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Kemper Investors Life Insurance Co. v. Sumberg

February 1, 2007


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Before the court is the motion for summary judgment [#76] of interpleader plaintiff Kemper Investors Life Insurance Company ("Kemper"). Upon consideration of the motion, the opposition and response thereto, and the record of the case, the court concludes that the motion must be granted.


In 1984, Ruth Sumberg purchased an annuity policy from Kemper. Def. Sumberg's Ex. 1 ("Annuity"). Included among the policy's terms are grants of certain ownership rights. The Annuity provides that the policy owner may both change ownership of the policy and withdraw funds from the Annuity. As to ownership changes, the policy states:

CHANGE OF OWNERSHIP - Ownership may be changed at any time during the Annuitant's lifetime. Such change requires the Owner's written notice to the Company. No such change shall take effect unless received by the Company. Upon receipt, any such change shall take effect as of the date it was signed.

Annuity at 0033.*fn1 As to the right to withdraw, the policy owner may demand payment of a sum matching the "Termination Value" (the contract value minus charges and any debt) at any time prior to the date of maturity. Id. at 0034--35.

In 1994, Ms. Sumberg sought to reduce the size of her estate by transferring ownership of the Annuity to her children, Billie Daffner and defendant Steven Sumberg. Mr. Sumberg contacted Kemper, who informed him he could transfer ownership by sending a letter of instruction to Kemper. He then prepared such a letter, which Ms. Sumberg reviewed, signed, and sent to Kemper on September 1, 1994. In pertinent part, the letter stated that Ms. Sumberg wanted to "transfer ownership of the Contract from me to my son, Steven M. Sumberg, and daughter, Billie S. Daffner, who are and will remain the sole beneficiaries of the Contract." Pl.'s Ex. 6 ("Transfer Letter").

On April 11, 2002, Billie Daffner died. Thereafter, Mr. Sumberg sent a "Non-Financial Change Form" to Kemper, requesting that Ms. Daffner's ownership be transferred to him. Pl.'s Ex. 7 (Steven Sumberg Ltr. to Zurich Life, January 14, 2003). Kemper responded by letter stating that it had updated its records in accordance with his request, and that "Billie Daffner has been removed as joint owner." Pl.'s Ex. 8 (Brandy Ltr. to Steven Sumberg, January 22, 2003).

In October of that year, Billie Daffner's husband, defendant Howard Daffner, was appointed administrator of her estate. Pl.'s Ex. 9 (Appointment, Oct. 10, 2003). Shortly thereafter, in correspondence with Kemper, Mr. Daffner asserted an ownership interest in half of the Annuity. Pl.'s Ex. 10 (Howard Daffner Ltr. to McMahon, Dec. 19, 2003). He claimed that the 1994 ownership transfer effected by Ms. Sumberg created a tenancy in common, rather than a joint tenancy, between Ms. Daffner and Mr. Sumberg, and that therefore Mr. Sumberg had no right of survivorship to Ms. Daffner's ownership interest. Ibid. That interest, he argued, passed to Ms. Daffner's estate. Ibid. He therefore asked that Kemper's records be amended to reflect the estate's continued interest. Ibid. He repeated this request over the phone and by letter a few weeks later. Def. Sumberg's Ex. 16 (Howard Daffner Ltr. to Leali, Jan. 15, 2004). He then requested a withdrawal of one-half of the Annuity's termination value, payable to the estate. Pl.'s Ex. 12 (Howard Daffner Ltr. to McMahon, Jan. 29, 2004). Kemper complied with this request, sending a check for $229,518.34. Pl.'s Ex. 13 (McMahon Ltr. to Howard Daffner, Feb. 9, 2004), Ex. 14.*fn2

Following this payment, Mr. Sumberg asserted that Ms. Daffner's interest transferred to him upon her death, and not to the estate. Kemper responded by filing this interpleader action, seeking, among other things, a declaratory judgment regarding the rights of the parties. Mr. Sumberg then brought counterclaims and crossclaims against Kemper and Mr. Daffner. Kemper has now filed a motion for summary judgment, arguing that Ms. Daffner's interest was properly asserted by Mr. Daffner, and that Mr. Sumberg has no claim thereto.*fn3


A. Standard of Review

The court reviews motions for summary judgment to determine whether "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine dispute about a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Evidence is to be viewed "in the light most favorable to the nonmoving party, draw[ing] all reasonable inferences in its favor, and ...

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