                         Revised May 11, 2000

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 98-50061



                          CAROLYN J. GIBBS,

                                                Plaintiff-Appellant,


                                VERSUS


               ASHLEY C. GIBBS, A Minor Child; and
                 ANDREW F. GIBBS, a Minor Child,

                                   Intervenor Plaintiffs-Appellees,


                                VERSUS


            GENERAL AMERICAN LIFE INSURANCE COMPANY,

                                                Defendant-Appellee.




          Appeal from the United States District Court
                for the Western District of Texas

                            April 21, 2000

Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

     Carolyn J. Gibbs (hereinafter "Appellant") appeals from the

final judgment in her ERISA action which awarded attorneys’ fees to

both the Defendant-Appellee, General American Insurance Company
(hereinafter "General American"), and to the Intervenor Plaintiff-

Appellees,   Ashley      C.    Gibbs   and       Andrew   F.   Gibbs,   both   minors

(hereinafter "Intervenors").           Appellant contends that the district

court erred in denying her request for attorneys' fees against

General American because she was the prevailing party, and that the

Court also erred in awarding attorneys' fees and costs to both

Intervenors and General American out of the disputed insurance

proceeds which were being held in the court's registry.                   Appellant

also contends that the district court erred in admitting certain

polygraph results into evidence during the bench trial, and in

relying on such evidence in awarding attorneys' fees.



                              I.   FACTUAL BACKGROUND

       Carolyn J. Gibbs was married to Joel W. Gibbs in 1988.                  During

their marriage they had two children, Ashley and Andrew.                  Mr. Gibbs

maintained employment as a director of operations for Waco Magnetic

Imaging, which provided him, as part of his benefits package, a

life    insurance   policy         issued       through   General   American    Life

Insurance Company (“General American”).                   That policy designated

Carolyn   Gibbs,    as   the       policy's      named    beneficiary,   with   life

benefits in the amount of one times Mr. Gibbs’ annual salary

rounded to the next even thousand dollars ($42,000) with double

indemnity accidental death benefits (for a total of $84,000 in the

event of accidental death).


                                            2
      At some point in 1994, Appellant contacted a former boyfriend,

Bartley Bell, after seeing his appearance on an episode of the

Oprah Winfrey television show.    Bell was then attending college in

Alabama. The two began corresponding and spoke on the phone almost

daily.    At one point in 1995, Appellant flew to Alabama to attend

Bell’s high school reunion.    During their correspondence with one

another, they discussed their feelings for one another and their

plans for a future together.   Due to marital problems, the Gibbses

separated from one another on several occasions during 1995.1    In

December of the same year, Mr. Gibbs filed for a divorce and moved

out of the family residence.   The divorce agreement drafted by Mr.

Gibbs’ attorney, and which Appellant had agreed to sign, would have

given Mr. Gibbs the authority to determine where the children would

live.    Upset by the divorce proceedings, Appellant told one of her

friends, Stephanie Grimm, that it would have been a lot easier for

her if Mr. Gibbs were killed in a car wreck.

      On January 25, 1996, Appellant took her children to a Mother’s

Day Out program at the Crestview Church of Christ.   She had planned

her class schedule at Baylor University for the Tuesdays and

Thursdays that this program was offered. Shortly after arriving at

the church, Appellant testified that she discovered her son Andrew

had forgotten his lunch.   She told him that his father would bring

  1
     Both   of the Gibbses testified to frequenting night clubs with
their own   friends and having engaged in adulterous relationships.
Appellant   regularly spent time with a girlfriend, Suzanne Truitt,
with whom   she had often entered nightclub bikini contests.

                                  3
it to him.   But when Andrew began crying, she promised to bring it

to him herself.   At approximately 9:30 a.m., she called Mr. Gibbs’

office, but he was on another phone call.         She left a message with

Pat Johnson, the office manager, that she was late for her classes

and that Mr. Gibbs needed to go by her townhouse to get Andrew’s

lunch bag and take it to him at the church.        She advised Johnson to

tell Mr. Gibbs that the kitchen door was unlocked.

     After receiving the telephone message, Mr. Gibbs left his

office at approximately 9:50 a.m. to retrieve his son’s lunch.

After several hours had passed without his return, and because he

had not responded to numerous pages and telephone calls, his co-

workers   contacted   the   police.       After   her   classes   ended    at

2:00 p.m., Appellant arrived to pick up her children at the church

around 2:30 p.m. -– Andrew was crying because his daddy had never

shown up with his lunch.     When she arrived with the children back

at her townhouse, she found Mr. Gibbs’ car in her carport.            Also

present was a police car and a uniformed officer who informed

Appellant that the police had been called by Mr. Gibbs’ co-workers

when he failed to return to work.

     Appellant told the officer to drive around the front of the

house because of the dog in the backyard.         She proceeded into the

house through the back door, and upon entering the house noticed

that it was messy.     Pictures and videos were spread out on the

floor and drawers were opened as if they had been searched.               She

received no response upon calling out Mr. Gibbs’ name.            When she

                                      4
went upstairs, she found his body lying in the hallway with blood

everywhere. She then ran back downstairs and took the children out

the front door.

      The police then entered the house and found Mr. Gibbs’ body.

They initially told Appellant that Mr. Gibbs appeared to have taken

his own life, but it was later determined that he had been stabbed

repeatedly and his throat had been cut open a number of hours

before he was discovered.    The Hewitt Police Department released

the townhouse back to Appellant by 5:00 p.m. that same afternoon.

