Ben Hill Griffin, Inc. v. Anderson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BEN HILL GRIFFIN, INC.

Plaintiff,

v. Case No. 8:21-cv-2311-VMC-TGW

ADAM “AJ” ANDERSON, et al.,

Defendants.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendants A.W.A., Adam “AJ” Anderson, Cierra Michelle

Anderson, Michelle R. Anderson, Candice Nicole Luke, and

Sheenia Dannett Nealey’s Motion for Summary Judgment (Doc. #

73), filed on May 25, 2022. Defendants Dakota T. Bond, Matthew

Bond, Ryan E. Bond, E.S.W., and Cheyanne Wilkerson responded

on June 14, 2022 (Doc. # 78), and Defendants A.W.A., Adam

“AJ” Anderson, Cierra Michelle Anderson, Michelle R.

Anderson, Candice Nicole Luke, and Sheenia Dannett Nealey

replied on June 16, 2022. (Doc. # 80). For the reasons that

follow, the Motion is granted.

I. Findings of Fact

This ERISA case arises out of the tragic deaths of Adam

and Eva Anderson on July 19, 2021. Adam W. Anderson’s

employer, Ben Hill Griffin, Inc., seeks a declaratory

judgment as to the distribution of Adam Anderson’s deferred

compensation and retirement plans.

A. The Parties

Adam W. Anderson (“Adam Anderson”) is a deceased

individual who died on or about June 19, 2021. (Doc. # 73-1

at 20). Until his passing, Adam Anderson was an employee with

Plaintiff Ben Hill Griffin, Inc. (Doc. # 47-8).

Eva W. Anderson (“Eva Anderson”) is a deceased

individual who died on or about June 19, 2021. (Doc. # 73-1

at 7–8). On the date of her death, Eva Anderson was married

to Adam Anderson. (Id.).

Sheenia Dannett Nealey (“Sheenia Nealey”) and Adam “AJ”

Anderson (“AJ Anderson”) are the adult children of Adam

Anderson from his previous marriage to Michelle R. Anderson

(“Michelle Anderson”). (Doc. # 47 at ¶ 15(a)–(b); Doc. # 55

at ¶ 15; Doc. # 59 at ¶ 15(a) –(b); Doc. # 60 at ¶ 15(a)–(b);

Doc. # 61 at ¶ 15(a)–(b); Doc. # 67 at ¶ 15). Cierra Michelle

Anderson (“Cierra Anderson”) is the adult daughter of Sheenia

Nealey and was legally adopted by Adam and Michelle Anderson.

(Doc. # 47 at ¶ 15(c)). Candice Nicole Luke (“Candice Luke”)

is alleged to be the adult daughter of Adam Anderson. (Id. at

¶ 15(d)). A.W.A. is the minor daughter of Adam and Eva

Anderson. (Id. at ¶ 15(h)). Candice Luke, Sheenia Nealey,

A.W.A., and AJ, Cierra, and Michelle Anderson will

hereinafter be referred to as the “Anderson Defendants.”

Cheyanne Wilkerson, Matthew Bond, Ryan E. Bond, and

Dakota T. Bond are the adult children of Eva Anderson from a

previous marriage. (Id. at ¶¶ 15(f)–(g), (i)–(j)). E.S.W. is

the minor daughter of Eva Anderson from a previous marriage.

(Id. at ¶ 15(k)). Cheyanne Wilkerson, E.S.W., and Matthew,

Ryan, and Dakota Bond will hereinafter be referred to as the

“Wilkerson Defendants.”

As mentioned above, Ben Hill Griffin, Inc., the

Plaintiff in this case, was the employer of Adam Anderson

until his death on June 19, 2021. (Id. at ¶ 10). Ben Hill

Griffin, Inc. is the administrator of two of Adam Anderson’s

ERISA covered employee pension benefit plans. (Id. at ¶ 3).

B. The Deaths of Adam and Eva Anderson

Adam and Eva Anderson were found dead at their residence

in Frostproof, FL, on the morning of June 19, 2021. (Doc. #

73-1 at 7). No one else was present with the couple at the

time of their deaths. (Id.). The manner of Eva Anderson’s

death was determined to be a homicide, caused by two apparent

gunshots. (Id. at 4, 18). Eva Anderson’s death was determined

to be “sudden and instantaneous.” (Id. at 4). The manner of

Adam Anderson’s death was determined to be suicide, caused by

one gunshot wound to the side of his head. (Id.).

Based on the instantaneous nature of Eva Anderson’s

death, the location of Eva and Adam Anderson’s respective

gunshot wounds, the separate locations in the room where both

of their bodies were found, and the positions of their bodies,

the medical examiner concluded that Eva Anderson died before

Adam Anderson. (Id. at 5). Accordingly, Adam Anderson’s Death

Certificate indicated his marital status at the time of death

as “widowed,” while Eva Anderson’s indicated she was

“married.” (Id. at 8, 21).

C. The Deferred Compensation and Retirement Plans

Until his death, Adam Anderson was a participant in two

deferred compensation and retirement plans, which are the

subject of this action: the Ben Hill Griffin, Inc. Employees’

Profit-Sharing Plan and Trust Agreement (the “Profit-Sharing

Plan”) and the Ben Hill Griffin Inc. Management Security Plan

(the “MS Plan”) (jointly, the “Pension Plans”). (Doc. # 47 at

¶ 3).

The Profit-Sharing Plan is a tax qualified retirement

plan under Internal Revenue Code Sections 401(a) and 501(a)

et seq. (Doc. # 47-5). The beneficiary designation of Mr.

Anderson on file with the Plan Administrator lists Eva

Anderson, wife, as the sole beneficiary of his account

balance. (Doc. # 47-6 at 2). No contingent or other

beneficiary is listed or designated. (Id.).

The MS Plan is a non-qualified plan of deferred

compensation. (Doc. # 47-8). Article 4 of the MS Plan provides

a death benefit in the case of death before retirement in an

amount equal to one-hundred percent of defined “Covered

Salary” for the first twelve months after death and then fifty

percent of defined “Covered Salary” for the later of the next

108 months or whenever the Participant turned 65. (Id. at 6).

Under the plan, the “Covered Salary” is the “portion of a

Participant’s base annual salary excluding bonuses or other

fringe benefits, if any, which the Participant chooses as a

basis for computation of the Retirement or Death Benefit

pursuant to the terms and conditions of this Plan.” (Id. at

4). Adam Anderson’s “Covered Salary” was $2,500 per month.

(Id. at 14). Adam Anderson was born on April 2, 1966, and was

55 years old at the time of his death. (Doc. # 47 at ¶ 35).

