New York Life Insurance Company v. Torrence et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NEW YORK LIFE INSURANCE COMPANY, 4:2I-CV-04079-RAL
Plaintiff,
vs.
DEAN TORRENCE, JEFFREY A. WILLEY,
TRENT WELLBAUM, ALLEN WILLEY,
CORY NASHTOCK,
OPINION AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
AND MOTION FOR ATTORNEYS' FEES
AND COSTS
Defendants.
This case concerns the application of South Dakota's slayer statute, SDCL § 29A-2-803,
to a life insurance beneficiary who assaulted the policy holder resulting in her death. Two of the
decedent's children, Defendants Cory Nashtock (Cory) and Trent Wellbaum (Trent), have filed a
motion for summary judgment arguing that SDCL § 29A-2-803 bars the life insurance beneficiary.
Defendant Dean Torrence (Dean),from receiving the life insurance death benefit. New York Life
Insurance Company (NYLIC),the plaintiff in Interpleader, has filed a motion for attorneys' fees
and costs. For the reasons discussed, the motions are granted.
I. Facts and Procedural History
The facts are drawn from the pleadings and affidavits of Plaintiff NYLIC and Defendants
Cory and Trent. Dean has denied all of Cory and Trent's statements of undisputed material fact
without providing any explanation or additional facts. Doc. 40 at 2.
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Sherry Nashtock (Sherry), the decedent, had three adult children: Trent Wellbaum, Allen
Willey (Allen), and Cory Nashtock. Doc. 32 at 2. She had married Defendant Jeffrey A. Willey
(Jeffrey) and separated from him at some point before 2006, although it is unknown whether she
and Jeffrey divorced. Doc. 32 at 2. Regardless,in 2006, Sherry began living with Dean and stayed
with him until her death. Doc. 33-4 at 13; Doc 45-1 at 2.
Dean and Sherry had a troubled relationship with a history of domestic abuse. Doc. 33-5
at 28-29. Before she died. Sherry ran away from Dean several times to escape his beatings. Doc.
33-5 at 28-29. Sherry had serious alcohol issues and could become aggressive when drinking.
Doc. 33-5 at 7-8; Doc. 45 at 3. During their relationship. Dean claims that Sherry hit him in the
head with a fire extinguisher, stabbed him in the neck with a fork, and hit the back of his head with
an ashtray. Doc. 33-5 at 8.
Sherry purchased life insurance policy A8865194("the Policy")from NYLIC in 2017 and
made Dean the sole beneficiary. Doc. 32 at 1; Doc. 34 at 2. The Policy has a death benefit of
$91,500.00 plus unearned premium and interest. Doc. 32 at 1; Doc. 34 at 2. The distribution
provision of the Policy states as follows:
The Death Benefit will be paid in equal shares to the first beneficiary(ies) who
survives the INSURED by 15 days. If no first beneficiary(ies) so survives, payment
will be made in equal shares to any second beneficiary(ies) who survives the
INSURED by 15 days, and so on. Surviving beneficiary(ies) in the same class will
have an equal share in the proceeds otherwise designated for a deceased beneficiary
in that class. If no beneficiary is designated or no beneficiary survives the
INSURED, benefit will be payable to the INSURED's estate, or at OUR option to
the INSURED's surviving relative(s) in the following order ofsurvival: spouse or
partner, as applicable; children equally; parents equally; or brothers and sisters
equally.
Doc. 32 at 7(emphasis added). The Policy also has a forfeiture provision stating:
No payment will be made to any person(s) if such person(s) is the principal or an
accomplice in willfully bringing about the INSURED's death. Payment will be
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made in accordance with this section as though that person(s) had died before the
INSURED.
Doc. 34 at 10.
Sherry died the week of September 20, 2020, three years after she purchased the Policy.
