The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAN-AMERICAN ASSURANCE CO. * CIVIL ACTION NO. 23-919
*
VERSUS * SECTION: “A”(5)
*
SAMUEL RUSSO, PIERLUIGI * JUDGE JAY C. ZAINEY
MUCCARI & IRENE RUSSO *
* MAGISTRATE JUDGE MICHAEL NORTH
*
*
ORDER AND REASONS
The following motion is before the Court: Motion for Summary Judgment (Rec. Doc.
13) filed by claimant and Defendant-in-Interpleader, Pierluigi Muccari (“Muccari”). The
stakeholder and Plaintiff-in-Interpleader, Pan-American Assurance Co. (“Pan-American”),
opposes the motion in part, and the remaining claimants and Defendants-in-Interpleader, Samuel
and Irene Russo (“the Russos”), oppose the motion in its entirety. The motion, submitted for
consideration on August 2, 2023, is before the Court on the briefs without oral argument. For the
reasons that follow, the motion is GRANTED IN PART AND DENIED IN PART.
I. Background
In 1999, Pan-American executed a life insurance agreement with Maya Maria Loredan
Romussi (“Romussi”), a domiciliary of Italy, who was married to Muccari and was the Russos’
aunt. (Complaint ¶¶ 7, 16). Romussi’s initial policy named her mother as the primary beneficiary
and her sister, the Russos’ mother, as contingent beneficiary. (Id. ¶ 10). In 2011, Romussi
designated Muccari and Irene Russo as primary beneficiaries, each to receive 50% of the policy.
(Id. ¶ 13). Approximately nine years later, Romussi changed her beneficiaries such that each of
Muccari, Irene Russo, and Samuel Russo were to receive a one-third share of the policy value.
(Id. ¶¶ 15-16). Approximately two years later, on July 11, 2022, Romussi executed a final
change in beneficiary form, designating Muccari as the sole recipient of the proceeds of the
insurance policy. (Id. ¶¶ 17-18). This final change of beneficiary is at issue in this suit.
On August 28, 2022, Romussi passed away. (Id. ¶ 19). Following Romussi’s passing,
Muccari claimed the proceeds of the insurance policy. (Id. ¶ 21). The Russos, however, contested
the final change of beneficiary, alleging contractual incapacity and undue influence by Muccari
at the time the form was executed. (Id. ¶ 22-23). The Russos have further asserted forgery of
Romussi’s signature and failure to comply with necessary form requirements of the policy in an
attempt to set aside the change of beneficiary form. (Rec. Doc. 11, ¶ 33). In response to these
claims, Pan-American initiated this suit in interpleader.
Muccari has moved for summary judgment, requesting that all proceeds be provided to
him as the beneficiary listed on the most recent change of beneficiary form. Pan-American has
opposed the motion on the limited grounds that it believes that it is entitled to withdraw
reasonable attorney’s fees and costs from the proceeds. The Russos oppose the motion in its
entirety.
II. Discussion
Legal Standard
Summary judgment is proper where there is “no genuine dispute of material fact” and
“the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). That is, it is
appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,” when viewed in the light most favorable to the non-movant,
“show that there is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James,
276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court
must draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477
U.S. at 255). Once the moving party has initially shown “that there is an absence of evidence to
support the non-moving party’s cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the
non-movant must come forward with “specific facts” showing a genuine factual issue for trial.
Id. (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587
(1986)). Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific
facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993)).
When faced with a well-supported motion for summary judgment, Rule 56 places the
burden on the non-movant to designate the specific facts in the record that create genuine issues
precluding summary judgment. Jones v. Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1338 (5th
Cir. 1996). The district court has no duty to survey the entire record in search of evidence to
support a non-movant's position. Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992);
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)).
Choice of Law
The first issue before the Court is whether the issues surrounding the life insurance
contract is governed by Louisiana law or Italian law. A federal court, when exercising diversity
of citizenship jurisdiction, must apply the choice-of-law rules of the forum state in which it sits
when determining the applicable substantive law. Pioneer Exploration, LLC v. Steadfast
Insurance Co., 767 F.3d 503, 512 (5th Cir. 2014). However, where the laws of the states
contended to have an interest in a dispute do not conflict, a choice-of-law analysis is not
necessary. Mumblow v. Monroe Broadcasting, Inc., 401 F.3d 616, 620 (5th Cir. 2005). In such a
case, the court may use the substantive law of the state in which it sits. Id.
