Cаrolyn J. GIBBS v. Ashley C. GIBBS, A Minor Child; Andrew F. Gibbs, a Minor Child; General American Life Insurance Company
No. 98-50061
United States Court of Appeals, Fifth Circuit
April 21, 2000
Before POLITZ, DeMOSS and BENAVIDES, Circuit Judges.
The “reasonable alternative hypothesis” analysis merely provided a reviewing court with a means to assess whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. See Butler v. State, 769 S.W.2d 234, 238 n.1 (Tex.Crim.App.1989) (“[W]e do not mean to imply an adoption of [the reasonable hypothesis theory] as the standard of review for the sufficiency of the evidence. The reasonable hypothesis theory as utilized by this Court is merely an analytical construct to facilitate the application of the [Jackson v. Virginia, 443 U.S. 307 (1979)] standard.“). Even if the Texas Court of Criminal Appeals did not apply the construct it indicated in Geesa it would to a case such as Hill‘s, and in doing so, violated “the law,” this was a violation of state law. The Supreme Court has repeatedly stated that such a violation is not the concern of a federal habeas court. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, law, or treaties of the United States.“). Because Hill‘s claims regard, at best, a state-law violation, we must deny a COA.
D.
In his final challenge, Hill contends that the district court erred in granting summary judgment without giving him an adequate opportunity for discovery and factual development of his claims. Given our disposition of his other claims, we deny a COA on this issue as well.
III. CONCLUSION
For the foregoing reasons, we DENY Hill‘s request for a COA.
Archie Carl Pierce (argued), Wright & Greenhill, Austin, TX, for Carolyn Gibbs.
John Kuchera (argued), Waco, TX, for Ashley and Andrew Gibbs.
Frederick deB. Bostwick, III (argued), Keith C. Cameron, Naman, Howell, Smith & Lee, Waco, TX, for General American Life Ins. Co.
Carolyn J. Gibbs (hereinafter “Appellant“) appeals from the final judgment in her ERISA action which awarded attorneys’ fees to both the Defendant-Appellee, General American Insurance Company (hereinafter “General American“), and to the Intervenor Plaintiff-Appellees, Ashley C. Gibbs and Andrew F. Gibbs, both minors (hereinafter “Intervenors“). Appellant contends that the district court erred in denying her request for attorneys’ fees against General American because she was the prevailing party, and that the Court also erred in awarding attorneys’ fees and costs to both Intervenors and General American out of the disputed insurance proceeds which were being held in the court‘s registry. Appellant also contends that the district court erred in admitting certain polygraph results into evidence during the bench trial, and in relying on such evidence in awarding attorneys’ fees.
I. FACTUAL BACKGROUND
Carolyn J. Gibbs was married to Joel W. Gibbs in 1988. During their marriage they had two children, Ashley and Andrew. Mr. Gibbs maintained employment as a director of operations for Waco Magnetic Imaging, which provided him, as part of his benefits package, a life insurance policy issued through General American Life Insurance Company (“General American“). That policy designated Carolyn Gibbs, as the policy‘s named beneficiary, with life benefits in the amount of one times Mr. Gibbs’ annual salary rounded to the next even thousand dollars ($42,000) with double indemnity accidental death benefits (for a total of $84,000 in the event of accidental death).
At some point in 1994, Appellant contacted a former boyfriend, Bartley Bell, after seeing his appearance on an episodе of the Oprah Winfrey television show. Bell was then attending college in Alabama. The two began corresponding and spoke on the phone almost daily. At one
On January 25, 1996, Appellant took her children to a Mother‘s Day Out program at the Crestview Church of Christ. She had planned her class schedule at Baylor University for the Tuesdays and Thursdays that this program was offered. Shortly after arriving at the church, Appellant testified that she discovered her son Andrew had forgotten his lunch. She told him that his father would bring it to him. But when Andrew began crying, she promised to bring it to him herself. At approximately 9:30 a.m., she called Mr. Gibbs’ office, but he was on another phone call. She left a message with Pat Johnson, the office manager, that she was late for her classes and that Mr. Gibbs needed to go by her townhouse to get Andrew‘s lunch bag and take it to him at the church. She advised Johnson to tell Mr. Gibbs that the kitchen door was unlocked.
