Herinckx v. Paul Sanelle, Terlin Patrick, & Stancorp Fin. Grp., Inc.
| Decision Date | 12 May 2017 |
| Docket Number | No. 3:17-cv-00201-HZ,3:17-cv-00201-HZ |
| Parties | DALE ROBERT HERINCKX and DONNA RAE HERINCKX, as Co-Personal Representatives for the Estate of Julianne Lisa Herinckx, deceased, Plaintiffs, v. PAUL SANELLE, TERLIN PATRICK, and STANCORP FINANCIAL GROUP, INC., dba STANDARD INSURANCE COMPANY, an Oregon corporation, Defendants. |
| Court | U.S. District Court — District of Oregon |
Glen S. Shearer
FURNISS, SHEARER & LEINEWEBER
1500 S.W. First Avenue, Suite 700
Portland, Oregon 97225
Attorney for Plaintiffs
/ / /
Andrew M. Altschul
BUCHANAN, ANGELI, ALTSCHUL &
SULLIVAN, LLP
321 S.W. Fourth Avenue, Suite 600
Portland, Oregon 97204
Attorney for Defendant
In an Amended Complaint, Plaintiffs Dale and Donna Herinckx, as personal representatives for the estate of their deceased daughter Julianne, bring a wrongful death claim against individual Defendants Paul Sanelle and Terlin Patrick, and a breach of insurance contract claim against Defendant Standard Insurance. Altschul Decl. Ex. 11, ECF 2-11. The Amended Complaint was filed in Washington County Circuit Court on or about January 23, 2017 and was served, at least on Standard Insurance, on that date. Id.; see also Altschul Decl. ¶ 12, ECF 2.
Pursuant to 28 U.S.C. § 1441(a), Standard Insurance removed the action to this Court on February 6, 2017, on the basis of federal question jurisdiction. Notice of Removal ¶ 9, ECF 1. Plaintiffs timely move to remand the case back to state court. I grant the motion.
Plaintiffs filed this action in Washington County in November 2014. Notice of Removal ¶ 2; Altschul Decl. Ex. 1, ECF 2-1 (summons and Complaint). In Count I of the original Complaint, Plaintiffs alleged that Julianne was living with the individual Defendants and had named the individual Defendants as beneficiaries on a life insurance policy through her place of employment. Altschul Decl. Ex. 1 ¶ 2. The policy was issued by Standard Insurance. Id. Plaintiffs alleged that in April 2012, the individual Defendants murdered Julianne for the purpose of collecting the life insurance proceeds of the policy. Id. at ¶¶ 3, 4. Although not labeled assuch, the allegations in Count I raised a tortious wrongful death claim.
In Count II of the original Complaint, Plaintiffs sought the establishment of an equitable lien or constructive trust in favor of Julianne's estate over all of the benefits and "share of any beneficiary that would otherwise pass to [an individual] Defendant" as a result of Julianne's death. Id. Plaintiffs prayed for more than $3 million in economic and non-economic damages against the individual Defendants individually and jointly as co-conspirators, and further prayed for the establishment of an equitable lien or constructive trust "in favor of the estate for all property, including the policy in the approximate amount of $120,000, that would otherwise pass to [the individual] Defendants, or any of them, by virtue of Standard Insurance Company[.]" Id. at 5.
After being served with the original Complaint, Standard Insurance contacted counsel for Patrick about joining together to remove the action based on Standard Insurance's contention that the claims against Standard Insurance were preempted by the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461, (ERISA). Altschul Decl. ¶ 15. Counsel for Patrick refused to join in the removal request. Id. Standard Insurance then moved to dismiss the claim against it based on ERISA preemption. Altschul Decl. Ex. 3, ECF 2-3. The state trial court granted the motion in a one paragraph Order dated January 27, 2015, and dismissed Plaintiffs' claims against Standard Insurance with prejudice. Altschul Decl. Ex. 4, ECF 2-4. A few days later, Plaintiffs moved to modify the dismissal Order to permit them to file an amended complaint deleting the trust claims as to Standard Insurance and adding an ERISA claim instead. Altschul Decl. Ex. 5, ECF 2-5. On March 4, 2015, the state trial court denied the motion to modify, effectively denying the motion to amend. Altschul Decl. Ex. 6, ECF 2-6. A "LimitedJudgment of Dismissal" which dismissed all of Plaintiffs' claims against Standard Insurance with prejudice, was filed on March 26, 2015. Altschul Decl. Ex. 7, ECF 2-7.