Muccari identifies two applicable Louisiana choice-of-law statutes. He first categorizes
an insurance policy as a conventional obligation, which is governed by Louisiana Civil Code
Article 3537. Article 3537 provides that the issue “is governed by the law of the state whose
policies would be most seriously impaired if its law were not applied to that issue,” setting forth
three factors to be considered. La. Civ. Code art. 3537. Muccari also identifies Article 3539 for
the special purpose of determining the law which governs mental capacity for signing a contract.
Article 3539 provides that, in Louisiana, a person possesses contractual capacity if such capacity
exists under either the law of the person’s domicile at the time of entering the contract or the
state whose law is applicable to the contract under Article 3537. La. Civ. Code art. 3539.
Muccari properly identifies each of these choice-of-law statutes in determining whether
the laws of Italy or Louisiana apply. However, as the Russos correctly point out, Muccari
concedes the fact that the laws of Italy and Louisiana are not in conflict, stating that “the change
in beneficiary form is valid and enforceable under both Italian and Louisiana law.” (Rec. Doc.
13-2, p. 6). In fact, Muccari only argues a difference in Italian and Louisiana law as to the
question of capacity. However, because Article 3539 is a special capacity-related rule under
which the laws of both Italy and Louisiana must be considered, there can be no conflict for the
purposes of choice of law. Therefore, the Court finds no meaningful difference between the laws
of Italy and Louisiana as it relates to the claims under the more general conventional obligations
choice-of-law statute.
Because the laws are not in conflict, the Court will use Louisiana law.
Proper Execution of the Change of Beneficiary Form
Muccari first moves for summary judgment against the claim that the change of
beneficiary form was improperly executed under the terms of the form. The Russos contend that
the form strictly prohibits the execution of any document which contains corrections or markings
which functionally erase material in the form. Because the change of beneficiary form contains a
small interlineation on the witness’s signature line, the Russos claim that the document is null
and void, pointing to a provision in the form against erasures and corrections. In response,
Muccari cites non-Louisiana case law, suggesting that an innocent mark on the witness’s
signature block is harmless error.
Based on the Court’s review of the form, it is evident that the provision against erasures
and alterations is designed to protect Pan-American, and to serve as a basis by which Pan-
American may reject a change of beneficiary form with excessive erasures or alterations. Despite
the marking, Pan-American subsequently accepted the change of beneficiary form and applied it
to Romussi’s file. Further, nullifying the form on the basis of strict adherence to its terms would
demand an absurd result. See Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 112 So.3d
187, 192 (La. 3/19/13) (“[E]ven when the language of the contract is clear, courts should refrain
from construing the contract in such a manner as to lead to absurd consequences.”). The small
interlineation is not sufficient to fully nullify the remainder of the contract.
Therefore, Muccari’s motion for summary judgment as to this claim is GRANTED.
Forgery and Fraud
Muccari next moves for summary judgment as to the Russos’ forgery and fraud claim.1
The Russos suggest that the signature on the change of beneficiary form was forged by Muccari,
1 Muccari first argues that the Russos failed to properly allege fraud under Federal Rule of Civil Procedure 9(b).
Because this is a motion for summary judgment, the claims will be considered on the basis of the evidence provided,
and not on the sufficiency of the pleading of this issue.
thus nullifying the form. Muccari has provided the Declaration of Ulisse Corea (Rec. Doc. 13-4),
who stated that she witnessed Romussi personally sign the change of beneficiary form in her
presence. Muccari has further attached a declaration of his own in which he stated that Romussi
called Pan-American to inquire about the means of changing her beneficiary for the life
insurance policy in question. In response, the Russos have provided the declaration of a Board
Certified Forensic Document Examiner. In her declaration, the handwriting analyst explained her
methodology and her conclusion that she is “virtually certain that the questioned signature and
the known exemplars were not written by the same person,” which is defined as a “strong
probability” in her report. (Rec. Doc. 20-2). The report was also attached. (Rec. Doc. 20-3).
The Russos have submitted evidence that sufficiently contradicts the eyewitness
declaration provided by Muccari. At this juncture, it is not appropriate for the Court to weigh
evidence or determine credibility of opposing witnesses. As described above, the pertinent
question is whether a reasonable jury could find in favor of the non-movant on this matter. Here,
both sides have produced credible evidence, and the Court believes that a reasonable jury could
find that the Russos’ expert is more credible than Muccari’s evidence. Therefore, because the
Russos have shown a genuine dispute of material fact, the motion for summary judgment is
DENIED as to the fraud/forgery claim.2
Capacity to Enter a Contract
Muccari next moves for summary judgment on the Russos’ contractual incapacity claim.
