IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-50064
Consolidated with 99-50332
Summary Calendar
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LIFE PARTNERS, INC., JOHN MORONEY,
Plaintiffs-Appellees,
versus
LIFE INSURANCE CO. OF NORTH AMERICA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
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October 27, 1999
Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:
In this appeal from an adverse declaratory judgment and
injunctive relief in an ERISA dispute, Defendant-Appellant Life Insurance Co. of North
America ("LINA") asks us to reverse the district court's grant of summary
judgment in favor of Plaintiffs-Appellees John Moroney and Life Partners, Inc. LINA
complains that the district court erred in concluding that New York law does not govern
Moroney's assignment of his life insurance policy rights to Life Partners. LINA further
complains that the district court erred in awarding Moroney and Life Partners attorneys'
fees.
Subsequent to the district court's entry of judgment in favor of
Moroney and Life Partners, LINA complied with the district court's order by recognizing
the assignment of Moroney's rights to Life Partners. It is not within our power to
invalidate that assignment. Consequently, there is no live case or controversy with
respect to the validity of the assignment on which we or the district court can pass
judgment: Federal courts do not render advisory opinions. United States v. Texas Tech.
University, 17 F.3d 279, 286 (5th Cir. 1999). LINA's appeal with respect to the
validity of the assignment is thus moot.
We turn now to LINA's complaint that the district court erred in
awarding Moroney and Life Partners attorneys' fees. We review the district court's
decision to award attorneys' fees for an abuse of discretion. Wegner v. Standard Ins. Co.,
129 F.3d 814, 820-21 (5th Cir. 1997). The fees in question were awarded
pursuant to ERISA, 29 U.S.C. § 1132(g)(1). "Although the decision to award
attorneys' fees is discretionary, the court should consider the following five factors in
its analysis: (1) the degree of the opposing parties' culpability or bad faith; (2) the
ability of the opposing parties to satisfy an award of attorneys' fees; (3) whether an
award of attorneys' fees against the opposing party would deter other persons acting under
similar circumstances; (4) whether the parties requesting attorneys' fees sought to
benefit all participants and beneficiaries of an ERISA plan or to resolve a significant
legal question regarding ERISA itself; and (5) the relative merits of the parties'
positions." Wegner, 129 F.3d at 821.
Here, the district court considered each of the five Wegner
factors. The decision to award attorneys' fees was predicated in part on the court's
findings that LINA's position "bordered on being frivolous" and that the
relative merits of the parties' positions clearly favored Moroney and Life Partners. While
we do not question the district court's findings with respect to these issues, we conclude
that the court abused its discretion in applying the findings to the entire duration of
the underlying litigation.
As the district court itself ruled, the initial complaint filed
by Moroney and Life Partners failed to state a claim on which relief could be granted
because it alleged only state causes of action that were preempted by ERISA. Until Moroney
and Life Partners amended their complaint on June 8, 1998 to state a cause of action under
ERISA, LINA's defense to the claims was valid and meritorious. We therefore conclude that
Moroney and Life Partners should not have been awarded attorney's fees incurred prior to
the amending of the complaint on June 8, 1998. Accordingly, we affirm the district court's
order awarding attorneys' fees but vacate the amount of that award and remand for a
redetermination of the proper amount of such fees, consistent with this opinion.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