The very next day, Appellant’s father, who had arrived the previous

evening from Colorado, organized the efforts of Appellant’s Sunday

school class in cleaning the murder scene.     They ripped out the

blood-stained carpet, repainted the walls, and generally cleaned up

all indications that a murder had occurred.        Ms. Truitt also

visited the townhouse and removed incriminating love letters which

she had written to the Appellant.

      In an effort to solve the murder, the Hewitt Police Department

enlisted the aid of the Texas Rangers; however, their investigation

did not begin until after Appellant’s friends and family had

completely cleaned the murder scene.2       The murder weapon was

located sometime thereafter. Appellant, who later found additional

bloodstains when she returned for a final clean-up on January 31 ,


  2
     Upon their arrival at the crime scene, the Texas Rangers
ordered Appellant's friends and family to cease their cleaning
operations and to disperse from the crime scene.

                                 5
notified the police of the same.           Ultimately, the following items

were identified as missing from the townhouse: a camcorder, some

home videos, Appellant’s high school class ring, and one of the

children’s silver baby mugs.      Ten days after the murder, the Texas

Rangers requested that Appellant submit to a polygraph examination,

but upon the advice of her counsel, she refused.3

      Appellant and her children then moved in with Ms. Truitt for

approximately four weeks.     They then moved to Colorado Springs to

live with her parents.       By January of 1997, Appellant’s former

boyfriend, Bartley Bell, had moved to Colorado, where the two were

married that July.

      In April 1996, Appellant first submitted a claim to General

American   for   the   proceeds   of   Mr.    Gibbs’   aforementioned   life

insurance policy.      Due to an improper address, General American

received the claim three months later.          Having been advised by Mr.

Gibbs’ employer that Appellant was a suspect in her husband’s

death, General American contacted the Hewitt Police Department

which advised that, indeed, Appellant had not been ruled out as a

suspect.

      In October 1996, Appellant contacted General American to

inquire as to the status of her pending claim.              Again, General

  3
     Appellant subsequently, and approximately two weeks before the
trial of this matter, did voluntarily submit to a polygraph
examination administered by a licensed polygrapher at the Texas
Department of Public Safety. The overall analysis indicated that
she had been deceptive in her answers.


                                       6
American    contacted   the    Hewitt    Police     Department,    which    again

advised that Appellant had not yet been ruled out as a suspect.

General American then wrote to Appellant and advised her that her

claim could not be paid until the investigation into Mr. Gibbs’

death had been completed.4         Appellant declined to exercise her

rights under a provision of the policy which would have permitted

her, as     a   beneficiary    under    suspicion     of   involvement     in   the

insured’s death, to waive payment of the insurance proceeds to her

directly and to have the proceeds flow directly to her minor

children.



                         II.    PROCEDURAL HISTORY

      In February 1997, Carolyn Gibbs filed this action under ERISA,

as the named beneficiary of an ERISA plan, alleging that General

American failed to pay benefits under 29 U.S.C. § 1132(a)(1)(B),

and   she   requested    attorneys’         fees   pursuant   to   ERISA’s      fee

provisions, see 29 U.S.C. § 1132(g), because General American’s

failure to pay was allegedly in bad faith.             Upon the filing of the

ERISA claim, General American filed an interpleader counterclaim

pursuant to Rule 22 of the Federal Rules of Civil Procedure,

depositing $88,852.00 (the insurance proceeds plus interest) into



  4
     General American’s beneficiary-involved-in-death policy, found
in their death procedures manual, required that it be established
beyond a reasonable doubt that the beneficiary was not involved in
the death of the insured prior to benefits being paid.

                                        7
the district court’s registry.           General American never contested

its obligation to pay, but pleaded that it was facing potential

exposure     to   conflicting   claims    from    Appellant       and   the   minor

children for the proceeds because Carolyn was a suspect in Mr.

Gibbs' murder.      General American sought to compel the intervention

of the Gibbses’ minor children and to be itself released from the

case.      General American also requested an award of attorneys’ fees

at the time it moved to be dismissed from the case.

      The district court refused to let General American out of the

case upon interpleader and required that it litigate the issue of

Appellant’s entitlement to attorneys’ fees under ERISA.                        The

district court reasoned that General American’s alleged bad faith

was in issue because it withheld payment and failed to file its

interpleader before Appellant filed her ERISA action, which was

nearly one year after her first request for the proceeds.

      In its order permitting the interpleader, the district court

appointed a guardian ad litem, John A. Kuchera, to represent the

children’s interests.       The guardian ad litem filed an Intervenor

complaint on their behalf, pleading that the children were entitled

to   the    insurance   proceeds   pursuant      to   §   21.23    of   the   Texas

Insurance Code.         Intervenors’ claim was not based upon ERISA

because the children were never designated in any ERISA plan

document as, and never claimed to be, beneficiaries under an ERISA

plan.      Rather, their claim was based solely upon § 21.23, which

would automatically divest Carolyn of her interest in the proceeds

                                      8
if it was established by a preponderance of the evidence that she

was a “principal or an accomplice in willfully bringing about the

death of the insured.” TEX. INS. CODE ANN. § 21.23.   Intervenors also

requested their attorneys’ fees and costs.5

      The case was tried to the bench.6    The two issues being tried

were:   (1)   Appellant’s   and   Intervenors’   competing   claims    of

entitlement to the insurance proceeds in the court’s registry, and

(2) whether Appellant was entitled to attorneys’ fees and costs

under ERISA based upon General American’s alleged bad faith.          Two

ancillary issues were whether General American and Intervenors were

entitled to attorneys’ fees and costs.      At the end of the trial,

the district court held as follows:

      First, with respect to the competing claims for entitlement to

the insurance proceeds, the district court held that Intervenors


  5
     As will be discussed below, since Intervenors' complaint was
not based upon ERISA, the attorneys' fees provisions of 29 U.S.C.
§ 1132(g) do not govern the analysis of the guardian ad litem's
request for fees and costs.
  6
     Appellant had asked for a jury trial but the court sua sponte
struck her jury request because claims under ERISA are equitable in
nature and are not entitled to a jury trial. The district court
was correct insofar as the claim for attorney fees by Carolyn
against General American is concerned. However, we express doubt
as to whether the district court properly denied a jury sua sponte
with regard to the dispute between Appellant and Intervenors as to
who was entitled to the proceeds under Texas law. Irrespective of
our doubt, as the denial of a jury trial was never raised on appeal
by any party and because the record reveals no objection to the
case proceeding without a jury, the issue is beyond the scope of
our review. See e.g., Jones v. Birdsong, 679 F.2d 24, 24 (5th Cir.
1982) (failing to object to case proceeding without a jury
constitutes waiver of the right to a jury trial).

                                    9
had not sustained their burden of establishing that Appellant

caused   or   was   involved   in   the   death   of     her   husband   by   a

preponderance of the evidence under Section 21.23.7                Thus, the

proceeds went to Appellant.

      Second, with respect to Appellant’s claim for attorneys’ fees

and costs, the district court found that General American had not

acted in bad faith and, therefore, it denied Appellant’s request.

With respect to General American’s request for attorneys’ fees and

costs, the district court determined that General American was

entitled to have its attorneys’ fees ($21,100.25) paid out of the

interpleaded insurance proceeds so as to deter other beneficiaries

from filing premature lawsuits to collect insurance benefits when

they are suspected of involvement in the death of the insured.

Finally, with respect to Intervenors’ claim for attorneys’ fees,

the district court determined that the guardian ad litem for the

intervening children was entitled to have his fees and costs

($19,047.98) paid out of the interpleaded insurance proceeds.                 On

December 16,    1997,   judgment    was   entered   in    favor   of   General

American as to Appellant’s claim against it, and in favor of

Appellant as to Intervenors’ claim against her.           In its subsequent

order assessing fees and costs against Appellant, the district

  7
     Specifically, the district court stated “[i]t is likely that
Plaintiff was involved in the death of Gibbs, but, in a close case,
the evidence presented does not prove her involvement by a
preponderance of the evidence.” Curiously, we find no notice of
appeal by the Intervenors as to this determination by the district
court.

                                     10
court ordered that all interpleaded funds remaining after payment

of the ordered fees and costs be paid to Appellant.8

      Appellant timely appealed the district court’s awards of

attorneys’ fees, and a prior panel of our Court considered her

appeal and issued an opinion.        See Gibbs v. Gibbs, 167 F.3d 949 (5th

Cir. 1999).     That opinion was vacated on April 22, 1999, when the

prior panel construed Intervenor Plaintiff-Appellees’ petition for

rehearing en banc as a petition for panel rehearing and granted the

same.      See Gibbs v. Gibbs, 173 F.3d 946 (5th Cir. 1999), vacating

167 F.3d 949 (5th Cir. 1999).

      In    support   of   their   petition   for   rehearing,   Intervenors

advanced two arguments.       First, they argued that the prior panel’s


  8
     Despite finding that Appellant failed to prevail on her claim
of bad-faith failure to pay benefits, the district court’s finding
that Appellant’s involvement in the murder had not been established
by a preponderance of the evidence precluded General American from
continuing to withhold payment of the insurance benefits based upon
a provision which allowed it to do so until a suspected
beneficiary’s non-involvement is established beyond a reasonable
doubt. General American never asserted that it did not owe the
money to someone -- either Appellant or Intervenors, and once the
district court determined that Intervenors did not prevail in their
claim of superior rights to the insurance proceeds, by default,
those proceeds flowed to Appellant, the named beneficiary.
Appellant argues that she was indeed the prevailing party because
the end result of her ERISA claim was that General American was
ordered to pay her the disputed proceeds. We note, however, that
the central issue involving Appellant’s ERISA claim below was only
whether General American acted in good faith in refusing to pay
Appellant directly, before the level of her involvement in the
murder was established and the potentially conflicting and
duplicative claims of the minor children could be addressed -- and
this issue related solely to whether Appellant should be awarded
her attorneys' fees and costs based on General American's alleged
bad faith.

                                      11
decision that the district court abused its discretion in awarding

fees and costs to their guardian ad litem because they did not

“prevail” on their claim, overlooked and ignored the distinction

between the role of a party and the role of a guardian ad litem,

and the panel’s decision in this regard conflicted with both

Supreme Court and Fifth Circuit precedent, which distinguishes

between the compensation to be awarded attorneys and compensation

to be awarded other court personnel, and which establishes that a

guardian ad litem need not prevail in order to be entitled to his

fees.9   Second, they argued that the prior panel failed to address

their cross-point -– that Intervenors had in fact established

Appellant’s   involvement   by   more   than   a   preponderance   of   the

evidence, and thus, they were entitled to an award of the insurance

proceeds.   This later cross-point is not before our Court because

no cross-appeal was filed.       See United States v. Coscarelli, 149

F.3d 342 (5th Cir. 1998) (en banc).

      Thus, the subject of this appeal is not the district court’s



  9
     These contentions were never made in Intervenors’ original
responsive brief, but rather were presented for the first time
following the prior panel’s entry of an opinion denying the
guardian ad litem’s fees altogether.      In Intervenors’ original
responsive brief, they argued only their cross-point – that they
had in fact established Appellant’s involvement by more than a
preponderance of the evidence, and thus, they were entitled to an
award of the insurance proceeds. Presumably, Intervenors assumed
from Appellant’s brief and General American’s reply, that either of
those two parties would ultimately be responsible for the ad litem
fees, and that no defense of the district court’s award thereof was
necessary.

