CourtListener opinion 10111460

Evidence quotes

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UNITED STATES DISTRICT COURT 
 MIDDLE DISTRICT OF FLORIDA 
 TAMPA DIVISION 

BEN HILL GRIFFIN, INC. 

Plaintiff, 

v. Case No. 8:21-cv-2311-VMC-TGW 

ADAM "AJ" ANDERSON, et al., 

Defendants. 
______________________________/ 

 ORDER 
This matter comes before the Court upon consideration of 
Defendants A.W.A., Adam "AJ" Anderson, Cierra Michelle 
Anderson, Michelle R. Anderson, Candice Nicole Luke, and 
Sheenia Dannett Nealey's Motion for Summary Judgment (Doc. # 
73), filed on May 25, 2022. Defendants Dakota T. Bond, Matthew 
Bond, Ryan E. Bond, E.S.W., and Cheyanne Wilkerson responded 
on June 14, 2022 (Doc. # 78), and Defendants A.W.A., Adam 
"AJ" Anderson, Cierra Michelle Anderson, Michelle R. 
Anderson, Candice Nicole Luke, and Sheenia Dannett Nealey 
replied on June 16, 2022. (Doc. # 80). For the reasons that 
follow, the Motion is granted. 
I. Findings of Fact 
This ERISA case arises out of the tragic deaths of Adam 
and Eva Anderson on July 19, 2021. Adam W. Anderson's 
employer, Ben Hill Griffin, Inc., seeks a declaratory 
judgment as to the distribution of Adam Anderson's deferred 
compensation and retirement plans. 
A. The Parties 
Adam W. Anderson ("Adam Anderson") is a deceased 
individual who died on or about June 19, 2021. (Doc. # 73-1 
at 20). Until his passing, Adam Anderson was an employee with 

Plaintiff Ben Hill Griffin, Inc. (Doc. # 47-8). 
Eva W. Anderson ("Eva Anderson") is a deceased 
individual who died on or about June 19, 2021. (Doc. # 73-1 
at 7–8). On the date of her death, Eva Anderson was married 
to Adam Anderson. (Id.). 
Sheenia Dannett Nealey ("Sheenia Nealey") and Adam "AJ" 
Anderson ("AJ Anderson") are the adult children of Adam 
Anderson from his previous marriage to Michelle R. Anderson 
("Michelle Anderson"). (Doc. # 47 at ¶ 15(a)–(b); Doc. # 55 
at ¶ 15; Doc. # 59 at ¶ 15(a) –(b); Doc. # 60 at ¶ 15(a)–(b); 
Doc. # 61 at ¶ 15(a)–(b); Doc. # 67 at ¶ 15). Cierra Michelle 

Anderson ("Cierra Anderson") is the adult daughter of Sheenia 
Nealey and was legally adopted by Adam and Michelle Anderson. 
(Doc. # 47 at ¶ 15(c)). Candice Nicole Luke ("Candice Luke") 
is alleged to be the adult daughter of Adam Anderson. (Id. at 
¶ 15(d)). A.W.A. is the minor daughter of Adam and Eva 
Anderson. (Id. at ¶ 15(h)). Candice Luke, Sheenia Nealey, 
A.W.A., and AJ, Cierra, and Michelle Anderson will 
hereinafter be referred to as the "Anderson Defendants." 
Cheyanne Wilkerson, Matthew Bond, Ryan E. Bond, and 
Dakota T. Bond are the adult children of Eva Anderson from a 
previous marriage. (Id. at ¶¶ 15(f)–(g), (i)–(j)). E.S.W. is 
the minor daughter of Eva Anderson from a previous marriage. 

(Id. at ¶ 15(k)). Cheyanne Wilkerson, E.S.W., and Matthew, 
Ryan, and Dakota Bond will hereinafter be referred to as the 
"Wilkerson Defendants." 
As mentioned above, Ben Hill Griffin, Inc., the 
Plaintiff in this case, was the employer of Adam Anderson 
until his death on June 19, 2021. (Id. at ¶ 10). Ben Hill 
Griffin, Inc. is the administrator of two of Adam Anderson's 
ERISA covered employee pension benefit plans. (Id. at ¶ 3). 
B. The Deaths of Adam and Eva Anderson 
Adam and Eva Anderson were found dead at their residence 
in Frostproof, FL, on the morning of June 19, 2021. (Doc. # 

73-1 at 7). No one else was present with the couple at the 
time of their deaths. (Id.). The manner of Eva Anderson's 
death was determined to be a homicide, caused by two apparent 
gunshots. (Id. at 4, 18). Eva Anderson's death was determined 
to be "sudden and instantaneous." (Id. at 4). The manner of 
Adam Anderson's death was determined to be suicide, caused by 
one gunshot wound to the side of his head. (Id.). 
Based on the instantaneous nature of Eva Anderson's 
death, the location of Eva and Adam Anderson's respective 
gunshot wounds, the separate locations in the room where both 
of their bodies were found, and the positions of their bodies, 
the medical examiner concluded that Eva Anderson died before 

Adam Anderson. (Id. at 5). Accordingly, Adam Anderson's Death 
Certificate indicated his marital status at the time of death 
as "widowed," while Eva Anderson's indicated she was 
"married." (Id. at 8, 21). 
C. The Deferred Compensation and Retirement Plans 
Until his death, Adam Anderson was a participant in two 
deferred compensation and retirement plans, which are the 
subject of this action: the Ben Hill Griffin, Inc. Employees' 
Profit-Sharing Plan and Trust Agreement (the "Profit-Sharing 
Plan") and the Ben Hill Griffin Inc. Management Security Plan 
(the "MS Plan") (jointly, the "Pension Plans"). (Doc. # 47 at 

¶ 3). 
The Profit-Sharing Plan is a tax qualified retirement 
plan under Internal Revenue Code Sections 401(a) and 501(a) 
et seq. (Doc. # 47-5). The beneficiary designation of Mr. 
Anderson on file with the Plan Administrator lists Eva 
Anderson, wife, as the sole beneficiary of his account 
balance. (Doc. # 47-6 at 2). No contingent or other 
beneficiary is listed or designated. (Id.). 
The MS Plan is a non-qualified plan of deferred 
compensation. (Doc. # 47-8). Article 4 of the MS Plan provides 
a death benefit in the case of death before retirement in an 
amount equal to one-hundred percent of defined "Covered 

Salary" for the first twelve months after death and then fifty 
percent of defined "Covered Salary" for the later of the next 
108 months or whenever the Participant turned 65. (Id. at 6). 
Under the plan, the "Covered Salary" is the "portion of a 
Participant's base annual salary excluding bonuses or other 
fringe benefits, if any, which the Participant chooses as a 
basis for computation of the Retirement or Death Benefit 
pursuant to the terms and conditions of this Plan." (Id. at 
4). Adam Anderson's "Covered Salary" was $2,500 per month. 
(Id. at 14). Adam Anderson was born on April 2, 1966, and was 
55 years old at the time of his death. (Doc. # 47 at ¶ 35). 