On January 3, 2020, Adam Anderson delivered a Change of

Beneficiary Form for Death Benefit in the MS Plan to Ben Hill

Griffin. (Doc. # 47-9 at 2). On that form, Adam Anderson

handwrote that Michelle Anderson was a primary beneficiary,

to receive $1,026 per month, Eva Anderson was a primary

beneficiary, to receive $2,724 per month, and that as to Eva

Anderson’s share only, A.W.A. was the secondary beneficiary.

(Id.).

D. Adam and Michelle Anderson’s Divorce Judgment

Adam and Michelle Anderson’s divorce became final on

March 13, 2012. (Doc. # 73-4 at 7). The Family Court found

that Adam Anderson’s interest in the Profit-Sharing Plan was

a vested, marital asset subject to equitable distribution,

and that Michelle Anderson was entitled to a share of this

interest in the amount of “Thirty-Five Thousand Five Hundred

Seventy-Eight and 81/100 Dollars ($35,578.81) plus any

passive gains or losses having accrued from December 31, 2011,

until distribution of the Wife’s interest.” (Id. at 21).

The Family Court found that Adam Anderson’s interest in

the MS Plan was a vested, marital asset subject to equitable

distribution, and that Michelle Anderson was entitled to an

award equal to fifty percent of Adam Anderson’s retirement

benefit payable under the MS Plan as of February 1, 2012.

(Id.). Adam Anderson was directed to retain Michelle Anderson

as a beneficiary of his interest to be distributed to her.

(Id. at 22). However, the Family Court did not make any

specific finding with respect to Michelle Anderson’s interest

in Adam Anderson’s death benefit under the MS Plan. (Id. at

21–22).

On or about October 26, 2021, after Eva and Adam

Anderson’s deaths, the Family Court for the Divorce Action

entered an order entitled “Qualified Domestic Relations

Order” (“QDRO”) with respect to Michelle Anderson’s share of

Adam Anderson’s interest in the Profit-Sharing Plan. (Id. at

37). The purported QDRO directed Plaintiff Ben Hill Griffin

to divide Adam Anderson’s interest in the Profit-Sharing Plan

into two separate accounts, effective December 31, 2011: one

account to be allocated and assigned to Defendant Michelle

Anderson in the amount of $35,578.81, plus any passive gains

or losses having accrued as of December 31, 2011, until

distribution, and a second account in the name of Adam

Anderson where the balance of his interest in the Profit-

Sharing Plan would remain. (Id. at 38).

Ben Hill Griffin initiated this action on September 30,

2021. (Doc. # 1). It filed the operative complaint — the

Amended Complaint — on December 16, 2021. (Doc. # 47). The

Amended Complaint contains the following counts: declaratory

judgment as to the Profit-Sharing Plan (Count I) and

declaratory judgment as to the MS Plan (Count II). The

Anderson Defendants now seek the entry of summary judgment on

both counts. (Doc. # 73). The Wilkerson Defendants have

responded (Doc. # 78), which the Court construes as a Motion

to Strike. The Anderson Defendants have replied, which also

serves as a response to the construed Motion to Strike. (Doc.

# 80). The Motions are now ripe for review.

II. Legal Standard

A. Motion to Strike

Expert report disclosures are governed by Federal Rule

of Civil Procedure 26. Rule 26(a)(2) requires a party to

disclose to the other parties the identity of any expert

witness it may use at trial to present evidence and, “[e]xcept

as otherwise stipulated or directed by the court, this

disclosure shall . . . be accompanied by a written report

prepared and signed by the witness.” Fed. R. Civ. P. 26(a)(2).

The expert’s written report must contain:

a complete statement of all opinions the

witness will express and the basis and reasons

for them; (ii) the facts or data considered by

the witness in forming them; (iii) any

exhibits that will be used to summarize or

support them; (iv) the witness’s

qualifications, including a list of all

publications authored in the previous 10

years; (v) a list of all other cases in which,

during the previous 4 years, the witness

testified as an expert at trial or by

deposition; and (vi) a statement of the

compensation to be paid for the study and

testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B). While Rule 26(a)(2)(B) “does not

require that a report recite each minute fact or piece of

scientific information that might be elicited on direct

examination” it must be “detailed enough to provide the

opposing party an opportunity to adequately cross examine the

expert[.]” Kleiman v. Wright, No. 18-CV-80176, 2020 WL

6729362, at *5 (S.D. Fla. Nov. 16, 2020).

B. Summary Judgment

Summary judgment is appropriate “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). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Conclusions of Law

A. Construed Motion to Strike

In their response to the Anderson Defendants’ Motion for

Summary Judgment (Doc. # 73), the Wilkerson Defendants’ only

argument is that the Motion relies on an affidavit from the

medical examiner that was not submitted prior to the filing

of the Motion. (Doc. # 78 at 4). The Wilkerson Defendants

argue that the Anderson Defendants failed to disclose the

affidavit of Dr. Vera V. Volnikh prior to the May 2, 2022,

deadline to disclose expert reports and so the Court should

not rely on the affidavit for summary judgment purposes.

(Id.). The Court thus construes the Wilkerson Defendants’

response as a Motion to Strike the affidavit of Dr. Vera V.

Volnikh and will address it accordingly.

“When a treating physician testifies regarding opinions

formed and based upon observations made during the course of

treatment, the treating physician need not produce a Rule

26(a)(2)(B) report.” In re Denture Cream Products Liability

Litig., No. 09-2051-MD, 2012 WL 5199597, at *4 (S.D. Fla.

Oct. 22, 2012) (internal citation and quotations omitted). An

expert report is required only when a treating physician

offers “opinions beyond those arising from treatment.” Id.

Typically, treating physicians are only required to satisfy

the lower standard of Rule 26(a)(2)(C). See Bostick v. State

Farm Mut. Auto. Ins. Co., No. 8:16-cv-1400-VMC-AAS, 2017 WL

2869967, at *2 (M.D. Fla. July 5, 2017) (“Under the plain

language of Rule 26(a)(2)(B), Bostick’s treating physicians

were not required to provide written reports because they

were not retained or specially employed to provide expert

testimony.”); Kondragunta v. Ace Doran Hauling & Rigging Co.,

No. 1:11-cv-1094-JEC 2013 WL 1189483, at *12 (N.D. Ga. Mar.

12, 2013) (“Accordingly, if a physician's opinion regarding

causation or any other matter was formed and based on

observations made during the course of treatment, then no

[Rule 26(a)(2)(B)] report is required, albeit the [Rule

26(a)(2)(C)] report discussed above will be required.”

(internal citations omitted)).