                                   12
conclusion that Appellant failed to prevail on her claim against

General American of bad faith failure to pay benefits under ERISA,10

but rather, it is based entirely on the propriety of the district

court’s awards      of   attorneys’   fees   and   costs   and   the   alleged

impropriety of admitting polygraph evidence.



                              III.    ANALYSIS

       Before we can fully address Appellant's contention that the

district court erred in denying her request, and in granting both

General American's and Intervenors' request for, fees and costs, we

must first resolve her related secondary issue, that is, whether

the district court erred in admitting and allegedly relying upon

certain polygraph evidence in determining whether to award fees.



               A.   Admissibility of Polygraph Evidence

       Several weeks prior to the commencement of the trial of this

matter, Appellant took and passed a private polygraph examination,

and based upon those favorable results, she agreed to submit to a

second polygraph examination to be administered by the Texas

Department of Public Safety, whose earlier request for a polygraph

examination she had denied.      As noted above, the overall analysis

of this second examination indicated that she had been deceptive in


  10
     As noted above, the parties do, however, disagree as to which
of them was the “prevailing party” to the extent that such
designation is determinative of the award of attorneys fees.

                                      13
her   answers,       and    specifically    the    test   results   revealed     the

following:

           A.        There   existed   an  88%   probability   that
                     Appellant was deceptive when she answered “no”
                     to the question: “Did you plan with any man to
                     cause the death of Joel [Mr. Gibbs]?”;

           B.        There existed a 98% probability that Appellant
                     was deceptive when she answered “no” to the
                     question: “Did you intentionally set up Joel,
                     causing his death?”;

           C.        There existed a 99% probability that Appellant
                     was deceptive when she answered “no” to the
                     question: “Prior to arriving at your house on
                     the afternoon of January 25, did you already
                     know someone was going to cause the death of
                     Joel?”; and

           D.        There existed a 56% probability that Appellant
                     was deceptive when she answered “no” to the
                     question: “Did anyone ever tell you that they
                     caused the death of Joel?”.

      Appellant asserts that the district court erred in relying

upon the polygraph evidence as a basis for assessing attorneys’

fees against         her.     General    American    responds   that     since   the

district court determined that the evidence did not establish

Appellant’s involvement by a preponderance of the evidence, the

issue of whether the polygraph evidence was properly admitted is

irrelevant      to    the     district     court’s    discretion    in    awarding

attorneys’ fees.           However, it is Appellant’s position that there

was no physical or circumstantial evidence linking her to the death

of Mr. Gibbs, and as a result, the district court must have based

its fees     decision       on   the   polygraph     results.   This     assertion

overlooks the fact that the lack of any physical evidence is

                                           14
directly attributable to the actions of Appellant and her friends

and family in so quickly erasing the crime scene.           This assertion

also ignores evidence concerning Appellant’s phone call, which

placed   Mr.    Gibbs   at   the   crime   scene,   and    the       following

circumstantial facts which our review of the record has revealed:

(1) Appellant gave conflicting testimony as to whether, when, and

from where she made the call which placed Mr. Gibbs at the murder

scene; (2) there is competent and uncontroverted evidence that

Appellant told Stephanie Grimm, a friend, in the midst of the

Gibbses’ divorce negotiations, that it would be so much easier for

her if Joel were simply killed in a car wreck; (3) the murder

weapon was recovered in Appellant’s kitchen (one of her own kitchen

knives which had been wiped clean and placed back in the knife

block); (4) Appellant was desperate for money to pay for college

tuition (she had asked her parents to co-sign a loan, which they

refused to do, and as a result she ended up having to take out a

more expensive student loan); and (5) in an apparent slip of the

tongue, when confronted by Stephanie Grimm concerning Ms. Grimm’s

fear that Appellant was involved in Joel’s murder, it was Appellant

herself who first interjected the idea of murder-for-hire, by

responding defensively, and in a tone which Grimm perceived as

argumentative, “how do I know you didn’t hire someone to kill

Joel?”   This   circumstantial     evidence,   coupled    with   a    lack   of

physical evidence which is directly attributable to Appellant's own



                                     15
actions in erasing the crime scene, leads us to conclude that the

polygraph   evidence   was   not   the   only   evidence   upon   which   the

district court could have based its fees decision.

     Also, there is little indication in the record that, in fact,

the district court based the award of fees on the polygraph

results; to the contrary, the district court explicitly determined

that the fees should be awarded based upon the premature filing of

this lawsuit at a time when Appellant knew she was under suspicion,

and when there was “absolutely no basis for believing that [General

American] had acted in bad faith.”

     Furthermore, as this Court has denounced the per se rule that

polygraph examinations are inadmissible, see United States v.

Posada, 57 F.3d 428, 434 (5th Cir. 1995), the standards announced

in Daubert control the admissibility of such results.             In Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786

(1993), the Supreme Court stated that a district court should

analyze: (1) the scientific validity of the method; (2) the extent

to which the trier of fact will be assisted in understanding the

evidence and determining the fact at issue; and (3) whether the

evidence will have a prejudicial effect which is not outweighed by

its probative value.    See id. at 2796-2798.      Most of the safeguards

provided for in Daubert are not as essential in a case such as this

where a district judge sits as the trier of fact in place of a

jury.   In this case, the district court was satisfied with the


                                    16
testimony of Peter Heller, the polygraph examiner for the Texas

Department of Public Safety, who testified in detail regarding the

factors and analysis involved in the examination process at issue,

and the district court concluded that the examination results of

Appellant’s test were scientifically valid.      We conclude that the

polygraph evidence in this bench trial was properly admitted

without error by the district court, and furthermore, irrespective

of the propriety of admitting the polygraph results, the district

court did not rely solely on the polygraph results in awarding

attorneys’ fees and costs.



