Unum Life Insurance Company of America v. Brookshire et al

Filing 119

ORDER: The Clerk shall first PAY Unum attorney's fees in the amount of $2,464.13, which is to be deducted from the total amount of the Policy proceeds currently held in the Court's registry. The Clerk shall then DISTRIBUTE the remaining Policy proceeds (and accrued interest) as follows: 50% to Cross-Defendant Donna Brookshire, 25% to Cross-Defendant Bryant Weaver, and 25% to the minor Cross-Claimant S.W. and Attorney Candy Kern-Fuller Trust Account. Signed by Honorable R Bryan Harwell on 7/7/2016. (mcot, )

UNITED STATES DISTRlCT COURT

FOR THE DISTRlCT OF SOUTH CAROLINA

FLORENCE DIVISION

Unum Life Insurance Company
of America,
Plaintiff I Counter-Defendant,
v.

Donna Brookshire, Bryant Weaver, and
Jennifer Weaver,
,Defendants I Cross-Defendants,
and
S.W., a minor,
Defendant I Counter-Claimant I
Cross-Claimant.

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Civil Action No.: 4:15-cv-01226-RBH

ORDER

This interpleader action concerns the disbursement ofproceeds from a $170,000 life insurance
policy ("the Policy") issued by Unum Life Insurance Company of America ("Unum") to the decedent
Clifford Weaver and governed by the Employee Retirement Income Security Act of 1974,29 U.S.c.
§ 1001 et seq. The Policy designated Cross-Defendant Donna Brookshire, Cross-Defendant Bryant

Weaver, and Cross-Claimant S.W:.) as the primary beneficiaries with respective interests of 50%,25%,
and 25%. ECF No. 1-2. Unum filed this case seeking interpleader relief pursuant to 29 U.S.c. § 1132
and Federal Rule of Procedure 22. See ECF No.1. Unum filed a motion seeking (1) authorization to
deposit the Policy proceeds into the Court's registry, (2) an award of attorney's fees in the amount of

S,W. is a minor represented by a guardian ad litem, Candy Kern-Fuller. See ECF Nos. 27 & 34. She is the
surviving minor child of the decedent Clifford Weaver, lives in West Virginia with her mother Cross-Defendant
Jennifer Weaver, and suffers from cerebral palsy; due to 'this condition, S.W, receives medical benefits through
Medicaid, ECF No, 34 at ~ 11; ECF No. 104 at 2.

$2,464.13, and (3) dismissal with prejudice from this action. See ECF No. 22. The Court granted
Unum's motion in its entirety/ and Unum then deposited the Policy proceeds into the Court's registry.

See ECF Nos. 72, 75, 91, & 94.
On May 20, 2016, the matter came before the Court for review of a Report and
Recommendation (R & R) issued by United States Magistrate Judge Kaymani D. West and made in
accordance with 28 U.S.C. § 636(b)(I)(B) and Local Rule 73.02 for the District of South Carolina. See
R & R, ECF No. 104. No parties filed objections to the R & R, and the Court adopted the R & R as
modified. 3 See ECF No.1 08. Pursuant to Federal Rule of Civil Procedure 56(t), the Court sua sponte
granted summary judgment in favor of Cross-Defendant Donna Brookshire, Cross-Defendant Bryant
Weaver, and Cross-Claimant S.W. Jd. The Court ruled as follows in its May 20,2016 order:
The Court hereby ORDERS the following:
(1)

The Court finds a special needs trust is appropriate for
S.W. and therefore ORDERS the Guardian ad Litem
(Candy Kern-Fuller) to assist Cross-Defendant
Jennifer Weaver (S.W. 's mother)in the establishment
of a special needs trust that names S.W. as the sole
beneficiary and uses S.W. 's share of the Policy
proceeds to fund the trust. Ms. Kern-Fuller shall
contact an attorney experienced with creating special
needs trusts and file a report with the Court within
thirty days of the date of filing of this Order, at
which time she shall also provide the Court a
statement of the fees and/or costs associated with her
own time in this case and a statement of the fees
and/or costs associated with the establishment of a
special needs trust for S.W. Ms. Kern-Fuller shall

. The Court stated in its order that "Unum shall be AW ARDED attorney's fees in the amount of $2,464.13,
which is to be deducted from the Stake and paid to Unum when thejinaijudgment in this case is entered." ECF No.
91 at 4.
The Court modified the R & R to reflect that the distribution of the Policy proceeds was subject to the
Court's previous order awarding Unum attorney's fees in the amount of $2,464.13. See ECF No. 91.

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further advise the Court as to any particular procedure
that may be necessary to establish such a trust, such as
whether the Policy proceeds should be disbursed to
her trust account or whether they should be directly
disbursed to S.W.'s special needs trust.
(2)

Once the Court receives adequate proof that Ms.
Weaver and the Guardian ad Litem can establish a
special needs trust for S.W., the Clerk shall first PAY
Unum attorney's fees in the amount of$2,464.13 and
then DISTRIBUTE the remaining Policy proceeds
(and accrued interest) as follows: 50% to Cross­
Defendant Donna Brookshire, 25% to Cross­
Defendant Bryant Weaver, and 25% to Cross­
Claimant S.W. S.W. 's portion ofthe Policy proceeds
is subject to the fees and/or costs incurred by the
Guardian ad Litem and the fees and/or costs
associated with the establishment ofthe special needs
trust.