Pursuant to Rule 26(a)(2)(C), a party must submit an

expert disclosure for any expert witness not required to

submit an expert report. That expert disclosure must state

“the subject matter on which the witness is expected to

present evidence under Federal Rule of Evidence 702, 703,

or 705” and “a summary of the facts and opinions to which the

witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

Rule 37(c), Fed. R. Civ. P., provides that “if a party

fails to provide information or identify a witness as required

by Rule 26(a) or (e), the party is not allowed to use that

information or witness to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially

justified or is harmless.” As explained in Mitchell v. Ford

Motor Company, 318 F. App’x 821, 824 (11th Cir. 2009), “[t]he

burden of establishing that a failure to disclose was

substantially justified or harmless rests on the

nondisclosing party.” Furthermore, “in determining whether

the failure to disclose was justified or harmless, [the Court]

consider[s] the non-disclosing party's explanation for its

failure to disclose, the importance of the information, and

any prejudice to the opposing party if the information had

been admitted.” Lips v. City of Hollywood, 350 F. App’x 328,

340 (11th Cir. 2009).

Here, while the Anderson Defendants are correct that Dr.

Volnikh is not an expert retained for litigation and so is

not required to provide a Rule 26(a)(2)(B) report, the

Anderson Defendants were still required to provide

disclosures in accordance with Rule 26(a)(2)(C). The

affidavit at issue is from Dr. Vera V. Volnikh, an Associate

Medical Examiner with the Medical Examiner’s Office for Polk,

Hardee, and Highlands Counties. (Volnikh Aff. Doc. # 73-1 at

¶ 1). In her affidavit, Dr. Volnikh asserts that she was

responsible for determining the cause of deaths for Adam and

Eva Anderson. (Id. at ¶ 9). Dr. Volnikh conducted the

autopsies of Adam and Eva Anderson and prepared the autopsy

reports, wherein she determined the cause of each of their

deaths. (Doc. # 73-1 at 9–13, 22–27). Therefore, Dr. Volnikh

was not retained for litigation such that a written report is

required under Rule 26(a)(2)(B). See Cruz v. United States,

No. 12-21518-CV, 2013 WL 246763, at *5 (S.D. Fla. Jan. 22,

2013) (“‘A treating physician is not required to provide an

expert report [under Rule 26(a)(2)(B)] in order to testify as

an expert’ if he or she is not a retained expert[.]” (internal

quotations omitted)).

However, courts have found witnesses subject to the

disclosure requirements of Rule 26(a)(2)(C) where they form

opinions based on the personal knowledge gained during

treatment. See Torres v. Wal-Mart Stores East, L.P., 555 F.

Supp. 3d 1276, 1297 (S.D. Fla. 2021); Goins v. Royal Caribbean

Cruise, Ltd., 16-21368-CIV-WILLIAMS/SIMONTON, 2017 WL 5749778

(S.D. Fla. May 17, 2017) (finding a treating physician who

testified as to his medical opinion to be subject only to

Rule 26(a)(2)(C), not Rule 26(a)(2)(B)); see also O'Brien v.

NCL (Bahamas) Ltd., No. 16-23284-CIV, 2017 WL 8315925, at *2

(S.D. Fla. Aug. 25, 2017) (“[A] 2010 amendment to the Federal

Rules established a separate reporting classification

in Rule 26(a)(2)(C) for witnesses who will testify as fact

witnesses as well as offer expert opinions, a category into

which treating physician experts often fall.”). Here, Dr.

Volnikh’s affidavit is not strictly limited to her factual

observations gleaned during the autopsy. Rather, she is

applying her specialized knowledge to her personal

observations to opine on the order of Eva and Adam Anderson’s

deaths. See Kimbrough v. Weidner, No. 1:17-cv-774-TWT, 2018

WL 2575061, at *3 (N.D. Ga. July 24, 2018) (“Here, [the

treating physician] is “more akin to a ‘percipient witness’

under Rule 26(a)(2)(C) . . . because he has firsthand

knowledge of the facts of the case,” and because his opinions

are “based on observations made during the course of treatment

. . . .” (citing Kondragunta, 2013 WL 1189493, at *12)). Thus,

her affidavit more closely resembles testimony from a hybrid

witness. See Architects Collective v. Pucciano & English,

Inc., 247 F. Supp. 3d 1322, 1333 (N.D. Ga. 2017) (finding a

witness subject to the disclosure requirements of Rule

26(a)(2)(C) where his testimony was based on “particularized

knowledge garnered from his years of experience as an

architect designing his own architectural plans.”). The

Anderson Defendants were therefore required to identify Dr.

Volnikh and identify the subject matter of her testimony and

provide a summary of the facts and opinions on which she was

expected to testify as part of their Rule 26 disclosures.

The Anderson Defendants do not argue that they complied

with Rule 26(a)(2)(C). Although they note that the Wilkerson

Defendants’ counsel received the medical records that are the

subject of the present motion, this alone is insufficient to

satisfy even the more relaxed disclosure requirements of Rule

26(a)(2)(C). See Sweat v. United States, No. 14-cv-888-EAK-

JSS, 2015 WL 8270434, at *2 (M.D. Fla. Dec. 8, 2015) (“To

satisfy the Rule 26(a)(2)(C) disclosure obligation, the

expert witness should do more than merely produce records.”);

Jones v. Royal Caribbean Cruises, Ltd., No. 12-20322-CIV,

2013 WL 8695361, at *4 (S.D. Fla. Apr. 4, 2013) (finding that

the plaintiff's production of his medical records did not

mean that the plaintiff complied with Rule 26(a)(2)(C)).

Thus, the affidavit of Dr. Volnikh is only admissible if the

failure to comply with the Rule 26 disclosures was

substantially justified or harmless.

The Anderson Defendants’ failure to comply with Rule 26

was substantially justified by their belief that Dr. Volnikh

was a fact witness. “Substantial justification requires

justification to a degree that could satisfy a reasonable

person that parties could differ as to whether the party was

required to comply with the disclosure request. The

proponent's position must have a reasonable basis in law and

fact.” In re Denture Cream, 2012 WL 5199597, at *5 (internal

quotations omitted). Here, the Anderson Defendants did not

provide information on Dr. Volnikh’s report as part of their

Rule 26 disclosures because of their belief that she is purely

a fact witness. (Doc. # 80 at 7–9). Their failure to comply

with Rule 26 was based on their erroneous — but reasonable —

understanding that disclosure was not necessary. Indeed,

classifying a treating physician as either a fact or expert

witness is not always a straightforward task. See Ables-

Thomas v. MV Contract Transp., Inc., No. 1:18-cv-3252-SDG,

2020 WL 10485727, at *2 (N.D. Ga. Dec. 21, 2020) (“The

distinction between a “treating physician as a fact versus

an expert witness depends on the nature of the testimony the

witness intends to offer.”); Williams v. Mast Biosurgery USA,

Inc., 644 F.3d 1312, 1316 (11th Cir. 2011) (“The testimony

of treating physicians presents special evidentiary problems

that require great care and circumspection by the trial

court.”). While the Court ultimately concludes that the

nature of Dr. Volnikh’s testimony renders her a hybrid

witness, the Anderson Defendants’ belief that she was a fact

witness is justified. Dr. Volnikh’s affidavit and conclusion

regarding the order of death is based on the autopsy that she

personally conducted. (Volnikh Aff. Doc. # 73-1 at ¶¶ 9–12).

