Forcier Ex Rel. Estate of Forcier v. Metropolitan Life Insurance

United States Court of Appeals
For the First Circuit

No. 06-1088

LORRAINE FORCIER, AS
ADMINISTRATOR OF THE ESTATE OF DARREN FORCIER,

Plaintiff, Appellee,

v.

METROPOLITAN LIFE INSURANCE COMPANY ET AL.,

Defendants.
__________

DORIS FORCIER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Selya, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.

Barbara S. Liftman, with whom Law Office of Barbara S. Liftman
was on brief, for appellant.
Shaun B. Spencer, with whom Law Office of Shaun Spencer, P.C.,
Janet Fennell, and Law Office of Neil Davis were on brief, for
appellee.

November 20, 2006

__________
*Of the Sixth Circuit, sitting by designation.
 SELYA, Circuit Judge. This case is a procedural motley

presenting a set of curious questions about the respective roles of

insurance carriers and federal courts under the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. When

all is said and done, the appeal that we must decide turns on the

parties' agreeable acquiescence in the district court's assumption

of the insurer's wonted role. The tale follows.

We assume the reader's familiarity with the district

court's exegetic account of the relevant background, see Forcier ex

rel. Forcier v. Forcier, 406 F. Supp. 2d 132 (D. Mass. 2005), and

rehearse here only those particulars that are needed to place in

perspective the issues on appeal. Because we discern no clear error

in the lower court's factfinding following the bench trial it

conducted, we accept the facts as found and draw all reasonable

inferences therefrom in the light most favorable to the judgment.

See Fed. R. Civ. P. 52(a); Janeiro v. Urological Surgery Prof'l

Ass'n, 457 F.3d 130, 133 (1st Cir. 2006).

Lorraine Forcier married Donald Forcier. Their union

produced a son, Darren Forcier. In May of 2000, Darren married

Doris Betancourt (who became Doris Forcier). The nuptials were ill-

starred: the couple executed a separation agreement on July 2, 2003,

and a Massachusetts probate court entered a judgment of divorce nisi

on October 6, 2003. Without any further action by either the

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parties or the probate court, that judgment was to become final on

January 5, 2004. See Mass. Gen. Laws ch. 208, § 21.

On October 21, 2003, Darren committed suicide (and,

therefore, the divorce never became final). Darren's employer,

Macromedia, Inc., was the holder of a group term life insurance

policy issued by Metropolitan Life Insurance Company (MetLife).

Although the policy provided him a death benefit of $208,000, Darren

never designated a beneficiary.

The MetLife policy anticipated that such contingencies

might occur. It provided in pertinent part:

If there is no Beneficiary at your death for any
amount of benefits payable because of your
death, that amount will be paid to one or more
of the following persons who are related to you
and who survive you:

1. spouse; 3. parent;
2. child; 4. brother and sister.

However, we may instead pay all or part of that
amount to your estate.

Any payment will discharge our liability for the
amount so paid.

As the district court noted, Forcier, 406 F. Supp. 2d at 141 n.10,

146-47, this language, which confers broad discretion on the insurer

in making certain benefit determinations, loosely tracks what the

industry has denominated a "facility of payment" clause. Whether or

not that terminology is a precise fit, we use it here.

Lorraine obtained letters of administration from the local

probate court. Acting as administrator of Darren's estate, she

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filed a claim for the policy proceeds. So did Doris, acting to her

own behoof. MetLife made no disbursements but, rather, deferred

determination of these competing claims.

In an effort to bring matters to a head, Lorraine, as

administrator, sued MetLife and Doris in the probate court. Her

complaint sought reformation of the policy and requested that the

insurance proceeds be paid to Darren's estate. MetLife removed the

action to the federal district court, premising its removal petition

on the ground that Lorraine's complaint sought the recovery of

benefits under, or the enforcement of rights anent, an ERISA-covered

employee welfare benefit plan. See 29 U.S.C. §§ 1002(1),

1132(a)(1)(B).

Once the case took up residence in the federal court,

Lorraine amended her complaint to seek a declaration that Darren's

estate was entitled to the policy proceeds. Not to be outflanked,

MetLife filed claims for interpleader (we say "claims" in the plural

because this filing entailed both a counterclaim against Lorraine

and a cross-claim against Doris). Without objection from Doris, the

district court granted the interpleader claims, permitted MetLife to

deposit the policy proceeds in the registry of the court, awarded

MetLife its fees and costs, and dismissed it from the proceedings.