ECF No. 108 at 3-4 (internal footnote omitted).
On June 20, 2016, Ms. Kern-Fuller filed.the required status report. ECF No. 111. She stated
her current fees and costs were $3,018.50, and she included a detailed invoice itemizing those fees and
costs. See ECF No. 111-1. She further stated Daniel C. Staggers, a West Virginia attorney, would be
retained to establish a special needs trust forS.W., and that Mr. Staggers would charge a $1,500.00 fee
to establish the trust along with a recommended reserve fund of $250.00 for any additional costs that
might arise. Additionally, Ms. Kern-Fuller stated Mr. Staggers advised her that S.W. ' smother (CrossDefendant Jennifer Weaver) "is the best candidate to set up the trust," that Ms. Kern-Fuller will need
to provide Mr. Staggers the contact information for Ms. Weaver, that Ms. Kern-Fuller will need to fund
the trust out ofher escrow account, that Ms. Weaver must sign offon the trust, and that Ms. Kern-Fuller
will need to stay involved until the trust is set up and operating properly. Ms. Kern-Fuller stated, "No
other special procedure appears necessary."
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On June 24,2016, the Court issued a docket text order directing Ms. Kern-Fuller to contact Mr.
Staggers and determine whether, in addition to the special needs trust, any conservatorship or
guardianship (or other similar legal mechanism) would need to be established under West Virginia law
for the supervision of S.W.'s portion of the insurance policy proceeds; and if so, how much Mr.
Staggers estimated such a conservatorship or guardianship would cost. See ECF No. 112.
On June 30, 2016, Ms. Kern-Fuller filed the required status report. ECF No. 116. She stated
that after consulting with Mr. Staggers, "[a] Conservator and Guardian established in West Virginia
would be appropriate, and likely a necessity. This would enable a State Circuit Court to monitor the
financial activity and personal matters ofthe mother concerning the child." Ms. Kern-Fuller indicated
that the court cost to file a guardian/conservator pleading is usually $110.00 and that the service cost
is approximately $100.00 per person. She further stated Mr. Staggers would charge $1,000.00 to
establish a guardianship/conservatorship.
Having reviewed Ms. Kern-Fuller's status reports, the Court finds Ms. Kern-Fuller has provided
adequate proof that she and Ms. Weaver can establish a special needs trust for S.W. with the assistance
of Mr. Staggers, who is a licensed West Virginia attorney. Accordingly, the Court ORDERS that the
Policy proceeds be distributed as follows:
(I)

Consistent with the Court's previous orders in this case, see ECF Nos. 91 & 108, the
Clerk shall first PAY Unum attorney's fees in the amount of $2,464. 13, which is to be
deducted from the total amount of the Policy proceeds currently held in the Court's
registry.

(2)

The Clerk shall then DISTRlIlUTE the remaining Policy proceeds (and accrued
interest) as follows: 50% to Cross-Defendant Donna Brookshire, 25% to Cross­
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Defendant Bryant Weaver, and 25% to the minor Cross-Claimant S.W. (whose name
)4 and Attorney Candy Kern-Fuller Trust Account. S.W.'s portion ofthe

Policy proceeds is subject to (1) the fees and costs incurred by Ms. Kern-Fuller and (2)
the fees and costs associated with the establishment of the special needs trust and the
related guardianship/conservatorship by Mr. Staggers. 5 Specifically, the Court approves
the sum of $3,D18.50 in fees and costs incurred by Ms. Kern-Fuller for her
representation in this matter,6 the sum of$1,500.00 and a reserve fund ofup to $250.00
for the establishment of a special needs trust by Mr. Staggers, the sum of$1000.00 for
the establishment of a guardianship/conservatorship by Mr. Staggers, the sum of
$110.00 for the court costs to file a guardianship/conservatorship pleading, and the
approximate sum of $100.00 per person for the service costs regarding the
guardianship/conservatorship. Ms. Kern-Fuller shall use her trust account to distribute
her approved fees and costs, to distribute Mr. Staggers's approved legal fees and costs,
and to fund the special needs trust. Ms. Kern-Fuller and Ms. Weaver shall promptly
coordinate with Mr. Staggers to ensure the proper establishment of the special needs
trust. Ms. Kern-Fuller shall promptly coordinate with Mr. Staggers to ensure the proper

A redacted version of this Order omitting S.W.'s name contained in the above parenthetical shall be
available for public viewing. An unredacted version ofthis Order showing S.W. 's name shall be sealed but available
to the attorneys in this case.
See Local Civ. Rule 17.03 (D.S.C.) ("In its order of approval, the court shall approve or fix the amount of
the fee to be paid to counsel for the minor or incompetent parties and make appropriate provision for the payment
thereof. The order of approval shall also provide the manner in whichjudgments, ifany, are to be paid and may make
specific provisions for the payment of medical, hospital, and similar expenses when allowed by applicable law.").

The Court will not approve a reserve fund of $250.00 for any additional interaction that Ms. Kern-Fuller
may have with Mr. Staggers. In the event there are additional tosts that were overlooked, Ms. Kern-Fuller should
advise the Court of such and request approvaL

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establishment ofthe special needs trust and any necessary guardianship/conservatorship.
The Court DIRECTS the Clerk to CLOSE this case once the Policy proceeds have been fully
distributed.

IT IS SO ORDERED.

;r;1!¥i1J1

Florence, South Carolina
July 6,2016

R. Bryan Harwell
United States District Judge

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