             B.     Awards of Attorneys' Fees and Costs

     Having rejected Appellant's argument that the district court

improperly relied upon inadmissible polygraph results, we now turn

to a determination of whether the district court erred in awarding

fees to the respective parties.         It is well settled that the

district   court     has   broad   discretion   in   determining   the

appropriateness of an award of attorneys’ fees, and we review its

award or denial thereof for an abuse of that discretion.     See Todd

v. AIG Life Ins. Co., 47 F.3d 1448, 1458 (5th Cir. 1995).



               1.    Fees and costs governed by ERISA

     The relevant ERISA fee provision provides in pertinent part:

           [i]n any action . . .            by a participant,
           beneficiary, or fiduciary,       the court in its

                                   17
          discretion may allow a reasonable attorney’s fee
          and costs of action to either party.
29 U.S.C. § 1132(g)(1).

       Since, as noted above, this case really involved two separate

actions: (1) Appellant's claim against General American for failure

to pay ERISA benefits to which she was entitled, which claim arose

under ERISA, and (2) Intervenor's claim of entitlement to the

proceeds, which claim arose under § 21.23 of the Texas Insurance

Code, only the fee requests by the parties to the former action are

governed by the provisions of 29 U.S.C. § 1132(g)(1).      That is to

say, we review only the district court's award of fees and costs to

General American and its denial of fees and costs to Appellant

under ERISA's fee provisions.



       a.   Must a party first prevail in order to be eligible for
            consideration for attorneys’ fees and costs under ERISA’s
            fee provision, 29 U.S.C. § 1132(g)(1)?

       Appellant urges that as the only prevailing party,11 she is the

only party eligible for consideration of fees under ERISA.        Her

claim is based upon the premise that a party must first prevail in

an ERISA action in order to be eligible for consideration for



  11
     The district court entered judgment in favor of General
American on her claims against it, but then paradoxically ordered
that once all fees had been deducted from the interpleaded funds,
because Intervenors had failed to establish superior entitlement to
the proceeds, the remaining funds were to be paid to Appellant.
Arguably, she did prevail on her claim for failure to pay benefits,
but not on her request for attorneys' fees based on bad faith
failure to pay.

                                  18
attorneys' fees.       Thus, a threshold inquiry in this appeal is

whether or not a party must be deemed to have prevailed in order to

recover attorneys’ fees under ERISA’s fees provisions, and it is an

inquiry which, until the prior panel entered its now-vacated

opinion, this Court had yet to squarely address.          That issue has

also created a split of authority among a number of our sister

circuit courts of appeal.

       The proper starting point for this analysis is with the

language of ERISA’s attorneys’ fee provision itself, which as noted

above, permits the district court, in its discretion, to award

“reasonable attorney’s fees and costs . . . to either party.”            29

U.S.C. § 1132(g)(1) (emphasis supplied). Conspicuously absent from

this language is the term “prevailing” which term has generally

been   included   in   the   other   fee-shifting   statutes   enacted   by

Congress.   See, e.g., 42 U.S.C. § 2000e-5(k).        The debate on this

particular issue centers around whether courts should read a

prevailing party requirement into the “either party” language of

§ 1132(g)(1).

       In determining whether a party must prevail in order to be

eligible for an award of attorneys’ fees, the Fourth Circuit in

Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201 (4th

Cir. 1997), explicitly held that “only a prevailing party is

entitled to consideration for attorneys’ fees in an ERISA action.”

Martin, 115 F.3d at 1210.       The analysis which precedes the Fourth


                                     19
Circuit’s conclusion refers to the “prevailing party” limitation

which “many of our sister circuits have imposed . . . on the

availability of attorneys’ fees under ERISA.”   Id.

     Specifically, the Martin court cites to cases from the First,

Third, Fifth, Seventh, Ninth, and D.C. Circuits as having “imposed

a prevailing party requirement” on an award of fees under ERISA.

Our review of the decisions cited by the Martin court reveals that

many of the circuits, while stating that awards of attorneys’ fees

are appropriate for prevailing parties in ERISA actions, do not in

so stating, foreclose the ability of non-prevailing parties to

obtain an award of fees.     And of those cases cited, only one

decision from the Seventh Circuit can be read as going so far as to

actually require a party to prevail before a district court could

consider an award of attorneys’ fees.

     In Little v. Cox’s Supermarkets, 71 F.3d 637, 644 (7th Cir.

1995), the Seventh Circuit focused on the bottom-line question of

the losing party’s exercise of good faith in determining whether an

award of fees under ERISA was due the prevailing party.       More

recently, the Seventh Circuit has twice moved closer to actually

requiring a party to prevail before it can be eligible for an award

of fees.   See Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d

472, 478 (7th Cir. 1998) (describing the two processes by which an

ERISA party may be awarded attorneys’ fees “after it has attained

‘prevailing party’ status”); Poteete v. Capital Eng’g, Inc., Nos.


                                20
98-1531 & 98-1772, 1999 WL 517174, at *3 (7th Cir. July 21, 1999)

(noting that the “principles that sometimes entitle a party to

recover his attorneys’ fees limit that entitlement to prevailing

parties”) (citing 29 U.S.C. § 1132(g)(1)).

