# Opposition Brief — Hendon v. E. I. du Pont de Nemours & Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1442%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1012

## Text

| Supreme Court, U.S.

3 eee ge
. OCT 14 1998
No. 98-289
-4 CLERK
In The

Supreme Court of the United States
October Term, 1998
e

KATHERINE M. HENDON, Administrator of the
Estate of Martha Mayberry, Deceased,

Petitioner,
v.

E.I. DU PONT DE NEMOURS AND COMPANY
and JAKE FULLER,

t

Respondents.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

+

BRIEF IN OPPOSITION
¢

CLARENCE E. WALKER
Counsel of Record
99 Walnut Street,
Suite 200
Chattanooga, TN 37403-1133
423 /266-7647

Counsel for Respondent Fuller
October, 1998

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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TABLE-OF AUTINORITINS ...... «26. <6<00-005060056: ii

sravenemer OF THE CASE... <2. 205005000....55. 1
THE PETITION FOR WRIT OF CERTIORARI

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TABLE OF AUTHORITIES

CASES

Bower v. Bower, 637 S.W.2d 456 (Tenn. 1982)......

Matthews v. Lawrence, 703 S.W. 2d 156 (Tenn. App.

POUNDS 5.4 008 0.05 ts 0d o5 OA 4 We ee ee

McMillan v. Parrott, 913 F.2d 310 (6th Cir. 1990)..

Metropolitan Life Insurance Co. v. Marsh, 119 F.3d

SED BO Ga Re Bin ss bss he a ee oe

Metropolitan Life Insurance Co. v. Pressley, 82 F.3d

ee Re. | rs em en oe

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct.

ph eg Pe ener me

Teachers Insurance & Anniuty Association v. Harris,

TOP B.A. 2 Fed Cream. TIED) oo occ cs ciscvca sven

Whitworth Bros. Storage Co. v. Central States SE and
SW Pension Fund, 794 F.2d 221 (6th Cir.), cert
denied, 479 U.S. 1007, 107 S.Ct. 645, 93 L.Ed.2d

TOL (EOP. 3 5.0 dante kc dpenei nso 63408 ck Ea eew

STATUTES

29 TIS Bee Os ir ktkict sae seca

29 US.C. §1056(d)(SXB) and (C) ..... 5.6.0

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STATEMENT OF THE CASE

Before her death on July 17, 1994, Martha Mayberry
(hereinafter, “Mayberry”) was an employee of E. I.
DuPont de Nemours and Company (hereinafter
“DuPont”). [App. 2a-3a] As an employee of DuPont, she
participated in three benefit plans governed by the
Employee Retirement Income Security Act (hereinafter,
“ERISA”), 29 U.S.C. §§1001 et seq. The three ERISA bene-
fit plans included DuPont Group Life Insurance Plan,
DuPont Savings Plan, and a TRASOP Stock Plan. [App.
21-31]. Under the ERISA Provisions, Ms. Mayberry was
required to name a beneficiary who would receive the
benefits under the plan in the event of her death. As a
plan participant, Ms. Mayberry retained the right to
freely change her beneficiary any time prior to her death.
Ms. Mayberry designated her husband, Jake Fuller (here-
inafter, “Fuller”), a defendant/respondent in this matter.

On June 6, 1994, Ms. Mayberry and Mr. Fuller
divorced. The Marital Dissolution Agreement (hereinaf-
ter, “MDA”) entered between Ms. Mayberry and Mr.
Fuller and incorporated into the Final Divorce Decree
made division of the marital property. Appropriately, the
parties considered and treated the DuPont pension ar.d
retirement benefits, as well as the DuPont Stock and
Thrift Plan and SIP plan as marital property. Ms.
| Mayberry was awarded all of her DuPont pension and
retirement benefits, her DuPont Stock and Thrift Plan,
and SIP Plan. Consequently, the agreement divested Mr.
Fuller of all rights, title and interest in Ms. Mayberry’s
property. [App. 12a-13a]. No provision was included to
identify an alternate payee in either the MDA or the Final
Decree. Following the divorce Ms. Mayberry did not

remove Mr. Fuller as the designated beneficiary from the
plan documents. [App. 20a].

Forty-one days following the divorce, Ms. Mayberry
died intestate. The petitioner Hendon, was appointed the
administratrix of the estate. [App. 20a].

The defendant DuPont, upon Ms. Mayberry’s death,
in accordance with the designation of beneficiary form on
file, appropriately determined and distributed the plan
benefits to the named beneficiary, Mr. Fuller. [App. 24a].
As a result of DuPont distributing the benefits to Mr.
Fuller, the Petitioner filed a civil action against Mr. Fuller
and DuPont alleging state law claims of breach of con-
tract and conversion. [App. 18a-19a]. This civil action was
removed from the Chancery Court of Hamilton County,
Tennessee to the United States District Court for the
Eastern District of Tennessee. [App. 19a].

Each of the defendants moved to dismiss the action.
The District Court treating the motions to dismiss as
motions for summary judgment granted the motions and
dismissed the civil action against the respondents on
August 13, 1996. [App. 26a]. The district court held that
the Petitioner’s cause of action was governed and pre-
empted by ERISA and the plan documents controlled.
[App. 23a-25a]. The court additionally found that the
MDA did not change the beneficiary status of Mr. Fuller
under the benefits plan. [App. 24a]. Petitioner appealed
to the United States Court of Appeals for the Sixth Cir-
cuit.