After receiving the telephone message, Mr. Gibbs left his office at approximately 9:50 a.m. to retrieve his son‘s lunch. After several hours had passed without his return, and because he had not responded to numerous pages and telephone calls, his co-workers contacted the police. After her classes ended at 2:00 p.m., Appellant arrived to pick up her children at the church around 2:30 p.m.—Andrew was crying because his daddy had never shown up with his lunch. When she arrived with the children back at her townhouse, she found Mr. Gibbs’ car in her carport. Also present was a police car and a uniformed officer who informed Appellant that the police had been called by Mr. Gibbs’ co-workers when he failed to return to work.
Appellant told the officer to drive around the front of the house because of the dog in the backyard. She proceeded into the house through the back door, and upon entering the house noticed that it was messy. Pictures and videos were spread out on the floor and drawers were opened as if they had been searched. She received no response upon calling out Mr. Gibbs’ name. When she went upstairs, she found his body lying in the hallway with blood everywhere. She then ran back downstairs and took the children out the front door.
The police then entered the house and found Mr. Gibbs’ body. They initially told Appellant that Mr. Gibbs appeared to have taken his own life, but it was later determined that he had been stabbed repeatedly and his throat had been cut open a number of hours before he was discovered. The Hewitt Police Department released the townhouse back to Appellant by 5:00 p.m. that same afternoon. The very next day, Appellant‘s father, who had arrived the previous evening from Colorado, organized the efforts of Appellant‘s Sunday school class in cleaning the murder scene. They ripped out the blood-stained carpet, repainted the walls, and generally cleaned up all indications that a murder had occurred. Ms. Truitt also visited the townhouse and removed incriminating love letters which she had written to the Appellant.
In an effort to solve the murder, the
Appellant and her children then moved in with Ms. Truitt for approximately four weeks. They then moved to Colorado Springs to live with her parents. By January of 1997, Appellant‘s former boyfriend, Bartley Bell, had moved to Colorado, where the two were married that July.
In April 1996, Appellant first submitted a claim to General American for the proceeds of Mr. Gibbs’ aforementioned life insurance policy. Due to an improper address, General American received the claim three months later. Having been advised by Mr. Gibbs’ employer that Appellant was a suspect in her husband‘s death, General American contacted the Hewitt Police Department which advised that, indeed, Appellant had not been ruled out as a suspect.
In October 1996, Appellant contacted General American to inquire as to the status of her pending claim. Again, General American contacted the Hewitt Police Department, which again advised that Appellant had not yet been ruled out as a suspect. General American then wrote to Appellant and advised her that her claim could not be paid until the investigation into Mr. Gibbs’ death had been completed.4 Appellant declined to exercise her rights under a provision of the policy which would have permitted her, as a beneficiary under suspicion of involvement in the insured‘s death, to waive payment of the insurance proceeds to her directly and to have the proceeds flow directly to her minor children.
II. PROCEDURAL HISTORY
In February 1997, Carolyn Gibbs filed this action under ERISA, as the named benеficiary of an ERISA plan, alleging that General American failed to pay benefits under
In its order permitting the interpleader, the district court appointed a guardian ad litem, John A. Kuchera, to represent the children‘s interests. The guardian ad litem filed an Intervenor complaint on their behalf, pleading that the children were entitled to the insurance proceeds pursuant to
The case was tried to the bench.6 The two issues being tried were: (1) Appellant‘s and Intervenors’ competing claims of entitlement to the insurance proceeds in the court‘s registry, and (2) whether Appellant was entitled to attorneys’ fеes and costs under ERISA based upon General American‘s alleged bad faith. Two ancillary issues were whether General American and Intervenors were entitled to attorneys’ fees and costs. At the end of the trial, the district court held as follows:
First, with respect to the competing claims for entitlement to the insurance proceeds, the district court held that Intervenors had not sustained their burden of establishing that Appellant caused or was involved in the death of her husband by a preponderance of the evidence under Section 21.23.7 Thus, the proceeds went to Appellant.