It was not unreasonable for the Anderson Defendants to

consider this testimony to be “limited to [Dr. Volnikh’s]

observations based on personal knowledge.” Cooper v. Marten

Transport, Ltd., No. 1:10-cv-3044-AT, 2014 WL 11517830 at *2

(N.D. Ga. May 23, 2014) (internal citations omitted).

Further, the Court finds that the insufficient Rule 26

disclosure is harmless. Whether Eva Anderson predeceased Adam

Anderson has always been a potential issue in this litigation.

(Doc. # 47 at ¶¶ 23–24). While it is true that “[a]llowing

medical records to be submitted ‘in lieu of a summary would

invite a party to dump voluminous medical records on the

opposing party, contrary to the rule's attempt to extract a

‘summary,’’” the subject of Dr. Volnikh’s testimony should

have been readily apparent to the Wilkerson Defendants.

Jones, 2013 WL 8695361, at *4 (citing Kondragunta v. Ace Doran

Hauling & Rigging Co., 2013 WL 1189493, No. 1:11–cv–01094–

JEC, at *6 (N.D. Ga. Mar. 21, 2013). Likewise, the Anderson

Defendants filed their motion for summary judgment — and the

affidavit of Dr. Volnikh — on May 25, 2022, three weeks before

the conclusion of discovery. (Doc. # 73; Doc. # 51 at 1). The

Wilkerson Defendants could have moved to extend the discovery

period in order to take Dr. Volnikh’s deposition, but chose

not to do so. See Wademan v. United States, No. 16-cv-10002-

KING/TORRES, 2017 WL 7794322, at *3 (S.D. Fla. May 17, 2017)

(finding failure to disclose pursuant to Rule 26 harmless

where a late supplemental disclosure occurred prior to the

discovery deadline); see Beasley v. Bank, No. 6:20-cv-883-

WWB-EJK, 2021 WL 9204484, at *3 (M.D. Fla. Dec. 23, 2021)

(finding a belated disclosure harmless where it occurred

before the expiration of the discovery deadline). Therefore,

because the Wilkerson Defendants had the opportunity to

alleviate any potential harm by deposing Dr. Volnikh, the

Court finds the insufficient disclosure harmless.

The Wilkerson Defendants’ construed motion to strike is

denied.

B. Summary Judgment

The Anderson Defendants seek summary judgment on both

counts of the Amended Complaint. (Doc. # 73). The Wilkerson

Defendants have asserted two affirmative defenses. (Doc. # 55

at 6). Because the Wilkerson Defendants’ affirmative defenses

may affect whether summary judgment is proper, the Court will

address the affirmative defenses first.

1. The Wilkerson Defendants’ Affirmative

Defenses

The Wilkerson Defendants raise two affirmative defenses.

First, the Wilkerson Defendants assert that Ben Hill

Griffin’s complaint fails to state any claim on which relief

may be granted. (Doc. # 55 at 6). Second, the Wilkerson

Defendants assert that the complaint is not ripe for

adjudication. (Id.).

While “[e]ntry of a summary judgment is improper when

there is no evidence contradicting or opposing an affirmative

defense,” Acciard v. Whitney, No. 2:07-cv-476-KMM-DF, 2011 WL

4552564, at *5 (M.D. Fla. Sept. 30, 2011), a party cannot

evade the entry of summary judgment by labeling what is

otherwise a denial of an element of the plaintiff’s prima

facie case as an affirmative defense. See In re Rawson Food

Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) (“A

defense which points out a defect in the plaintiff’s prima

facie case is not an affirmative defense.”).

The Wilkerson Defendants’ First Affirmative Defense,

which alleges the complaint fails to state any claim on which

relief may be granted, does not prevent the entry of summary

judgment. “[T]he failure to state a claim is not an

affirmative defense[.]” Philpot v. MyArea Network, Inc., No.

8:20-cv-1239-VMC-TGW, 2021 WL 2649236, at *13 (M.D. Fla. June

28, 2021); see In re Rawson, 846 F.2d at 1350 n.9 (noting

that failure to state a claim is not an affirmative defense

but rather a general denial). Rather, the Court may just treat

this as a denial by the Wilkerson Defendants that Ben Hill

Griffin is able to prevail on its claims. See Home Mgmt.

Sols., Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL

2412834, at *3 (S.D. Fla. Aug. 21, 2007) (explaining in the

context of a motion to strike affirmative defenses that, when

a defendant labels a negative averment as an affirmative

defense, “the proper remedy is not [to] strike the claim, but

rather to treat is as a specific denial”). Thus, the Wilkerson

Defendants’ First Affirmative Defense does not impact the

Anderson Defendants’ Motion for Summary Judgment.

The Court will, however, evaluate ripeness as an

affirmative defense. See Penn-America Ins. Co. v. Pavillion

Foods, Inc., No. 18-62656-CIV-MARRA, 2019 WL 2105880, at *2

(S.D. Fla. Mar. 20, 2019) (“[R]ipeness is an appropriate

ground for an affirmative defense.”); Advocate Commc’ns, Inc.

v. Town Found., Inc., No. 04-61408-CIV, 2005 WL 8155323, at

*2 (S.D. Fla. Aug. 10, 2005) (declining to strike ripeness as

an affirmative defense).

As an initial matter, the Wilkerson Defendants do not

provide any argument for why the complaint is not ripe. But

because a determination of ripeness bears on the Court’s

jurisdiction over the case, the Court will nevertheless

address the issue. See Digit. Props., Inc. v. City of

Plantation, 121 F.3d 586, 589 (11th Cir. 1997) (“Article III

of the United States Constitution limits the jurisdiction of

the federal courts to cases and controversies of sufficient

concreteness to evidence a ripeness for review.”).

“The doctrine of ripeness, which originates from the

Constitution’s Article III requirement that courts only hear

actual cases and controversies, presents a ‘threshold

jurisdictional question of whether a court may consider the

merits of a dispute.’” Valley Creek Land & Timber, LLC v.