That left Lorraine and Doris as the sole protagonists. Doris then

filed a counterclaim for a declaration of rights.

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 Following the submission of briefs, the district court

presided over a bench trial upon stipulated facts. In due season,

the court ruled in a lengthy rescript that the insurance proceeds

should be distributed to the decedent's parents, individually.

Forcier, 406 F. Supp. 2d at 148-50. Doris then prosecuted this

timely appeal.

The starting point for appellate review is the odd

posture of the case. In connection with the group policy here at

issue, MetLife effectively served as both plan administrator and

insurer.1 Nevertheless, it defaulted on its obligation to make the

initial benefits determination. Instead, it sought interpleader —

a course that shifted the onus of decisionmaking to the district

court.

The Civil Rules allow for interpleader relief when a

party "is or may be exposed to double or multiple liability." Fed.

R. Civ. P. 22. Under that provision:

Where a party in control of contested
property, the stakeholder, makes no claim on
the property and is willing to release it to
the rightful claimant, interpleader allows him
to put the money or other property in dispute
into court, withdraw from the proceeding, and
leave the claimants to litigate between
themselves the ownership of the fund in court.

1
Although the policy designated the policyholder (Macromedia)
as the plan administrator, the district court found that MetLife
administered all claims and that "all discretionary acts and
omissions relevant to this action were assigned to, or made by,
MetLife." Forcier, 406 F. Supp. 2d at 137 n.2. The parties have
not disputed this finding.

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Comm'l Union Ins. Co. v. United States, 999 F.2d 581, 583 (D.C.

Cir. 1993) (citation and internal quotation marks omitted); see

also 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice & Procedure § 1714 (3d ed. 2001).

Numerous courts have approved the use of Rule 22

interpleader in cases involving competing claims of entitlement to

ERISA benefits.2 See, e.g., Met. Life Ins. Co. v. Bigelow, 283

F.3d 436, 439-40 (2d Cir. 2002); Aetna Life Ins. Co. v. Bayona, 223

F.3d 1030, 1034 (9th Cir. 2000); Met. Life Ins. Co. v. Marsh, 119

F.3d 415, 418 (6th Cir. 1997); see also Fox Valley & Vicinity

Constr. Workers Pension Fund v. Brown, 879 F.2d 249, 250 (7th Cir.

1989) (approving use of statutory interpleader for such a purpose).

Here, however, MetLife had available to it a perfectly acceptable

route — payment to the estate — which seemingly, given the plain

tenor of the policy language, would have shielded it from

liability. For whatever reason, it eschewed the use of that

reserved power and chose instead to burden the district court. It

is, therefore, entirely possible that, had there been a timely

objection, the court might have found interpleader improper and

directed that the case be returned to MetLife for an initial

2
It is clear that Rule 22, and not statutory interpleader,
governs MetLife's application. Statutory interpleader in this case
would require that the claimants be of diverse citizenship. See 28
U.S.C. § 1335. Since both Lorraine and Doris were citizens of
Massachusetts when MetLife initiated the interpleader claims, the
statute is inapposite.

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benefits determination. See, e.g., Life Ins. Co. of N. Am. v.

Nears, 926 F. Supp. 86, 89 (W.D. La. 1996) (holding to that effect

on similar facts).3

But we need not indulge in such conjecture because

neither Lorraine nor Doris interposed an objection either to

MetLife's request for interpleader or to its subsequent dismissal

from the action. Even now, the parties are quarreling only over

the district court's ultimate allocation of the policy proceeds,

not the propriety of the district court's order allowing

interpleader. These serial failures to object constitute a waiver

of any and all defects in the interpleader process. See, e.g.,

United States v. Sutton, 970 F.2d 1001, 1006 (1st Cir. 1992)

(admonishing that "[w]hen a trial judge announces a proposed course

of action which a party believes to be erroneous, that party must

act expeditiously to call the perceived error to the judge's

attention" on pain of being held to "a waiver as to the court's use

of the [subject] procedure"); see also United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990).