On January 3, 2020, Adam Anderson delivered a Change of 
Beneficiary Form for Death Benefit in the MS Plan to Ben Hill 
Griffin. (Doc. # 47-9 at 2). On that form, Adam Anderson 
handwrote that Michelle Anderson was a primary beneficiary, 
to receive $1,026 per month, Eva Anderson was a primary 
beneficiary, to receive $2,724 per month, and that as to Eva 
Anderson's share only, A.W.A. was the secondary beneficiary. 
(Id.). 
D. Adam and Michelle Anderson's Divorce Judgment 
Adam and Michelle Anderson's divorce became final on 
March 13, 2012. (Doc. # 73-4 at 7). The Family Court found 
that Adam Anderson's interest in the Profit-Sharing Plan was 

a vested, marital asset subject to equitable distribution, 
and that Michelle Anderson was entitled to a share of this 
interest in the amount of "Thirty-Five Thousand Five Hundred 
Seventy-Eight and 81/100 Dollars ($35,578.81) plus any 
passive gains or losses having accrued from December 31, 2011, 
until distribution of the Wife's interest." (Id. at 21). 
The Family Court found that Adam Anderson's interest in 
the MS Plan was a vested, marital asset subject to equitable 
distribution, and that Michelle Anderson was entitled to an 
award equal to fifty percent of Adam Anderson's retirement 
benefit payable under the MS Plan as of February 1, 2012. 

(Id.). Adam Anderson was directed to retain Michelle Anderson 
as a beneficiary of his interest to be distributed to her. 
(Id. at 22). However, the Family Court did not make any 
specific finding with respect to Michelle Anderson's interest 
in Adam Anderson's death benefit under the MS Plan. (Id. at 
21–22). 
On or about October 26, 2021, after Eva and Adam 
Anderson's deaths, the Family Court for the Divorce Action 
entered an order entitled "Qualified Domestic Relations 
Order" ("QDRO") with respect to Michelle Anderson's share of 
Adam Anderson's interest in the Profit-Sharing Plan. (Id. at 

37). The purported QDRO directed Plaintiff Ben Hill Griffin 
to divide Adam Anderson's interest in the Profit-Sharing Plan 
into two separate accounts, effective December 31, 2011: one 
account to be allocated and assigned to Defendant Michelle 
Anderson in the amount of $35,578.81, plus any passive gains 
or losses having accrued as of December 31, 2011, until 
distribution, and a second account in the name of Adam 
Anderson where the balance of his interest in the Profit- 
Sharing Plan would remain. (Id. at 38). 
Ben Hill Griffin initiated this action on September 30, 
2021. (Doc. # 1). It filed the operative complaint — the 

Amended Complaint — on December 16, 2021. (Doc. # 47). The 
Amended Complaint contains the following counts: declaratory 
judgment as to the Profit-Sharing Plan (Count I) and 
declaratory judgment as to the MS Plan (Count II). The 
Anderson Defendants now seek the entry of summary judgment on 
both counts. (Doc. # 73). The Wilkerson Defendants have 
responded (Doc. # 78), which the Court construes as a Motion 
to Strike. The Anderson Defendants have replied, which also 
serves as a response to the construed Motion to Strike. (Doc. 
# 80). The Motions are now ripe for review. 
II. Legal Standard 

A. Motion to Strike 
Expert report disclosures are governed by Federal Rule 
of Civil Procedure 26. Rule 26(a)(2) requires a party to 
disclose to the other parties the identity of any expert 
witness it may use at trial to present evidence and, "[e]xcept 
as otherwise stipulated or directed by the court, this 
disclosure shall . . . be accompanied by a written report 
prepared and signed by the witness." Fed. R. Civ. P. 26(a)(2). 
The expert's written report must contain: 
 a complete statement of all opinions the 
 witness will express and the basis and reasons 
 for them; (ii) the facts or data considered by 
 the witness in forming them; (iii) any 
 exhibits that will be used to summarize or 
 support them; (iv) the witness's 
 qualifications, including a list of all 
 publications authored in the previous 10 
 years; (v) a list of all other cases in which, 
 during the previous 4 years, the witness 
 testified as an expert at trial or by 
 deposition; and (vi) a statement of the 
 compensation to be paid for the study and 
 testimony in the case. 
Fed. R. Civ. P. 26(a)(2)(B). While Rule 26(a)(2)(B) "does not 
require that a report recite each minute fact or piece of 
scientific information that might be elicited on direct 
examination" it must be "detailed enough to provide the 
opposing party an opportunity to adequately cross examine the 
expert[.]" Kleiman v. Wright, No. 18-CV-80176, 2020 WL 
6729362, at *5 (S.D. Fla. Nov. 16, 2020). 

B. Summary Judgment 
Summary judgment is appropriate "if the movant shows 
that there is no genuine dispute as to any material fact and 
the movant is entitled to judgment as a matter of law." Fed. 
R. Civ. P. 56(a). A factual dispute alone is not enough to 
defeat a properly pled motion for summary judgment; only the 
existence of a genuine issue of material fact will preclude 
a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 247–48 (1986). 
An issue is genuine if the evidence is such that a 
reasonable jury could return a verdict for the non-moving 

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g 
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if 
it may affect the outcome of the suit under the governing 
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 
1997). The moving party bears the initial burden of showing 
the court, by reference to materials on file, that there are 
no genuine issues of material fact that should be decided at 
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 
(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 
317, 323 (1986)). "When a moving party has discharged its 
burden, the non-moving party must then ‘go beyond the 

pleadings,' and by its own affidavits, or by ‘depositions, 
answers to interrogatories, and admissions on file,' 
designate specific facts showing that there is a genuine issue 
for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 
593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324). 
If there is a conflict between the parties' allegations 
or evidence, the non-moving party's evidence is presumed to 
be true and all reasonable inferences must be drawn in the 
non-moving party's favor. Shotz v. City of Plantation, 344 
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder 
evaluating the evidence could draw more than one inference 

from the facts, and if that inference introduces a genuine 
issue of material fact, the court should not grant summary 
judgment. Samples ex rel. Samples v. City of Atlanta, 846 
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant's 
response consists of nothing "more than a repetition of his 
conclusional allegations," summary judgment is not only 
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 
(11th Cir. 1981). 
III. Conclusions of Law 
A. Construed Motion to Strike 
In their response to the Anderson Defendants' Motion for 
Summary Judgment (Doc. # 73), the Wilkerson Defendants' only 

argument is that the Motion relies on an affidavit from the 
medical examiner that was not submitted prior to the filing 
of the Motion. (Doc. # 78 at 4). The Wilkerson Defendants 
argue that the Anderson Defendants failed to disclose the 
affidavit of Dr. Vera V. Volnikh prior to the May 2, 2022, 
deadline to disclose expert reports and so the Court should 
not rely on the affidavit for summary judgment purposes. 
(Id.). The Court thus construes the Wilkerson Defendants' 
response as a Motion to Strike the affidavit of Dr. Vera V. 
Volnikh and will address it accordingly. 
"When a treating physician testifies regarding opinions 

