2 ND Amended Petition

PLAI NTI FFS SECOND AMENDED PETITION AND REQUEST FOR DECLARATORY JUDGMENT Page
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CAUSE NO. CV-2013-02633
SCARLETTE RAFFERTY ELLIOTT and IN THE COUNTY COURT OF
SEAN PAUL RAFFERTY
V. DENTON COUNTY, TEXAS
BIRCHMAN BAPTIST CHURCH and

BANKERS LIFE AND CASUALTY
COMPANY COUNTY COURT AT LAW NO. 2
PLAINTIFFS SECOND AMENDED PETITION AND
REQUEST FOR DECLARATORY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT;
COME NOW, SCARLETTE RAFFERTY ELLIOTT and SEAN PAUL RAFFERTY,
Plaintiffs herein, and file Plaintiffs Second Amended Petition and Request for Declaratory
Judgment. Plaintiffs file this Second Amended Petition, complaining of Defendant BIRCHMAN
BAPTIST CHURCH (Defendant Birchman), and ask for a declaratory judgment, pursuant to
the Texas Uniform Declaratory Judgments Act, Chapter 37 of the Texas Civil Practice and
Remedies Code, and in support of their causes of action would show the Court the following:
I. DISCOVERY CONTROL PLAN LEVEL
Plaintiffs intend that discovery be conducted under Discovery Level 2 of the Texas Rule
of Civil Procedure.
II. RULE 47 DAMAGES DECLARATION
Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Plaintiffs in good faith plead
the value of this case is $200,000.00 or less and Plaintiffs also seek non-monetary relief.
Plaintiffs reserve the right to amend these amounts if a jury awards an amount in excess of
$200,000.00.
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III. JURISDICTION AND VENUE
The subject matter in controversy is within the jurisdictional limits of this Court. This
Court has jurisdiction over the parties and venue is proper in this case because:
1. All or substantial part of the events or omissions giving rise to the claim occurred in
Denton County [Civil Practices and Remedies Code Section 15.002(a)(1)]. Plaintiff
SEAN PAUL RAFFERTY filed a Life Insurance Claim Form with Defendant
BANKERS LIFE AND CASUALTY COMPANY in Denton County, and the same
claim was denied in Denton County; and
2. A suit on a policy may be brought in the county in which the policyholder or
beneficiary instituting the suit resided at the time the cause of action accrued (Civil
Practices and Remedies Code Section 15.032). Plaintiff SEAN PAUL RAFFERTY
resided in Denton County, Texas at the time that he filed a Life Insurance Claim
Form with Defendant BANKERS LIFE AND CASUALTY COMPANY and at the
time that Defendant BANKERS LIFE AND CASUALTY COMPANY denied
Plaintiffs claim based on competing claims.
IV. PARTIES AND SERVICE
Plaintiffs SCARLETTE RAFFERTY ELLIOTT and SEAN PAUL RAFFERTY bring
this action individually.
Defendant BIRCHMAN BAPTIST CHURCH is a religious organization that is already
before this Court.
Defendant BANKERS LIFE AND CASUALTY COMPANY (Bankers) is a foreign
corporation with a Texas location that is already before this Court.
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V. FACTS
On September 18, 2005, Bankers issued to the Decedent, Sean C. Rafferty (Decedent),
a life insurance policy in the face amount of $100,000, Policy number 7318193 (Policy). The
named beneficiary was his then wife, Paula S Rafferty.
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After their divorce in 2010,
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as ordered
in the divorce decree,
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the Decedent changed the beneficiary to his children, Sean Paul Rafferty
and Scarlett Rafferty Elliott (hereinafter, together Plaintiffs).
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The children remained the
beneficiaries up until his death, purportedly by self-inflicted gunshot wound, on or about June
25, 2013, at approximately 2:21 p.m.
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Plaintiffs are brother and sister and the only children of Sean C. Rafferty, deceased. As
part of the Decree of Divorce between Paula Rafferty (the mother of Plaintiffs) and Sean C.
