UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

FIDELITY & GUARANTY LIFE INSURANCE 

COMPANY, 

Plaintiff, Case No. 15-cv-10879

v. Honorable Thomas L. Ludington

PAMELA JOHNSON, individually and as Trustee 

of the Florence Johnson Revocable Living Trust,

LINDA OELBERG, individually and as Trustee 

of the Florence Johnson Revocable Living Trust,

ROBERT JOHNSON, JR.,

MICHAEL JOHNSON,

THOMAS D. JOHNSON, JR.,

THOMAS D. JOHNSON,

FLORENCE JOHNSON REVOCABLE LIVING 

TRUST,

Defendants.

_______________________________________/

ORDER DENYING MOTION TO PAY FUNDS INTO COURT, DISCHARGE 

LIABILITY, AND FOR RECOVERY OF ATTORNEY FEES AND DISMISSING 

INTERPLEADER COMPLAINT WITH PREJUDICE

This interpleader action was initiated by Plaintiff Fidelity & Guaranty Life Insurance 

Company on March 10, 2015. See Pl.’s Compl., ECF No. 1. Fidelity alleges that it is the holder 

of four annuity contracts owned by decedent Florence Johnson pursuant to life insurance policies 

(“Policies”) she had obtained. Fidelity alleges that Mrs. Florence Johnson passed away on March 

15, 2014. Id. at ¶ 16. Plaintiff initiated this action because it fears that it is “[e]xposed to the 

possibility of multiple liability from adverse claims against the Policies for the unpaid 

Proceeds[.]” Id. at ¶ 30. Plaintiff believes that it “cannot safely pay the Proceeds [of the Policies] 

to any Defendant.” Id.

1:15-cv-10879-TLL-PTM Doc # 18 Filed 11/03/15 Pg 1 of 5 Pg ID 318
- 2 -

Plaintiff first attempted to achieve disposition of the Policies’ funds by stipulation. See

Stipulation, ECF No. 10. The stipulation was rejected because the individual Defendants, having 

signed the stipulation, had not filed pro se appearances. The parties were directed to bring the 

stipulation into compliance with the Local Rules. See July 15, 2015 Order Rejecting & Striking 

Stipulation, ECF No. 14.

After the stipulation was rejected and stricken, attorney Rustin A. Schisler filed an 

appearance on the docket on behalf of all Defendants. See Notice of Appearance, ECF No. 16. 

Plaintiff then moved to pay the funds associated with the Policies into the Court, obtain a 

discharge of all liability, and to recover attorney fees. See Pl.’s Mot., ECF No. 17. The motion 

will be denied and the interpleader action dismissed with prejudice.

I.

According to Fidelity’s records, at the time of Mrs. Florence Johnson’s death “the 

designated beneficiaries of the Policies were the individual Defendants: Pamela Johnson; Linda 

Oelberg; Robert Johnson, Jr.; Michael Johnson; Thomas D. Johnson, Jr.; and Thomas D. 

Johnson.” Id. at ¶ 22. 

On April 3, 2014, Fidelity was contacted by “the agent who placed the Policies, Tim 

Walworth[.]”1 Mr. Walworth informed Fidelity that “the beneficiaries had been changed 

effective December 2, 2013 such that the designated beneficiary should purportedly be the 

Defendant ‘Florence Johnson Revocable Living Trust[.]’” Id. at ¶ 23. Fidelity sought additional 

information concerning this alleged change in beneficiary, but was unable to satisfy itself that the 

beneficiaries of the Policies had indeed changed. As a result, Fidelity believes that “[a]lthough 

none of the Defendants have yet asserted a claim to the [p]roceeds [of the Policies], each may do 

so.” Id. at ¶ 29. 

 1 Fidelity does not indicate whether Mr. Walworth was an agent of Florence Johnson or an agent of Fidelity.

1:15-cv-10879-TLL-PTM Doc # 18 Filed 11/03/15 Pg 2 of 5 Pg ID 319
- 3 -

To protect itself from multiple liability and because “[u]pon information and belief, 

Defendants are unwilling or have been unable to reach an agreement regarding the Proceeds”, 

Fidelity filed an interpleader complaint. Id. at ¶¶ 29 & 31. Fidelity does not plead specific facts 

in support of its allegation that Defendants cannot reach an agreement as to the Proceeds. 

Fidelity does, however, allege that all six individual Defendants—also the entire class of 

beneficiaries under the Policies—represented in signed letters that they desired the funds be paid 

into the Florence Johnson Revocable Living Trust. Id. at ¶ 27.

II.

Under Federal Rule of Civil Procedure 22, “[p]ersons having claims against the plaintiff 

may be joined as defendants and required to interplead when their claims are such that the 

plaintiff is or may be exposed to double or multiple liability.” United States v. High Tech. 

Products, Inc., 497 F.3d 637, 641 (6th Cir. 2007) (quoting Fed. R. Civ. P. 22(1)). 

III.