Second, with respect to Appellant‘s claim for attorneys’ fees and costs, the district court found that General American had not acted in bad faith and, therefore, it denied Appellant‘s request. With respect to General American‘s request for attorneys’ fees and costs, the district court determined that General American was entitled to have its attorneys’ fees ($21,100.25) paid out of the interpleaded insurance proceeds so as to deter other beneficiaries from filing premature lawsuits to collect insurance benefits when they are suspected of involvement in the death of the insured. Finally, with respect to Intervenors’ claim for attorneys’ fees, the district
Appellant timely appealed the district court‘s awards of attorneys’ fees, and a prior panel of our Court considered her appeal and issued an opinion. See Gibbs v. Gibbs, 167 F.3d 949 (5th Cir.1999). That opinion was vacated on April 22, 1999, when the prior panel construed Intervenor Plaintiff-Appellees’ petition for rehearing en banc as a petition for panel rehearing and granted the same. See Gibbs v. Gibbs, 173 F.3d 946 (5th Cir.1999), vacating 167 F.3d 949 (5th Cir.1999).
In support of their petition for rehearing, Intervenors advanced two arguments. First, they argued that the prior panel‘s decision that the district court abused its discretion in awarding fees and costs to their guardian ad litеm because they did not “prevail” on their claim, overlooked and ignored the distinction between the role of a party and the role of a guardian ad litem, and the panel‘s decision in this regard conflicted with both Supreme Court and Fifth Circuit precedent, which distinguishes between the compensation to be awarded attorneys and compensation to be awarded other court personnel, and which establishes that a guardian ad litem need not prevail in order to be entitled to his fees.9 Second, they argued that the prior panel failed to address their cross-point—that Intervenors had in fact established Appellant‘s involvement by more than a preponderance of the evidence, and thus, they were entitled to an award of the insurance proceeds. This later cross-point is not before our Court because no cross-appeal was filed. See United States v. Coscarelli, 149 F.3d 342 (5th Cir.1998) (en banc).
Thus, the subject of this appeal is not the district court‘s conclusion that Appellant failed to prevail on her claim against General American of bad faith failure to
III. ANALYSIS
Before we can fully address Appellant‘s contention that the district court erred in denying her request, and in granting both General American‘s and Intervenors’ request for, fees and costs, we must first resolve her related secondary issue, that is, whether the district court erred in admitting and allegedly relying upon certain polygraph evidence in determining whether to award fees.
A. Admissibility of Polygraph Evidence
Several weeks prior to the commencement of the trial of this matter, Appellant took and passed a private polygraph examination, and based upon those favorable results, she agreed to submit to a second polygraph examination to be administered by the Texas Department of Public Safety, whose earlier request for a polygraph examination she had denied. As noted above, the overall analysis of this second examination indicated that she had been deceptive in her answers, and specifically the test results revealed the following:
- There existed an 88% probability that Appellant was deceptive when she answered “no” to the question: “Did you plan with any man to cause the death of Joel [Mr. Gibbs]?“;
- There existed a 98% probability thаt Appellant was deceptive when she answered “no” to the question: “Did you intentionally set up Joel, causing his death?“;
- There existed a 99% probability that Appellant was deceptive when she answered “no” to the question: “Prior to arriving at your house on the afternoon of January 25, did you already know someone was going to cause the death of Joel?“; and
- There existed a 56% probability that Appellant was deceptive when she answered “no” to the question: “Did anyone ever tell you that they caused the death of Joel?“.
Appellant asserts that the district court erred in relying upon the polygraph evidence as a basis for assessing attorneys’ fees against her. General American responds that since the district court determined that the evidence did not establish Appellant‘s involvement by a preponderance of the evidence, the issue of whether the polygraph evidence was properly admitted is irrelevant to the district court‘s discretion in awarding attorneys’ fees. However, it is Appellant‘s position that there was no physical or circumstantial evidence linking her to the death of Mr. Gibbs, and as a result, the district court must have based its fees decision on the polygraph results. This assertion overlooks the fact that the lack of any physical evidence is directly attributable to the actions of Appellant and her friends and family in so quickly erasing the crime scene. This assertion also ignores evidence concerning Appellant‘s phone call, which placed Mr. Gibbs at the crime scene, and the following circumstantial facts which our review of the record has revealed: (1) Appellant gave conflicting testimony as to whether, when, and from where she made the call which placed Mr. Gibbs at the murder scene; (2) there is competent and uncontroverted evidence that Appellant told Stephanie Grimm, a friend, in the midst of the Gibbses’ divorce negotiations, that it would be so much easier for her if Joel were simply killed in a car wreck; (3) the murder weapon was recovered in Appellant‘s kitchen (one of her own kitchen knives which had been
Also, there is little indication in the record that, in fact, the district court based the award of fees on the polygraph results; to the contrary, the district court explicitly determined that the fees should be awarded based upon the premature filing of this lawsuit at a time when Appellant knew she was under suspicion, and when there was “absolutely no basis for believing that [General American] had acted in bad faith.”