Both Muccari and the Russos have provided a series of declarations which speak to either
Romussi’s mental state at the time the contract was executed or her decline toward the end of her
life. As described above, Article 3539 of the Louisiana Civil Code governs the choice of law in
2 Muccari has failed inform the Court of any way in which Italian law differs from Louisiana law under this claim.
Therefore, the Court has applied Louisiana law.
this matter. Under Article 3539, if, as a matter of law, Romussi had capacity under either
Louisiana law (the law governing the contract) or Italian law (Romussi’s domicile), summary
judgment should be granted.
Louisiana Civil Code Article 1926 governs attacks on a non-interdicted decedent’s
contracts. Under Article 1926, a contract may only be overturned after the decedent’s death in
one of four situations: (1) the contract is gratuitous; (2) the contract evidences a lack of
understanding; (3) the contract was executed within thirty days of the decedent’s death; or (4) an
application for interdiction was filed before the decedent’s death. La. Civ. Code art. 1926.
Individuals are presumed to have the capacity to contract in Louisiana. Standard Life & Accident
Ins. Co. v. Pylant, 424 So.2d 377, 379 (La. App. 2 Cir. 11/29/82). Exceptions to this presumption
“must be shown quite convincingly and by the great weight of the evidence.” First National
Bank of Shreveport v. Willams, 346 So.2d 257, 264 (La. App. 3 Cir. 5/13/1977).
As a matter of Louisiana law, “[t]he changing of a beneficiary under a life insurance
policy is not a gratuity.” Martin v. Metropolitan Life Insurance Co., 516 So.2d 1227, 1229 (La.
App. 2 Cir. 12/2/87). Additionally, more than thirty days elapsed between the form execution
date and Romussi’s passing: the form was executed on July 11, and she passed on August 28.
Further, there is no evidence that an application for interdiction was filed before Romussi’s
death. This only leaves the possibility of nullification by a lack of understanding.
Courts are inconsistent in applying the “lack of understanding” claim under Article 1926.
Nevertheless, some decisions have made clear the type of analysis that courts undertake in
determining whether an individual lacked understanding. In Martin v. Metropolitan Life
Insurance Co., the court considered testimony relating whether the policyholder was incapable of
understanding the impact of the change of beneficiary form. 516 So.2d at 1229-30. It further
considered testimony showing the decedent’s severe change in attitude and that he had declined
both physically and mentally following a stroke. Id. at 1230. Martin, despite ultimately finding
that the plaintiff failed to show mental incompetence, id., suggests the meaning behind “lack of
understanding” is whether the person possessed the sufficient mental faculties to enter a contract.
Additionally, both parties discuss American General Life Insurance Co., Inc. v. Wilkes, in which
the Fifth Circuit Court of Appeals, applying Louisiana law, decided that a life insurance
policyholder had capacity to sign a change in beneficiary form because the non-movant’s
evidence was insufficient to prove a lack of understanding. 290 F. App’x 688, 690-91 (5th Cir.
2008) (per curiam).3
Here, both parties have produced declarations as to Romussi’s competency at the time
she signed the change of beneficiary form. For his part, despite the presumption in favor of
contractual capacity in Louisiana, Muccari has offered a declaration from the witness of the
form’s execution, who attested that Romussi appeared lucid and fully understood the acts which
she undertook. (Rec. Doc. 13-4). Muccari has additionally provided other declarations speaking
positively of Romussi’s mental state at this time. In response, the Russos have provided six
declarations from individuals who knew Romussi to varying degrees and whose interactions with
Romussi ranged from daily contact to occasional visits. These declarations detail Romussi’s
struggles with cancer and the adverse impacts they had, both physically and, at times, mentally.
Specifically, on July 15, 2022, four days after executing the form, Romussi had a birthday party
attended by declarant Laura Tosi. (Rec. Doc. 20-12). The following day, Romussi texted Tosi,
unaware that there had been a party or that they had seen one another the prior day. (Rec. Doc.
20-12). Other instances of hallucinations and a general inability to understand her surroundings
3 The Court notes that the Fifth Circuit designated this opinion to be unpublished. 290 F. App’x at 689. Under 5th Cir.
R. 47.5, it is therefore non-precedential.
were provided by Romussi’s sister. (Rec. Doc. 20-13). This evidence is sufficient to raise a
question of fact at this time as to whether, under Louisiana law, Romussi had sufficient capacity
to enter a contract.
