Gerber Life Insurance Company v. Wallace et al

Filing 34

ORDER granting 3 Motion to Appoint guardian ad litem ad Litem. Appointed Tonya K Cammon for C.G.,Tonya K Cammon for C.N.. Signed by Magistrate Judge Susan K Lee on 6/7/11. (order serviced to all unrepresented parties) (GRE, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

GERBER LIFE INSURANCE COMPANY,
Plaintiff,
v.
SAMANTHA WALLACE, et al.,
Defendants.

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No. 1:11-cv-31
Mattice / Lee

ORDER APPOINTING GUARDIAN AD LITEM
Before the Court is a motion of Plaintiff Gerber Life Insurance Company (“Gerber”) for the
appointment of a guardian ad litem in this action to represent in the interests of two minor
defendants, C.G. and C.N. [Doc. 3]. A hearing on the motion was held on June 2, 2011.1
On February 10, 2011, Gerber filed a petition for interpleader on the issue of three life
insurance policies for a minor child C.W., daughter of Samantha and Thomas Wallace [Doc. 1]. In
this petition, Gerber named 11 Defendants, including Samantha and Thomas Wallace, C.W.’s
parents; C.G. and C.N., C.W.’s minor half-brother and half-sister, respectively; Bobby Nolan, Teresa
Nolan, Sandi Wallace, the estate of Dena McNabb, Randy Basham, and Larry Johnson, all
grandparents of C.W.; and Whitwell Memorial Funeral Home, which has since been dismissed [Doc.
1, 31].

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At the hearing, Defendant Samantha Wallace and Plaintiff Gerber Life Insurance Company
were represented by counsel. Defendant Mattea L. Rolin, administrator for the estate of Dena
McNabb, filed a written response stating no objection to the motion and was excused from the
hearing. No other parties appeared, despite notice of the hearing.

According to the petition for interpleader, Samantha Wallace purchased three life insurance
policies for C.W.—two $15,000 policies, one in April and one in November of 2008, and a $5,000
policy also in November of 2008 (“the Policies”). The Policies list Samantha and Thomas Wallace
as co-beneficiaries. On July 12, 2010, C.W.’s half-brother, C.G., shot and killed C.W. after C.W.’s
mother, Samantha Wallace, put the children in a bedroom for a nap. Samantha and Thomas Wallace
were charged with negligent homicide in connection with C.W.’s death. According to Samantha
Wallace’s attorney, this charge is still pending and not yet set for trial.
Gerber alleges that the facts of this case make it difficult to determine who is entitled to the
proceeds of the Policies. First, the negligent homicide charge against Samantha and Thomas
Wallace raises the question of the applicability in this case of Tennessee’s “Slayer Statute,” which
reads:
Any person who shall kill, or conspire with another to kill, or procure
to be killed, any other person from whom the first named person
would inherit the property, either real or personal, or any part of the
property, belonging to the deceased person at the time of the
deceased person’s death, or who would take the property, or any part
of the property by will, deed, or otherwise, at the death of the
deceased, shall forfeit all right in the property, and the property shall
go as it would have gone under provisions of § 31-2-104, or by will,
deed or other conveyance, as the case may be; provided, that this
section shall not apply to any such killing done by accident or in self
defense (Tenn. Code Ann. § 31-1-106).
If this statutory provision is not applicable in this case, the named beneficiaries would presumably
receive the proceeds of the Policies. If, on the other hand, the statute applies and the named
beneficiaries “forfeit” their interest, then the parties appear to agree that the proceeds of the Policies
would pass under Tennessee’s intestacy statute. In that case, a second issue may arise—namely,
whether C.G. and C.N., as half-siblings, qualify as “brothers and sisters.” See Tenn. Code Ann. §

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31-2-104(b)(3).
The Court FINDS that the two minor Defendants’ potential interests in the proceeds of the
Policies are currently unrepresented. No objection was made to the motion to appoint a guardian
ad litem, and the motion [Doc. 3] is GRANTED pursuant to Fed. R. Civ. P. 17(c). At this time, it
appears that the interests of both minor Defendants are identical, at least with respect to the
threshold issue of whether the Slayer Statute applies to void the interests of the named beneficiaries.
Accordingly, it is ORDERED:
1.

Tonya Cammon, an attorney licensed to practice before this Court, is
APPOINTED as guardian ad litem for C.G. and C.N., minor
Defendants, with respect to matters pending before this Court,
provided, however, that attorney Cammon shall promptly inform the
Court if she determines at any time that the interests of C.G. and C.N.
are adverse to each other; and

2.

The guardian ad litem shall have the duty and authority to defend this
action on behalf of the minor Defendants, including, but not limited
to: (a) investigating the merits of Gerber’s petition for interpleader
concerning the life insurance benefits; (b) investigating the merits of
any claim of the minor Defendants to the payment of the proceeds of
the Policies; (c) investigating the claim of any other Defendant to the
payment of the proceeds of the Policies; (d) investigating the
applicability of Tennessee’s Slayer Statute to the facts of this case;
(e) investigating whether or not half-siblings qualify as “brothers and
sisters” under Tennessee’s Intestacy Statute; (f) filing a claim/motion
for payment of the proceeds of the Policies on behalf of the minor
Defendants; (g) responding to any claim/motion for payment of the
proceeds of the Policies filed on behalf of any other Defendant; (h)
conducting any and all necessary discovery; and (I) contacting and
conferring with other counsel and unrepresented parties where
appropriate, including entering into negotiations for
settlement/compromise of the claims to the proceeds of the Policies;
and

3.

Upon completion of her duties as guardian ad litem, attorney
Cammon shall be entitled to, and may move for, a reasonable fee,
which may be assessed in the Court’s discretion against the life
insurance benefits payable under the Policies.
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The Clerk is hereby DIRECTED to add attorney Cammon’s name as guardian ad litem in
this matter for the minor Defendants C.G. and C.N. The Clerk is further DIRECTED to serve a
copy of this Order on attorney Cammon, on all counsel of record, and all unrepresented parties.
SO ORDERED.
ENTER:

s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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