Furthermore, as this Court has denounced the per se rule that polygraph examinations are inadmissible, see United States v. Posado, 57 F.3d 428, 434 (5th Cir.1995), the standards announced in Daubert control the admissibility of such results. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Suрreme Court stated that a district court should analyze: (1) the scientific validity of the method; (2) the extent to which the trier of fact will be assisted in understanding the evidence and determining the fact at issue; and (3) whether the evidence will have a prejudicial effect which is not outweighed by its probative value. See id. at 2796-2798. Most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury. In this case, the district court was satisfied with the testimony of Peter Heller, the polygraph examiner for the Texas Department of Public Safety, who testified in detail regarding the factors and analysis involved in the examination process at issue, and the district court concluded that the examination results of Appellant‘s test were scientifically valid. We conclude that the polygraph evidence in this bench trial was properly admitted without error by the district court, and furthermore, irrespective of the propriety of admitting the polygraph results, the district court did not rely solely on the polygraph results in awarding attorneys’ fees and costs.
B. Awards of Attorneys’ Fees and Costs
Having rejected Appellant‘s argument that the district court improperly relied upon inadmissible polygraph results, we now turn to a determination of whether the district court erred in awarding fees to the respective parties. It is well settled that the district court has broad discretion in determining the appropriateness of an award of attorneys’ fees, and we review its award or denial thereof for an abuse of that discretion. See Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1458 (5th Cir.1995).
1. Fees and costs governed by ERISA
The relevant ERISA fee provision provides in pertinent part:
[i]n any action ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney‘s fee and costs of action to either party.
Since, as noted above, this case really involved two separate actions: (1) Appellant‘s claim against General American for failure to pay ERISA benefits to which she
a. Must a party first prevail in order to be eligible for consideration for attorneys’ fees and costs under ERISA‘s fee provision,
Appellant urges that as the only prevailing party,11 she is the only party eligible for consideration of fees under ERISA. Her claim is based upon the premise that a party must first prevail in an ERISA action in order to be eligible for consideration for attorneys’ fees. Thus, a threshold inquiry in this appeal is whether or not a party must be deemed to have prevailed in order to recover attorneys’ fees under ERISA‘s fees provisions, and it is an inquiry which, until the prior panel entered its now-vacated opinion, this Court had yet to squarely address. That issue has also created a split of authority among a number of our sister circuit courts of appeal.
The proper starting point for this analysis is with the language of ERISA‘s attorneys’ fee provision itself, which as noted above, permits the district court, in its discretion, to award “reasonable attorney‘s fees and costs ... to either party.”
In determining whether a party must prevail in order to be eligible for an award of attorneys’ fees, the Fourth Circuit in Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201 (4th Cir.1997), explicitly held that “only a prevailing party is entitled to consideration for attorneys’ fees in an ERISA action.” Martin, 115 F.3d at 1210. The analysis which precedes the Fourth Circuit‘s conclusion refers to the “prevailing party” limitation which “many of our sister circuits have imposed ... on the availability of attorneys’ fees under ERISA.” Id.
Specifically, the Martin court cites to cases from the First, Third, Fifth, Seventh, Ninth, and D.C. Circuits as having “imposed a prevailing party requirement” on an award of fees under ERISA. Our review of the decisions cited by the Martin court reveals that many of the circuits, while stating that awards of attorneys’ fees are appropriate for prevailing parties in ERISA actions, do not in so stating, foreclose the ability of non-prevailing parties to obtain an award of fees. And of those cases cited, only one decision from the Seventh Circuit can be read as going so far as to actually require a party to prevail before a district court could consider an award of attorneys’ fees.
