THE PRUDENTIAL INSURANCE COMPANY OF AMERICA v. ANTHONY B. PUE

 

(NOTE: The status of this decision is Published.)

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0580-18T1

THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,

         Plaintiff-Respondent,

v.

ANTHONY B. PUE, individually and
as natural guardian of CAMERON
PUE, a minor, CAMERON PUE,
and ALEXIS PUE,

     Defendants-Appellants.
_______________________________

                   Submitted November 19, 2019 - Decided December 9, 2019

                   Before Judges Fisher and Accurso.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Mercer County, Docket No. L-2084-14.

                   Anthony B. Pue, appellant pro se.

                   Respondent has not filed a brief.

PER CURIAM
      This is an interpleader action by Prudential Insurance Company over

group life benefits provided to its insured, State employee Kathy Pue. While

Pue was an active employee, her husband and two children were listed as the

beneficiaries of her group life insurance policy. When she applied for a

disability retirement on June 20, 2013, she made her husband, defendant

Anthony Pue, the sole beneficiary. A week later, however, she submitted

another beneficiary designation making defendant and their son joint

beneficiaries.

      After her death the following year, defendant objected to sharing the

death benefit with his minor son. When defendant failed to provide documents

in support of his claim, Prudential paid one half of the death benefit,

$36,927.84, to him and advised him of the documents necessary to process

payment of the remainder to his minor son.

      Defendant renewed his objection to sharing the benefit with his son,

claiming his wife was incompetent when she last changed the beneficiary

form. Prudential's medical director reviewed the decedent's medical records

and determined she may well not have been competent at the time she last

changed the beneficiary designation in June 2013. That determination,

however, also called into question whether she was competent the week before


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when she applied for a disability retirement and designated defendant her sole

beneficiary. Prudential thereafter advised defendant it considered both June

2013 beneficiary designations to be invalid, and would, instead, rely on the

prior designation, which divided the benefit equally among defendant and the

couple's two children. In light of its decision, the company sought

reimbursement of $12,309.28 of the sum previously paid to defendant.

         Defendant thereafter advised Prudential for the first time that he actually

submitted his wife's disability retirement application as her attorney-in-fact.

When Prudential could not confirm that the June 20, 2013 designation was

submitted via a power of attorney or that defendant had a power of attorney

granting him the authority to change the beneficiary designation to himself, it

filed this action, depositing the remaining $36,927.84 due on the policy into

court.

         The court appointed a guardian ad litem for defendant's minor son, who

filed a report with the court recommending that counsel be appointed for the

minor. The court thereafter appointed counsel for defendant's son in

September 2015. Although defendant failed to include that order in his

appendix, the record makes clear the order provided for payment of fees from

the proceeds of the policy on deposit with the court. Defendant thereafter


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aggressively litigated the matter, including taking an interlocutory appeal on a

procedural issue, which is not relevant here.

      When defendant's son turned eighteen in December 2017, his counsel

moved to be relieved and applied for an award of fees in accordance with the

order appointing him. Defendant objected, claiming this court reversed the

order appointing counsel for his son on defendant's interlocutory appeal. Upon

review of counsel's certification of services, the judge awarded fees of $10,875

from the $36,927.84 it had permitted Prudential to deposit with the court.

      Defendant thereafter renewed an earlier motion to have the remaining

funds released to him, which was opposed by both his children. On the return

date, the court again explained to defendant that this court did not overturn the

order appointing counsel for his son. She also noted the counsel fee awarded

was reasonable and less than the amount counsel had requested. Defendant

thereafter agreed to settle the case with his children by dividing the $26,052.84

remaining, with each child receiving $10,000 and defendant receiving

$6,052.84. The court entered an order directing distribution among counsel,

defendant and his children accordingly.

      Defendant thereafter filed a motion "to stay proceeding for attorney's

fees," claiming, again erroneously, that the order appointing counsel had been


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reversed by this court. He also argued he was not provided an adequate

opportunity to object to the amount of the fees. The court denied the motion

as moot, as the fees had already been disbursed.

      On appeal, defendant argues that Prudential should have respected the

power of attorney and awarded his wife's entire death benefit to him. He seeks

reversal of the order permitting Prudential to deposit the policy proceeds into

court, relieving it of any further liability and a remand to permit him to recover

his "damages." He raises the following issues:

            I. THE TRIAL COURT ERRED IN GRANTING
               VERIFIED COMPLAINT TO PLAINTIFF
               BECAUSE PLAINTIFF BREACHED THEIR
               DUTY OF CARE TO DEFENDANT WHO WAS
               THE "POWER OF ATTORNEY" AT THE TIME
               DEFENDANT MADE THE CHANGE OF
               BENEFICIARIES.

            II. EVEN IF MY PLAINTIFF WAS UNAWARE OF
                THE CHANGE OF BENEFICIARIES CHANGE
                AND THE VALIDITY OF KATHY PUE
                HEALTH, WHAT PRUDENTIAL INSURANCE
                SHOULD HAVE DONE IS HONOR AND
                RESPECT THE DEFENDANT POWER OF
                ATTORNEY.

            CONCLUSION:

               DEFENDANT THEREFORE RESPECTFULLY
               ASK THIS COURT TO REVERSE THE TRIAL
               COURT'S ORDER GRANTING SUMMARY
               JUDGMENT TO PLAINTIFF, HOLD THAT THE

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               DEFENDANT IS THE POWER OF ATTORNEY
               IN THIS MATTER WHO IS OWED A DUTY OF
               CARE, AND REMAND THE MATTER FOR A
               TRIAL ON THE AMOUNT OF DAMAGES.
               ALTERNATIVELY, EVEN IF THIS COURT
               UPHOLDS THE TRIAL COURT'S DECISION
               THAT DEFENDANTS IS RESPONSIBLE FOR
               ATTORNEY FEES, THIS COURT SHOULD
               ADOPT THE FACT THAT THE DEFENDANT
               WAS EXERCISING HIS RIGHTS UNDER THE
               POWER OF ATTORNEY AT THE TIME OF THE
               BENEFICIARIES CHANGE, AND ALSO
               EXERCISING HIS RIGHTS IN ACCORDANCE
               TO  N.J.S.A. 46:2B-8.3, DOCTRINE AND
               REMAND THE MATTER FOR A TRIAL SO
               THAT DEFENDANT CAN BE COMPENSATED
               FOR HIS LOSSES.

      Having reviewed the record, we reject defendant's arguments, to the

extent we understand them, as entirely without merit, not warranting

discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendant limited his

appeal to three orders entered in 2018: awarding fees to court appointed

counsel for the minor; distributing the sums on deposit with the court; and

denying his request to stay. None of those orders implicates Prudential's

decision to reject the beneficiary designations filed in June 2013.

      Defendant makes no argument that the order appointing counsel for his

minor son was improper or that counsel failed to render the services the court

found necessary. Absent any argument from defendant that appointment of


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counsel was an abuse of discretion or the fees unwarranted, we decline to

address the issue. See  700 Highway 33 LLC v. Pollio,  421 N.J. Super. 231,

238 (App. Div. 2011) (noting the requirement that parties make "an adequate

legal argument" in support of their claims).

      Affirmed.




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