Case 2:13-cv-00922-WKW-SRW Document 74 Filed 02/23/15 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PAUL HARD,
Plaintiff,
v.
ROBERT BENTLEY, in his official
capacity as Governor of the State of
Alabama; LUTHER JOHNSON
STRANGE, III in his official capacity as
Attorney General of the State of
Alabama; CATHERINE M. DONALD in
her official capacity as the State
Registrar of Vital Statistics; STEVEN L.
REED in his official capacity as
Probate Judge for the County of
Montgomery; RICHARD I. LOHR, II,
Administrator of the ESTATE of
CHARLES DAVID FANCHER;
Defendants.

Civil Action No.: 2:13-cv-922-WKW

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

Lohr is the Administrator of the Estate of Charles David Fancher, deceased.

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

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(hereinafter the underlying action). The underlying action arose out of a three vehicle
wreck which resulted in the death of Charles David Fancher in August 2011. The case
settled and was subsequently dismissed on July 25, 2014. (Doc. 297 of the underlying
issue).
2.

Prior to the underlying action resolving, Lohr received notice that Paul

Hard was claiming he was entitled to a spousal share from any potential settlement
monies pursuant to Ala. Code 43-8-41(2). In accordance with Alabamas wrongful
death statute, Lohr, as the Administrator of Charles David Fanchers Estate, had the
exclusive authority to bring a wrongful death action.

Ala. Code 6-5-410(a).

In

addition, as administrator, he must distribute any settlement monies recovered pursuant

to Alabamas laws of intestate succession. Ala. Code 6-5-410(c); see also Steele v.
Steele, 623 So. 2d 1140, 1141 (Ala. 1993) (The damages from a wrongful death award
pass as though the decedent died without a will). Alabama law of intestate succession
specifies how any settlement proceeds are to be distributed to heirs or family members
of the deceased. Ala. Code 343-8-40. 43-8-41 of the Alabama Code sets forth
what amount the deceaseds surviving spouse is entitled to under various
circumstances. Specifically, 43-8-41(2) provides that if there are no children, but
there is a surviving parent or parents, the surviving spouse is to receive the first
$100,000.00 in value plus one-half of the balance of the intestate estate.

As

acknowledged by Paul Hard as of the filing of this action and at the time of settlement of
the underlying action, Alabama law did not recognize him as the spouse of Charles
David Fancher.

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3.

After receiving notice, Lohr executed a Stipulation and Agreement with

Paul Hard on February 4, 2014, in which Lohr, in his capacity as Administrator of the
Estate of Charles David Fancher, agreed that he would not distribute any settlement
monies Paul Hard would be entitled to receive if he was determined to be the spouse
of Charles David Fancher pursuant to Ala. Code 43-8-41(2) until the dispute was
resolved. (Stipulation and Agreement of February 4, 2014 attached hereto as Exhibit
A).
4.

Charles David Fancher was survived by his mother, Patricia Fancher.

She claims that she as the mother of the deceased, is entitled to the disputed
settlement amount as Alabama law does not recognize Paul Hard as the surviving
spouse. After the underlying case resolved through settlement, both Paul Hard and
Patricia Fancher, through their respective counsel, requested that Beasley Allen
maintain the settlement amount in dispute1 in Beasley Allens interest bearing account
until it was determined who is entitled to the disputed settlement proceeds. (Letter
Agreement of September 12, 2014 attached hereto as Exhibit B).
5.

On or about February 9, 2015, the undersigned received correspondence

from one of Paul Hards attorneys demanding that Lohr and Beasley Allen release the
money in dispute to Hards attorney. (Sam Wolfes Letter of February 9, 2015 attached
hereto as Exhibit C). While Lohr and Beasley Allen have agreed to hold and maintain
the amount in dispute in Trust as agreed by all interested parties, neither Lohr nor

AsthisCourtisaware,HardhasfiledsuitagainstnumerouspartiesclaimingthatAlabamalawwhichdoesnot
recognize same sexmarriage and prohibits him from the spousal share pursuant to Ala. Code 43841(2) is
unconstitutional. Hard has further requested injunctive relief seeking that this Court recognize his samesex
marriageasvalidanddirectthathebedeterminedtobethespouseofCharlesDavidFanchersoastobeentitled
totheamountindispute.

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Beasley Allen can hold the money given the recent demand by Paul Hard and his
attorney(s).
6.

The amount of the disputed settlement funds with accrued interest since

September 2014, is $552,956.69. Because there exist a dispute as to who is entitled to

receive this sum, Lohr and Beasley Allen desire to intervene in this action for the limited
purpose to pay the disputed settlement amount into the Court and have the Court disburse
the settlement funds once it is decided whether Hard is entitled to the spousal share
pursuant to Alabama Law. See Ala. Code 43-8-41(2).
WHEREFORE, THE PREMISES CONSIDERED, Lohr and Beasley Allen move
the Court for an Order allowing them to intervene for the limited purpose of paying the
disputed settlement proceeds of $552,956.69 into the Court for the Court to disburse
appropriately upon the determination who is entitled to the disputed settlement amount
from the settlement proceeds from the underlying action.

Respectfully Submitted,
/s/ Richard D. Morrison
RICHARD D. MORRISON (MOR073)
Attorney for Intervenor Richard I. Lohr, II,
Administrator of the Estate of Charles
David Fancher
BEASLEY, ALLEN, CROW, METHVIN,
PORTIS & MILES, P.C.
218 Commerce Street
Montgomery, Alabama 36104
(334) 269-2343
(334) 954-7555 Facsimile
rick.morrison@beasleyallen.com

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CERTIFICATE OF SERVICE
I hereby certify that on this the 23rd day of February, 2015, an exact copy of the
foregoing instrument has been served (a) through the Courts e-filing system; (b) by
placing a copy of the same in the United State Mail, postage prepaid and properly
addressed; and/or (c) by personal/firm email to the following attorneys:
SOUTHERN POVERTY LAW CENTER
David C. Dinielli
Samuel E. Wolfe
Attorneys for Plaintiff
400 Washington Avenue
Montgomery, AL 36104
David.dinielli@splcenter.org
Sam.wolfe@splcenter.org
Tyrone C. Means, Of Counsel
Means Gills Law, LLC
60 Commerce Street, Suite 200
P.O. Box 5058
Montgomery, Alabama 36103
FOUNDATION FOR MORAL LAW
Gabriel J. Smith (SMI337)
Attorney for Pat Fancher
Telephone: (334) 262-1245
Fax: (334) 262-1708
1 Dexter Avenue
Montgomery, AL 36104
gabrieljoseph.smith@gmail.com

OFFICE OF THE ATTORNEY GENERAL

James W. Davis (ASB-4063-I58J)
Laura E. Howell (ASB-0551-A41H)
Assistant Attorneys General
501 Washington Avenue
Post Office Box 300152

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Montgomery, Alabama 36130-0152

Telephone: (334) 242-7300
Facsimile: (334) 353-8440
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
Attorneys for the State Defendants,
Governor Robert Bentley and
Attorney General Luther Strange

ADDITIONAL COUNSEL FOR GOVERNOR ROBERT BENTLEY

David B. Byrne, Jr. (ASB-0354-R69D)
Chief Legal Advisor
Office of the Governor
Alabama State Capitol
600 Dexter Avenue, Suite NB-05
Montgomery, Alabama 36130
Telephone: (334) 242-7120
David.Byrne@governor.alabama.gov

Respectfully Submitted,
/s/ Richard D. Morrison
RICHARD D. MORRISON (MOR073)
Attorney for Intervenor Richard I. Lohr, II,
Administrator of the Estate of Charles
David Fancher

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