formed and based upon observations made during the course of 
treatment, the treating physician need not produce a Rule 
26(a)(2)(B) report." In re Denture Cream Products Liability 
Litig., No. 09-2051-MD, 2012 WL 5199597, at *4 (S.D. Fla. 
Oct. 22, 2012) (internal citation and quotations omitted). An 
expert report is required only when a treating physician 
offers "opinions beyond those arising from treatment." Id. 
Typically, treating physicians are only required to satisfy 
the lower standard of Rule 26(a)(2)(C). See Bostick v. State 
Farm Mut. Auto. Ins. Co., No. 8:16-cv-1400-VMC-AAS, 2017 WL 
2869967, at *2 (M.D. Fla. July 5, 2017) ("Under the plain 
language of Rule 26(a)(2)(B), Bostick's treating physicians 

were not required to provide written reports because they 
were not retained or specially employed to provide expert 
testimony."); Kondragunta v. Ace Doran Hauling & Rigging Co., 
No. 1:11-cv-1094-JEC 2013 WL 1189483, at *12 (N.D. Ga. Mar. 
12, 2013) ("Accordingly, if a physician's opinion regarding 
causation or any other matter was formed and based on 
observations made during the course of treatment, then no 
[Rule 26(a)(2)(B)] report is required, albeit the [Rule 
26(a)(2)(C)] report discussed above will be required." 
(internal citations omitted)). 
Pursuant to Rule 26(a)(2)(C), a party must submit an 

expert disclosure for any expert witness not required to 
submit an expert report. That expert disclosure must state 
"the subject matter on which the witness is expected to 
present evidence under Federal Rule of Evidence 702, 703, 
or 705" and "a summary of the facts and opinions to which the 
witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C). 
Rule 37(c), Fed. R. Civ. P., provides that "if a party 
fails to provide information or identify a witness as required 
by Rule 26(a) or (e), the party is not allowed to use that 
information or witness to supply evidence on a motion, at a 
hearing, or at a trial, unless the failure was substantially 

justified or is harmless." As explained in Mitchell v. Ford 
Motor Company, 318 F. App'x 821, 824 (11th Cir. 2009), "[t]he 
burden of establishing that a failure to disclose was 
substantially justified or harmless rests on the 
nondisclosing party." Furthermore, "in determining whether 
the failure to disclose was justified or harmless, [the Court] 
consider[s] the non-disclosing party's explanation for its 
failure to disclose, the importance of the information, and 
any prejudice to the opposing party if the information had 
been admitted." Lips v. City of Hollywood, 350 F. App'x 328, 
340 (11th Cir. 2009). 

Here, while the Anderson Defendants are correct that Dr. 
Volnikh is not an expert retained for litigation and so is 
not required to provide a Rule 26(a)(2)(B) report, the 
Anderson Defendants were still required to provide 
disclosures in accordance with Rule 26(a)(2)(C). The 
affidavit at issue is from Dr. Vera V. Volnikh, an Associate 
Medical Examiner with the Medical Examiner's Office for Polk, 
Hardee, and Highlands Counties. (Volnikh Aff. Doc. # 73-1 at 
¶ 1). In her affidavit, Dr. Volnikh asserts that she was 
responsible for determining the cause of deaths for Adam and 
Eva Anderson. (Id. at ¶ 9). Dr. Volnikh conducted the 
autopsies of Adam and Eva Anderson and prepared the autopsy 

reports, wherein she determined the cause of each of their 
deaths. (Doc. # 73-1 at 9–13, 22–27). Therefore, Dr. Volnikh 
was not retained for litigation such that a written report is 
required under Rule 26(a)(2)(B). See Cruz v. United States, 
No. 12-21518-CV, 2013 WL 246763, at *5 (S.D. Fla. Jan. 22, 
2013) ("‘A treating physician is not required to provide an 
expert report [under Rule 26(a)(2)(B)] in order to testify as 
an expert' if he or she is not a retained expert[.]" (internal 
quotations omitted)). 
However, courts have found witnesses subject to the 
disclosure requirements of Rule 26(a)(2)(C) where they form 

opinions based on the personal knowledge gained during 
treatment. See Torres v. Wal-Mart Stores East, L.P., 555 F. 
Supp. 3d 1276, 1297 (S.D. Fla. 2021); Goins v. Royal Caribbean 
Cruise, Ltd., 16-21368-CIV-WILLIAMS/SIMONTON, 2017 WL 5749778 
(S.D. Fla. May 17, 2017) (finding a treating physician who 
testified as to his medical opinion to be subject only to 
Rule 26(a)(2)(C), not Rule 26(a)(2)(B)); see also O'Brien v. 
NCL (Bahamas) Ltd., No. 16-23284-CIV, 2017 WL 8315925, at *2 
(S.D. Fla. Aug. 25, 2017) ("[A] 2010 amendment to the Federal 
Rules established a separate reporting classification 
in Rule 26(a)(2)(C) for witnesses who will testify as fact 
witnesses as well as offer expert opinions, a category into 

which treating physician experts often fall."). Here, Dr. 
Volnikh's affidavit is not strictly limited to her factual 
observations gleaned during the autopsy. Rather, she is 
applying her specialized knowledge to her personal 
observations to opine on the order of Eva and Adam Anderson's 
deaths. See Kimbrough v. Weidner, No. 1:17-cv-774-TWT, 2018 
WL 2575061, at *3 (N.D. Ga. July 24, 2018) ("Here, [the 
treating physician] is "more akin to a ‘percipient witness' 
under Rule 26(a)(2)(C) . . . because he has firsthand 
knowledge of the facts of the case," and because his opinions 
are "based on observations made during the course of treatment 

. . . ." (citing Kondragunta, 2013 WL 1189493, at *12)). Thus, 
her affidavit more closely resembles testimony from a hybrid 
witness. See Architects Collective v. Pucciano & English, 
Inc., 247 F. Supp. 3d 1322, 1333 (N.D. Ga. 2017) (finding a 
witness subject to the disclosure requirements of Rule 
26(a)(2)(C) where his testimony was based on "particularized 
knowledge garnered from his years of experience as an 
architect designing his own architectural plans."). The 
Anderson Defendants were therefore required to identify Dr. 
Volnikh and identify the subject matter of her testimony and 
provide a summary of the facts and opinions on which she was 
expected to testify as part of their Rule 26 disclosures. 