Rafferty, Mr. Rafferty was ordered by a Texas court to name the children as beneficiaries to an
insurance policy written on and insuring Mr. Raffertys life. The insurance policy, No. 7318193,
was written by BANKERS LIFE AND CASUALTY COMPANY. The pertinent part of the
Decree of Divorce naming the children as beneficiaries states that [t]he Bankers Life and
Casualty Company life insurance policy number 7318193 subject to the (sic) on this policy. IT
IS ORDERED the (sic) Sean C. Rafferty make the two children, Scarlette R. Rafferty and Sean
P. Rafferty, the only beneficiaries under this insurance policy within 30 days to (sic) the signing
1
See Exhibit A of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
Company on file with this Court.
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Cause No. 231-427968-07, the Divorce Decree pronounced and rendered from the Bench on April 14, 2010 and
entered on August 26, 2010.
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See Plaintiffs FIRST AMENDED PETITION AND REQUEST FOR DECLARATORY JUDGMENT, Exhibit 1, the
Divorce Decree of Sean C. Rafferty and Paula Rafferty, p. 30, item H-9.
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See Exhibit B of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
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See Plaintiffs FIRST AMENDED PETITION AND REQUEST FOR DECLARATORY JUDGMENT, Exhibit 2,
Sean Christian Raffertys Certificate of Death.
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of this decree.
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The Decree of Divorce acts as a contractual obligation for Sean C. Rafferty,
requiring that Mr. Rafferty not change the beneficiaries of the stated insurance policy.
Mr. Rafferty made the ordered changes to his policy on April 27, 2010, and Bankers sent
confirmation of the change to Mr. Rafferty the next day.
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From this date, the children continued
to be the beneficiaries under the policy. However, the Decedent and Defendant Birchman
attempted to remove the children as the beneficiaries mere hours before Mr. Raffertys alleged
suicide and to replace the children with Defendant Birchman as the irrevocable beneficiary under
the policy.
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Defendant Birchman does not appear to be bothered by the fact that as late as 6:34
p.m. on the evening of or the evening before Mr. Rafferty committed suicide, Defendant
Birchman did not provide any solace to their obviously distraught congregational member.
Defendant Birchman did not reach out to the family of Mr. Rafferty and raise any concern about
Mr. Raffertys state of mind when Mr. Rafferty was at Defendant Birchman seeking its
assistance with the proposed change in beneficiary within hours of ending his own life
The requested change in beneficiary was purportedly signed by the Decedent, and faxed
from Defendant Birchmans office on June 24, 2013 at approximately 6:34 p.m., the night before
his tragic death.
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The Plaintiffs do not believe that the signature on the change in beneficiary is
their fathers signature.
Regardless of the actions taken on the eve of Mr. Raffertys suicide, the change in
beneficiary never went into effect. Although submitted on June 24, 2013, it was not until June
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See Plaintiffs FIRST AMENDED PETITION AND REQUEST FOR DECLARATORY JUDGMENT, Exhibit 1, the
Divorce Decree of Sean C. Rafferty and Paula Rafferty, p. 30, item H-9.
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See Exhibit B of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
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See Exhibit C of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
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See Exhibit C of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
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26, 2013 that Bankers completed the requested change in beneficiary.
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Mr. Rafferty died on
June 25, 2013. Therefore, the requested change was not effective prior to or at Mr. Raffertys
death.
Shortly after Mr. Raffertys alleged suicide, Birchman filed a PRELIMINARY NOTICE
OF CLAIM on the policy.
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On August 27, 2013, Bankers sent a reply to Defendant Birchman
advising them that the Plaintiffs are the proper beneficiaries and that the attempted change in
beneficiary was ineffective because it was not received, approved and processed prior to Mr.
Raffertys death, as required under the policy terms.
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Seemingly unaffected by this fact,
Defendant Birchman continued and continues to try and make claim to the proceeds of the
Policy. Plaintiffs were unaware of Bankers denial of Defendant Birchmans claim until Bankers
filed their answer in this Declaratory Judgment action.
After receiving the death claim from the Plaintiffs, Bankers transmitted a letter advising
that there were competing claims and that the funds were being held pending resolution.
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Defendant Birchman was contacted by counsel for the Plaintiffs and correspondence was
received from Defendant Birchmans legal counsel questioning whether or not the Plaintiffs
deserved the insurance proceeds.