Colonial Pipeline Co., 432 F. Supp. 3d 1360, 1363 (N.D. Ala.

2020) (quoting Elend v. Basham, 471 F.3d 1199, 1204–05 (11th

Cir. 2006)). “In addition to jurisdictional

considerations, ripeness also involves judicial prudence;

even when the case meets the constitutional minimum for

jurisdiction, ‘prudential considerations may still counsel

judicial restraint.’” Id. (quoting Digit. Props., Inc., 121

F.3d at 589). Courts “assess ripeness on a claim-by-claim

basis.” Club Madonna, Inc. v. City of Miami Beach, 924 F.3d

1370, 1380 (11th Cir. 2019).

Ripeness is “designed to prevent the courts, through

avoidance of premature adjudication, from entangling

themselves in abstract disagreements.” Wollschlaeger v.

Governor, Fla., 848 F.3d 1293, 1304 (11th Cir. 2017) (citation

and internal quotation marks omitted). “The ripeness doctrine

protects federal courts from engaging in speculation or

wasting their resources through the review of merely

potential or abstract disputes.” Valley Creek Land & Timber,

LLC, 432 F. Supp. 3d at 1365. Thus, “[a] claim is not ripe

for adjudication if it rests upon contingent future events

that may not occur as anticipated, or indeed may not occur at

all.” Texas v. United States, 523 U.S. 296, 300 (1998)

(citation and internal quotation marks omitted).

“In assessing whether a dispute is concrete enough to be

ripe, [courts] evaluate (1) the fitness of the issues for

judicial decision and (2) the hardship to the parties of

withholding court consideration.” Wollschlaeger, 848 F.3d at

1304 (citation and internal quotation marks omitted).

“Concerning fitness for judicial decision, [courts] ask

whether the parties raise an issue that [courts] can decide

without further factual development and whether the

institutional interests of the court and agency favor

immediate review.” Club Madonna, Inc., 924 F.3d at 1380. “As

for hardship, litigants must show that they are forced to

choose between foregoing lawful activity and risking

substantial legal sanctions.” Id. (citation and internal

quotation marks omitted). A declaratory judgment action does

not violate the ripeness requirement where “there is such a

concrete case admitting of an immediate and definitive

determination of the legal rights of the parties in an

adversary proceeding upon the facts alleged.” Aetna Life Ins.

Co. v. Haworth, 300 U.S. 227 (1937).

Here, there are sufficient facts on which the Court can

base its decision without engaging in speculation. Ben Hill

Griffin’s complaint raises the issue of the distribution of

benefits to be paid out to Adam Anderson’s beneficiaries upon

his death. (Doc. # 47). Although the circumstances of Adam

and Eva Anderson’s deaths have raised issues with respect to

Adam Anderson’s Pension Plans, the parties have adduced facts

on which the Court can base its decision. Importantly, the

dispute is not hypothetical — Ben Hill Griffin has identified

a present need to identify the correct beneficiaries of the

Pension Plans and has raised legitimate legal questions that

require resolution. As will be detailed in the sections that

follow, a present controversy exists as to the distribution

of benefits under the Pension Plans. See Chambless v. Masters,

Mates, & Pilots Pension Plan, 571 F. Supp. 1430, 1437–38

(S.D.N.Y. 1983) (finding an action seeking a declaration or

clarification of rights under an ERISA plan ripe for review);

Janowski v. Int’l Brotherhood of Teamsters, 673 F.2d 931, 935

(7th Cir. 1982) (explaining an action that “seeks a

determination of the nature and scope of Plan participants'

rights to future benefits” is ripe because such an action “is

precisely the type . . . contemplated by the statute.”

(emphasis added)), vacated on other grounds and remanded for

reconsideration of attorneys’ fees, 463 U.S. 1222 (1983).

Thus, the Court finds this case is ripe for judicial

resolution. The Wilkerson Defendants’ Second Affirmative

Defense does not prevent the entry of summary judgment.

2. The Profit-Sharing Plan (Count I)

The Profit-Sharing Plan states, in relevant part:

In the event no valid designation of

Beneficiary exists with respect to all or a

portion of the death benefit, or if the

Beneficiary of such death benefit is not alive

at the time of the Participant’s death and no

contingent Beneficiary has been designated,

then to the extent that such death benefit is

not automatically payable to the surviving

Spouse in accordance with the other provisions

of this Section, such death benefit will be

paid in the following order of priority to:

(1) the Participant’s surviving Spouse;

(2) the Participant’s issue, including

adopted children, per stirpes;

(3) the Participant’s surviving parents, in

equal shares; or

(4) the Participant’s estate.

(Doc. # 47-5 at 35–36).

The Plan also contains a provision in the event of

simultaneous death:

If a Participant and his or her Beneficiary

should die simultaneously, or under

circumstances that render it difficult or

impossible to determine who predeceased the

other, then unless the Participant’s

Beneficiary designation otherwise specifies,

the Administrator will presume conclusively

that the Beneficiary predeceased the

Participant.

(Id. at 42). Under the operative Profit-Sharing Plan

Beneficiary Designation Form, Adam Anderson designated Eva

Anderson as his sole beneficiary. (Doc. # 47-6 at 2).

The threshold issue for the Court with respect to the

Profit-Sharing Plan is thus whether the designation listing

Eva Anderson as the sole beneficiary controls. The Court finds

that it does not. The language of the Profit-Sharing Plan

requires the named beneficiary to be alive at the time of the

participant’s death. (Doc. # 47-5 at 41). According to Dr.

Volnikh, Eva Anderson predeceased Adam Anderson. (Volnikh

Aff. Doc. # 73-1 at ¶ 12). Indeed, Eva Anderson’s death

certificate lists her marital status as “married,” while Adam

Anderson’s lists his as “widowed.” (Doc. # 73-1 at 8; 21).

Therefore, at the time of Adam Anderson’s death, he neither

had a named beneficiary nor a “surviving spouse.” (Doc. # 47-

5 at 41). However, even if the Court did not consider the

affidavit of Dr. Volnikh, the simultaneous death provision of

the Profit-Sharing Plan necessitates a conclusive presumption

that Eva Anderson predeceased Adam Anderson. (Doc. # 47-5 at

41). The Court thus finds as a matter of law that Eva Anderson

predeceased Adam Anderson. Accordingly, under the terms of

the Profit-Sharing Plan, the death benefit under the Plan is

to be paid to “the Participant’s issue, including adopted

children, per stirpes[.]”