In Little v. Cox‘s Supermarkets, 71 F.3d 637, 644 (7th Cir.1995), the Seventh Circuit focused on the bottom-line question of the losing party‘s exercise of good faith in determining whether an award оf fees under ERISA was due the prevailing party. More recently, the Seventh Circuit has twice moved closer to actually requiring a
The remaining circuit decisions cited by the Martin court simply do not require that a party prevail as a pre-requisite to consideration for an award of attorneys’ fees, and more recent decisions from those circuits hold to the contrary—that a party need not prevail in order to be entitled to consideration for fees under ERISA. While the First Circuit in the case cited by the Martin court literally read the word “prevailing” into the relevant ERISA fee provision, see Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir.1996) (quoting
In a decision overlooked by the Martin court, the Third Circuit held that while
In the Ninth Circuit decision cited by the Martin court, see Flanagan v. Inland Empire Elec. Workers Pension Plan & Trust, 3 F.3d 1246, 1253 (9th Cir.1993), the Ninth Circuit held that though it had previously stated in dictum that the ERISA fee provision allows the court to award non-prevailing parties their attorneys’ fees, “plaintiffs cannot recover fees under section 1132(g)(1) until they succeed on [some] significant issue in litigation which achieves some of the benefit sought in bringing the suit.” Arguably, this statement applies only to fee requests by plaintiffs in ERISA actions and not to defendants or intervening parties. Indeed, prior to its holding in Flanagan, the Ninth Circuit stated that the criteria used to determine whether an ERISA party is entitled to an award of attorneys’ fees “do not rely on the prevailing-party doctrine.” Sokol v. Bernstein, 812 F.2d 559, 561 (9th Cir.1987). And more recently, the Ninth Circuit, in an unpublished decision, acknowledged that fee awards under
Though not mentioned by the Martin court, both the Tenth and Eleventh Circuits have also recognized that a party need not prevail in order to be entitled to attorneys’ fees. See Chambers v. Family Health Plan Corp., 100 F.3d 818, 827 (10th Cir.1996) (stating that “[a]lthough the
With regard to this Circuit‘s take on this issue, at first blush, the Fourth Circuit‘s holding in Martin appears to be consistent with our statements in Boggs v. Boggs, 82 F.3d 90 (5th Cir.1996), rev‘d on other grounds, 520 U.S. 833 (1997). In Boggs, we stated that ERISA “allows the court to award ERISA beneficiaries, participants, and fiduciaries reasonable attorney‘s fees when they are the prevailing party.” Id. at 94 n. 1. But while this statement in Boggs seems to require a party to prevail, arguably, it requires only that principаl plaintiffs who bring suits under ERISA prevail in order to be entitled to their fees. Boggs simply does not speak to the propriety of awarding fees to prevailing defendants, or to other third parties who may have been forced to join in an ERISA action.
More instructive on the issue of whether a party must prevail in order to be eligible for consideration for an award of fees is our holding in Todd v. AIG Life Ins. Co., 47 F.3d 1448 (5th Cir.1995). In Todd, Justice White, sitting by designation and writing for the Court, in determining whether the “lodestar” method for calculating attorneys’ fees is appropriate in ERISA cases, noted that while the Supreme Court has endorsed the lodestar method in cases involving fee-shifting statutes where Congress has authorized the award of fees to a prevailing party, “ERISA does not use the ‘prevailing party’ language in its attorneys’ fee provision.” Id. at 1459. Justice White went on to describe the analysis which courts should use in determining attorneys’ fees under ERISA. The first step, he noted, is to “determine whether ‘the party is entitled to attorneys’ fees by applying the five factors enumerated in Bowen 12.‘” Id. Conspicuously absent from this first step is a requirement that the “party” under consideration for attorneys’ fees be the prevailing one. Combined with Justice White‘s prior notation regarding the failure of Cоngress to include the prevailing party limitation in ERISA‘s fee provision, Todd can be read as supporting the proposition that there is no absolute requirement that a party prevail in order to recover attorneys’ fees.
We decline to join the Fourth Circuit in its reliance on “the weight of authority” from other circuits imposing a prevailing party limitation on the availability of attorneys’ fees under ERISA, as that reliance, for the reasons discussed above, is subject to considerable doubt. Indeed, the greater weight of authority, from outside and within our own circuit, supports the notion that a party need not prevail in order to be eligible for an award of attorneys’ fees under
b. Fees and Costs for General American
Having determined that there is no requirement that a party prevail in order to be eligible for consideration for attor
- the degree of the opposing parties’ culpability or bad faith;
- the ability of the opposing parties to satisfy an award of attorneys’ fees;
- whether an award of attorneys’ fees against the opposing party would deter other persons acting under similar circumstances;
- whether the parties requesting attorney‘s fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and
- the relative merits of the parties’ position.