Fidelity seeks to use Rule 22 interpleader to discharge itself from liability by paying the 

funds into the Court so that Defendants may use this forum to resolve beneficiary claims under 

the Policies. Fidelity will not be permitted to do so because there is no real adversity between the 

Defendants.

A necessary “prerequisite for permitting interpleader is that two or more claimants must 

be ‘adverse’ to each other.” United States v. High Tech. Products, Inc., 497 F.3d 637, 642 (6th 

Cir. 2007) (quoting 7 Charles Alan Wright & Arthur R. Miller, et al., Fed. Prac. & Proc. Civ. § 

1705 (3d ed.). This requires that “there is a real controversy between the adverse claimants.” 

Treinies v. Sunshine Mining Co., 308 U.S. 66, 72 (1939).

1:15-cv-10879-TLL-PTM Doc # 18 Filed 11/03/15 Pg 3 of 5 Pg ID 320
- 4 -

Defendants, for their part, do not evince any disagreement as to the disposition of the 

proceeds. While they have not answered Fidelity’s interpleader complaint and have not 

responded to Fidelity’s interpleader motion, the only allegation of conflict is Fidelity’s bare 

claim that Defendants cannot reach an agreement concerning the proceeds. See Pl.’s Compl. ¶ 

31, ECF No. 1. Fidelity’s complaint, however, does not allege any fact in support of that claim. 

Rather, the facts alleged suggest the contrary: that the individual Defendant’s all agree that the 

Policies’ proceeds should be paid to the Florence Johnson Revocable Living Trust. See id. at ¶ 

27. Thus, there is no real conflict or controversy between Defendants. Although there is a fair 

claim by Fidelity that conflicting claims could arise there is no evidence that it has, or that it 

reasonably would. All beneficiaries are willing to release their claims to the proceeds in favor of 

payment to the Trust. This is sufficient to defeat adversity. See New York Life Ins. Co. v. 

Connecticut Dev. Auth., 700 F.2d 91, 95 (2d Cir. 1983) (only finding requisite interpleader 

adversity where beneficiaries refused to release conflicting claims to proceeds).

Furthermore, even if there was a conflict between potential beneficiaries, this is not, 

based on the facts alleged, the type of conflict appropriately resolved by interpleader. In general, 

interpleader operates to permit the interpleader plaintiff to avoid “the vexation of defending 

multiple claims to a limited fund . . . that is under [its] control.” 7 Charles Alan Wright & Arthur 

R. Miller, et al., Fed. Prac. & Proc. Civ. § 1704 (3d ed.). “[G]ood faith requires a real and 

reasonable fear of exposure to double liability or the vexation of conflicting claims.” Michelman 

v. Lincoln Nat. Life Ins. Co., 685 F.3d 887, 894 (9th Cir. 2012). Fidelity has not alleged that if 

one of the individual Defendants insisted upon his or her share of the proceeds that the Policies’ 

proceeds would then be subject to double liability. It is entirely possible that only the remaining 

1:15-cv-10879-TLL-PTM Doc # 18 Filed 11/03/15 Pg 4 of 5 Pg ID 321
- 5 -

proceeds, less those paid to the individual beneficiary, would be payable to the Trust. But again, 

this is mooted by the representations of the beneficiaries. 

Lastly, assuming there is a beneficiary conflict that does not give rise to liability in excess 

of the fund amount, the conflict is not appropriate for interpleader. “Insurance companies 

regularly encounter disputes between multiple claimants to a policy’s benefits. Making a 

determination as to which claim prevails is the ordinary business of insurance companies.” 

Banner Life Ins. Co. v. U.S. Bank, NA, 931 F. Supp. 2d 629, 632 (D. Del. 2013).

2 Shifting that 

responsibility to the federal courts by use of interpleader abuses Rule 22 when the claimants are 

not truly adverse. It goes without saying, then, that Fidelity’s motion for attorney’s fees will also 

be denied. Id. (“The awarding of attorney fees in an interpleader complaint is committed to the 

sound discretion of the trial court.” (internal quotation marks omitted)).

Accordingly, it is ORDERED that Fidelity & Guaranty Life Insurance Company’s 

Motion to Pay Funds into the Court, for a Complete and Total Discharge, and for Recovery of 

Attorney Fees, ECF No. 17, is DENIED.

It is further ORDERED that Fidelity & Guaranty Life Insurance Company’s Interpleader 

Complaint, ECF No. 1, is DISMISSED with prejudice.

Dated: November 3, 2015 s/Thomas L. Ludington

THOMAS L. LUDINGTON

United States District Judge

 2 Although Banner was addressing the award of attorney’s fees following a stipulation that resolved dual 

claimants to insurance proceeds, the guidance it provides is nevertheless appropriate in this case.

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on November 3, 2015.

s/Michael A. Sian

MICHAEL A. SIAN, Case Manager

1:15-cv-10879-TLL-PTM Doc # 18 Filed 11/03/15 Pg 5 of 5 Pg ID 322