Doc. 32 at 2. On the day she died. Sherry was intoxicated and drove a lawnmower about a mile
from her and Dean's home down the highway.' Doc. 33-5 at 11. She stopped the lawnmower,
entered the home of an acquaintance, and then passed out in bed. Doc. 33-5 at 11. The
acquaintance called Dean and told him to come and pick Sherry up. Doc. 33-5 at 11. According
to Dean, after he picked Sherry up and was driving her home, they began arguing. Doc. 33-5 at
36. Dean claims that Sherry jumped out of the pickup, and the two of them exchanged blows by
the highway. Doc. 33-5 at 36. Eventually Dean pulled Sherry back inside the truck and drove the
rest ofthe way home. Doc. 33-5 at 36.
Sherry was curled up on the floor of the truck when they arrived. Doc. 33-5 at 36. Dean
claims that Sherry told him she would go inside the house in a few minutes, and he left her in the
truck and went to bed. Doc. 33-5 at 36. A few hours later. Dean says he woke up and went to
check on Sherry after he noticed that she had not come back inside. Doc. 33-5 at 36. He found
her laying unresponsive beside the pickup and called the police. Doc. 33-5 at 20, 36. Dean was
sobbing and attempting to give Sherry CPR when the officers arrived. Doc. 33-5 at 20-21. Several
hours later, he told the officers that he had killed her. Doc. 33-5 at 40; Doc. 43 at 4.
Dean was indicted on twelve counts in state court including second-degree murder,
manslaughter, aggravated assault, and simple assault. Doc. 32 at 3. He ultimately plead guilty to
two counts of aggravated domestic assault. Doc. 33-2 at 4; Doc. 33-3 at 1-2; Doc. 33-4 at 9-11;
'Dean had also beaten Sherry on the day before her death. Doc. 33-5 at 29, 33.
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Doc. 34 at 3. The factual basis to the plea agreement stated that Dean had beaten Sherry by
backhanding, kicking, biting, and holding her down while he choked her and punched her face and
head. Doc. 32 at 4; Doc. 34 at 3-4. Sherry had black eyes, purple ears, cuts behind her ears,
bruises all over her face, missing teeth, bleeding from her mouth, bruises on her arms, hands, and
torso from the beating, and bite marks on her torso and legs. Doc. 32 at 5; Doc. 33-5 at 31- 32.
Her death was ruled a homicide and the cause of death was listed as "subdural hemorrhage, blunt
force injury of head, assault." Doc. 32 at 2; Doc. 34 at 2.
At Dean's sentencing hearing in October 2020, he admitted his guilt in open court and
appeared "extremely remorseful" to the sentencing judge. Doc. 33-5 at 41; Doc. 43 at 4. The
prosecutor argued that it was not clear if Dean intended to kill Sherry on the day of her death, but
it was clear that he "fully intended to strike her" and that his actions caused her death. Doc. 33-5
at 32-33. The court imposed consecutive sentences on each count totaling twenty-five years in
prison. Doc. 32 at 6; Doc. 34 at 8.
On May 4, 2021, NYLIC filed a complaint in interpleader to determine the distribution of
the Policy's death benefit. Doc. 1 at 5-6. Because Dean was convicted in state court ofcommitting
an assault that caused Sherry's death, NYLIC sought to determine alternative beneficiaries to the
Policy. Doc. 1 at 4-6. After an investigation, it identified Jeffrey, Sherry's husband at one point.
Dean,and Sherry's three children as potential beneficiaries and the defendants in this action. Doc.
1 at 4—6. NYLIC named all five potential beneficiaries as the Defendants, and all were served.
Docs. 6, 7, 8, 9, 14. Sherry's sons Trent Wellbaum and Cory Nashtock obtained counsel and
answered the complaint. Docs. 13, 20; and Dean wrote a letter filed with the Court answering the
complaint. Doc. 12. Jeffrey, and Sherry's son Allen Willey, did not respond to the complaint.