Plaintiffs timely appealed that Limited Judgment to the Oregon Court of Appeals. Altschul Decl. Ex. 8, ECF 2-8. On October 26, 2016, that court affirmed the dismissal of the claim against Standard Insurance, agreeing with Standard Insurance that the state "slayer statute" was preempted by ERISA, but the appellate court agreed with Plaintiffs that the trial court erred by dismissing the claim against Standard Insurance with prejudice. Altschul Decl. Ex. 10, ECF 2-10; Herinckx v. Sanelle, 281 Or. App. 869, 385 P.3d 1190 (2016). The court concluded that the trial court abused its discretion in denying Plaintiffs the ability to amend to add a federal slayer claim through ERISA pursuant to 29 U.S.C. § 1132(a)(1)(B) and Mutual Life Insurance Co. of New York v. Armstrong, 117 U.S. 591 (1886). Id. at 12-17. The court reversed the Limited Judgment which had dismissed the constructive trust claim with prejudice and remanded to the trial court to allow Plaintiffs to file an amended complaint consistent with the court's opinion. Id. at 17.
During the pendency of the appeal of the Limited Judgment against Standard Insurance, Plaintiffs continued to litigate the wrongful death claims against the individual Defendants. Those claims were tried to a Washington County Circuit Court jury in January 2016. Altschul Decl. Ex. 9. The jury returned a verdict in favor of Plaintiffs on January 8, 2016, finding each individual Defendant liable for Julianne's death and awarding $1,180,000 in economic damages and $2,204,365 in non-economic damages to Plaintiffs. Id. A General Money Judgment against the individual Defendants jointly and individually, for a total of $3,384,365, was filed in Washington County Circuit Court on February 1, 2016. Id.
Following the October 2016 decision by the Oregon Court of Appeals allowing Plaintiffs to file an amended complaint, Plaintiffs filed the amended pleading in Washington County Circuit Court on or about, as noted above, January 23, 2017. Altschul Decl. Ex. 11. Plaintiffs retained the Count I wrongful death claim against the individual Defendants. Id. ¶¶ 1-8. The allegations in support of this claim are generally the same as originally asserted in the November 2014 Complaint. Compare Altschul Decl. Ex. 1 with Altschul Decl. Ex. 11. The changes are limited to omitting references to Oregon statutes, inserting references to ERISA statutes, and adding a paragraph asserting that on January 8, 2016, a Washington County jury found that both individual Defendants were equally at fault in causing Julianne's death.
The second claim is now a breach of insurance contract claim against Standard Insurance. Altschul Decl. Ex. 11 ¶¶ 9-18. There, Plaintiffs allege that (1) Sanelle, the primary beneficiary of the life insurance policy, was convicted of Julianne's murder; (2) Patrick, an alternative beneficiary under the policy, took the Fifth Amendment at Sanelle's trial and refused to testify; (3) Standard Insurance did not speak with detectives handling the murder investigation regarding Patrick's involvement and had it done so, it would have learned that Patrick participated in Julianne's killing and cover-up; (4) Patrick was found equally at fault with Sanelle for Julianne's death; (5) Plaintiffs requested that Standard Insurance interplead the insurance proceeds so that Plaintiffs could litigate the proper ownership of proceeds as between Plaintiffs and Patrick and Sanelle; (6) Standard Insurance did not interplead the proceeds of the policy and instead paid them to Patrick which action, according to Plaintiffs, contradicted federal law prohibiting slayers from financially benefitting from their acts in order to collect insurance proceeds on the life of their victim; and (7) Plaintiffs have made a proper claim against the policy and have not receivedthe proceeds from Standard Insurance. Id.
In the prayer, Plaintiffs pray for the sum of $3,504,360 against the individual Defendants and for a judgment against Standard Insurance in the amount of $88,192.62. Id. at 6. As noted above, Standard Insurance removed the case to this Court asserting that the breach of contract claim is an ERISA claim arising under federal law and supporting federal question jurisdiction.
Generally, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a); Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (). The burden of establishing federal jurisdiction is on the removing party, and the removal statute is strictly construed against removal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009); Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006).
A notice of removal must be filed within thirty days after the defendant receives, through service or otherwise, a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. 28 U.S.C. § 1446(b)(1). When removal is under § 1441(a), all defendants who have been properly joined and served must join in or consent to the removal. 28 U.S.C. § 1446(b)(2)(A).
"A motion to remand is the proper procedure for challenging removal." Konty v. Liberty Life Assur. Co. of Boston, No. 10-cv-320-MO, 2010 WL 2608290, at *1 (D. Or. June 24, 2010)(internal quotation marks omitted). Remand is...
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