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Reply correspondence was sent by Plaintiffs counsel
pointing out that the Decedent was contractually and by Court Order required to maintain the
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See Exhibit E of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
Company on file with this Court. In addition, the change in beneficiary form submitted on June 24, 2013 was
deficient. On the second page, Texas is identified as a community property state; however, the additional
information required for a community property state was left blank. On the previous change in beneficiary form
completed in April of 2010, Mr. Rafferty identified the policy as being part of the divorce decree circling Item 4(A)
as the relevant option. Since this is the same policy, Item 4(A) would still apply to the change in beneficiary form
requiring a certified copy of the Divorce Decree. From the documents provided by Bankers, it does not appear that
the certified copy of the Divorce Decree was provided. Additionally, Defendant Birchman, the alleged Irrevocable
Beneficiary, did not execute the form as required.
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See Exhibit F of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
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See Exhibit H of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and Casualty
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See Plaintiffs FIRST AMENDED PETITION AND REQUEST FOR DECLARATORY JUDGMENT, Exhibit 5.
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children as beneficiaries of his life insurance policy and advised that a suit would be filed in the
event Defendant Birchman did not relinquish its claim.
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This perspective is supported by statute
and case law.
Moreover, not only did Plaintiffs advise Defendant Birchman that they did not have a
valid claim to the proceeds, but Defendant Birchman was advised many times by Bankers that
they could not be and were not the beneficiary under the policy, and therefore, were not entitled
to the proceeds under the terms of the policy. Bankers advised Defendant Birchman that even if
Mr. Rafferty could have legally changed the beneficiary, the change was invalid under the policy
because the change was purportedly signed and forwarded mere hours before Mr. Rafferty
committed suicide. Under the policy, changes to the beneficiary must be received, approved and
processed prior to the insureds death.
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The change in beneficiary form allegedly executed by
Mr. Rafferty on June 24, 2013 was not received, approved and processed prior to the insureds
death. Yet Defendant Birchman continues to pursue a claim under a life insurance policy in
which they have no colorable legal claim and have been told by the insurance company that their
claim is invalid under the terms of the policy.
VI. PURPOSE OF THE DECLARATORY JUDGMENT
Plaintiffs have filed this Declaratory Judgment and ask this Court to declare that the
proceeds of BANKERS LIFE AND CASUALTY COMPANY insurance policy No. 7318193 are
the property of Plaintiffs, in that they are the proper (and only) beneficiaries, and that Defendant
Birchman is wrong in attempting to claim the policy proceeds, and that it should take nothing.
Plaintiffs would further request that the Court order Defendant Birchman to pay all reasonable
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See Exhibits C and H of the Original Answer, Counterclaim and Crossclaim of Defendant Bankers Life and
Casualty Company on file with this Court. Noticeably the request to change the beneficiary was not sent until after
normal business hours, from Defendant Birchmans fax machine, giving Bankers significantly less than the
approximate 18 hours between the fax and Mr. Raffertys death in which to make the alleged change.
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and necessary attorneys fees and expenses incurred by Plaintiffs in filing this action.
VII. LEGAL ARGUMENT
Declaratory Judgment
The general rule of law about insurance is that where the insured reserves the right to
change the beneficiary in the policy, the beneficiary therein obtains no vested interest in the
proceeds of the policy prior to the death of the insured. The insured may change the beneficiary
at will and thereby divest a prior beneficiary of all interest in the proceeds of the policy. This
rule, however, does not apply where the insured, for a valuable consideration or under court
order, agrees or is required to designate a certain beneficiary and not to change that beneficiary.
As stated in Locomotive Engineers Mut. Life & Accident Ins. Assn v. Waterhouse, 257 S.W.
304 (Tex.Civ.App. -- El Paso 1924, writ refd), . . the equity of the case requires that it be held
that he was bound to observe his contract.
Therefore, the general rule that a policy owner or insured has the right to change the
named beneficiary is limited when he is ordered pursuant to a divorce decree to designate a
certain beneficiary and not to change that beneficiary See Alexander v. Alexander, 701 S.W.2d
48, 50 (Tex. App.--Dallas 1985, writ refd n.r.e); Hudspeth v. Stoker, 644 S.W.2d 92, 96 (Tex.
App.--San Antonio 1982, writ refd); Tomlinson v. Lackey, 555 S.W.2d 810, 812 (Tex. Civ. App.--
El Paso 1977, no writ); Box v. Southern Farm Bureau Life Ins. Co., 526 S.W.2d 787, 789 (Tex.