Doc. 18; Doc. 29 at 1. The Clerk of Court entered a default judgment against Jeffrey and Allen
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for failure to answer or otherwise defend but declined to enter a default judgment against Dean.
Doc. 18; Doc. 29 at 1.
NYLIC then brought a Motion for Default Judgment against Jeffrey and Allen and
requested to deposit the Policy death benefit with the Clerk of Court, to be dismissed from the
action with prejudice, and to receive an award of its reasonable attorneys' fees. Doc. 21. This
Court granted the motion and ordered NYLIC to deposit the Policy death benefit with the Clerk of
Court and thereafter be dismissed from this action with prejudice. Doc. 29 at 2-3. The Court
further ordered that NYLIC could submit a motion for reasonable attorneys' fees and costs
accompanied by supporting affidavits and accountings. Doc. 29 at 3. In December 2021, NYLIC
deposited the Policy death benefit, including refunded premium and interest from the Policy,
totaling $99,849.59 with the Clerk of Court. Doc. 30; Doc. 34 at 2.
Two of the defendants, Trent and Cory, have now filed a Motion for Summary Judgment
requesting to split the death benefit. Doc. 31. Dean has responded with several letters to the Court
expressing opposition to the motion. Docs. 40, 41, 45, 46. And NYLIC has submitted an
unopposed Motion for Attorneys' Fees and Costs. Doc. 36.
II. Standard of Review
Under Rule 56(a)ofthe Federal Rules of Civil Procedure, summary judgment is proper "if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett. 477 U.S.
317, 322(1986). A party opposing a properly supported motion for summary judgment"may not
rest upon mere allegations or denials" in his pleadings but "must set forth specific facts showing
that there is a genuine issue for trial." Gacek v. Owens & Minor Distribution. Inc.. 666 F.3d 1142,
1145 (8th Cir. 2012). To establish that a material fact is genuinely disputed, the party opposing
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summary judgment must "cit[e] to particular parts of materials in the record" that establish a
genuine dispute or "show[] that the materials cited do not establish the absence ... of a genuine
dispute ...." Fed. R. Civ. P. 56(c)(1)(A),(B). In ruling on a motion for summary judgment, the
facts and inferences fairly drawn from those facts are "viewed in the light most favorable to the
party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88(1986)(cleaned up and citation omitted).
III. Discussion
Dean has not cited to anything in the record to contest the facts provided by Defendants
Cory and Trent and the Plaintiff NYLIC. Therefore, this Court takes the facts provided by Cory,
Trent, and NYLIC as true in ruling on the pending motions. See Fed. R. Civ. P. 56(c)(1)(A),(B);
D.S.D. Civ. LR 56.1.D.
A. Cory and Trent's Motion for Summary Judgment
This is a diversity jurisdiction case under 28 U.S.C. § 1332, where South Dakota law
governs the substantive issues. In a diversity case, a federal court is to apply state law and predict
how the state supreme court would resolve unsettled issues of state law. Blankenship v. USA
Truck. Inc., 601 F.3d 852, 856(8th Cir. 2010); Jordan v. Safeco Ins. Co. of Illinois. 741 F.3d 882,
887(8th Cir. 2014).
South Dakota's slayer statute, SDCL § 29A-2-803, is adopted from the Uniform Probate
Code § 2-803. It states: "[t]hefelonious and intentional killing of the decedent:(1)[rjevokes any
revocable (i) disposition or appointment of property made by the decedent to the killer in a
governing instrument..." SDCL § 29A-2-803(emphasis added). Because this statute pertains to
civil claims,"the standard of proof necessary under the South Dakota [law] is a preponderance of
the evidence[.]" Matter of Est. of Gibbs. 490 N.W.2d 504, 508 (S.D. 1992); see also Unif. Prob.