Given that the benefits payable under the Profit-Sharing

Plan are to be distributed to Adam Anderson’s issue, Ben Hill

Griffin seeks a declaration as to three issues with respect

to the Profit-Sharing Plan: the effect of Adam and Michelle

Anderson’s QDRO, whether Eva Anderson’s children are entitled

to a portion of the death benefit, and whether Candice Luke

is to be included as one of Adam Anderson’s beneficiaries.

(Doc. # 47 at ¶ 53). The Court will address each of these

issues in turn.

i. Effect of Adam and Michelle Anderson’s

Family Court Judgment

In its complaint, Ben Hill Griffin asked whether Adam

Anderson’s death benefit payable under the Profit-Sharing

Plan should be set aside for the benefit of Michelle Anderson.

(Doc. # 47 at ¶ 53(c)). As an initial matter, at the summary

judgment stage, none of the Defendants explicitly contest Ms.

Anderson’s entitlement to benefits pursuant to the QDRO.

(Doc. # 73 at 9; Doc. # 78).

In general, ERISA plan administrators must discharge

their duties “in accordance with the documents and

instruments governing the plan[.]” 29 U.S.C. § 1104(a)(1)(D).

ERISA contains an anti-alienation and anti-assignment

provision that requires covered pension plans to require that

benefits may not be assigned or alienated. 29 U.S.C. §

1056(d)(1). “These statutes limit the effect of agreements

outside the plan that purport to direct benefits to someone

other than the listed beneficiary.” Hallman v. Hallman, No.

5:12-cv-4-MTT, 2013 WL 820377, at *2 (M.D. Ga. Mar. 5, 2013);

see Kennedy v. Plan Adm’r for Dupont Sav. and Inv. Plan, 555

U.S. 285, 300 (2009) (holding that an ERISA claim “stands or

falls by ‘the terms of the plan’”); Riordan v. Commonwealth

Edison Co., 128 F.3d 549, 553 (7th Cir. 1997) (ERISA

generally requires the plan fiduciary to pay benefits to the

beneficiary properly designated under the plan’s terms).

However, the anti-alienation and anti-assignment

provision does not apply to qualified domestic relations

orders. 29 U.S.C. § 1056(d)(3)(A). ERISA defines a QDRO as a

domestic relations order:

(I) which creates or recognizes the existence

of an alternate payee’s right to, or assigns

to an alternate payee the right to, receive

all or a portion of the benefits payable with

respect to a participant under a plan, and

(II) with respect to which the requirements of

subparagraphs (C) and (D) are met[.]

29 U.S.C. § 1056(d)(3)(B)(i). Under Section 1056(d)(3)(C), a

domestic order is a QDRO:

only if [it] clearly specifies — (i) the name

and the last known mailing address (if any) of

the participant and the name and mailing

address of each alternate payee covered by the

order, (ii) the amount or percentage of the

participant’s benefits to be paid by the plan

to each such alternate payee, or the manner in

which such amount or percentage is to be

determined, (iii) the number of payments or

period to which such order applies, and (iv)

each plan to which such order applies.

29 U.S.C. § 1056(d)(3)(C). Under Section 1056(d)(3)(D), a

domestic order is a QDRO:

only if such order — (i) does not require

a plan to provide any type or form of benefit,

or any option, not otherwise provided under

the plan, (ii) does not require the plan to

provide increased benefits (determined on the

basis of actuarial value), and (iii) does not

require the payment of benefits to

an alternate payee which are required to be

paid to another alternate payee under another

order previously determined to be a qualified

domestic relations order.

29 U.S.C. § 1056(d)(3)(D).

Here, on October 26, 2021, the Family Court for the

Divorce Action entered an order entitled “Qualified Domestic

Relations Order” detailing Michelle Anderson’s share of Adam

Anderson’s interest in the Profit-Sharing Plan. (Doc. # 73-4

at 37–41). The Family Court’s order directed Ben Hill Griffin

to divide Adam Anderson’s interest in the Profit-Sharing Plan

into two separate accounts, effective December 31, 2011: (a)

one account to be allocated and assigned to Defendant Michelle

R. Anderson in the amount of Thirty-Five Thousand, Five

Hundred Seventy-Eight and 81/100 Dollars ($35,578.81) — plus

any passive gains or losses having accrued as of the Split

Date until distribution; and (b) a second account in the name

of Adam W. Anderson where the balance of his interest in the

Profit-Sharing Plan would remain. (Id. at 38).

The Family Court’s order complies with the requirements

for a QDRO. The order specifies the name and address of

alternate payee, who is Michelle Anderson. (Id. at 41). The

order states that the amount of Adam Anderson’s benefits to

be paid to Michelle Anderson is $35,578.81, plus any passive

gains or losses having accrued as of the split date until

distribution. (Id. at 38). The order defines the split date

as December 31, 2011, indicating the period to which the order

applies. (Id.). And the order states that it is applicable to

the Profit-Sharing Plan. (Id. at 37). Further, the Family

Court’s order does not require the Profit-Sharing Plan to

provide any type or form of benefit not otherwise provided by

the plan, nor does it require the plan to provide increased

benefits. (Id. at 37–41). Nor have any of the parties provided

evidence that another order previously determined to be a

QDRO governs the payment of benefits at issue.

Further, the fact that Adam Anderson died before the

entry of the QDRO does not affect Michelle Anderson’s interest

in the Profit-Sharing Plan. Under 29 C.F.R. § 2530.206, “a

domestic relations order shall not fail to be treated as a

qualified domestic relations order solely because of the time

at which it is issued.” 29 C.F.R. § 2530.206; see Patton v.

Denver Post Corp., 326 F.3d 1148, 1150 (10th Cir. 2003)

(finding that a putative alternate payee could seek a

declaration that a domestic relations order was a QDRO even

after the death of the plan participant); Hogan v. Raytheon,

Co., 302 F.2d 854, 857 (8th Cir. 200) (stating that a domestic

relations order can be qualified posthumously).

The Court therefore finds that the Family Court’s order

qualifies as a QDRO. Thus, the QDRO governs Michelle

Anderson’s entitlement to benefits under the Profit-Sharing

Plan. To the extent the QDRO designates Michelle Anderson as

an alternate payee, Ben Hill Griffin is directed to distribute

the proceeds of the Profit-Sharing Plan pursuant to the QDRO

entered on October 21, 2021.

ii. Applicability of a Slayer Statute

In its complaint, Ben Hill Griffin inquired whether the

death benefit under the Profit-Sharing Plan should be paid

only to Adam Anderson’s children, not his wife’s children,

despite the fact that he allegedly murdered Eva Anderson.

(Doc. # 47 at ¶ 53(a)).