Civ. App.--Corpus Christi 1975, writ refd n.r.e.). As is the case here, when Mr. Rafferty was
ordered by the Court in the Divorce Decree to name the children as beneficiaries without
limitation, he, as the owner of the policy, surrendered his right to change the beneficiary.
Moreover, the unambiguous nature of the Divorce Decree vested the children with an equitable
interest in the proceeds of the insurance policy that cannot be taken away. Because the children
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were vested with the equitable interest in the proceeds of the insurance policy in the Divorce
Decree, the childrens equitable interests are superior to those of Defendant Birchman.
As stated in Tomlinson v. Lackey, 555 S.W.2d 810, 813 (Tex. Civ. App.--El Paso 1977, no
writ), we see no difference in the fact of whether it is a contract between the parties or whether
it arises out of a judgment of the Court. In fact, it would seem that a solemn unappealed final
judgment of a Court would, as a matter of law, give the minor child a vested equitable interest in
the proceeds of the insurance policy on his fathers life. Additionally, the above provision must
be held to be a contract binding on the parties, even though set out in the judgment, for in
addition to the Courts signature, attorneys for both parties signed the judgment and each of the
parties, Juanita Lackey and William Gene Lackey, signed the judgment. Thus, they would be
bound by this written instrument as both a contract and a judgment.
VIII. CAUSES OF ACTION
Tortious Interference with a Contractual Relationship
The elements of an action for tortious interference with an existing contract are the
following:
1. The Plaintiffs had a valid contract;
2. Defendant Birchman willfully and intentionally interfered with the contract;
3. The interference proximately caused the Plaintiffs injuries; and
4. The Plaintiffs incurred actual damage or loss.
The Plaintiffs had a valid contract with the deceased, Mr. Rafferty, and were valid third-
party beneficiaries under a valid contract between the deceased and Bankers. Defendant
Birchman willfully and intentionally interfered with these contractual relations, despite being
told on many occasions, that they have no valid legal claim or right to change the beneficiary or
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receive the proceeds. Even now, they continue to willfully and intentionally interfere and delay
the payment of proceeds under the valid contractual relations. This willful, intentional and
continued interference by Defendant Birchman has proximately caused extensive injury to the
Plaintiffs. The Plaintiffs have incurred actual damage and loss as a result, including legal fees to
bring this suit and settle the competing claims for the proceeds.
IX. FRAUD
The elements of an action for fraud are the following:
1. Defendant made a representation to the Plaintiff;
2. The representation was material;
3. The representation was false;
4. When the defendant made the representation, the defendant;
(a) knew the representation was false; or
(b) made the representation recklessly, as a positive assertion, and without knowledge
or its truth;
5. Defendant made the representation with the intent that the plaintiff act on it;
6. The plaintiff relied on the representation; and
7. The representation caused the plaintiff injury.
On multiple occasions, Defendant Birchman has represented to Bankers and Plaintiffs
that they are the beneficiary under the policy in question. The representation to Bankers and
Plaintiffs that Defendant Birchman is the beneficiary under the policy is material. Defendant
Birchman, is not, was not, and never has been the beneficiary under the policy. Defendant
Birchman knew they were not the beneficiary under the policy, yet continued to represent that
they are. Defendant Birchman made the representation with the intent that Plaintiffs rely upon it
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and drop any claim to the life insurance proceeds and with the intent that Bankers rely on the
representation to withhold the policy proceeds from the rightful beneficiaries, Plaintiffs. Bankers
relied on the representation and have withheld the proceeds from Plaintiffs. Defendant Birchman
knew that its representation would cause Bankers to withhold the proceeds and injure the
Plaintiffs. This reliance proximately caused Plaintiffs damages, including mental anguish.
X. DAMAGES
A. Actual Damages
Plaintiffs are entitled to actual damages, and Defendant Birchman is liable to Plaintiffs
for actual damages. Plaintiffs request that the Court find that Defendant Birchman is liable for
all actual damages caused by its acts and award such to Plaintiffs.
B. Exemplary Damages
Plaintiffs are entitled to exemplary damages, and Defendant Birchman is liable to
Plaintiffs for exemplary damages. Plaintiffs request that the Court find that Defendant
Birchman is liable for all exemplary damages caused by its acts and award such to Plaintiffs.
C. Mental Anguish
Plaintiffs are entitled to mental anguish, and Defendant Birchman is liable to Plaintiffs
for mental anguish. Plaintiffs request that the Court find that Defendant Birchman is liable for
all mental anguish caused by its acts and award such to Plaintiffs.