     The remaining circuit decisions cited by the Martin court

simply do not require that a party prevail as a pre-requisite to

consideration for an award of attorneys’ fees, and more recent

decisions from those circuits hold to the contrary -- that a party

need not prevail in order to be entitled to consideration for fees

under ERISA.      While the First Circuit in the case cited by the

Martin court literally read the word “prevailing” into the relevant

ERISA fee provision, see Cottrill v. Sparrow, Johnson & Ursillo,

Inc., 100 F.3d 220, 225 (1st Cir. 1996) (stating “Congress declared

that, in any ERISA claim advanced by a ‘participant, beneficiary,

or fiduciary, the court in its discretion may allow a reasonable

attorney’s fee’ to the prevailing party”) (quoting 29 U.S.C.

§ 1132(g)(1)), it has more recently recognized by implication that

such awards are not limited to prevailing parties.         See Doe v.

Travelers Ins. Co., 167 F.3d 53, 61 (1st Cir. 1999) (stating that

“such awards are normally for the prevailing party” and thus

implying   that    such   awards   for   non-prevailing   parties   are

contemplated by § 1132(g)(1) (emphasis supplied)).

     In a decision overlooked by the Martin court, the Third

Circuit held that while § 1132(g)(1) allows for an award of fees

                                   21
and costs to either party, it does not “automatically mandate an

award to a prevailing party.”          Anthuis v. Colt Indus. Operating

Corp., 971 F.2d 999, 1010 (3d Cir. 1992).            Like the decision from

the   Third   Circuit    which   was   cited   by   the   Martin   court,   see

McPherson v. Employees’ Pension Plan, 33 F.3d 253, 254 (3d Cir.

1994), this decision fails to squarely address whether the Third

Circuit requires prevailing status before a party may be entitled

to consideration for an award of attorneys’ fees.

      In the Ninth Circuit decision cited by the Martin court, see

Flanagan v. Inland Empire Elec. Workers Pension Plan & Trust, 3

F.3d 1246, 1253 (9th Cir. 1993), the Ninth Circuit held that though

it had previously stated in dictum that the ERISA fee provision

allows the court to award non-prevailing parties their attorneys’

fees, “plaintiffs cannot recover fees under section 1132(g)(1)

until they succeed on [some] significant issue in litigation which

achieves some of the benefit . . . sought in bringing the suit.”

Arguably, this statement applies only to fee requests by plaintiffs

in ERISA actions and not to defendants or intervening parties.

Indeed, prior to its holding in Flanagan, the Ninth Circuit stated

that the criteria used to determine whether an ERISA party is

entitled to an award of attorneys’ fees “do not rely on the

prevailing-party doctrine.”       Sokol v. Bernstein, 812 F.2d 559, 561

(9th Cir. 1987).        And more recently, the Ninth Circuit, in an

unpublished     decision,    acknowledged       that      fee   awards   under

                                       22
§ 1132(g)(1) are not limited to prevailing parties.   See Green v.

Hotel Employees & Restaurant Employees Int’l Welfare-Pension Funds,

No. 95-16314, 1997 WL 8466, *4 (9th Cir. Jan. 1, 1997) (unpublished

table decision) (stating that “[a]lthough Section 1132(g)(1) does

not limit such an award to a prevailing party, awarding attorney

fees to an unsuccessful litigant would not serve any of the

purposes underlying Section 1132(g)(1)") (emphasis supplied).

     Though not mentioned by the Martin court, both the Tenth and

Eleventh Circuits have also recognized that a party need not

prevail in order to be entitled to attorneys’ fees.   See Chambers

v. Family Health Plan Corp., 100 F.3d 818, 827 (10th Cir. 1996)

(stating that “‘[a]lthough the statute [§ 1132(g)(1)] does not

require that a party prevail as a condition to receiving an award

of attorneys’ fees . . ., we have remanded cases for denial of fees

without explanation only when the party seeking fees had prevailed

at least partially . . . .’”) (quoting Morgan v. Independent

Drivers Ass’n Pension Plan, 975 F.2d 1467, 1471-72 (10th Cir.

1992)); see also Freeman v. Continental Ins. Co., 996 F.2d 1116,

1119 (11th Cir. 1993) (stating that “[u]nlike other fee-shifting

provisions, which give the court discretion to award fees to a

prevailing party, § 1132(g)(1) allows a court to award fees to

either party.”). Like the Eleventh Circuit, the Second Circuit has

also explicitly stated that a party need not prevail under ERISA in

order to be entitled to consideration for attorneys’ fees.      See

                                23
Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995)

(stating    that   “Section    502(g)(1)   [codified     at    29     U.S.C.   §

1132(g)(1)]    contains   no    requirement   that     the    party     awarded

attorneys’ fees be the prevailing party.”)

     With regard to this Circuit’s take on this issue, at first

blush, the    Fourth   Circuit’s   holding    in   Martin     appears    to    be

consistent with our statements in Boggs v. Boggs, 82 F.3d 90 (5th

Cir. 1996), rev’d on other grounds, 520 U.S. 833, 117 S. Ct. 1754

(1997).    In Boggs, we stated that ERISA “allows the court to award

ERISA    beneficiaries,   participants,    and     fiduciaries      reasonable

attorney’s fees when they are the prevailing party.”                Id. at 94

n.1. But while this statement in Boggs seems to require a party to

prevail, arguably, it requires only that principal plaintiffs who

bring suits under ERISA prevail in order to be entitled to their

fees.     Boggs simply does not speak to the propriety of awarding

fees to prevailing defendants, or to other third parties who may

have been forced to join in an ERISA action.

     More instructive on the issue of whether a party must prevail

in order to be eligible for consideration for an award of fees is

our holding in Todd v. AIG Life Ins. Co., 47 F.3d 1448 (5th Cir.