The Sixth Circuit affirmed the decision of the lower
court finding no error. [App. 29a, 40a]. The Sixth Circuit
held that ERISA preempted the state law claims and

>

further required the plan administrator to follow the
beneficiary designation according to the plan documents.
[App. 40a]. Petitioner filed her Petition for Writ of Cer-
tiorari.

¢

THE PETITION FOR WRIT OF CERTIORARI
SHOULD BE DENIED

The Petitioner is relying heavily on the argument
there is a split of authority among the circuits as to
whether the language of ERISA or federal common law
provides the rule of law to determine whether the plan
documents or a properly worded divorce decree should
govern the disposition of the plan benefits upon the
death of the plan participant. The Petitioner has dis-
tanced herself from her original argument that the affect
of her state law claims on the employee benefit plans
were “too tenuous, remote or peripheral” to warrant that
the state law claims “relate to” the plan and thus pre-
empted by ERISA.

The Sixth Circuit has consistently found that ERISA
supplies its own rule of law and there is no need to look
further than to the language of ERISA. However, the
Sixth Circuit recognizes that other courts of appeals have
held under federal common law a decedent’s ex-spouse
may waive his rights as a beneficiary of the decedent’s
insurance plan; if, the divorce decree specifically divested
the spouse of the rights in question.

In Metropolitan Life Insurance Co. v. Pressley, 82 F.3d
126 (6th Cir. 1996), the Sixth Circuit acknowledged it took
a different view than its sister circuits and held that

4

ERISA supplies the rule of law. 82 F.3d 126, 130 (6th Cir.
1996). The Sixth Circuit resolved that Congress intended
ERISA plans be uniform in their interpretation and sim-
ple in their application. McMillan v. Parrott, 913 F.2d 310,
312 (6th Cir. 1990). Therefore, the Sixth Circuit has consis-
tently construed ERISA according to its statutory lan-
guage. See, Metropolitan Life Insurance Co. v. Pressley, 82
F.2d 126 (6th Cir. 1996); Metropolitan Life Insurance Co. v.
Marsh, 119 F.3d 415 (6th Cir. 1997); McMillan v. Parrott,
913 F.2d 310 (6th Cir. 1990).

If the statutory language failed to provide guidance,
then the court would look to the federal common law for
an answer, which if not clear, may then draw guidance
from analogous state law. Id. at 311, citing Pilot Life Ins.
Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1551, 95
L.Ed.2d 39 (1987); Whitworth Bros. Storage Co. v. Central
States SE and SW Pension Fund, 794 F.2d 221, 234-235 (6th
Cir.), cert. denied, 479 U.S. 1007, 107 S.Ct. 645, 93 L.Ed.2d
701 (1986). The Sixth Circuit does not find the need to
take the analysis a step further by looking to federal
common law or analogous state law.

Rather than muddy the waters, the Sixth Circuit
strictly follows the language of ERISA and 29 U.S.C.
§1104(a)(1)(D) requiring the “plan administrator dis-
charge his duties in accordance with the documents and
instruments governing the plan. . . ” McMillan, at 311;
Marsh, 119 F.3d at 420; Pressley, 82 F.2d at 130. Even if the
Sixth Circuit were to find that language of ERISA failed
to provide the answer to whether the documents within
an ERiSA plan controlled, or a Final Divorce Decree
controlled, the designation of the beneficiary of ERISA
benefits, it would have to look to federal common law.

Finding no clear answer in federal common law the court
would then look to the analogous state law. Analogous
state law does not support the petitioner’s position.

The Supreme Court of Tennessee has had occasion to
determine whether the designation of beneficiary docu-
ments control or the final divorce decree. The Tennessee
Supreme court has held that the designation of benefici-
ary documents control. Bower v. Bower, 637 S.W.2d 456
(Tenn. 1982); See also, Teachers Insurance & Annuity Asso-
ciation v. Harris, 709 S.W. 2d 592 (Tenn. 1985); Matthews v.
Lawrence, 703 S.W. 2d 156 (Tenn. App. 1985).

Respondent DuPont correctly and eloquently dis-
cusses that the decisions of the lower courts in this matter
does not expand any difference of approach to this ques-
tion by the court of appeals. The alleged balance among
the circuits has not changed, thus the issue does not
warrant resolution by this Court. This brief adopts the
conclusion of the Respondent DuPont and will not bela-
bor the issue further.

Finally, the Petitioner attempts to raise the issue that
the MDA substantially complies with ERISA and thereby
qualifies as a qualified domestic relations order (QDRO).
First, the petitioner did not raise the issue until she
petitioned for rehearing before the Sixth Circuit. The
Sixth Circuit did not entertain this issue and this Court
should not entertain the issue as a basis for review.

However, even if the issue had been timely raised,
the MDA and Final Divorce Decree do not qualify as a
QDRO. Under ERISA, 29 U.S.C. §1056(d)(3)(B) and (C), a
qualified domestic relations order must create or recog-
nize 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 partici-
pant under a plan. Furthermore, a QDRO is required to
clearly specify the name and last known mailing address
of the alternate payee to meet the requirements of ERISA.
The MDA nor the Final Divorce Decree meet these
requirements and does not qualify as a QDRO.

+

CONCLUSION

For the reasons stated, the petition for a writ of
certiorari should be denied.

Respectfully submitted,

CLARENCE E. WALKER

99 Walnut, Suite 200
Chattanooga, Tennessee 37403
423/266-7647

Counsel for Respondent Fuller

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1442%3A3. Public record. Not legal advice.