Although the Wilkerson Defendants do not argue that

Florida’s “Slayer Statute” applies to the case at bar, the

Anderson Defendants preemptively argue against its

applicability. Because the Court has an “independent

obligation to determine whether a party is entitled to summary

judgment,” it will briefly address the Anderson Defendants’

argument. Traveler’s Prop. Cas. Co. of America v. Moore, No.

1:11-cv-236-AT, 2012 WL 12871630, at *3 (N.D. Ga. July 6,

2012).

Present-day slayer statutes arise from the common-law

principle that “prevented a person who wrongfully killed

another from sharing in any property from the victim’s

estate.” Caterpillar Inc. v. Estate of Lacefield-Cole, 520 F.

Supp. 2d 989, 996 (N.D. Ill. 2007).

While there is no federal slayer statute, federal common

law embraces the equitable principle underlying such

statutes. See Mut. Life. Ins. Co. v. Armstrong, 117 U.S. 591,

600 (1886) (“It would be a reproach to the jurisprudence of

the country if one could recover insurance money payable on

the death of the party whose life he had feloniously taken.”).

The relevant Florida statute provides “A surviving person who

unlawfully and intentionally kills or participates in

procuring the death of the decedent is not entitled to any

benefits under the will or under the Florida Probate Code,

and the estate of the decedent passes as if the killer had

predeceased the decedent.” Fla. Stat. § 732.802(1).

Regardless of whether federal or state law governs here,

the Court agrees with the Anderson Defendants that a slayer

statute is inapplicable. See Honeywell Sav. and Ownership

Plan v. Jicha, No. 8-4265 (DRD), 2010 WL 276237 (D. N.J. Jan.

15, 2010) (noting several district courts have reasoned that

ERISA likely does not preempt state slayer statutes but that

“it is unnecessary to determine the preemption issue since

federal common law provides the same result as a slayer

statute”). Florida courts have declined to extend the Florida

slayer statute to bar relatives of a murderer from inheriting

under a decedent’s will. See Fiel v. Hoffman, 169 So. 3d 1274,

1280 (Fla. 4th DCA 2015); Chatman v. Currie, 606 So. 2d 454,

456 (Fla. 1st DCA 1992) (“We hold as a matter of law that

section 732.802 does not apply to an innocent contingent

beneficiary’s entitlement to life insurance benefits

resulting from the killing of the primary beneficiary by the

insured who then commits suicide.”). A federal court has

specifically found in the ERISA context that the Illinois

slayer statute does not apply in an action to determine the

proper distribution of benefits under an employee retirement

savings plan after the employee murdered his wife and

thereafter committed suicide. Caterpillar Inc., 520 F. Supp.

2d at 992.

This result comports with the purpose of slayer

statutes, which is to ensure that a murderer does not stand

to benefit from his or her own illegal conduct. Gardner v.

Nationwide Life Ins. Co., 206 S.E.2d 818, 821 (N.C. Ct. App.

1974); see Chatman, 606 So. 2d at 456 (“[T]he general rule

that a person cannot be permitted to profit from a wrongful

act is inapplicable where the wrongdoer stands to gain nothing

by his act, as where he kills himself soon after committing

the wrongful act”). Here, the beneficiaries of Adam

Anderson’s Profit-Sharing Plan have engaged in no wrongful

conduct. Adam Anderson himself will not gain anything from

Eva Anderson predeceasing him, because he died shortly

thereafter. Therefore, the Court agrees with the Anderson

Defendants’ determination that Florida’s slayer statute does

not apply to them.

iii. Inclusion of Candice N. Luke

In its complaint, Ben Hill Griffin inquired whether

Candice Luke should be included as one of Adam Anderson’s

biological children and beneficiaries. (Doc. # 47 at

¶ 53(b)).

“The award of benefits under any ERISA plan is governed

in the first instance by the language of the plan itself.”

Liberty Life Assur. Co. of Bos. v. Kennedy, 358 F.3d 1295,

1302 (11th Cir. 2004). Here, the Profit-Sharing Plan dictates

that in the event there exists no valid beneficiary or

surviving spouse, the death benefit will be paid to the

Participant’s issue, including adopted children. Construing

the Profit-Sharing Plan in accordance with its terms’ “plain

and ordinary meaning,” the Court finds that the death benefit

ought to be distributed to Adam Anderson’s children, both

adopted and biological. See Alexandra H. v. Oxford Health

Ins. Inc. Freedom Access Plan, 833 F.3d 1299, 1307 (11th Cir.

2016) (discussing the application of contract interpretation

principles to ERISA plans). Thus, the issue before the Court

is whether Candice Luke qualifies as “issue” of Adam Anderson.

As an initial matter, the Anderson Defendants admit in

their answer that Candice Luke is the biological child of

Adam Anderson. (Doc. # 47 at ¶ 22; Doc. # 59 at ¶ 22; Doc. #

60 at ¶ 22; Doc. # 61 at ¶ 22). The Wilkerson Defendants state

that they are without knowledge. (Doc. # 55 at ¶ 22). However,

in their Motion for Summary Judgment, the Anderson Defendants

present evidence in the form of a half sibling DNA test

demonstrating Candice Luke is the biological child of Adam

Anderson. (Doc. # 73 at ¶ 24). The Anderson Defendants explain

that Candice Luke and Sheenia Nealey participated in the DNA

test for the purposes of confirming that Candice Luke’s

biological father was Adam Anderson. (Id.). The DNA test

concluded that Sheenia Nealey and Candice Luke’s “probability

of relatedness as paternal half siblings is 99.91% as compared

with the possibility that they are unrelated persons. These

findings support the assertion that SHEENIA D. NEALEY and

CANDICE N. LUKE have the same father.” (Doc. # 73-3 at 3).

By adducing the results of the DNA test, the Anderson

Defendants have met their “initial burden of showing the

court, by reference to materials on file, that there are no

genuine issues of material fact that should be decided at

trial.” Hickson Corp., 357 F.3d at 1260. To demonstrate that

summary judgment is inappropriate, the Wilkerson Defendants

therefore must “‘go beyond the pleadings,’ and by [their] own

affidavits, or by ‘depositions, answers to interrogatories,

and admissions on file,’ designate specific facts showing

that there is a genuine issue for trial.” Jeffery, 64 F.2d at

593–94 (quoting Celotex, 477 U.S. at 324).

Here, the Wilkerson Defendants have not presented any

evidence to call the Anderson Defendants’ contention into

dispute. There is thus no conflict between the parties’

evidence that would warrant a denial of summary judgment. The

Anderson Defendants have demonstrated that Candice Luke is

the biological child of Adam Anderson. Therefore, under the

plain terms of the Profit-Sharing Plan, Candice Luke is

entitled to receive a share of the death benefit under the

Plan.

