
2
3

THOMPSON COBURN LLP

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By:
/s/ John L. Viola
John L. Viola
Admitted Pro Hac Vice
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Attorney for Plaintiff, Nationwide
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Life Insurance Company
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DATED: May 18, 2017
WOODBURN AND WEDGE
By

/s/ W. Chris Wicker .
W. Chris Wicker, Esq.
Nevada Bar No. 1037
Attorney for Plaintiff, Nationwide
Life Insurance Company

DATED: May 18, 2017

DATED: May 18, 2017

10 THRONE & HAUSER

PAYNE & FEARS LLP

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12 By:
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/s/ Dawn R. Throne
/s/ Chad Olsen
By:
Dawn R. Throne
Gregory H. King
Nevada Bar No. 6145
Nevada Bar No. 7777
Attorneys for Defendant and Cross
Chad Olsen, Nevada Bar No. 12060
Defendants Diane Colley, Michelle
Attorneys for Defendant and CrossClaimant, American Funeral
Colley, Melissa Colley and Megan
Colley
Financial, LLC

19 SOLOMON DWIGGINS & FREER,
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LTD.

/s/ Jeffrey P. Luszek
By:
Jeffrey P. Luszek
Nevada Bar No. 9619
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Attorneys for Defendant and Cross24
Defendant Lynn Martinez
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ORDER

DATED: May 18, 2017

IT IS SO ORDERED. All claims in this
action by and against Nationwide Life
Insurance Company and American
Funeral Financial, LLC are DISMISSED
with prejudice. The Colley defendants
have until June 12 to file an amended
answer and crossclaim against Martinez.
Failure to file a crossclaim by that date will
result in the dismissal of this entire case for
lack of a pending claim. Once the crossclaim
has been filed, the remaining parties may
move for a referral to a magistrate judge for a
settlement conference.
onference.
re
_____________________________
_________________
__ _
_ _
U.S. District Judge Jennifer D
strict Ju
i t Judge Jennifer Dorsey
nn
nnif
6-1-17

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