Todd, 47 F.3d at 1458 (citing Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir.1980)).
Appellant urges that the district court abused its discretion in awarding General American its fees and costs because, as she contends, it was not the prevailing party, and it acted in bad faith. As discussed above, the prevailing status of the parties is not determinative of the fee awards, though generally, a proper analysis of the five factors will in most instances favor an award of fees to the party which has most substantially prevailed.
With respect to the first factor, the district court relied on its conclusion that General American did not withhold payment in bad faith, but rather that it did so in an effort to resolve the potentially conflicting claims of Appellant and her minor children in light of the investigation into her involvement in Mr. Gibbs’ death. The district court specifically found that General American “did not act in bad faith [n]оr did it fail to conduct an adequate investigation.” However, the court did intimate that Appellant proceeded in bad faith as she:
“brought this suit when it was obvious she was still a suspect in the murder of her husband and when there was absolutely no basis for believing that Defendant had acted in bad faith.”
With respect to the second factor, the district court found that the insurance proceeds were adequate enough to satisfy an award of attorneys’ fees for General American. With respect to the third factor, upon which it relied most heavily in determining that General American was entitled to have its fees paid out of the interpleaded funds, the district court said “the award of attorneys’ fees to [General American] would, hopefully, deter others from filing premature lawsuits to collect insurance proceeds when the beneficiary remains under suspicion of having murdered the insured.” And with respect to the fourth factor, the district court found that Appellant had filed suit solely to benefit herself and not any other ERISA plan participant. The district court did not specifically address the fifth factor.
Regarding the first factor, while Appellant may have been a suspect when she brought this action, due to the Hewitt Police Department‘s allowing her family and friends to completely clean the crime scene, it is likely that Appellant would have remained a suspect indefinitely, and consequently, General American, absent just this type of litigation, could have withheld payment of the benefits to Appellant indefinitely. Notwithstanding her refusal to waive her claim to the proceeds in favor of her minor children while she remained a suspect, it would be difficult to characterize her actions in filing this suit as being taken in bad faith. This factor counsels against awarding General American its attorneys’ fees.
With respect to the deterrent effect discussed by the district court (the third factor), given the totality of the circumstances, and General American‘s reluctance, however justified, to release the insurance proceeds, it would not serve the goals of ERISA to deter others from instituting litigation which would force the interpleading of disputed insurance proceeds for resolution of the proper disbursement thereof, especially in situations such as this, where doing otherwise could permit the insurance company to indefinitely postpone resolution of the proper disbursement. The district court used the third deterrent factor as a sword to discourage beneficiaries from pursuing a claim when they are suspected of being involved in the insured‘s death, rather than as this factor was intended to be used, as a shield, to protect beneficiaries from the fear of having to pay to pursue an important ERISA claim in the event of failing to prevail. Clearly, Congress intended the fee provisions of ERISA to encourage beneficiaries to assert their rights without fear of being responsible for the fees and costs of their opponent‘s attorneys if they failed to prevail. The district court‘s use of this factor, though somewhat logically justified based upon Appellant‘s awareness that she was clearly a suspect, was an abuse of its discretion in light of the other factors and the totality of the circumstances of this case, which included the fact that General American didn‘t exercise its “good faith” in interpleading until after it had been sued, and the fact that without physical evidence, Appellant might remain a suspect ad infinitum.
With respect to the final factor, the relative merits of the parties’ positions, the district court itself acknowledged that, even considering the polygraph evidence, this was a “close case.” And while the district court obviously believed that Appellant was likely involved somehow in the murder of her husband, her position can hardly be deemed to be so disproportionately meritless as to justify the imposition of an award of attorneys’ fees to General American based on this factor.
In sum, the first, second, third, and fifth Todd factors all counseled in favor of disallowing General American‘s request for attorneys’ fees and costs from Appellant. We therefore find that the district court improperly relied upon the third deterrence factor and that it abused its discretion in awarding General American its attorneys’ fees and costs.
c. Fees and costs for Appellant Carolyn Gibbs
Appellant also argues that the district court abused its discretion in denying her request for attorneys’ fees and costs from General American as she was the prevailing party. She recites, as argument, all of the same reasons advanced for why the award of fees to General American was an abuse of discretion. The district court stated:
Defendant [General American] in this case did not act in bad faith in failing to approve Plaintiff‘s claim. Nor did it fail to conduct an adequate investigation. Accordingly, Plaintiff is not entitled to an award of attorney‘s fees.