Because there are no material facts in dispute and the

distribution of the benefits of the Profit-Sharing Plan can

be determined as a matter of law, the Anderson Defendants’

Motion for Summary Judgment is granted as to Count I.

$35,578.81, plus any passive gains or losses having

accrued from December 31, 2011, until distribution, of

the Profit-Sharing Plan is to be set aside for Michelle

Anderson pursuant to the Family Court’s Qualified Domestic

Relations Order. The remainder of the death benefit payable

under the Profit-Sharing Plan is to be distributed to Adam

Anderson’s children, including Candice Luke, per stirpes.

3. The MS Plan (Count II)

i. Effect of the Beneficiary Designation

Form

In its complaint, Ben Hill Griffin inquired whether it

should pay Michelle Anderson 100% of Adam Anderson’s death

benefit payable under the MS Plan, because she is the only

living primary beneficiary. (Doc. # 47 at ¶ 61(c)). The

question before the Court is thus whether Ben Hill Griffin

should give effect to the designation of A.W.A. as a secondary

beneficiary even though there is a living primary

beneficiary.

Again, the language of an ERISA plan itself governs the

award of benefits under the plan. Liberty Life, 358 F.3d at

1302. Courts “interpret ERISA provisions as they are likely

to be “understood by the average plan participant, consistent

with the statutory language.” Walker v. Wal–Mart Stores,

Inc., 159 F.3d 938, 940 (5th Cir. 1998).

The MS Plan provides:

A participant shall designate his or her

Beneficiary to receive benefits under the Plan by

completing the Beneficiary Designation. If more

than one Beneficiary is named, the shares and

preference of each shall be indicated.

(Doc. # 73-2 at 100).

Here, Adam Anderson’s Change of Beneficiary form

indicates that Michelle and Eva Anderson are both primary

beneficiaries. (Id. at 109). The form designates Michelle

Anderson to receive $1,026.00 per month and Eva Anderson to

receive $2,724.00 per month. Importantly, the form also lists

A.W.A. as the secondary beneficiary “for $2,724.00 of Eva.”

(Id.) (emphasis added). Construing the Change of Beneficiary

form in accordance with its terms’ “plain and ordinary

meaning,” the Court interprets the designation of A.W.A. as

a secondary beneficiary of Eva to entitle A.W.A. to benefits

upon Eva’s death regardless of whether Michelle Anderson is

still alive. See Alexandra H., 833 F.3d at 1307 (discussing

the application of contract interpretation principles to

ERISA plans). Because Adam Anderson made clear that A.W.A.

was a secondary beneficiary as to Eva only, a finding that

A.W.A. is entitled to $2,724.00 under the MS Plan coheres

with the plain language of the Change of Beneficiary form.

Thus, notwithstanding Michelle Anderson’s designation as

a primary beneficiary, A.W.A. is entitled to receive Eva

Anderson’s share under the MS Plan.

ii. Effect of the Family Court Decision

In its complaint, Ben Hill Griffin inquired whether it

should pay Michelle Anderson $1,026 per month from Adam

Anderson’s death benefit payable under the MS Plan, even

though the reference to $1,026 in the Divorce Judgment was

based upon Adam Anderson’s retirement benefit. (Doc. # 47 at

¶ 61(a)). Ben Hill Griffin notes that “Mr. Anderson was

apparently confusing the retirement benefit (which is now

gone), with the death benefit, and used a figure calculated

as of February 1, 2012, which was irrelevant to the death

benefit.” (Id. at ¶ 42). According to Ben Hill Griffin, “[i]t

is unclear whether Michelle should receive any of the death

benefit at all, as the Final Judgment describes only the

retirement benefit which no longer exists.” (Id. at ¶ 44).

The question before the Court is thus whether Ben Hill Griffin

is bound by the beneficiary identified on the MS Plan even if

there is reason to believe that the beneficiary designation

was in error.

Again, the language of the relevant plan governs the

award of benefits under ERISA. Liberty Life, 358 F.3d at 1302.

“[B]y giving a plan participant a clear set of instructions

for making his own instructions clear, ERISA forecloses any

justification for enquiries into nice expressions of intent,

in favor of the virtues of adhering to an uncomplicated rule.”

Kennedy, 555 U.S. at 300–01.

Here, Adam Anderson’s Change of Beneficiary form states

that Michelle and Eva Anderson are the primary beneficiaries

of the MS Plan, to receive $1,026.00 and $2,724.00 per month

respectively. (Doc. # 73-2 at 109). A.W.A. is listed as the

secondary beneficiary for Eva Anderson’s portion. (Id.). Any

speculation as to whether the beneficiary designation was in

error is of no moment. Ben Hill Griffin is bound by the

language of the plan. Because Adam Anderson explicitly listed

Michelle Anderson as the beneficiary of $1,026 per month, Ben

Hill Griffin ought to distribute the benefits of the MS Plan

in accordance with the Change of Beneficiary form. (Id.); see

Liberty Life, 358 F.3d at 1302 (noting the language of a plan

under ERISA governs the award of benefits).

Because there are no material facts in dispute and the

distribution of the benefits of the MS Plan can be determined

as a matter of law, the Anderson Defendant’s Motion for

Summary Judgment is granted as to Count II.

Accordingly, it is

ORDERED, ADJUDGED, AND DECREED:

(1) Defendants A.W.A., Adam “AJ” Anderson, Cierra Michelle

Anderson, Michelle R. Anderson, Candice Nicole Luke, and

Sheenia Dannett Nealey’s Motion for Summary Judgment

(Doc. # 73) is GRANTED on Counts I and II.

(2) $35,578.81, plus any passive gains or losses having

accrued from December 31, 2011, until distribution, of

the Profit-Sharing Plan is to be set aside for Michelle

Anderson pursuant to the Family Court’s Qualified

Domestic Relations Order.

(3) The remainder of the death benefit payable under the

Profit-Sharing Plan is to be paid only to Adam

Anderson’s children.

(4) Candice Luke is one of Adam Anderson’s children entitled

to receive a share of the death benefit under the

Profit-Sharing Plan.

(5) A.W.A. is entitled to receive Eva Anderson’s share of

the death benefit payable under the MS Plan as her

contingent beneficiary.

(6) Ben Hill Griffin, Inc. is to follow the $1,026 figure

stated on the Change of Beneficiary form with respect to

Michelle Anderson’s share of the death benefit payable

under the MS Plan.

(7) The Clerk shall enter judgment accordingly and,

thereafter, CLOSE this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

23rd day of November, 2022.

temeit? In. Munerlyy nuh.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

43