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Code § 2-803 cmt. (revised 2019)("The concept that a wrongdoer may not profit by his or her
own wrong is a civil concept[.]"). Further, "[ajfter all right to appeal has been exhausted, a
judgment of conviction establishing criminal accountability for the felonious and intentional
killing ofthe decedent conclusively establishes the convicted individual as the decedent's killer for
purposes of[the slayer rule]." Unif. Prob. Code § 2-803(g). Under the Uniform Probate Code,
a"felonious and intentional killing ... excludes the accidental manslaughter killing." Unif.Prob.
Code § 2-803 cmt.
Dean claims that he is entitled to the Policy death benefit because he did not intend to kill
Sherry. Doc. 12-1 at 1. Dean alleges Sherry would have wanted him to receive the Policy proceeds
and that "whether her passing was from jumping out of the moving truck or any altrication [sic]
with me is uncertain." Doc. 12-1 at 1. In the event that he is not entitled to the Policy death
benefit. Dean states that Sherry would have wanted his special needs adult daughter, Teena
Torrence, to receive it. Doc. 12-1 at 1; Doc 45-1 at 2. He states that Sherry and his daughter had
a mother-daughter relationship, and Sherry has taken care of Teena over the years. Doc. 12-1 at
1. Cory and Trent respond that South Dakota's slayer statute, SDCL § 29A-2-803, and the Policy
forfeiture clause bar Dean from receiving any of the death benefit. Doc. 34 at 9-12.
The Supreme Court of South Dakota has addressed this sort of question in just one case.
Matter of Est. of Gibbs. 490 N.W.2d 504 (S.D. 1992). There, the Court applied predecessor
statutes^ to SDCL § 29A-2-803 to bar a beneficiary from inheriting from the decedent having
^ The predecessor statutes applied in Gibbs stated: "Neither the slayer nor any person claiming
through him shall in any way acquire any property or receive any benefit as the result of the
death of the decedent, but such property shall pass as provided in this chapter." Matter of Est. of
Gibbs. 490 N.W.2d at 507(quoting SDCL 29-9-2(1984)). "A 'slayer' is defined as 'any person
who intentionally and imlawfully takes or procures to be taken the life of another.'" Id (quoting
SDCL 29-9-1 (1984)(cleaned up)).
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determined the beneficiary conspired to kill the decedent. Matter of Est. of Gibbs. 490 N.W.2d at
507-08. But the Supreme Court of South Dakota has never addressed whether a beneficiary who,
through wrongful conduct, kills the person without any intent to do so has committed a "felonious
and intentionar killing that revokes the beneficiary's interest in the decedent's property. SDCL
§ 29A-2-803(emphasis added). Nonetheless, after reviewing the history and purpose ofthe slayer
rule and authority from other states, this Court determines that SDCL § 29A-2-803 extinguishes
Dean's interest in the death benefit based on the undisputed facts in this case.
The slayer rule "is based upon the maxim that no one should be allowed to benefit from
his own wrong." Cheatle v. Cheatle, 662 A.2d 1362, 1365 (D.C. 1995)(cleaned up and citation
omitted). "The rule was initially applied to circumstances where the slayer killed specifically to
inherit from his victim on the theory that killing for greed should not be rewarded. . . . As
the rule has developed, it has been expanded to preclude slayers from benefiting from their acts
regardless of whether they were economically motivated." In re Est. of Kissinger. 206 P.3d 665,
668 (Wash. 2009)(cleaned up and citation omitted); see also In re Boruch, 505 B.R. 508, 513
(Bankr. W.D. Wis. 2014)(citing Restatement(Third)ofProp.: Wills and Other Donative Transfers
§ 8.4 cmt.b (2013))("The [slayer] rule's purpose is to prevent the enrichment of those who kill
others, regardless of motive, on the theory that to permit any benefit to accrue to the killer as a
result of a killing would be manifestly unjust."). There is some version of the rule in every state.
