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Original Table of Contents II CjtJO- t No. 71900-9-1 COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE ESTATE OF CRAIG S. LUNDY, Respondent, v. KELLY LUNDY, Appellant. ON APPEAL FROM THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR SNOHOMISH COUNTY #14-4-00306-0 BRIEF OF APPELLANT .:-_..:. '\~ U1 :. _._< ---I ~. -( -.. - BURl FUNSTON MUMFORD, PLLC . , ', By PHILIP J. BURl WSBA#17637 r...,_· ~., 1601 F Street '- ',, ',. ': Bellingham, WA 98225 (360) 752-1500 c;) ORIGINAL TABLE OF CONTENTS INTRODUCTION................................... 1 I. ASSIGNMENTS OF ERROR. 2 II. STATEMENT OF FACTS. .. 5 A. Craig and Kelly Lundy Were Married for 25 Years... .... .................. ... ..... 5 B. Mr. And Ms. Lundy Did Not Change Their Beneficiaries For Four Years After The Divorce. .. 7 C. The Trial Court Awarded The Retirement Account To The Estate, Overriding Mr. Lundy's Choice Of Beneficiary. .. 10 ARGUMENT. .. 11 III. STANDARD OF REVIEW. .. 11 IV. ERISA PREEMPTS THE ESTATE'S STATE LAW CLAIMS .... 12 A. The United States Supreme Court Found Preemption Under A Similar Federal Benefit Program .................................. 14 B. Although Not Argued Below, Ms. Lundy May Raise The Issue On Appeal ........................ 18 V. THE TRIAL COURT ERRED IN DETERMINING MR. LUNDY'S INTENT................................... .. ... 20 A. The Trial Court Erred By Applying RCW 11 .07.010. .. 21 B. Ms. Lundy Did Not Waive Her Ability To Be The Beneficiary. .. 23 C. Complying With Mr. Lundy's Wishes Is Not Unjust Enrichment. .. 26 CONCLUSiON ..................................... 27 ii TABLE OF AUTHORITIES Washington Supreme Court Harris v. State, Dep't of Labor & Indus., 120 Wn.2d 461,843 P.2d 1056 (1993) .... ..... .... .. ... ................... .. .......................... .... ... .. 3, 20 Humphrey Indus., Ltd. v. Clay St. Associates, LLC, 176 Wn.2d 662, 295 P.3d 231 (2013) .. ..... .............. .............................. .. .... ... ........ 3 In re Riemcke's Estate, 80 Wn.2d 722, 497 P.2d 1319 (1972) .... 21 Mike M. Johnston, Inc. v. Cnty. of Spokane, 150 Wn.2d 375, 78 P.3d 161 (2003) ... .. ........ .... ....... .. .............. .. ... ................. .... ........ 26 Washington State Court of Appeals Bentzen v. Demmons, 68 Wn. App. 339, 842 P.2d 1015 (1993) ... 25 In re Estate of Bernard, _ Wn. App. _, _ P.3d _, No. 69608-4-1 (Aug. 4, 2014) .... .... ... ....... ..... .. ..... .. ......... 4, 12,21 Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 254 P.3d 835 (2011) ..... ..... ........................... ........ ... ... ... .. .......... .27 Petters v. Williamson & Associates, Inc., 151 Wn. App. 154,210 P.3d 1048 (2009) ....... ......... .... ................ ............. ... .. ................. 11 Other Authorities 29 U.S.C. § 1001(b) .... .... ....... ...... .... ..... .................... .................... 18 29 U.S.C. § 1002(8) ... ... ........ ... .. .................. ............................ ..... 17 29 U.S.C. § 1144(a) ........ ... .... ................................................... 3, 17 Egelhoffv. Egelhoff, 532 U.S. 141,121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) ............... ..................... ..... ... .............. 12, 17, 15, 16,22 iii Feuer, Albert, 32 Tax Management Weekly Report 1040 (Aug. 5, 2013) ............................................. .. .................... ... ...... ............ 18 Kennedy v. Plan Administrator, 555 U.S. 285,129 S.Ct. 865, 172 L.Ed.2d 662 (2009) ......................................................................... 13 Hillman v. Maretta, _ U.S. _, 133 S.Ct. 1943, 186 L. Ed . 2d 43 (2013) ............................................ ............................. 4,14-18,23 Metro. Life Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir. 2006) ..................................................................... 12, 19 (Section 20.111.1 (D) of the Virginia Code) ................................... 14 Codes and Regulations RAP 2.5(a) ......... ...... .... ............................................................. 3, 18 RCW 5.60.030 ................................................ .. ....... .................. .... .25 RCW 11.07.010 ............................................... 15, 19,20,22, 23, 27 RCW 11.96A .... ... ....... ...... .. .. ... ........ ... ... ..... ...... ..... .. ...................... 