3
Due to the unique circumstances of this case, we need not
decide whether, on a going-forward basis, we will look with favor
upon interpleader actions brought by insurers who, in the last
analysis, are seeking to shift their responsibilities to the
district court without any clear demonstration of a need for
interpleader relief. Cf. Travelers Indem. Co. v. Israel, 354 F.2d
488, 490 (2d Cir. 1965) ("We are not impressed with the notion that
whenever a minor problem arises in the payment of insurance
policies, insurers may, as a matter of course, transfer a part of
their ordinary cost of doing business . . . by bringing an action
for interpleader.").

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 This waiver is of decretory significance here. It means,

in effect, that the parties are deemed to have assented to

MetLife's departure from the scene. It also means that the parties

have forgone any challenge to the district court's assumption of

the role of initial decisionmaker with respect to distribution of

the policy proceeds (a role that the policy assigned to MetLife, as

the de facto plan administrator).

We next address the nature and scope of the unaccustomed

role that the parties asked the district court to play. The key

question is whether, once MetLife bailed out of the proceedings

without having made an initial benefits determination, the district

court assumed the same discretion in the allocation of benefits

that the policy conferred upon the insurer.

The district court thought that it had. The court noted

that it was being asked to "step into the shoes of the insurer"

and, "for better or worse, render the decision." Forcier, 406 F.

Supp. 2d at 141-42. At no point in the proceedings below did

either side contradict this assessment or suggest that the court

possessed any less discretion than the policy ceded to MetLife.

That, too, was a waiver.

As said, Doris is the appellant in this venue. In her

reply brief on appeal, she argues for the first time that "[w]hile

MetLife may have reserved to itself discretion to determine the

proper beneficiary, the fact remains that MetLife chose not to

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exercise this discretion. The District Court does not step into

the shoes of MetLife and exercise that discretion just as MetLife

might have." Appellant's Reply Br. at 2-3. This about-face comes

too late in the day. We have held, with a regularity bordering on

the echolalic, that "issues advanced for the first time in an

appellant's reply brief are deemed by the boards." Cipes v.

Mikasa, Inc., 439 F.3d 52, 55 (1st Cir. 2006) (collecting cases);

see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)

(holding that an argument "not made to the district court or in

appellant's opening brief, [but] surfacing only in his reply brief"

is waived). We are particularly disinclined to relax this

salubrious rule on behalf of a litigant who sat silently by as the

district court acknowledged that it had been anointed by the

parties to "step into the shoes of the insurer." We therefore hold

that, by acquiescence of the parties, the district court enjoyed

the same latitude as the insurer for purposes of making the initial

benefits determination.4

This brings us to the meat of the court's decision.

Given ERISA's emphasis on the centrality of the plan documents,

see, e.g., 29 U.S.C. §§ 1102(b)(4), 1104(a)(1)(D); see also

Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001); Fenton v. John

4
Even were we to deem Doris's belated argument forfeited
rather than waived, we would find no plain error here. See Cipes,
439 F.3d at 56 (setting out the elements of plain error review).

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Hancock Mut. Life Ins. Co., 400 F.3d 83, 87-89 (1st Cir. 2005), we

start our substantive analysis with the text of the policy.

For present purposes, the most pertinent part of the

policy is the facility of payment clause. Generally speaking,

facility of payment clauses provide for "payment to a named

beneficiary or to a member of a named class or, in the alternative,

to any person found by the insurer to be equitably entitled." 4

Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 61:14

(2005) [hereinafter Couch]; see 2A John Alan Appleman & Jean

Appleman, Insurance Law and Practice § 1163 (1966) [hereinafter

Appleman] (explaining that "facility of payment clauses give the

insurer the option of paying to any person possessing the

qualifications set forth in the clause"). Facility of payment

clauses serve to protect the insurer by reserving to it wide

discretion regarding the payment of policy proceeds.5 See

Appleman, supra § 1163 (explaining that, under such clauses,

"payment of the policy proceeds to a person entitled thereunder

absolutely discharges the insurer of all liability"); see also John

Hancock Mut. Life Ins. Co. v. Jordan, 836 F. Supp. 743, 748 (D.

Colo. 1993). Indeed, informed commentators have described facility

of payment clauses as existing solely for the insurer's protection.