In re Boruch. 505 B.R. at 514: see also In re Est. of Blodgett. 147 P.3d 702, 707-08 (Alaska 2006)
(citation omitted)(discussing how many states have adopted the common-law slayer rule applying
to an "individual who feloniously and intentionally kills the decedent" as codified in the Uniform
Probate Code). The "application of the slayer rule varies among the states and the interpretation
is often policy driven." In re Est. of Kissinger. 206 P.3d at 668.
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Applying an ordinary, common definition of "intentional" to SDCL § 29A-2-803 could
support a holding that the statute only applies to killers who act with a conscious and deliberate
purpose to kill the decedent, such as in cases of first-degree or premediated murder. See
Intentional, Merriam-Webster, merriam-webster.com/dictionary/intentional (last visited March
15, 2022). Under this narrow interpretation, the slayer statute would not apply to second-degree
murder or felony murder cases in which there need not be evidence that the killer acted with the
purpose of bringing about the decedent's death. One state, the state of Washington, has adopted
such an interpretation of its slayer statute. In New York Life Ins. Co. v. Jones. 541 P.2d 989
(Wash. 1975)(en banc), the Supreme Court of Washington interpreted "intentional" in its slayer
statute narrowly referring to the killer's state of mind. In that case, a wife discharged a firearm
toward her husband and killed him. 541 P.2d at 990. The wife pled guilty to second-degree felony
murder (assault in the second degree) and then sought to obtain the proceeds of her husband's
NYLIC's life insurance policy. Id The Supreme Court of Washington concluded that a second-
degree felony murder conviction did not establish proof that the wife "intentionally" killed her
husband. Id at 991. Therefore, the court held that Washington's slayer statute did not bar the
wife from receiving her husband's life insurance proceeds unless it was proven that she intended
to kill her husband when she assaulted him with a firearm. Id at 991-92. The Supreme Court of
Washington affirmed its analysis in Jones in In re Est. of Kissinger. 206 P.3d 665, 671 (Wash.
2009)(en banc).
But Jones and Est. of Kissinger are in the minority. The majority ofcourts have interpreted
"intentional" in slayer statutes more generally as referring to whether the killer intended to commit
those acts that caused the decedent's death, regardless of whether the killer's actions were
motivated by a desire to kill the decedent. For instance, applying Illinois law,the Seventh Circuit
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held that "intent" under Illinois' slayer statute "only requires showing that a person intended his
or her actions." Laborers' Pension Fund v. Miscevic. 880 F.3d 927,936(7th Cir. 2018). Similarly,
the Supreme Court of Virginia has held that "[ijntent in a civil context only requires that a person
intended his actions" and that criminal intent is irrelevant. Osman v. Osman.737 S.E.2d 876, 880
(Va. 2013). In applying the slayer rule to all forms of murder, a Michigan court explained that
"the origins of the 'slayer rule' support that it is broad and incorporated all forms of murder. . ..
'[FJeloniously and intentionally kill' [as written in state statute]... was clearly intended to apply
broadly and incorporate second-degree murder." In re Est. of Mikes. 2015 WL 1227593, at "'4
(Mich. Ct. App. Mar. 17, 2015). See also In re Est. of Blodgett 147 P.3d at 707, 707 n.34-35
(explaining that some states have even extended their slayer statutes to include unlawful but
"unintentional" killing); In re Hamilton. 446 So. 2d 463, 464-65 (La. Ct. App.) (applying
Louisiana law to hold that a slayer convicted of unintentional manslaughter was barred from
recovering the decedent's life insurance proceeds); Quick v. United Ben. Life Ins. Co.. 213 S.E.2d
563, 569-70 (N.C. 1975) (holding that a slayer convicted of involuntary manslaughter was
"disqualified from receiving any insurance proceeds ... since the killing, although unintentional,
nonetheless resulted from her culpable negligence" under common law principles).