The Anderson Defendants do not argue that they complied 
with Rule 26(a)(2)(C). Although they note that the Wilkerson 
Defendants' counsel received the medical records that are the 
subject of the present motion, this alone is insufficient to 
satisfy even the more relaxed disclosure requirements of Rule 
26(a)(2)(C). See Sweat v. United States, No. 14-cv-888-EAK- 
JSS, 2015 WL 8270434, at *2 (M.D. Fla. Dec. 8, 2015) ("To 
satisfy the Rule 26(a)(2)(C) disclosure obligation, the 
expert witness should do more than merely produce records."); 
Jones v. Royal Caribbean Cruises, Ltd., No. 12-20322-CIV, 
2013 WL 8695361, at *4 (S.D. Fla. Apr. 4, 2013) (finding that 

the plaintiff's production of his medical records did not 
mean that the plaintiff complied with Rule 26(a)(2)(C)). 
Thus, the affidavit of Dr. Volnikh is only admissible if the 
failure to comply with the Rule 26 disclosures was 
substantially justified or harmless. 
The Anderson Defendants' failure to comply with Rule 26 
was substantially justified by their belief that Dr. Volnikh 
was a fact witness. "Substantial justification requires 
justification to a degree that could satisfy a reasonable 
person that parties could differ as to whether the party was 
required to comply with the disclosure request. The 
proponent's position must have a reasonable basis in law and 

fact." In re Denture Cream, 2012 WL 5199597, at *5 (internal 
quotations omitted). Here, the Anderson Defendants did not 
provide information on Dr. Volnikh's report as part of their 
Rule 26 disclosures because of their belief that she is purely 
a fact witness. (Doc. # 80 at 7–9). Their failure to comply 
with Rule 26 was based on their erroneous — but reasonable — 
understanding that disclosure was not necessary. Indeed, 
classifying a treating physician as either a fact or expert 
witness is not always a straightforward task. See Ables- 
Thomas v. MV Contract Transp., Inc., No. 1:18-cv-3252-SDG, 
2020 WL 10485727, at *2 (N.D. Ga. Dec. 21, 2020) ("The 

distinction between a "treating physician as a fact versus 
an expert witness depends on the nature of the testimony the 
witness intends to offer."); Williams v. Mast Biosurgery USA, 
Inc., 644 F.3d 1312, 1316 (11th Cir. 2011) ("The testimony 
of treating physicians presents special evidentiary problems 
that require great care and circumspection by the trial 
court."). While the Court ultimately concludes that the 
nature of Dr. Volnikh's testimony renders her a hybrid 
witness, the Anderson Defendants' belief that she was a fact 
witness is justified. Dr. Volnikh's affidavit and conclusion 
regarding the order of death is based on the autopsy that she 
personally conducted. (Volnikh Aff. Doc. # 73-1 at ¶¶ 9–12). 

It was not unreasonable for the Anderson Defendants to 
consider this testimony to be "limited to [Dr. Volnikh's] 
observations based on personal knowledge." Cooper v. Marten 
Transport, Ltd., No. 1:10-cv-3044-AT, 2014 WL 11517830 at *2 
(N.D. Ga. May 23, 2014) (internal citations omitted). 
Further, the Court finds that the insufficient Rule 26 
disclosure is harmless. Whether Eva Anderson predeceased Adam 
Anderson has always been a potential issue in this litigation. 
(Doc. # 47 at ¶¶ 23–24). While it is true that "[a]llowing 
medical records to be submitted ‘in lieu of a summary would 
invite a party to dump voluminous medical records on the 

opposing party, contrary to the rule's attempt to extract a 
‘summary,''" the subject of Dr. Volnikh's testimony should 
have been readily apparent to the Wilkerson Defendants. 
Jones, 2013 WL 8695361, at *4 (citing Kondragunta v. Ace Doran 
Hauling & Rigging Co., 2013 WL 1189493, No. 1:11–cv–01094– 
JEC, at *6 (N.D. Ga. Mar. 21, 2013). Likewise, the Anderson 
Defendants filed their motion for summary judgment — and the 
affidavit of Dr. Volnikh — on May 25, 2022, three weeks before 
the conclusion of discovery. (Doc. # 73; Doc. # 51 at 1). The 
Wilkerson Defendants could have moved to extend the discovery 
period in order to take Dr. Volnikh's deposition, but chose 
not to do so. See Wademan v. United States, No. 16-cv-10002- 

KING/TORRES, 2017 WL 7794322, at *3 (S.D. Fla. May 17, 2017) 
(finding failure to disclose pursuant to Rule 26 harmless 
where a late supplemental disclosure occurred prior to the 
discovery deadline); see Beasley v. Bank, No. 6:20-cv-883- 
WWB-EJK, 2021 WL 9204484, at *3 (M.D. Fla. Dec. 23, 2021) 
(finding a belated disclosure harmless where it occurred 
before the expiration of the discovery deadline). Therefore, 
because the Wilkerson Defendants had the opportunity to 
alleviate any potential harm by deposing Dr. Volnikh, the 
Court finds the insufficient disclosure harmless. 
The Wilkerson Defendants' construed motion to strike is 

denied. 
B. Summary Judgment 
The Anderson Defendants seek summary judgment on both 
counts of the Amended Complaint. (Doc. # 73). The Wilkerson 
Defendants have asserted two affirmative defenses. (Doc. # 55 
at 6). Because the Wilkerson Defendants' affirmative defenses 
may affect whether summary judgment is proper, the Court will 
address the affirmative defenses first. 
 1. The Wilkerson Defendants' Affirmative 
 Defenses 
The Wilkerson Defendants raise two affirmative defenses. 
First, the Wilkerson Defendants assert that Ben Hill 
Griffin's complaint fails to state any claim on which relief 
may be granted. (Doc. # 55 at 6). Second, the Wilkerson 
Defendants assert that the complaint is not ripe for 
adjudication. (Id.). 
While "[e]ntry of a summary judgment is improper when 
there is no evidence contradicting or opposing an affirmative 
defense," Acciard v. Whitney, No. 2:07-cv-476-KMM-DF, 2011 WL 
4552564, at *5 (M.D. Fla. Sept. 30, 2011), a party cannot 

evade the entry of summary judgment by labeling what is 
otherwise a denial of an element of the plaintiff's prima 
facie case as an affirmative defense. See In re Rawson Food 
Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) ("A 
defense which points out a defect in the plaintiff's prima 
facie case is not an affirmative defense."). 
The Wilkerson Defendants' First Affirmative Defense, 
which alleges the complaint fails to state any claim on which 
relief may be granted, does not prevent the entry of summary 
judgment. "[T]he failure to state a claim is not an 
affirmative defense[.]" Philpot v. MyArea Network, Inc., No. 
8:20-cv-1239-VMC-TGW, 2021 WL 2649236, at *13 (M.D. Fla. June 
28, 2021); see In re Rawson, 846 F.2d at 1350 n.9 (noting 
that failure to state a claim is not an affirmative defense 
but rather a general denial). Rather, the Court may just treat 

this as a denial by the Wilkerson Defendants that Ben Hill 
Griffin is able to prevail on its claims. See Home Mgmt. 
Sols., Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 
2412834, at *3 (S.D. Fla. Aug. 21, 2007) (explaining in the 
context of a motion to strike affirmative defenses that, when 
a defendant labels a negative averment as an affirmative 
defense, "the proper remedy is not [to] strike the claim, but 
rather to treat is as a specific denial"). Thus, the Wilkerson 
Defendants' First Affirmative Defense does not impact the 
Anderson Defendants' Motion for Summary Judgment. 
The Court will, however, evaluate ripeness as an 

affirmative defense. See Penn-America Ins. Co. v. Pavillion 
Foods, Inc., No. 18-62656-CIV-MARRA, 2019 WL 2105880, at *2 
(S.D. Fla. Mar. 20, 2019) ("[R]ipeness is an appropriate 
ground for an affirmative defense."); Advocate Commc'ns, Inc. 
v. Town Found., Inc., No. 04-61408-CIV, 2005 WL 8155323, at 
*2 (S.D. Fla. Aug. 10, 2005) (declining to strike ripeness as 
an affirmative defense). 
As an initial matter, the Wilkerson Defendants do not 
provide any argument for why the complaint is not ripe. But 
because a determination of ripeness bears on the Court's 
jurisdiction over the case, the Court will nevertheless 
address the issue. See Digit. Props., Inc. v. City of 

