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Hicks v. Public Employees' Retirement Systems of Mississippi

Court of Appeals of Mississippi

October 1, 2019

MORTISCHA HICKS APPELLANT
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEMS OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/14/2018

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JOSEPH ANTHONY SCLAFANI JUDGE

          ATTORNEY FOR APPELLANT: ORVIS A. SHIYOU JR. ATTORNEY FOR APPELLEE: OFFICE OF THE

          ATTORNEY GENERAL BY: S. MARTIN MILLETTE

          BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

          BARNES, C.J.

         ¶1. This case presents the question of whether the husband of a deceased Public Employees' Retirement System (PERS) member is entitled to receive lifetime spousal survivor benefits notwithstanding the fact that he was convicted of aggravated driving under the influence (DUI) in connection with her death. We find the decision of the PERS Board of Trustees (Board) that the husband is entitled to such benefits is proper and affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. On May 24, 2014, Megan Hicks, a vested member of PERS, died as a result of a vehicular accident where her husband, Jeremy Earnest, was driving while intoxicated and she was a passenger. After being notified of Megan's death, PERS staff researched Megan's account to determine if she was married or had dependent children. Megan had listed on a beneficiary-designation form her husband, Jeremy, as a forty-percent beneficiary, and her sister, Mortischa Hicks (Hicks), as a sixty-percent beneficiary, in the event a refund of accumulated contributions and interest were payable upon Megan's death. Megan and Jeremy also had been married for more than one year prior to her death; therefore, PERS determined that Jeremy was entitled to statutory survivor benefits regardless of Megan's beneficiary designations.

         ¶3. In June 2014, PERS notified Jeremy of his right to lifetime spousal survivor benefits. PERS received Jeremy's pre-application for survivor benefits form. During the application process, however, PERS was notified that Jeremy had been criminally charged in connection with Megan's death. PERS therefore placed a hold on the payment of survivor benefits until the charges were resolved.

         ¶4. In September 2014, Jeremy was indicted in Copiah County, Mississippi, for "unlawfully and feloniously, while operating a motor vehicle in a negligent manner, caus[ing] the death of Megan . . . at a time when . . . Jeremy . . . was operating his vehicle under the influence of intoxicating liquor" in violation of Mississippi Code Annotated section 63-11-30(1) and (5) (Rev. 2013).[1] Jeremy pleaded guilty to the charge and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with fifteen years to serve and ten years suspended. PERS determined, however, that Jeremy's conviction did not preclude him from receiving surviving spouse benefits; thus, in May 2015, he began receiving monthly survivor retirement benefits in the amount of $388.56.[2]

         ¶5. Two years later, in May 2017, PERS received a letter from an attorney representing Hicks requesting "the requisite documents to file for death benefits provided under [Megan's] account with PERS." Also requested was an inquiry into "the plan provision" regarding Megan's death and benefit payment to Jeremy after his conviction. Pat Robertson, the executive director of PERS, responded by a letter dated June 2, 2017, informing Hicks's counsel that under Mississippi Code Annotated section 25-11-103(1)(g) and section 25-11-114(2)(a) (Rev. 2018) that

the surviving spouse of a vested member who dies before retirement shall receive a lifetime monthly benefit, regardless of the named beneficiary on file, if the surviving spouse and deceased member have been married for at least one year and the surviving spouse has not signed a written waiver of benefits. In other words, PERS only pays to the named . . . beneficiaries on file when there is no statutory beneficiary entitled to benefits.

(Emphasis added). The letter noted that an acknowledgment of this rule was in the beneficiary designation form Megan signed. Robertson also added that PERS follows the public policy established in Mississippi Code Annotated sections 91-1-25 and 91-5-33, "which states that any person who willfully causes or procures the death of another shall not inherit from the person killed." However, Robertson stated that because Jeremy was convicted under the aggravated-DUI statute, which "is a crime of negligence and does not require willful intent to cause ...


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