5
There is some authority for the proposition that an insurer
that interpleads adverse claimants and deposits all the available
funds in the registry of the court forfeits the discretion formerly
reserved. See Couch, supra § 61:15. Here, however, neither party
contends that this sort of forfeiture occurred.

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See, e.g., Couch, supra § 61:18; Appleman, supra § 1164. In all

events, it is transparently clear that such clauses are not

intended to give to any prospective beneficiary or other person a

right to sue for the proceeds of the policy. See Jordan, 836 F.

Supp. at 750; see also Couch, supra § 61:18; Appleman, supra §

1164.

Of course, the policy here at issue is part of an ERISA-

regulated plan. ERISA is a statutory scheme, yet it contains no

statutory guidance applicable to a case like this one. We do not

find this lack of statutory guidance surprising; Congress

contemplated that gaps would occur in the statutory scheme and that

"a federal common law of rights and obligations under ERISA-

regulated plans would develop" to fill those gaps. Pilot Life Ins.

Co. v. Dedeaux, 481 U.S. 41, 56 (1987). We turn, then, to the

available precedents.

By and large, the existing case law is of limited value.

Most interpleader claims brought by life insurance companies

require the nisi prius court to reach legal conclusions about

whether a designated beneficiary is entitled to receive benefits.

Typically, the designation is challenged as incomplete, see, e.g.,

Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554, 558 (4th Cir.

1994), or outdated, see, e.g., Liberty Life Assur. Co. v. Kennedy,

358 F.3d 1295, 1297-99 (11th Cir. 2004). In such cases, courts are

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usually asked to untangle and apply a welter of federal and state

laws to determine who is entitled to the policy proceeds.

This case is different. The parties, by their

acquiescence, cloaked the district court with the same degree of

discretion that the insurer itself would have had in making a

ground-level benefits determination. In effect, they asked the

court to substitute its judgment for that of the insurer. Given

the language of the policy, that amounted to asking the court to

distribute the insurance proceeds on the basis of a discretionary

choice. The question, then, is whether the district court, in

making that choice, reached a permissible result.6

In formulating an answer to this question, we recognize

that the terms of the policy, like any other provisions of an ERISA-

regulated employee benefit plan, must be interpreted under

principles of federal common law. See Pilot Life, 481 U.S. at 56;

Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 135 (1st Cir.

6
Our standard of review is debatable. Under ordinary
circumstances, we review the lower court's interpretation of the
language of an ERISA policy or plan de novo. See, e.g., Kennedy,
358 F.3d at 1299. Here, however, the circumstances are far from
ordinary; given the discretion inherent in the facility of payment
clause, a strong argument can be made that review should be for
abuse of discretion. Cf. Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989) (indicating that a denial of benefits
challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed for
abuse of discretion where the plan gives the administrator
discretionary authority to determine eligibility for benefits).
Since nothing turns on this distinction — we would affirm the
decision below under either standard — we leave this conundrum
unresolved.

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2001). That body of law requires that we accord an ERISA plan's

unambiguous language its plain and ordinary meaning. Balestracci

v. NSTAR Elec. & Gas Corp., 449 F.3d 224, 230 (1st Cir. 2006). So

too must the unambiguous language of an ERISA-regulated life

insurance policy be accorded its plain and ordinary meaning.

Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 489 (1st Cir.

1989).

The district court interpreted what we have called the

facility of payment clause as both "permissive" and "hierarchical."

Forcier, 406 F. Supp. 2d at 146. It said that under the operative

language "the proceeds generally (or ordinarily, or normally) will

be paid to the classes of beneficiary indicated, in the order

indicated, but the insurer need not do so in specific (or

extraordinary, or abnormal) circumstances." Id. The court then

ruled that the brevity of Darren's marriage, its imminent demise,

the spouses' agreement to disentangle their financial affairs, and

the balance of relevant equities warranted a deviation from the

hierarchical order of priority (which would have favored Doris, as

the surviving spouse). Id. at 147-49.