Plantation, 121 F.3d 586, 589 (11th Cir. 1997) ("Article III 
of the United States Constitution limits the jurisdiction of 
the federal courts to cases and controversies of sufficient 
concreteness to evidence a ripeness for review."). 
"The doctrine of ripeness, which originates from the 
Constitution's Article III requirement that courts only hear 
actual cases and controversies, presents a ‘threshold 
jurisdictional question of whether a court may consider the 
merits of a dispute.'" Valley Creek Land & Timber, LLC v. 
Colonial Pipeline Co., 432 F. Supp. 3d 1360, 1363 (N.D. Ala. 
2020) (quoting Elend v. Basham, 471 F.3d 1199, 1204–05 (11th 

Cir. 2006)). "In addition to jurisdictional 
considerations, ripeness also involves judicial prudence; 
even when the case meets the constitutional minimum for 
jurisdiction, ‘prudential considerations may still counsel 
judicial restraint.'" Id. (quoting Digit. Props., Inc., 121 
F.3d at 589). Courts "assess ripeness on a claim-by-claim 
basis." Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 
1370, 1380 (11th Cir. 2019). 
Ripeness is "designed to prevent the courts, through 
avoidance of premature adjudication, from entangling 
themselves in abstract disagreements." Wollschlaeger v. 
Governor, Fla., 848 F.3d 1293, 1304 (11th Cir. 2017) (citation 

and internal quotation marks omitted). "The ripeness doctrine 
protects federal courts from engaging in speculation or 
wasting their resources through the review of merely 
potential or abstract disputes." Valley Creek Land & Timber, 
LLC, 432 F. Supp. 3d at 1365. Thus, "[a] claim is not ripe 
for adjudication if it rests upon contingent future events 
that may not occur as anticipated, or indeed may not occur at 
all." Texas v. United States, 523 U.S. 296, 300 (1998) 
(citation and internal quotation marks omitted). 
"In assessing whether a dispute is concrete enough to be 
ripe, [courts] evaluate (1) the fitness of the issues for 

judicial decision and (2) the hardship to the parties of 
withholding court consideration." Wollschlaeger, 848 F.3d at 
1304 (citation and internal quotation marks omitted). 
"Concerning fitness for judicial decision, [courts] ask 
whether the parties raise an issue that [courts] can decide 
without further factual development and whether the 
institutional interests of the court and agency favor 
immediate review." Club Madonna, Inc., 924 F.3d at 1380. "As 
for hardship, litigants must show that they are forced to 
choose between foregoing lawful activity and risking 
substantial legal sanctions." Id. (citation and internal 
quotation marks omitted). A declaratory judgment action does 

not violate the ripeness requirement where "there is such a 
concrete case admitting of an immediate and definitive 
determination of the legal rights of the parties in an 
adversary proceeding upon the facts alleged." Aetna Life Ins. 
Co. v. Haworth, 300 U.S. 227 (1937). 
Here, there are sufficient facts on which the Court can 
base its decision without engaging in speculation. Ben Hill 
Griffin's complaint raises the issue of the distribution of 
benefits to be paid out to Adam Anderson's beneficiaries upon 
his death. (Doc. # 47). Although the circumstances of Adam 
and Eva Anderson's deaths have raised issues with respect to 

Adam Anderson's Pension Plans, the parties have adduced facts 
on which the Court can base its decision. Importantly, the 
dispute is not hypothetical — Ben Hill Griffin has identified 
a present need to identify the correct beneficiaries of the 
Pension Plans and has raised legitimate legal questions that 
require resolution. As will be detailed in the sections that 
follow, a present controversy exists as to the distribution 
of benefits under the Pension Plans. See Chambless v. Masters, 
Mates, & Pilots Pension Plan, 571 F. Supp. 1430, 1437–38 
(S.D.N.Y. 1983) (finding an action seeking a declaration or 
clarification of rights under an ERISA plan ripe for review); 
Janowski v. Int'l Brotherhood of Teamsters, 673 F.2d 931, 935 

(7th Cir. 1982) (explaining an action that "seeks a 
determination of the nature and scope of Plan participants' 
rights to future benefits" is ripe because such an action "is 
precisely the type . . . contemplated by the statute." 
(emphasis added)), vacated on other grounds and remanded for 
reconsideration of attorneys' fees, 463 U.S. 1222 (1983). 
Thus, the Court finds this case is ripe for judicial 
resolution. The Wilkerson Defendants' Second Affirmative 
Defense does not prevent the entry of summary judgment. 
 2. The Profit-Sharing Plan (Count I) 
The Profit-Sharing Plan states, in relevant part: 

 In the event no valid designation of 
 Beneficiary exists with respect to all or a 
 portion of the death benefit, or if the 
 Beneficiary of such death benefit is not alive 
 at the time of the Participant's death and no 
 contingent Beneficiary has been designated, 
 then to the extent that such death benefit is 
 not automatically payable to the surviving 
 Spouse in accordance with the other provisions 
 of this Section, such death benefit will be 
 paid in the following order of priority to: 
 (1) the Participant's surviving Spouse; 
 (2) the Participant's issue, including 
 adopted children, per stirpes; 
 (3) the Participant's surviving parents, in 
 equal shares; or 
 (4) the Participant's estate. 
(Doc. # 47-5 at 35–36). 
The Plan also contains a provision in the event of 
simultaneous death: 
 If a Participant and his or her Beneficiary 
 should die simultaneously, or under 
 circumstances that render it difficult or 
 impossible to determine who predeceased the 
 other, then unless the Participant's 
 Beneficiary designation otherwise specifies, 
 the Administrator will presume conclusively 
 that the Beneficiary predeceased the 
 Participant. 

(Id. at 42). Under the operative Profit-Sharing Plan 
Beneficiary Designation Form, Adam Anderson designated Eva 
Anderson as his sole beneficiary. (Doc. # 47-6 at 2). 
The threshold issue for the Court with respect to the 
Profit-Sharing Plan is thus whether the designation listing 
Eva Anderson as the sole beneficiary controls. The Court finds 
that it does not. The language of the Profit-Sharing Plan 
requires the named beneficiary to be alive at the time of the 
participant's death. (Doc. # 47-5 at 41). According to Dr. 
Volnikh, Eva Anderson predeceased Adam Anderson. (Volnikh 
Aff. Doc. # 73-1 at ¶ 12). Indeed, Eva Anderson's death 
certificate lists her marital status as "married," while Adam 
Anderson's lists his as "widowed." (Doc. # 73-1 at 8; 21). 
Therefore, at the time of Adam Anderson's death, he neither 
had a named beneficiary nor a "surviving spouse." (Doc. # 47- 
5 at 41). However, even if the Court did not consider the 
affidavit of Dr. Volnikh, the simultaneous death provision of 

the Profit-Sharing Plan necessitates a conclusive presumption 
that Eva Anderson predeceased Adam Anderson. (Doc. # 47-5 at 
41). The Court thus finds as a matter of law that Eva Anderson 
predeceased Adam Anderson. Accordingly, under the terms of 
the Profit-Sharing Plan, the death benefit under the Plan is 
to be paid to "the Participant's issue, including adopted 
children, per stirpes[.]" 
Given that the benefits payable under the Profit-Sharing 
Plan are to be distributed to Adam Anderson's issue, Ben Hill 
Griffin seeks a declaration as to three issues with respect 
to the Profit-Sharing Plan: the effect of Adam and Michelle 