The district court‘s conclusion relies heavily upon the first and fifth Todd factors, and upon its conclusion that General American acted completely in good faith. The district court also noted with respect to the fourth factor that Appellant filed suit only to benefit herself and no other ERISA plan participant, and that she was not seeking to resolve any significant legal
An additional argument under the third, deterrence factor exists for denying Appellant an award of attorneys’ fees, and this argument is implicit in the district court‘s conclusions. Permitting the award of such fees would actually serve to encourage beneficiaries suspected of involvement in the death оf an insured to file premature lawsuits, before their alleged involvement can either be established or ruled out, and this deterrence argument weighs more heavily against an award to Appellant for her fees than the reverse argument did regarding an award of fees against Appellant and in favor of General American when the insurance company has delayed action on a claim.
For the reasons discussed above, the district court‘s decision to deny her request for attorneys’ fees and costs was not an abuse of discretion.
2. Guardian ad litem fees
Appellant also argues that the district court abused its discretion in awarding Intervenors their guardian ad litem‘s fees out of her proceeds, instead of assessing the same against General American, whom she contends was the non-prevailing party. With respect to the guardian ad litem‘s fees, the district court undertook no analysis of the Todd factors.13 In fact, the district court merely stated “[t]he guardian ad litem‘s fees will also be deducted from the insurance proceeds currently in the registry of the court.”
Intervenors argue that in determining attorneys’ fees, the court should take into account the fact that a guardian ad litem‘s role is different than that of the attornеy for a party. They point to authority which stands for the proposition that the guardian ad litem, when appointed by the court, occupies a dual role as an advisor for his assigned client and an officer to the court. See duPont v. Southern Nat. Bank, 771 F.2d 874, 882 (5th Cir.1985); Friends for All Children v. Lockheed Aircraft Corp., 725 F.2d 1392, 1401 (D.C.Cir.1984) (Mikva J., dissenting). According to Intervenors, the ad litem‘s unique role justifies payment for his services regardless of the outcome of the case for his clients. See Stephen Allen Lynn Profit Sharing v. S.A. Lynn P.C., 25 F.3d 280, 280-81 nn. 1, 2 (5th Cir.1994); duPont, 771 F.2d at 882 (citing with approval, Judge Mikva‘s dissent in Friends for All Children, 725 F.2d at 1400-01). We agree, but only insofar as the ad litem acts in the capacity as a guardian ad litem and not as an attorney ad litem.
In duPont, we held that where the same person acts in the capacities as both a minor‘s guardian ad litem and as his attorney ad litem, only the person‘s expenses in the former role are taxable as costs under
The guardian ad litem‘s presence is necessitated by the litigation and it is his duty to determine policy regarding litigation. The guardian ad litem is frequently not an attorney and if legal services are required, he must seek and employ counsel. Counsel obtained thereby on behalf of a ward or incompetent is in no different circumstance from counsel for any other litigant. See Hull by Hull, 971 F.2d at 1511; duPont, 771 F.2d at 882; Schneider, 658 F.2d at 854-55; Franz, 38 F.2d at 606. An attorney who serves as both legal counsel and guardian ad litem does not thereby acquire any greater right to recover his fees than have his brethren who are hired directly by a litigant. Id.
In its answer and interpleader, General American requested that the court appoint a guardian ad litem to represent the interests of the minor children and require that they be joined as parties so that Carolyn and the minor children could “settle amongst themselves their rights to the money due under the policy.” At the point of interpleader, the district court appointed Mr. Kuchera “as guardian ad litem for [thе children]” and directed that Kuchera “file all appropriate pleadings on behalf of the minor children and represent their interests for all purposes” (emphasis added). In no manner, did the district court require that Kuchera file an intervenor complaint under § 21.23 for the purpose of litigating the children‘s entitlement to the proceeds. Rather, as in the general case where a guardian ad litem is appointed to represent the interests of minor children with respect to disputed proceeds, the guardian ad litem‘s initial task was to assess his wards’ potential claim of entitlement and decide what course of action should be taken on behalf of his wards, i.e., litigate, settle or waive their claim.