We are hesitant to embrace this view unreservedly. The

facility of payment clause, read as a whole, makes it pellucid that

MetLife contracted for an extremely free hand in deciding to whom,

within the enumerated classes of persons, the policy's proceeds

would be paid in the absence of a designated beneficiary. While the

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clause does contain ordinal numbers, it neither specifies a

preferred order of distribution nor instructs the carrier to exhaust

each successive numbered category before moving on to the next

numbered category. Importantly, the clause also provides that,

should the insurer so elect, it may absolve itself of responsibility

simply by paying the policy proceeds to the decedent's estate. That

right is unconditional; it apparently can be exercised for any

reason or for no reason.

The short of it is that the facility of payment clause

imposes no qualifier on the insurer's discretion; rather, it puts

both the policyholder and the participant on notice that, in the

absence of a beneficiary designation, payment by MetLife to any

member(s) of an enumerated class "will discharge [the company's]

liability for the amount so paid."

This is broad leeway, but not impermissible leeway. The

cases construing ERISA-regulated policies make plain that insurers

can contract for varying degrees of discretion in connection with

the distribution of insurance proceeds. Compare, e.g., Seaman v.

Johnson, 184 F. Supp. 2d 642, 644-45 (E.D. Mich. 2002), with, e.g.,

Nears, 926 F. Supp. at 89. In the case at hand, the insurer

obviously intended to contract for very expansive discretion. As

explained above, the district court succeeded to that discretion.

We find nothing in federal common law or elsewhere to suggest that,

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as MetLife's surrogate, the court was somehow disqualified from

taking full advantage of this discretion.

The breadth of the reserved discretion effectively

resolves this appeal. The district court studied the facts,

carefully balanced the equities, and made a sensible disposition

based on the evidence before it. For instance, the court took

account of the relatively brief duration of the marriage, its

apparently irretrievable breakdown, and the terms of the separation

agreement (which provides, in pertinent part, that with

qualifications not relevant here, each party "waives and releases

any and all [spousal] rights that he or she may now have or

hereafter acquire" to take against each other's wills or to share

in each other's estates). As a matter of discretion, disposition

of the policy proceeds to the decedent's closest blood relatives —

his parents — seems unimpugnable.7

In an effort to blunt the force of this reasoning, Doris

advances six counter-arguments. We find none of them convincing.

First, Doris accuses the district court of going outside

the record in formulating its decision. This accusation cannot

withstand scrutiny. The critical facts upon which the court relied

7
To be sure, in the course of its analysis the district court
erroneously deferred to a "permissive hierarchy" of prospective
beneficiaries. Forcier, 406 F. Supp. 2d at 146. As to Doris,
however, this error was harmless; the permissive hierarchy that the
court employed favored her.

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were either squarely presented or plausibly inferable from the joint

stipulation of facts.

Doris's second argument is equally unavailing. Implying

that Darren's relationship with his parents was strained, Doris

laments that she was harmed by a lack of evidence anent that

relationship. Even if that lamentation is so, the blame for the

dearth of evidence must be laid at her own doorstep. Decisions

about what evidence to offer at trial are entirely within the

parties' control. So too are decisions about whether to stipulate

to facts, and if so, what topics a proposed stipulation should

cover. In the absence of fraud, misrepresentation, manifest

injustice, or other exceptional circumstances — not present here —

a party who agrees to submit a case on a particular set of

stipulated facts cannot later be heard to complain that she

misjudged what evidence might be beneficial to her cause. See Varga

v. Rockwell Int'l Corp., 242 F.3d 693, 699 (6th Cir. 2001); Quest

Med., Inc. v. Apprill, 90 F.3d 1080, 1087 (5th Cir. 1996).

Third, Doris complains that the district court

impermissibly relied on documents created and adjudicated under

state law (and, in the bargain, transgressed ERISA's preemption

principle). This plaint is insubstantial.

We acknowledge that ERISA "includes expansive pre-emption

provisions," and that those provisions were "intended to ensure that

employee benefit plan regulation would be 'exclusively a federal

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concern.'" Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004)

(quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523

(1981)). Here, however, the language of the plan — not state law

— gave the district court broad discretion in the allocation of

benefits. To aid the court in that endeavor, the parties jointly

submitted the facts that they thought might bear on the question.

Their stipulation included documents from the records of the local

probate court. Regardless of the documents' provenance, the

district court's use of them in carrying out the provisions of the

plan did not violate ERISA's preemption rules. See Kennedy, 358

F.3d at 1300.