This Court predicts that the Supreme Court of South Dakota would follow the reasoning
of courts that interpret "intentional" as applied in slayer statutes to refer to whether a killer's
actions were voluntary, rather than to the killer's state of mind. This interpretation of"intentional"
is also aligned with the purpose ofthe slayer rule— "to prevent the wrongdoer from profiting from
the wrong"— which certainly applies to all types of murder cases. Restatement(Third)ofProperty
§ 8.4 cmt.(f). A narrower interpretation of"intentional" that only applies to premediated killings
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would defeat the purpose of slayer statutes and be manifestly unjust.^ Indeed, the comment to
Uniform Probate Code § 2-803 recognizes that "the accidental manslaughter killing" is excluded
from § 2-803 and that the word "intentional" is not meant in the criminal sense to require proof of
a first-degree murder. The comment provides:
[T]his section is confined to felonious and intentional killing and excludes the
accidental manslaughter killing. . . . [A] judgment of conviction establishing
criminal accountability for the felonious and intentional killing of the decedent
conclusively establishes the convicted individual as the decedent's killer for
purposes of this section. Acquittal, however, does not preclude the acquitted
individual from being regarded as the decedent's killer for purposes ofthis section.
This is because different considerations as well as a different burden of proof enter
into the finding of criminal accountability in the criminal prosecution. Hence it is
possible that the defendant on a murder charge may be found not guilty and
acquitted, but if the same person claims [an entitlement to inherit, the court] . . .
may find that, under a preponderance of the evidence standard, he or she would be
found criminally accountable for the felonious and intentional killing of the
decedent and thus be barred under this section from sharing in the affected property.
Unif.Prob. Code § 2-803 cmt.
Here, there is no genuine dispute that Dean beat Sherry to death and was subsequently
convicted on felony assault charges. Sherry's head was black and blue, she was missing teeth, she
^ The Restatement (Third) of Property adopts a yet another definition of intentional, stating that a
killing is "intentional" so long as the killer "knows to a substantial certainty" that death may result
from his or her actions. Restatement (Third) of Property § 8.4 cmt. (f). ''The term "intentional"
is not confined to consequences that the actor has the purpose of producing, but includes
consequences that the actor knows to a substantial certainty will ensuefrom the actor's conduct.
Id. (citing Restatement Third, Torts: Liability for Physical Harm (Basic Principles) § 1 (Tentative
Draft No. 1, 2001))(emphasis added). The Restatement also distinguishes "intentional" killings
from killings caused by an accident or negligent conduct: "[tjhe slayer rule does not apply if the
killing was reckless, accidental, or negligent. A killing is reckless when the actor knows of the
risk of harm created by the conduct or knows facts that make that risk obvious to a reasonable
person in that situation, and the precaution that would eliminate or reduce the risk involves burdens
that are so slight relative to the magnitude ofthe risk as to render the failure to adopt the precaution
a demonstration of indifference to the risk." Id Moreover, the Restatement provides that "[t]he
terms 'felonious' and 'intentional' [as applied in slayer statutes] should be defined in light of the
public policy to which the slayer rule is directed—to prevent the wrongdoer from profiting from
the wrong." Restatement(Third)of Property § 8.4 cmt.(f).
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had bite marks, and her torso and arms were bruised. Doc. 32 at 4; Doc. 33-5 at 31- 32. Even by
Dean's own account, after Sherry jumped out ofthe truck, he exchanged blows with her beside the
highway and pulled her back inside the truck and drove home. Doc. 33-5 at 36. Sherry's death
was ruled a homicide due to "subdural hemorrhage, blunt force injury of head, assault." Doc. 32
at 2; Doc. 34 at 2. By his own admission. Dean also did not seek medical care for Sherry until
hours after he brutally assaulted her. Doc. 33-5 at 36. Later he told officers that he had killed her.
Doc. 33-5 at 40; Doc. 43 at 4. On these facts, there is enough evidence to meet the preponderance
of the evidence threshold as a matter of law that Dean acted intentionally when he beat Sherry,
that he thereby willfully brought about her killing, and that the killing was felonious. Therefore,
Dean is barred from receiving the Policy's death benefit under the Policy language'* and under
SDCL § 29A-2-803.