1995).    In Todd, Justice White, sitting by designation and writing

for the Court, in determining whether the “lodestar” method for

calculating attorneys’ fees is appropriate in ERISA cases, noted

that while the Supreme Court has endorsed the lodestar method in

                                    24
cases involving fee-shifting statutes where Congress has authorized

the award of fees to a prevailing party, “ERISA does not use the

‘prevailing party’ language in its attorneys’ fee provision.”          Id.

at 1459.    Justice White went on to describe the analysis which

courts should use in determining attorneys’ fees under ERISA.          The

first step, he noted, is to “determine whether “the party is

entitled to attorneys’ fees by applying the five factors enumerated

in Bowen[12].”   Id.    Conspicuously absent from this first step is

a requirement that the “party” under consideration for attorneys’

fees be the prevailing one.      Combined with Justice White’s prior

notation    regarding   the   failure   of   Congress   to   include   the

prevailing party limitation in ERISA’s fee provision, Todd can be

read as supporting the proposition that there is no absolute

requirement that a party prevail in order to recover attorneys’

fees.

       We decline to join the Fourth Circuit in its reliance on “the

weight of authority” from other circuits imposing a prevailing

party limitation on the availability of attorneys’ fees under

ERISA, as that reliance, for the reasons discussed above, is

subject to considerable doubt.          Indeed, the greater weight of

authority, from outside and within our own circuit, supports the

notion that a party need not prevail in order to be eligible for an



  12
     Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir.
1980).

                                   25
award of attorneys’ fees under § 1132(g)(1) of ERISA.



     b.   Fees and Costs for General American

     Having determined that there is no requirement that a party

prevail in order to be eligible for consideration for attorneys'

fees under ERISA, we now turn to consider whether the district

court abused its discretion in awarding and denying attorneys' fees

and costs below.     In this case, the district court properly

identified the appropriate five factors to be used in determining

the underlying awards of attorneys’ fees under ERISA.        Those

factors are as follows:

          (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 attorney's 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' position.

Todd, 47 F.3d at 1458 (citing Iron Workers Local No. 272 v. Bowen,

624 F.2d 1255 (5th Cir. 1980)).

     Appellant urges that the district court abused its discretion

in awarding General American its fees and costs because, as she


                                  26
contends, it was not the prevailing party, and it acted in bad

faith. As discussed above, the prevailing status of the parties is

not determinative of the fee awards, though generally, a proper

analysis of the five factors will in most instances favor an award

of fees to the party which has most substantially prevailed.

     With respect to the first factor, the district court relied on

its conclusion that General American did not withhold payment in

bad faith, but rather that it did so in an effort to resolve the

potentially conflicting claims of Appellant and her minor children

in light of the investigation into her involvement in Mr. Gibbs’

death. The district court specifically found that General American

“did not act in bad faith . . . [n]or did it fail to conduct an

adequate investigation.”      However, the court did intimate that

Appellant proceeded in bad faith as she:

          “brought this suit when it was obvious she was
          still a suspect in the murder of her husband and
          when there was absolutely no basis for believing
          that Defendant had acted in bad faith.”

     With respect to the second factor, the district court found

that the insurance proceeds were adequate enough to satisfy an

award of attorneys’ fees for General American. With respect to the

third factor, upon which it relied most heavily in determining that

General American was entitled to have its fees paid out of the

interpleaded   funds,   the   district   court   said   “the   award   of

attorneys' fees to [General American] would, hopefully, deter

others from filing premature lawsuits to collect insurance proceeds


                                  27
when the beneficiary remains under suspicion of having murdered the

insured.”   And with respect to the fourth factor, the district

court found that Appellant had filed suit solely to benefit herself

and not any other ERISA plan participant.    The district court did

not specifically address the fifth factor.

     Regarding the first factor, while Appellant may have been a

suspect when she brought this action, due to the Hewitt Police

Department’s allowing her family and friends to completely clean

the crime scene, it is likely that Appellant would have remained a

suspect indefinitely, and consequently, General American, absent

just this type of litigation, could have withheld payment of the

benefits to Appellant indefinitely. Notwithstanding her refusal to

waive her claim to the proceeds in favor of her minor children

while she remained a suspect, it would be difficult to characterize

her actions in filing this suit as being taken in bad faith.   This

factor counsels against awarding General American its attorneys'

fees.

     Regarding the second factor, Appellant contends that the

insurance proceeds are insufficient to sustain an award of fees to

General American for $21,100.85 which amounts to nearly one-fourth

of the total proceeds of $88,852.00. This argument is strengthened

by the fact that, as will be discussed below, Appellant will be

required to pay her own attorneys' fees.    This factor, therefore,

also counsels against awarding General American its attorneys'

fees.

                                28
     With respect to the deterrent effect discussed by the district

court (the third factor), given the totality of the circumstances,

and General American’s reluctance, however justified, to release

the insurance proceeds, it would not serve the goals of ERISA to

deter others from instituting litigation which would force the

interpleading of disputed insurance proceeds for resolution of the

proper disbursement thereof, especially in situations such as this,

where   doing   otherwise   could   permit   the   insurance   company   to

indefinitely postpone resolution of the proper disbursement.             The

district court used the third deterrent factor as a sword to

discourage beneficiaries from pursuing a claim when they are

suspected of being involved in the insured's death, rather than as

this factor was intended to be used, as a shield, to protect

beneficiaries from the fear of having to pay to pursue an important

ERISA claim in the event of failing to prevail.        Clearly, Congress

intended the fee provisions of ERISA to encourage beneficiaries to

assert their rights without fear of being responsible for the fees

and costs of their opponent’s attorneys if they failed to prevail.