D. Interest
Plaintiffs are entitled to prejudgment and postjudgment interest, and Defendant Birchman
is liable to Plaintiffs for prejudgment and postjudgment interest. Plaintiffs request that the Court
find that Defendant Birchman is liable for prejudgment and postjudgment interest caused by its
acts and award such to Plaintiffs.
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E. Court Costs
Plaintiffs are entitled to court costs, and Defendant Birchman is liable to Plaintiffs for court
costs. Plaintiffs request that the Court find that Defendant Birchman is liable for court costs
caused by its acts and award such to Plaintiffs.
XI. ATTORNEYS FEES
Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, request is
made for all costs and reasonable and necessary attorneys fees incurred by Plaintiffs herein,
including all fees necessary in the event of an appeal of this cause to the Court of Appeals and
the Supreme Court of Texas, as the Court deems equitable and just. Plaintiffs sent a demand to
Defendant Birchman in writing, through its attorney Randall Schmidt, requesting that Defendant
Birchman agree to release its claim to the BANKERS LIFE AND CASUALTY COMPANY
insurance policy proceeds, but Defendant Birchman has refused.
XII. CONDITION PRECEDENT
All conditions precedent to Plaintiffs claim for relief have been performed or have
occurred.
XIII. RELIEF REQUESTED
There exists a genuine controversy between the parties herein that would be terminated
by the granting of a declaratory judgment. Plaintiffs therefore request that declaratory judgment
be entered as follows:
The Court declare that Plaintiffs are entitled to recover the proceeds of their father Sean
Christian Raffertys insurance policy number 7318193 with BANKERS LIFE AND
CASUALTY COMPANY;
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The Court order BANKERS LIFE AND CASUALTY COMPANY to distribute all of the
insurance proceeds to Plaintiffs;
Plaintiffs be awarded all reasonable and necessary attorneys fees, expenses, and costs of
Court; and
Plaintiffs be granted all further relief to which Plaintiffs may be entitled.
XIV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants
BIRCHMAN BAPTIST CHURCH and BANKERS LIFE AND CASUALTY COMPANY be
cited to appear and answer herein, and that on final trial hereof Plaintiffs be granted the
following:
1. Declaratory judgment as requested herein;
2. Actual damages of 100% of all proceeds from the BANKERS LIFE AND
CASUALTY COMPANY insurance policy number 7318193, including all principal
and interest;
3. Exemplary damages;
4. Mental anguish;
5. Prejudgment and postjudgment interest;
6. Court costs;
7. Attorneys fees and expenses; and
8. All other relief to which Plaintiffs are entitled, in equity or at law.
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Respectfully submitted,
BROTHERTON LAW FIRM
By:____________________________________
WILLIAMJ. BROTHERTON
STATE BAR NO. 00789989
WILLIAM@BROTHERTONLAW.COM
HEIDI S. WHITAKER
HEIDI@BROTHERTONLAW.COM
SHAWN M. BROTHERTON
SHAWN@BROTHERTONLAW.COM
STEVEN J. MANDERFELD
STEVE@BROTHERTONLAW.COM
2340 FM407, SUITE 200
HIGHLAND VILLAGE, TX75077
972-317-8700; FAX 972-317-0189
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
This is to certify that the above and foregoing PLAINTIFFS SECOND AMENDED
PETITION AND REQUEST FOR DECLARATORY JUDGMENT has been forwarded pursuant
to the Texas Rules of Civil Procedure to Randall Schmidt, Cotton Schmidt & Abbott, L.L.P., 550
Bailey Avenue, Suite 600, Fort Worth, Texas 76107, Attorney for Defendant BIRCHMAN
BAPTIST CHURCH, and to Amber M. Grand, Figari & Davenport, 3400 Bank of America
Plaza, 901 Main Street, LB 125, Dallas, Texas 75202, Attorneys for Defendant BANKERS LIFE
AND CASUALTY COMPANY, on this the ______ day of January, 2014.
_____________________________________
William J. Brotherton
7th

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PLAI NTI FFS SECOND AMENDED PETITION AND REQUEST FOR DECLARATORY JUDGMENT Page

V. DENTON COUNTY, TEXAS

BIRCHMAN BAPTIST CHURCH and

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