Anderson's QDRO, whether Eva Anderson's children are entitled 
to a portion of the death benefit, and whether Candice Luke 
is to be included as one of Adam Anderson's beneficiaries. 
(Doc. # 47 at ¶ 53). The Court will address each of these 
issues in turn. 
 i. Effect of Adam and Michelle Anderson's 
 Family Court Judgment 
In its complaint, Ben Hill Griffin asked whether Adam 
Anderson's death benefit payable under the Profit-Sharing 
Plan should be set aside for the benefit of Michelle Anderson. 
(Doc. # 47 at ¶ 53(c)). As an initial matter, at the summary 
judgment stage, none of the Defendants explicitly contest Ms. 
Anderson's entitlement to benefits pursuant to the QDRO. 
(Doc. # 73 at 9; Doc. # 78). 
In general, ERISA plan administrators must discharge 
their duties "in accordance with the documents and 
instruments governing the plan[.]" 29 U.S.C. § 1104(a)(1)(D). 
ERISA contains an anti-alienation and anti-assignment 
provision that requires covered pension plans to require that 
benefits may not be assigned or alienated. 29 U.S.C. § 

1056(d)(1). "These statutes limit the effect of agreements 
outside the plan that purport to direct benefits to someone 
other than the listed beneficiary." Hallman v. Hallman, No. 
5:12-cv-4-MTT, 2013 WL 820377, at *2 (M.D. Ga. Mar. 5, 2013); 
see Kennedy v. Plan Adm'r for Dupont Sav. and Inv. Plan, 555 
U.S. 285, 300 (2009) (holding that an ERISA claim "stands or 
falls by ‘the terms of the plan'"); Riordan v. Commonwealth 
Edison Co., 128 F.3d 549, 553 (7th Cir. 1997) (ERISA 
generally requires the plan fiduciary to pay benefits to the 
beneficiary properly designated under the plan's terms). 
However, the anti-alienation and anti-assignment 
provision does not apply to qualified domestic relations 
orders. 29 U.S.C. § 1056(d)(3)(A). ERISA defines a QDRO as a 
domestic relations order: 
 (I) which creates or recognizes the existence 
 of an alternate payee's right to, or assigns 
 to an alternate payee the right to, receive 
 all or a portion of the benefits payable with 
 respect to a participant under a plan, and 
 (II) with respect to which the requirements of 
 subparagraphs (C) and (D) are met[.] 

29 U.S.C. § 1056(d)(3)(B)(i). Under Section 1056(d)(3)(C), a 
domestic order is a QDRO: 
 only if [it] clearly specifies — (i) the name 
 and the last known mailing address (if any) of 
 the participant and the name and mailing 
 address of each alternate payee covered by the 
 order, (ii) the amount or percentage of the 
 participant's benefits to be paid by the plan 
 to each such alternate payee, or the manner in 
 which such amount or percentage is to be 
 determined, (iii) the number of payments or 
 period to which such order applies, and (iv) 
 each plan to which such order applies. 

29 U.S.C. § 1056(d)(3)(C). Under Section 1056(d)(3)(D), a 
domestic order is a QDRO: 
 only if such order — (i) does not require 
 a plan to provide any type or form of benefit, 
 or any option, not otherwise provided under 
 the plan, (ii) does not require the plan to 
 provide increased benefits (determined on the 
 basis of actuarial value), and (iii) does not 
 require the payment of benefits to 
 an alternate payee which are required to be 
 paid to another alternate payee under another 
 order previously determined to be a qualified 
 domestic relations order. 

29 U.S.C. § 1056(d)(3)(D). 
Here, on October 26, 2021, the Family Court for the 
Divorce Action entered an order entitled "Qualified Domestic 
Relations Order" detailing Michelle Anderson's share of Adam 
Anderson's interest in the Profit-Sharing Plan. (Doc. # 73-4 
at 37–41). The Family Court's order directed Ben Hill Griffin 
to divide Adam Anderson's interest in the Profit-Sharing Plan 
into two separate accounts, effective December 31, 2011: (a) 
one account to be allocated and assigned to Defendant Michelle 
R. Anderson in the amount of Thirty-Five Thousand, Five 
Hundred Seventy-Eight and 81/100 Dollars ($35,578.81) — plus 
any passive gains or losses having accrued as of the Split 
Date until distribution; and (b) a second account in the name 
of Adam W. Anderson where the balance of his interest in the 
Profit-Sharing Plan would remain. (Id. at 38). 
The Family Court's order complies with the requirements 
for a QDRO. The order specifies the name and address of 
alternate payee, who is Michelle Anderson. (Id. at 41). The 
order states that the amount of Adam Anderson's benefits to 
be paid to Michelle Anderson is $35,578.81, plus any passive 
gains or losses having accrued as of the split date until 
distribution. (Id. at 38). The order defines the split date 
as December 31, 2011, indicating the period to which the order 
applies. (Id.). And the order states that it is applicable to 
the Profit-Sharing Plan. (Id. at 37). Further, the Family 
Court's order does not require the Profit-Sharing Plan to 

provide any type or form of benefit not otherwise provided by 
the plan, nor does it require the plan to provide increased 
benefits. (Id. at 37–41). Nor have any of the parties provided 
evidence that another order previously determined to be a 
QDRO governs the payment of benefits at issue. 
Further, the fact that Adam Anderson died before the 
entry of the QDRO does not affect Michelle Anderson's interest 
in the Profit-Sharing Plan. Under 29 C.F.R. § 2530.206, "a 
domestic relations order shall not fail to be treated as a 
qualified domestic relations order solely because of the time 
at which it is issued." 29 C.F.R. § 2530.206; see Patton v. 