B. NYLIC's Motion for Attorneys' Fees and Costs
It is well-established that a "completely disinterested stakeholder should not ordinarily be
out ofpocket for the necessary expenses and attorney's fees incurred by him,[although]the amount
allowed for such fees should be modest." Federated Mut. Ins. Co. v. Moodv Station & Grocerv.
821 F.3d 973, 979 (quoting Hunter v. Fed. Life Ins. Co. Ill F.2d 551, 557 (8th Cir. 1940)); see
also Dusseldorp v. Ho. 4 F. Supp. 3d 1069, 1070 (S.D. Iowa 2014); 7 Mary Kay Kane, Federal
Practice and Procedure § 1719(3d ed.), Westlaw (April 2021 Update). "The court has discretion
to award reasonable attorneys' fees to a stakeholder in an interpleader action from the funds
deposited in the registry ofthe court." Hartford Life & Acc. Ins. Co. v. Rogers. No. 3:I3-CV-IOI,
2014 WL 4980891, at *3(D.N.D. Oct. 3, 2014) tciting N.Y. Life Ins. Co. v. Miller. 139 F.2d 657,
The Policy's forfeiture clause disqualifies a beneficiary who has been determined to have
"willfully br[ought] about the INSURED's death." Doc. 34 at 10.
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658 (8th Cir. 1944)); see also Federated Mut. Ins. Co.. 821 P.3d at 979 (cleaned up and citation
omitted)("The decision to award attorney fees rests within the sound discretion of the district
court.. .")•
NYLIC requests a partial attorneys' fees award of $10,000 out of a total $15,283.18 in
incurred fees and costs and has submitted a detail accounting of the fees and costs incurred. Doc.
36 at 1; Doc. 37-1; Doc. 38-1. For local counsel, the amount incurred consisted of $1993.68 in
attorneys' fees charged at a billable rate of $240 per hour. Docs. 37 at 2; Doc. 37-1. For out-of-
state counsel, the amount incurred consisted of $12,987.50 in fees charged at a billable rate of
$300 per hour. Doc. 38 at 2; Doc. 38-1. NYLIC contends that this action required more
investigation than a run-of-the mill case because of the circumstances of Sherry's death. Doc. 36
at 2. Counsel for NYLIC had to investigate Dean's criminal records and plea agreement prior to
bringing the complaint. Doc. 36 at 2. NYLICs counsel also reviewed estate proceedings to
identify and then locate Sherry's potential heirs because the Policy did not list any contingent
beneficiaries. Doc. 36 at 2-3. Cory and Trent do not object to NYLlC's motion for partial
attorneys' fees. Doc. 42.
Having reviewed NYLIC's detailed accounting of the work performed and pleadings in
this case, this Court determines attorneys' fees in the amount of $10,000.00 are reasonable. See
E.R. V. Minnesota Life Ins. Co.. No. 2:18 CV 31 CDF,2019 WL 1532895, at *1 (E.D. Mo. Apr.
9, 2019)(awarding $9,050 in attorney's fees in an interpleader action upon finding a detailed
accounting ofthe work performed).
IV. Conclusion and Order
For the reasons discussed, it is hereby
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ORDERED that Defendants Cory Nashtock and Trent Wellbaum's Motion for Summary
Judgment, Doc. 31, is granted. It is further
ORDERED that NYLIC's Motion for Attorney Fees and Costs, Doc. 36, is granted and
that the Clerk of Court is directed to pay to NYLIC $10,000 from the death benefit proceeds
deposited with the registry ofthe Court. It is finally
ORDERED that the Clerk of Court is to pay the remaining balance of the death benefit
proceeds one-half to Defendant Trent Wellbaum and one-half to Defendant Cory Nashtock
through their counsel of record.
DATED this ^^day of March, 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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