Fourth, Doris asserts that any payments under the policy

should be made in strict accordance with the requirements of either

the Federal Employees' Group Life Insurance Act, 5 U.S.C. §§ 8701-

8716, or the Servicemembers' Group Life Insurance Act, 38 U.S.C. §§

1965-1980A. That assertion is baseless. ERISA itself does not

contain such an order of payment but, rather, directs that benefits

be paid in accordance with the plan documents. See 29 U.S.C. §

1104(a)(1)(D). Here, as we have explained, the plan documents

provide the decisionmaker with broad discretion to spray the

insurance proceeds among Darren's surviving relatives and/or

estate.

Fifth, Doris maintains that because Lorraine instituted

this action in her representative capacity as administrator of

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Darren's estate, it was improper for the district court to award the

insurance proceeds to non-parties (Darren's parents, individually).

The district court deemed the award of policy proceeds to non-

parties allowable under Federal Rule of Civil Procedure 54(c).8 See

Forcier, 406 F. Supp. 2d at 149. On its face, that decision seems

correct: after all, in this circuit Rule 54(c) "has been liberally

construed, leaving no question that it is the court's duty to grant

whatever relief is appropriate in the case on the facts proved."

United States v. Marin, 651 F.2d 24, 31 (1st Cir. 1981) (citations

and internal quotation marks omitted).

Despite the clear import of this statement, Doris posits

that a federal court may not grant relief to non-parties in

interpleader actions. To support that counter-intuitive

proposition, she notes our observation that "[i]nterpleader actions

are in personam, not in rem, and cannot resolve the rights of non-

parties to anything." Met. Prop. & Cas. Ins. Co. v. Shan Trac,

Inc., 324 F.3d 20, 25 (1st Cir. 2003) (citing N.Y. Life Ins. Co. v.

Dunlevy, 241 U.S. 518, 521 (1916)).

Our pronouncement in Metropolitan Property provides no

succor to Doris. In that case, which involved an interpleader

action following a highway accident, the tortfeasor's liability

8
The rule provides in pertinent part that "every final
judgment shall grant the relief to which the party in whose favor
it is rendered is entitled, even if the party has not demanded such
relief in the party's pleadings." Fed. R. Civ. P. 54(c).

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insurer named sixteen potential claimants and sought to divest

itself of the policy proceeds through a statutory interpleader

action. Id. at 22. Following settlement among the named parties,

the district court issued a judgment providing, in relevant part,

that "[a]ny other persons who have or may have claims against [the

tortfeasor] arising out of the [subject] accident are hereby bound

by the aforementioned split and no other persons may now or forever"

make any claim against the insurer on the policy. Id. at 25.

On appeal, an argument was made that the judgment

arbitrarily "cut off" the rights of non-parties known to be involved

in related state court litigation. Id. Because those non-parties

were neither served in nor notified about the interpleader action,

we vacated the judgment in part. See id. at 25-26. No such notice

concerns are present here. The district court's decree benefitted

non-parties (Darren's parents); it did not involuntarily bind them

to their detriment. The award of the policy proceeds may,

therefore, stand.9

Sixth, and finally, Doris contends that because the

judgment does not profit the estate, Lorraine, qua administrator,

9
To the extent that Doris intends to press her allegation that
Lorraine will violate her fiduciary duty as administrator should
she accept all or some portion of the insurance proceeds, that
issue is not yet ripe and, in all events, is for the probate court,
not this court.

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has no standing to urge its affirmance. This contention is

meritless.

Lorraine was a party to the proceedings below. She was,

therefore, entitled to file a brief on appeal in support of the

district court's judgment. Moreover, even were we to strike

Lorraine's brief, that action would not help Doris; an appellee's

failure to file a brief does not yield an automatic judgment in the

appellant's favor. See Fed. R. App. P. 31(c).

We need go no further. This is a unique case but not an

insoluble one. The parties asked the district court to step into

the insurer's shoes and allocate the benefits under a group life

insurance policy. In the absence of a specific beneficiary

designation, that policy afforded the insurer broad discretion in

making such determinations; and, in the circumstances of this case,

the court succeeded to the insurer's authority. The court's

eventual allocation of the policy proceeds fell well within the

commodious confines of this transferred discretion. Accordingly,

we affirm the judgment below.

Affirmed.

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