Denver Post Corp., 326 F.3d 1148, 1150 (10th Cir. 2003) 
(finding that a putative alternate payee could seek a 
declaration that a domestic relations order was a QDRO even 
after the death of the plan participant); Hogan v. Raytheon, 
Co., 302 F.2d 854, 857 (8th Cir. 200) (stating that a domestic 
relations order can be qualified posthumously). 
The Court therefore finds that the Family Court's order 
qualifies as a QDRO. Thus, the QDRO governs Michelle 
Anderson's entitlement to benefits under the Profit-Sharing 
Plan. To the extent the QDRO designates Michelle Anderson as 
an alternate payee, Ben Hill Griffin is directed to distribute 

the proceeds of the Profit-Sharing Plan pursuant to the QDRO 
entered on October 21, 2021. 
 ii. Applicability of a Slayer Statute 
In its complaint, Ben Hill Griffin inquired whether the 
death benefit under the Profit-Sharing Plan should be paid 
only to Adam Anderson's children, not his wife's children, 
despite the fact that he allegedly murdered Eva Anderson. 
(Doc. # 47 at ¶ 53(a)). 
Although the Wilkerson Defendants do not argue that 
Florida's "Slayer Statute" applies to the case at bar, the 
Anderson Defendants preemptively argue against its 

applicability. Because the Court has an "independent 
obligation to determine whether a party is entitled to summary 
judgment," it will briefly address the Anderson Defendants' 
argument. Traveler's Prop. Cas. Co. of America v. Moore, No. 
1:11-cv-236-AT, 2012 WL 12871630, at *3 (N.D. Ga. July 6, 
2012). 
Present-day slayer statutes arise from the common-law 
principle that "prevented a person who wrongfully killed 
another from sharing in any property from the victim's 
estate." Caterpillar Inc. v. Estate of Lacefield-Cole, 520 F. 
Supp. 2d 989, 996 (N.D. Ill. 2007). 

While there is no federal slayer statute, federal common 
law embraces the equitable principle underlying such 
statutes. See Mut. Life. Ins. Co. v. Armstrong, 117 U.S. 591, 
600 (1886) ("It would be a reproach to the jurisprudence of 
the country if one could recover insurance money payable on 
the death of the party whose life he had feloniously taken."). 
The relevant Florida statute provides "A surviving person who 
unlawfully and intentionally kills or participates in 
procuring the death of the decedent is not entitled to any 
benefits under the will or under the Florida Probate Code, 
and the estate of the decedent passes as if the killer had 

predeceased the decedent." Fla. Stat. § 732.802(1). 
Regardless of whether federal or state law governs here, 
the Court agrees with the Anderson Defendants that a slayer 
statute is inapplicable. See Honeywell Sav. and Ownership 
Plan v. Jicha, No. 8-4265 (DRD), 2010 WL 276237 (D. N.J. Jan. 
15, 2010) (noting several district courts have reasoned that 
ERISA likely does not preempt state slayer statutes but that 
"it is unnecessary to determine the preemption issue since 
federal common law provides the same result as a slayer 
statute"). Florida courts have declined to extend the Florida 
slayer statute to bar relatives of a murderer from inheriting 
under a decedent's will. See Fiel v. Hoffman, 169 So. 3d 1274, 

1280 (Fla. 4th DCA 2015); Chatman v. Currie, 606 So. 2d 454, 
456 (Fla. 1st DCA 1992) ("We hold as a matter of law that 
section 732.802 does not apply to an innocent contingent 
beneficiary's entitlement to life insurance benefits 
resulting from the killing of the primary beneficiary by the 
insured who then commits suicide."). A federal court has 
specifically found in the ERISA context that the Illinois 
slayer statute does not apply in an action to determine the 
proper distribution of benefits under an employee retirement 
savings plan after the employee murdered his wife and 
thereafter committed suicide. Caterpillar Inc., 520 F. Supp. 

2d at 992. 
This result comports with the purpose of slayer 
statutes, which is to ensure that a murderer does not stand 
to benefit from his or her own illegal conduct. Gardner v. 
Nationwide Life Ins. Co., 206 S.E.2d 818, 821 (N.C. Ct. App. 
1974); see Chatman, 606 So. 2d at 456 ("[T]he general rule 
that a person cannot be permitted to profit from a wrongful 
act is inapplicable where the wrongdoer stands to gain nothing 
by his act, as where he kills himself soon after committing 
the wrongful act"). Here, the beneficiaries of Adam 
Anderson's Profit-Sharing Plan have engaged in no wrongful 
conduct. Adam Anderson himself will not gain anything from 

Eva Anderson predeceasing him, because he died shortly 
thereafter. Therefore, the Court agrees with the Anderson 
Defendants' determination that Florida's slayer statute does 
not apply to them. 
 iii. Inclusion of Candice N. Luke 
In its complaint, Ben Hill Griffin inquired whether 
Candice Luke should be included as one of Adam Anderson's 
biological children and beneficiaries. (Doc. # 47 at 
¶ 53(b)). 
"The award of benefits under any ERISA plan is governed 
in the first instance by the language of the plan itself." 

Liberty Life Assur. Co. of Bos. v. Kennedy, 358 F.3d 1295, 
1302 (11th Cir. 2004). Here, the Profit-Sharing Plan dictates 
that in the event there exists no valid beneficiary or 
surviving spouse, the death benefit will be paid to the 
Participant's issue, including adopted children. Construing 
the Profit-Sharing Plan in accordance with its terms' "plain 
and ordinary meaning," the Court finds that the death benefit 
ought to be distributed to Adam Anderson's children, both 
adopted and biological. See Alexandra H. v. Oxford Health 
Ins. Inc. Freedom Access Plan, 833 F.3d 1299, 1307 (11th Cir. 
2016) (discussing the application of contract interpretation 
principles to ERISA plans). Thus, the issue before the Court 

is whether Candice Luke qualifies as "issue" of Adam Anderson. 
As an initial matter, the Anderson Defendants admit in 
their answer that Candice Luke is the biological child of 
Adam Anderson. (Doc. # 47 at ¶ 22; Doc. # 59 at ¶ 22; Doc. # 
60 at ¶ 22; Doc. # 61 at ¶ 22). The Wilkerson Defendants state 
that they are without knowledge. (Doc. # 55 at ¶ 22). However, 
in their Motion for Summary Judgment, the Anderson Defendants 
present evidence in the form of a half sibling DNA test 
demonstrating Candice Luke is the biological child of Adam 
Anderson. (Doc. # 73 at ¶ 24). The Anderson Defendants explain 
that Candice Luke and Sheenia Nealey participated in the DNA 

test for the purposes of confirming that Candice Luke's 
biological father was Adam Anderson. (Id.). The DNA test 
concluded that Sheenia Nealey and Candice Luke's "probability 
of relatedness as paternal half siblings is 99.91% as compared 
with the possibility that they are unrelated persons. These 
findings support the assertion that SHEENIA D. NEALEY and 
CANDICE N. LUKE have the same father." (Doc. # 73-3 at 3). 
By adducing the results of the DNA test, the Anderson 
Defendants have met their "initial burden of showing the 
court, by reference to materials on file, that there are no 
genuine issues of material fact that should be decided at 
trial." Hickson Corp., 357 F.3d at 1260. To demonstrate that 

summary judgment is inappropriate, the Wilkerson Defendants 
therefore must "‘go beyond the pleadings,' and by [their] own 
affidavits, or by ‘depositions, answers to interrogatories, 
and admissions on file,' designate specific facts showing 
that there is a genuine issue for trial." Jeffery, 64 F.2d at 
593–94 (quoting Celotex, 477 U.S. at 324). 
Here, the Wilkerson Defendants have not presented any 
evidence to call the Anderson Defendants' contention into 
dispute. There is thus no conflict between the parties' 
evidence that would warrant a denial of summary judgment. The 
Anderson Defendants have demonstrated that Candice Luke is 

the biological child of Adam Anderson. Therefore, under the 
plain terms of the Profit-Sharing Plan, Candice Luke is 
entitled to receive a share of the death benefit under the 
Plan. 
Because there are no material facts in dispute and the 
distribution of the benefits of the Profit-Sharing Plan can 
be determined as a matter of law, the Anderson Defendants' 
Motion for Summary Judgment is granted as to Count I. 
$35,578.81, plus any passive gains or losses having 
accrued from December 31, 2011, until distribution, of 
the Profit-Sharing Plan is to be set aside for Michelle 

