Free Motion for Judgment - District Court of Arizona - Arizona

Stephen A. U'Ren, #004387 3030 S. Rural Road, Suite 114 Tempe, AZ 85282 (480) 838-6566 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RONALD HERBERT PERRIN and the ESTATE OF LUCY MILDRED PERRIN through RONALD HERBERT PERRIN, Personal Representative, Plaintiff, vs. THE OFFICE OF SERVICEMEMBERS GROUP LIFE INSURANCE, a subsidiary of the PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation. Defendant. Plaintiff, through counsel, hereby moves this Court for an Award of Prejudgment Interest. This Motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES On November 1, 2005, after Oral Argument on Plaintiff's Motion for Summary Judgment the Court orally issued its' findings of fact and conclusions of law, granted NO. CIV 04 0571 PHX RGS MOTION FOR AN AWARD OF PREJUDGMENT INTEREST

Case 2:04-cv-00571-RGS

Document 42

Filed 11/07/2005

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Plaintiff's Motion for Summary Judgment and requested Plaintiffs to file a form of Judgment. (A form of Judgment has also been submitted this date). Through this Motion, Plaintiffs move for an award of prejudgment interest to be included in the Judgment. Dale Perrin died on December 8, 2001. He had a life insurance policy with the Defendant Prudential Insurance Company in the amount of $250,000.00. Prudential denied benefits on the policy to Dale Perrin's beneficiaries. Dale Perrin's beneficiaries brought this action to recover those benefits. They have been successful in this action, albeit four years after the death of Dale Perrin. Although the decision to grant prejudgment interest rests with the discretion of the District Court, U.S. Dominotor Inc. v. Factory Ship Robert E. Resoff , 768 F2d 1099, 1106 (9th Cir 1985), the decision to award the Prejudgment interest should be based upon the equities of the case. In Re: Southland + Keystone v. Official PACA Creditors Committee, 132 B.R. 632 (9th Cir. BAP 1991). Prejudgment interest is well established in the 9th Circuit. See Home Savings Bank F.S.B. v. Gillam, 952 F2d 1152, 1161 (9th Cir. 1991). In Gillam the Court noted that the failure to award prejudgment interest has the effect of granting an interest free loan on funds belonging to another and would encourage delay in payments. Gillam further noted that awards of prejudgment interest are governed by considerations of fairness and are to be awarded when necessary to make the wronged party whole.

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Case 2:04-cv-00571-RGS

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The Supreme Court of the United States has noted that prejudgment interest is traditionally considered part of Plaintiff's overall compensation. Osterneck v. Ernst & Whitney, 489 U.S. 169 (1989) and is used to compensate the prevailing party for the loss of use of the money from the time the claim accrues until Judgment is entered West Virginia v. United States, 479 U.S. 305, 310-311 N. 2 (1987). Likewise, the 9th Circuit has held that prejudgment interest serves as a compensatory function designed to make the injured party whole. Frank Music Company v. MGM, 886 F2d 1545, 1550 (9th Cir. 1989). Here the Plaintiffs, by virtue of the Court's recent ruling, are entitled to the life insurance proceeds as of Dale Perrin's death, December 8, 2001. Because the benefits were denied and litigation was necessary, the beneficiaries will not receive the money that they were entitled to for at least four years from when they should have received it. This results in a compensable loss to the Plaintiffs in the form of prejudgment interest and would be a windfall to the Defendant, Prudential Insurance Company, if they are not required to pay prejudgment interest. Prejudgment interest is figured at the Federal post-judgment interest rate unless the Trial Judge finds on substantial evidence that a different rate is appropriate. Blanton v. Anzalone, 813 F2d 1574 (9th Cir. 1987). The Federal interest rate that is applied is the rate immediately prior to the date of Judgment. In Re Unicom Computer

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Case 2:04-cv-00571-RGS

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Corporation v. International Business Machines, 21 F3d 1116 (9th Cir. 1994).1 Prejudgment interest should be compounded over the relevant period of time. In Re: Southland + Keystone v. Official PACA Creditors Committee, 132 B.R. 632, 637 (9th Cir. BAP 1991). The initial principal amount (the policy benefit) owed by Defendant to Plaintiffs is $250,000.00. Prejudgment interest compounded annually at the Federal rate of 4.28% would amount to a total prejudgment interest award of $45,628.00. Wherefore, Plaintiff's move this Court to enter a Judgment in Plaintiff's favor for $250,000.00 plus $45,628.00 in prejudgment interest. DATED this 7th day of November, 2005. /s Stephen A. U'Ren Stephen A. U'Ren Attorney for Plaintiffs Filed electronically this 7th day of November, 2005. /s Stephen A. U'Ren

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The Federal interest rate for the week the Court entered its Order granting Plaintiffs' Motion for Summary Judgment was 4.28%. 4

Case 2:04-cv-00571-RGS

Document 42

Filed 11/07/2005

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