Because Louisiana’s capacity-specific choice-of-law statute requires an investigation into
whether the policyholder was competent in the state of the contract or in the domicile of the
policyholder, the question remains whether Romussi had sufficient capacity in Italy, her
stipulated domicile. Muccari has provided a declaration from a law professor in Rome explaining
the law regarding contractual capacity in Italy. The law is substantially the same in Italy as in
Louisiana, requiring proof that the individual was incapable of understanding or was without
volition at the time of the contract’s execution, with the added requirement that the execution of
the contract without capacity results in serious prejudice to the author. According to Professor
Marini, incapacity must be proven by the party seeking annulment, and the assessment of
incapacity should be rigorous. (Rec. Doc. 13-5). Further, serious prejudice must result from the
execution of the contract to the incapacitated individual, which can consist of any legally
appreciable adverse effect on the agent’s condition.
Much as was the case under Louisiana law, the Russos have properly provided
declarations that detail occurrences which are sufficient to raise a question of fact as to whether
Romussi had capacity to understand her actions at the time she executed the change of
beneficiary form. Professor Marini’s affidavit makes clear that the cause of confusion or capacity
must exceed solely the fact that she previously had health problems. Here, the Russos’ evidence
shows that Romussi was unable to recall an hours-long event during which she celebrated her
birthday with her friends, as well as other occurrences which demonstrate that her capacity to
contract had become questionable, including hallucinations and general confusion about basic
matters. (Rec. Doc. 20-13). This is sufficient to create a dispute of material fact.
However, summary judgment is still warranted if, as a matter of law, Romussi was not
seriously prejudiced by entering a contract when she lacked capacity. This Court finds that, if she
lacked capacity to enter this contract, Romussi was seriously prejudiced in entering this contract.
Romussi’s three previous beneficiary designations under this life insurance policy included
payouts to either her sister or to one or both of her sister’s children. (Complaint ¶¶ 10, 12-18).
Toward the end of her life, when she was arguably without capacity to enter such a contract,
Romussi allegedly changed the beneficiary to her husband alone. If she was without capacity to
make this change, she will have suffered the prejudice of failing to provide for those she wished
to support after her passing. The Russos have offered a declaration that states that Romussi
expressly wanted to provide for her niece and nephew. (Rec. Doc. 20-12). This is sufficiently
prejudicial under the broad interpretation provided by Professor Marini, thus precluding
summary judgment.
Because there are questions regarding Romussi’s capacity to contract under each of
Louisiana and Italian law such that a reasonable jury could find in favor of the non-movant, and
because Muccari is not entitled to judgment as a matter of law, the motion for summary
judgment is DENIED as to the capacity claim.
Undue Influence
Finally, the Russos allege that Muccari unduly influenced Romussi, pressuring her to sign
the change of beneficiary form in his name when she was without capacity. The Russos fail to
cite any statutory or common-law mode of challenging a contract through undue influence in
Louisiana. Louisiana’s laws governing undue influence apply to donations inter vivos and gifts
causa mortis. Because life insurance policies do not qualify under these categories, undue
influence is not a viable method of challenging this contract. T.L. James & Co., Inc. v.
Montgomery, 332 So.2d 834, 847 (La. 12/8/75). The discussion in Wilkes to the contrary cites
Louisiana cases for support, but neither of the cases cited discusses undue influence. Rather,
Wilkes appears to mix undue influence and fraud into a single cause of action.
The motion for summary judgment is GRANTED as to the undue influence claim to the
extent it is asserted as a standalone claim.*
Because the motion has been denied in part and some claims remain, Pan-American’s
request for attorney’s fees is not ripe for consideration at this time.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 13) filed by
Defendant-in-Interpleader, Pierluigi Muccari, is GRANTED IN PART AND DENIED IN
PART as explained above.
September 29, 2023 C .
AY €. ZA
U D STATES DISTRICT JUDGE
* The Court notes that, even under Italian law, the motion would be granted as to this claim. Professor Marini makes
clear in his affidavit explaining Italian law that undue influence is non-existent under Italian law. In Italy, a concept
analogous to undue influence exists only with wills and successions. Because Italian law differentiates life insurance
contracts from successions, this matter falls outside the acceptable scope of an undue influence claim.
11