Anderson pursuant to the Family Court's Qualified Domestic 
Relations Order. The remainder of the death benefit payable 
under the Profit-Sharing Plan is to be distributed to Adam 
Anderson's children, including Candice Luke, per stirpes. 
 3. The MS Plan (Count II) 
 i. Effect of the Beneficiary Designation 
 Form 
In its complaint, Ben Hill Griffin inquired whether it 
should pay Michelle Anderson 100% of Adam Anderson's death 
benefit payable under the MS Plan, because she is the only 
living primary beneficiary. (Doc. # 47 at ¶ 61(c)). The 

question before the Court is thus whether Ben Hill Griffin 
should give effect to the designation of A.W.A. as a secondary 
beneficiary even though there is a living primary 
beneficiary. 
Again, the language of an ERISA plan itself governs the 
award of benefits under the plan. Liberty Life, 358 F.3d at 
1302. Courts "interpret ERISA provisions as they are likely 
to be "understood by the average plan participant, consistent 
with the statutory language." Walker v. Wal–Mart Stores, 
Inc., 159 F.3d 938, 940 (5th Cir. 1998). 
The MS Plan provides: 

A participant shall designate his or her 
Beneficiary to receive benefits under the Plan by 
completing the Beneficiary Designation. If more 
than one Beneficiary is named, the shares and 
preference of each shall be indicated. 

(Doc. # 73-2 at 100). 
Here, Adam Anderson's Change of Beneficiary form 
indicates that Michelle and Eva Anderson are both primary 
beneficiaries. (Id. at 109). The form designates Michelle 
Anderson to receive $1,026.00 per month and Eva Anderson to 
receive $2,724.00 per month. Importantly, the form also lists 
A.W.A. as the secondary beneficiary "for $2,724.00 of Eva." 
(Id.) (emphasis added). Construing the Change of Beneficiary 
form in accordance with its terms' "plain and ordinary 
meaning," the Court interprets the designation of A.W.A. as 
a secondary beneficiary of Eva to entitle A.W.A. to benefits 
upon Eva's death regardless of whether Michelle Anderson is 
still alive. See Alexandra H., 833 F.3d at 1307 (discussing 
the application of contract interpretation principles to 
ERISA plans). Because Adam Anderson made clear that A.W.A. 
was a secondary beneficiary as to Eva only, a finding that 
A.W.A. is entitled to $2,724.00 under the MS Plan coheres 
with the plain language of the Change of Beneficiary form. 
Thus, notwithstanding Michelle Anderson's designation as 
a primary beneficiary, A.W.A. is entitled to receive Eva 

Anderson's share under the MS Plan. 
 ii. Effect of the Family Court Decision 
In its complaint, Ben Hill Griffin inquired whether it 
should pay Michelle Anderson $1,026 per month from Adam 
Anderson's death benefit payable under the MS Plan, even 
though the reference to $1,026 in the Divorce Judgment was 
based upon Adam Anderson's retirement benefit. (Doc. # 47 at 
¶ 61(a)). Ben Hill Griffin notes that "Mr. Anderson was 
apparently confusing the retirement benefit (which is now 
gone), with the death benefit, and used a figure calculated 
as of February 1, 2012, which was irrelevant to the death 

benefit." (Id. at ¶ 42). According to Ben Hill Griffin, "[i]t 
is unclear whether Michelle should receive any of the death 
benefit at all, as the Final Judgment describes only the 
retirement benefit which no longer exists." (Id. at ¶ 44). 
The question before the Court is thus whether Ben Hill Griffin 
is bound by the beneficiary identified on the MS Plan even if 
there is reason to believe that the beneficiary designation 
was in error. 
Again, the language of the relevant plan governs the 
award of benefits under ERISA. Liberty Life, 358 F.3d at 1302. 
"[B]y giving a plan participant a clear set of instructions 
for making his own instructions clear, ERISA forecloses any 

justification for enquiries into nice expressions of intent, 
in favor of the virtues of adhering to an uncomplicated rule." 
Kennedy, 555 U.S. at 300–01. 
Here, Adam Anderson's Change of Beneficiary form states 
that Michelle and Eva Anderson are the primary beneficiaries 
of the MS Plan, to receive $1,026.00 and $2,724.00 per month 
respectively. (Doc. # 73-2 at 109). A.W.A. is listed as the 
secondary beneficiary for Eva Anderson's portion. (Id.). Any 
speculation as to whether the beneficiary designation was in 
error is of no moment. Ben Hill Griffin is bound by the 
language of the plan. Because Adam Anderson explicitly listed 

Michelle Anderson as the beneficiary of $1,026 per month, Ben 
Hill Griffin ought to distribute the benefits of the MS Plan 
in accordance with the Change of Beneficiary form. (Id.); see 
Liberty Life, 358 F.3d at 1302 (noting the language of a plan 
under ERISA governs the award of benefits). 
Because there are no material facts in dispute and the 
distribution of the benefits of the MS Plan can be determined 
as a matter of law, the Anderson Defendant's Motion for 
Summary Judgment is granted as to Count II. 
Accordingly, it is 
ORDERED, ADJUDGED, AND DECREED: 
(1) Defendants A.W.A., Adam "AJ" Anderson, Cierra Michelle 

Anderson, Michelle R. Anderson, Candice Nicole Luke, and 
Sheenia Dannett Nealey's Motion for Summary Judgment 
(Doc. # 73) is GRANTED on Counts I and II. 
(2) $35,578.81, plus any passive gains or losses having 
accrued from December 31, 2011, until distribution, of 
the Profit-Sharing Plan is to be set aside for Michelle 
Anderson pursuant to the Family Court's Qualified 
Domestic Relations Order. 
(3) The remainder of the death benefit payable under the 
Profit-Sharing Plan is to be paid only to Adam 
Anderson's children. 

(4) Candice Luke is one of Adam Anderson's children entitled 
to receive a share of the death benefit under the 
Profit-Sharing Plan. 
(5) A.W.A. is entitled to receive Eva Anderson's share of 
 the death benefit payable under the MS Plan as her 
 contingent beneficiary. 
(6) Ben Hill Griffin, Inc. is to follow the $1,026 figure 
 stated on the Change of Beneficiary form with respect to 
 Michelle Anderson's share of the death benefit payable 
 under the MS Plan. 
(7) The Clerk shall enter judgment accordingly and, 
 thereafter, CLOSE this case. 
 DONE and ORDERED in Chambers in Tampa, Florida, this 
23rd day of November, 2022. 

 temeit? In. Munerlyy nuh. 
 VIRGINIA M. HERNANDEZ'COVINGTON 
 UNITED STATES DISTRICT JUDGE 

 43