Here, Kuchera examined the circumstances of this case and decided to file a motion to intervene and to file a complaint on behalf of the children asserting their entitlement to the proceeds. He was unsuccessful, and by failing to preserve or recover assets or proceeds for his clients in his capacity as their attorney, and not as their guardian, he is in no better position than a separate counsel he might have retained. At the time Kucherа decided to try to establish Appellant‘s involvement, there was no lie detector evidence, and only limited circumstantial evidence of her involvement in Mr. Gibbs’ death. Additionally, Appellant had not been charged or indicted, and based on the botched investigation, it was likely that she never would be. Kuchera‘s decision to pursue the § 21.23 claim of entitlement to the proceeds was a gamble; he rolled the dice hoping he could get the necessary evidence to recover proceeds for the children, and he was unsuccessful. Whether or not Texas state law would permit recovery of attorney‘s fees by the attorney ad litem for an unsuccessful claimant under § 21.23 out of the insurance proceeds in question is an issue which the district court did not address, either factually or legally.
Furthermore, the only part of Kuchera‘s expenses which are taxable as costs against any party under
CONCLUSION
For all of the foregoing reasons, we AFFIRM the judgment of the district court in so far as it denies attorneys’ fees and costs to Appellant Carolyn Gibbs; REVERSE the judgment of the district court in so far as it awards attorneys’ fees and costs to Appellee General American Life Insurance; VACATE the judgment of the district court insofar as it awards attorneys’ fees and costs to Intervenor-Appellees’ guardian ad litem, John Kuchеra; and REMAND with instructions that the district court determine, pursuant to duPont v. Southern Nat. Bank, 771 F.2d 874 (5th Cir.1985), which of Mr. Kuchera‘s fees and expenses were generated in his role as guardian ad litem, and tax such fees and expenses as costs against Appellant Carolyn Gibbs and/or General American. The district court should also determine whether the portion of Mr. Kuchera‘s fees and expenses generated in his role as attorney ad litem are recoverable from Appellant and/or General American under Texas state law in the circumstances of this case.
AFFIRMED in part; REVERSED in part; VACATE in part; and REMANDED.
BENAVIDES, Circuit Judge, specially concurring:
I join the judgment of the majority and its holding that under our decision in duPont v. Southern Nat‘l Bank of Houston, Texas, 771 F.2d 874 (5th Cir.1985), Mr. Kuchera cannot recover his attorney ad litem fees as costs under
While duPont forecloses payment of Mr. Kuchera‘s fees in his capacity as attorney, as opposed to guardian, ad litem pursuant to
Unfortunately, here, the district court did not award fees against the fund on the basis of this theory, but instead pursuant to
Texas law, which рrovides for payment of ad litem fees by the prevailing party, see
I take some heart from our decision today to sanction the district court‘s consideration of the availability of attorneys’ fees under Texas law, to be paid either out of the insurance proceeds or by Carolyn Gibbs or American General. I remain convinced that an attorney, who in good faith and with good cause, undertakes an obligation imposed upon him by the district court both to protect the interests of minors and to file pleadings on their behalf, and who undisputably discharges this obligation in a faithful and responsible manner should not be abandoned by the system that has required and made use of his services. This is not to say that all attorneys’ fees incurred in connection with ad litem representation would be compensated merely because the attorney initiated some legal action. Certainly, unreasonable or bad faith efforts on behalf of the client should not result in compensation.
Here, however, the facts of the case indicated the complicity of a party, Carolyn Gibbs, in a criminal offense, and the district court found that Carolyn Gibbs more likely than not participated, in some manner, in Joel Gibbs’ death. In these circumstances, a reasonable attorney, consistent with his duties imposed on him by virtue of his appointment by the court, should have sought to recover the insurance funds for the Gibbs children, as Mr. Kuchera did. Far from “rolling the dice” and “gambling” on recovery, Mr. Kuchera‘s decision to intervene was virtually dictated by the facts themselves; he acted in a measured and reasonable manner, which was calculated to protect the best interests of the Gibbs children.3 His rea-
With these comments, I join the judgment of this court remanding Mr. Kuchera‘s claim for attorneys’ fees for further consideration by the district court and join the court‘s opinion with respect to its resolution of American General‘s claim for attorneys’ fees.