IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

PAUL HARD, Plaintiff, v. ROBERT BENTLEY, in his official capacity as Governor of the State of  Alabama; LUTHER JOHNSON STRANGE, III in his official capacity as  Attorney General of the State of  Alabama; CATHERINE M. DONALD in her official capacity as the State Registrar of Vital Statistics; STEVEN L. REED in his official capacity as Probate Judge for the County of Montgomery; RICHARD I. LOHR, II,  Administrator of the ESTATE of CHARLES DAVID FANCHER; Defendants. §§§§§§§§§§§§§§§§§§§§§ Civil Action No.: 2:13-cv-922-WKW

MOTION TO INTERVENE

Richard I. Lohr, II, (hereinafter “Lohr”), as the Administrator of the Estate of Charles David Fancher, and his counsel of record, the law firm of Beasley, Allen, Crow, Methvin, Portis and Miles, P.C. (hereinafter “Beasley Allen”), pursuant to F.R.C.P. 24(b), request this Court for permission to intervene for the limited purpose to allow Lohr and Beasley  Allen to pay the disputed settlement proceeds in the sum of $552,956.69 into the Court, and as grounds therefore, show the Court as follows: 1. Lohr is the Administrator of the Estate of Charles David Fancher, deceased. Lohr prosecuted a wrongful death action entitled

Richard I. Lohr, II, Administrator of the Estate of Charles David Fancher v. Joseph Zehner, III, No. 2:12-cv-00533-MHT

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(hereinafter the “underlying action”). The underlying action arose out of a three vehicle wreck which resulted in the death of Charles David Fancher in August 2011. The case settled and was subsequently dismissed on July 25, 2014. (Doc. 297 of the underlying issue). 2. Prior to the underlying action resolving, Lohr received notice that Paul Hard was claiming he was entitled to a “spousal share” from any potential settlement monies pursuant to Ala. Code § 43-8-41(2). In accordance with Alabama’s wrongful death statute, Lohr, as the Administrator of Charles David Fancher’s Estate, had the exclusive authority to bring a wrongful death action. Ala. Code § 6-5-410(a). In addition, as administrator, he must distribute any settlement monies recovered pursuant to Alabama’s laws of intestate succession. Ala. Code § 6-5-410(c)

; see

 

also Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993)

 (“The damages from a wrongful death award pass as though the decedent died without a will”). Alabama law of intestate succession specifies how any settlement proceeds are to be distributed to heirs or family members of the deceased. Ala. Code § 343-8-40. § 43-8-41 of the Alabama Code sets forth what amount the deceased’s surviving spouse is entitled to under various circumstances. Specifically, § 43-8-41(2) provides that if there are no children, but there is a surviving parent or parents, the surviving spouse is to receive the first $100,000.00 in value plus one-half of the balance of the intestate estate. As acknowledged by Paul Hard as of the filing of this action and at the time of settlement of the underlying action, Alabama law did not recognize him as the “spouse” of Charles David Fancher.

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3. After receiving notice, Lohr executed a Stipulation and Agreement with Paul Hard on February 4, 2014, in which Lohr, in his capacity as Administrator of the Estate of Charles David Fancher, agreed that he would not distribute any settlement monies Paul Hard would be entitled to receive if he was determined to be the “spouse” of Charles David Fancher pursuant to Ala. Code § 43-8-41(2) until the dispute was resolved. (Stipulation and Agreement of February 4, 2014 attached hereto as Exhibit “A”). 4. Charles David Fancher was survived by his mother, Patricia Fancher. She claims that she as the mother of the deceased, is entitled to the disputed settlement amount as Alabama law does not recognize Paul Hard as the surviving spouse. After the underlying case resolved through settlement, both Paul Hard and Patricia Fancher, through their respective counsel, requested that Beasley Allen maintain the settlement amount in dispute

1

 in Beasley Allen’s interest bearing account until it was determined “who” is entitled to the disputed settlement proceeds. (Letter  Agreement of September 12, 2014 attached hereto as Exhibit “B”). 5. On or about February 9, 2015, the undersigned received correspondence from one of Paul Hard’s attorneys demanding that Lohr and Beasley Allen release the money in dispute to Hard’s attorney. (Sam Wolfe’s Letter of February 9, 2015 attached hereto as Exhibit “C”). While Lohr and Beasley Allen have agreed to hold and maintain the amount in dispute in Trust as agreed by all interested parties, neither Lohr nor

1

 

As

 

this

 

Court

 

is

 

aware,

 

Hard

 

has

 

filed

 

suit

 

against

 

numerous

 

parties

 

claiming

 

that

 

Alabama

 

law

 

which

 

does

 

not

 

recognize

 

same

 

sex

‐

marriage

 

and

 

prohibits

 

him

 

from

 

the

 

“spousal

 

share”

 

pursuant

 

to

 

Ala.

 

Code

 

§

 

43

‐

8

‐

41(2)

 

is

 

unconstitutional.

 

Hard

 

has

 

further

 

requested

 

injunctive

 

relief 

 

seeking

 

that

 

this

 

Court

 

recognize

 

his

 

same

‐

sex

 

marriage

 

as

 

valid

 

and

 

direct

 

that

 

he

 

be

 

determined

 

to

 

be

 

the

 

spouse

 

of 

 

Charles

 

David

 

Fancher

 

so

 

as

 

to

 

be

 

entitled

 

to

 

the

 

amount

 

in

 

dispute.

 

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