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FIDELITY & CAS. CO. v. LEVIC

October 4, 1963

FIDELITY AND CASUALTY COMPANY OF NEW YORK, Plaintiff,
v.
Frank LEVIC, Sr., Mrs. Tony Colarusso, Ronald Levic, Wanda Levic and Sandy Levic, Defendants



The opinion of the court was delivered by: MARSH

On July 25, 1962, plaintiff insurance company brought this interpleader action in the United States District Court for the Southern District of California, Central Division, pursuant to § 1335, Title 28 U.S.C., and deposited $ 7,500.00 into the Registry of that Court. An injunction was issued restraining suits against plaintiff, but no order was entered discharging it from liability. Subsequently, the action and the fund were transferred to the Western District of Pennsylvania pursuant to § 1404(a), Title 28 U.S.C. In this court the insurance company filed a petition for costs, attorneys' fees, and an order discharging it from liability.

It appears from the complaint that on or about March 1, 1962, plaintiff issued in New York to Frank Levic, Jr. a policy of life insurance wherein it promised to pay to one Frank Levic, as beneficiary, the sum of $ 7,500.00 upon the death of Frank Levic, Jr. Thereafter, on March 1, 1962, Frank Levic, Jr. died in an airplane crash.

 Plaintiff named as claimants of the proceeds Frank Levic, Sr. and Mrs. Tony Colarusso, the parents of the deceased. It also averred that Ronald Levic, a half-brother, Wanda Levic, a half-sister, and Sandy Levic, a step-sister, of the deceased, 'shall interpose a claim as heirs-at-law upon the proceeds of the aforementioned policy.' It is not disclosed on what basis, theory, or under what state statute these persons, as of the time of filing of the complaint, could possibly be expected to interpose a claim as heirs at law and we know of none. Apparently no claim was made by these persons prior to the filing of the complaint. *fn1"

 It appears from the petition that California counsel advanced as costs the sum of $ 56.50, and that plaintiff's attorneys' fees amount to $ 540.00. Invoices attached show that California counsel charged the sum of $ 350.00, and Pennsylvania counsel charged the sum of $ 190.00.

 The defendants, Frank Levic, Sr., Sandy Levic, and Frank Levic, Sr., as parent and natural guardian of Ronald Levic and Wanda Levic, filed an affidavit in opposition to the plaintiff's petition for counsel fees.

 In their brief the defendants, Frank Levic, Sr., Ronald Levic, Wanda Levic and Sandy Levic, contend that the plaintiff insurance company abused its discretion by bringing the interpleader action in California where only one of the claimants resided, whereas the remaining four resided in Pennsylvania. They contend that by this abuse plaintiff has forfeited its right to costs and counsel fees.

 It does not appear why plaintiff delayed nearly five months after the insured's death in bringing the interpleader action, but defendants make no complaint in this respect.

 In the circumstances disclosed we think plaintiff is entitled to costs and reasonable counsel fees. *fn2"

 However, defendants also contend that even if plaintiff is so entitled, that the claimed fees in their total amount should not be charged against the fund. We agree.

 There is no objection to the amount of the cost advanced in the sum of $ 56.50, and they will be allowed.

 Plaintiff's California counsel charged $ 125.00 for presenting a petition to transfer the action to Pennsylvania. This petition was not contested. Indeed, the claimant Levic attempted to do the same thing, but his efforts were unsuccessful because of his counsel's unfamiliarity with the local rules of the California Court. Since the transfer was for the benefit of all the claimants, we think this item should be paid out of the fund.

 The remainder of the claimed fees, i.e., $ 415.00, represents charges for the ordinary interpleader proceedings. Except for a short jurisdictional hearing held in this court -- at which plaintiff's Pittsburgh counsel was in attendance but took no part -- there were no complications, opposition, or resistance to the petition for interpleader. Over and above preparing and presenting the customary petitions to the court, the only extraordinary features were correspondence between Pennsylvania and California counsel and the jurisdictional hearing. On the other hand, the insurance company will be relieved of vexation and the expense of resisting a ...


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