The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This is an action for negligence, fraud, breach of contract and breach of fiduciary duty removed to this Court from the Chancery Court for Knox County on the basis of diversity of citizenship, 28 U.S.C. § 1332. Plaintiff claims that he was denied his interest in two annuities based on alleged forgeries of the beneficiary designations. Because the applicable statutes of limitation with respect to the claims against Allmerica Financial Life Insurance and Annuity Company (Allmerica) bar plaintiff's breach of contract claim but not his tort claims, Allmerica's motion for summary judgment [Doc. 25] will be granted in part and denied in part.*fn1
The following factual allegations are considered in the light most favorable to the plaintiff.
On October 10, 1997, and November 14, 1997, Anne P. Lohmann (the decedent) applied for and purchased two Allmerica Select Variable Annuities through the defendant JJB Hilliard, WL Lyons, Inc. See Complaint at ¶ 7. Plaintiff Dennis G. Lohmann and his brother, Ronald D. Lohmann, were each one-half beneficiaries on the original applications for annuities. Id. at ¶ 8. On March 1, 1998, Allmerica received two Designation of Beneficiary and Election of Annuity Option forms for the annuities from Hilliard/Lyons. The two forms changed the beneficiary designations in the original application of Ronald D. Lohmann and Dennis G. Lohmann solely to Ronald D. Lohmann. Id. at ¶¶ 9-10.
The decedent passed away on April 10, 1998. On May 5, 1998, plaintiff's brother, Ronald D. Lohmann, executed a Claimant's Statement and submitted it to Allmerica requesting a lump sum payment of the annuity proceeds. See id. at Ex. B.
On May 14, 1998, Allmerica paid the proceeds of the annuities to the designated beneficiary, Ronald D. Lohmann, pursuant to the 1998 Change of Beneficiary forms and the Claimant's Statement. Id. at ¶ 14.
On March 10, 2000, Ronald D. Lohmann's attorney, John T. O'Connor, mailed a letter to the plaintiff enclosing a proposed accounting for closing the decedent's estate submitted by Ronald D. Lohmann. The proposed accounting included the following statement: "There were two annuities that passed outside the will totaling $223,714.83 to Ronald Lohmann." See Doc. 38-2 at p.21.
On March 23, 2000, Ronald D. Lohmann filed a "Petition to Close the Estate" of the decedent in his capacity as the personal representative of the decedent's estate. See Ex. 3. On May 24, 2000, plaintiff filed his "Response to Petition to Close the Estate," alleging various claims against Ronald D. Lohmann, including claims related to the two annuities. Id. In his Response to Petition to Close, plaintiff alleged the following:
2. The Estate has not been fully administered because the Personal Representative has failed to account for ... multiple annuities, believed to be valued in excess of $270,000, which the Personal Representative now alleges are owned solely and individually by the Personal Representative. The Personal Representative failed and refused to disclose his claim of ownership of such assets until March 13, 2000, when [the plaintiff] first saw a copy of the Estate's federal tax return and a copy of the personal representative's proposed final accounting ... .
Plaintiff filed an action against his brother, Ronald Lohmann, on May 25, 2000, in the Chancery Court for Knox County, Tennessee. See Ex. 4. Plaintiff took a voluntary non-suit of the May 25, 2000 lawsuit, and subsequently refiled his complaint on May 14, 2001, in the Knox County Chancery Court. See Ex. 5. In the complaints in both the May 25, 2000 and May 14, 2001 actions, plaintiff alleged the following:
15. Subsequent to her execution of the 1997 [durable power of attorney], for reasons unknown to him, [the plaintiff's] relationship with his mother, Mrs. Lohmann, began to deteriorate, and Mrs. Lohmann removed [the plaintiff] as a beneficiary from all of her investment accounts, including two ...