10 iv INTRODUCTION The Estate of Craig Lundy seeks to do in this lawsuit what Mr. Lundy never did while alive - change the beneficiary of his ERISA retirement account. Mr. Lundy worked as a machinist for the Boeing Company in Everett, and for 23 years, he participated in Boeing's Voluntary Investment Plan . He designated his wife, Kelly Lundy, as beneficiary. (11/27/91 Designation; Exhibit 7 to Estate's Petition; CP 87). Mr. and Mrs. Lundy married in 1984, and for the duration of their 25-year marriage, both worked full-time and had their own retirement accounts. They did not have children. Over time, the couple grew apart, ending their marriage in September 2009. The Dissolution Decree awarded the spouses their respective retirement accounts as separate property. (Dissolution Decree 1111 3.2 & 3.3; Exhibit 3 to Estate's Petition ; CP 74-75). Despite having complete control to change beneficiaries, neither Mr. Lundy nor Ms. Lundy did. The couple did not have an acrimonious divorce and neither remarried. As Ms. Lundy explained at the hearing, "We had acquired the majority of our funds during our 26-year marriage and just felt that that was something we wanted to continue." (4/2/14 VRP 15). 1 Mr. Lundy died on August 4, 2013 from complications from cancer. He did not leave a will. When his intestate successors - his three brothers and one sister - discovered Mr. Lundy had not changed his beneficiary, the Estate filed this action to recover the retirement account from Ms. Lundy. On April 4, 2014, Snohomish County Superior Court Judge Eric Lucas ruled for the Estate, concluding that state law required Ms. Lundy to return the proceeds after distribution and provide an accounting. (4/2/14 Order m1 1 and 2; CP 8) (attached as Appendix A). Because overriding Mr. Lundy's valid choice of beneficiary violates both federal and state law, Ms. Lundy respectfully requests this Court to reverse the trial court's order, enforce Mr. Lundy's federal designation, and remand to the trial court. I. ASSIGNMENTS OF ERROR The trial court erred as a matter of law by ordering Ms. Lundy to "immediately restore all funds she has received, and/or any funds received in the future, from the decedent's Boeing VIP Plan along with any income received thereupon to the Estate of Craig S. Lundy." (4/2/14 Order ~ 1; CP 8). The trial court also erred by requiring Ms. Lundy to provide an accounting for all funds she received from the Boeing plan. (4/2/14 Order ~ 2; CP 8). 2 Specific assignments of error are: A. Substantial evidence does not support the finding that "Craig rarely had any contact with Kelly Lundy following the dissolution." (4/2/14 Order at 2; CP 8). B. Paragraph 1 of the trial court's April 2, 2014 order is an error of law. (4/2/14 Order 111; CP 8). C. Paragraph 2 of the trial court's April 2, 2014 order in an error of law. (4/2/14 Order 112; CP 8). D. The federal Employee Retirement Income Security Act of 1974 (ERISA) preempts all claims under state law to nullify Mr. Lundy's designation of his beneficiary. 29 U.S.C. § 1144(a). Issues pertaining to these assignments of error are: E. Under RAP 2.5(a), this Court has "discretion to consider issues not raised at the trial court", including federal preemption. Harris v. State, Dep't of Labor & Indus., 120 Wn.2d 461, 468, 843 P.2d 1056 (1993). Here, examining federal preemption under ERISA is "necessary to reach a proper decision." Humphrey Indus., Ltd . v. Clay St. Associates, LLC, 176 Wn.2d 662, 671, 295 P.3d 231 (2013). Should this Court review whether ERISA preempts the Estate's state law claims? 3 F. "An employee's ability to name a beneficiary acts as a guarantee of the complete and full performance of the contract to the exclusion of conflicting claims." Hillman v. Maretta, 133 S. Ct. 1943, 1953, 186 L. Ed . 2d 43 (2013) (interpreting the Federal Employees' Group Life Insurance Act of 1954). State law claims to recoup benefits after distribution "frustrate the deliberate purpose of Congress to ensure that a federal employee's named beneficiary receives the proceeds." Hillman, 133 S. Ct. at 1952. Like FEGLlA, does ERISA preempt state law claims that deprive a named beneficiary of retirement funds? G. "A court's paramount duty in construing a testamentary instrument is to give effect to the maker's intent." In re Estate of Bernard, _ Wn. App. _, _ P.3d _, No. 69608-4-1 (Aug. 4, 2014). Craig Lundy died intestate, and his sole testamentary act was to name Kelly Lundy as the beneficiary to his Boeing retirement account. Did the trial court err by reversing Mr. Lundy's choice and ordering Ms. Lundy to return the retirement proceeds to the Estate? 4 II. STATEMENT OF FACTS A. Craig and Kelly Lundy Were Married for 25 Years Craig and Kelly Lundy married on January 26, 1984 in Fort Collins, Colorado. (Dissolution Petition 11 1.5, Exhibit 1 to Estate's Petition; CP 63) . The couple lived and worked near Bellingham from then on - Mr. Lundy as a machinist at Boeing in Everett and Ms. Lundy as an Information Technology professional for PeaceHealth. (Kelly Lundy Dec. 111; CP 29) . Both had retirement accounts with their respective employers and named each other as beneficiaries. (Kelly Lundy Dec. 11 9; CP 31). Mr. Lundy had a Voluntary Investment Plan
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