The district court’s use of this factor, though somewhat logically

justified based upon Appellant’s awareness that she was clearly a

suspect, was an abuse of its discretion in light of the other

factors and the totality of the circumstances of this case, which

included the fact that General American didn’t exercise its “good

faith” in interpleading until after it had been sued, and the fact



                                    29
that without physical evidence, Appellant might remain a suspect ad

infinitum.

     With respect to the final factor, the relative merits of the

parties’ positions, the district court itself acknowledged that,

even considering the polygraph evidence, this was a “close case.”

And while the district court obviously believed that Appellant was

likely involved somehow in the murder of her husband, her position

can hardly be deemed to be so disproportionately meritless as to

justify the imposition of an award of attorneys’ fees to General

American based on this factor.

     In sum, the first, second, third, and fifth Todd factors all

counseled in favor of disallowing General American’s request for

attorneys’ fees and costs from Appellant.   We therefore find that

the district court improperly relied upon the third deterrence

factor and that it abused its discretion in awarding General

American its attorneys’ fees and costs.



     c.   Fees and costs for Appellant Carolyn Gibbs

     Appellant also argues that the district court abused its

discretion in denying her request for attorneys’ fees and costs

from General American as she was the prevailing party.          She

recites, as argument, all of the same reasons advanced for why the

award of fees to General American was an abuse of discretion.   The

district court stated:


                                 30
           Defendant [General American] in this case did not
           act in bad faith in failing to approve Plaintiff’s
           claim.   Nor did it fail to conduct an adequate
           investigation.    Accordingly, Plaintiff is not
           entitled to an award of attorney’s fees.

The district court’s conclusion relies heavily upon the first and

fifth Todd factors, and upon its conclusion that General American

acted completely in good faith.         The district court also noted with

respect to the fourth factor that Appellant filed suit only to

benefit herself and no other ERISA plan participant, and that she

was not seeking to resolve any significant legal issue regarding

ERISA itself which would justify an award of her attorneys’ fees.

     An additional argument under the third, deterrence factor

exists for denying Appellant an award of attorneys’ fees, and this

argument   is    implicit    in   the     district    court’s     conclusions.

Permitting the award of such fees would actually serve to encourage

beneficiaries suspected of involvement in the death of an insured

to file premature lawsuits, before their alleged involvement can

either be established or ruled out, and this deterrence argument

weighs more heavily against an award to Appellant for her fees than

the reverse     argument    did   regarding   an     award   of   fees   against

Appellant and in favor of General American when the insurance

company has delayed action on a claim.

     For the reasons discussed above, the district court’s decision

to deny her request for attorneys’ fees and costs was not an abuse

of discretion.



                                     31
                      2. Guardian ad litem fees

       Appellant also argues that the district court abused its

discretion in awarding Intervenors their guardian ad litem’s fees

out of her proceeds, instead of assessing the same against General

American, whom she contends was the non-prevailing party.               With

respect to    the   guardian   ad   litem's   fees,    the   district   court

undertook no analysis of the Todd factors.13          In fact, the district

court merely stated “[t]he guardian ad litem’s fees will also be

deducted from the insurance proceeds currently in the registry of

the court.”

       Intervenors argue that in determining attorneys’ fees, the

court should take into account the fact that a guardian ad litem’s

role is different than that of the attorney for a party.                They

point to authority which stands for the proposition that the

guardian ad litem, when appointed by the court, occupies a dual

role as an advisor for his assigned client and an officer to the

court.    See duPont v. Southern Nat. Bank, 771 F.2d 874, 882 (5th

Cir. 1985); Friends for All Children v. Lockheed Aircraft Corp.,


  13
     We pause here to note that the issue of attorneys' fees under
ERISA applied only to the dispute between Appellant and General
American.    The standard governing the guardian ad litem's
entitlement to fees is governed not by ERISA, but rather by Texas
state law as it relates to their action under § 21.23 of the Texas
Insurance Code. And to the extent that any of the ad litem's fees
are taxable as costs against Intervenors' opposing party
(Appellant), that issue is governed by Rule 54(d) of the Federal
Rules of Civil Procedure.

                                     32
725 F.2d 1392, 1401 (D.C. Cir. 1984) (Mikva J., dissenting).

According to Intervenors, the ad litem’s unique role justifies

payment for his services regardless of the outcome of the case for

his clients.     See Stephen Allen Lynn Profit Sharing v. S.A. Lynn

P.C., 25 F.3d 280, 280-81 nn.1,2 (5th Cir. 1994); duPont, 771 F.2d

at 882 (citing with approval, Judge Mikva’s dissent in Friends for

All Children, 725 F.2d at 1400-01).    We agree, but only insofar as

the ad litem acts in the capacity as a guardian ad litem and not as

an attorney ad litem.

     In duPont, we held that where the same person acts in the

capacities as both a minor's guardian ad litem and as his attorney

ad litem, only the person's expenses in the former role are taxable

as costs under Fed. R. Civ. P. 54(d).     See id. at 882.   His fees

and expenses in the role of attorney ad litem would be treated as

any other attorneys’ fees.    In the case where the attorney ad litem

recovers assets or proceeds for the minor or protects the same,

then his fees may be assessed against the assets or the proceeds so

recovered or protected.      See, e.g., duPont, 771 F.2d at 882-83;

Kollsman v. Cohen, 996 F.2d 702, 706 n.3 (4th Cir. 1993) (citing

Folsom v. McDonald, 237 F.2d 380, 381-82 (4th Cir. 1956)). However,

in the event he tries to recover and fails, the guardian ad litem

acting in the capacity as an attorney for the minor is in no better

position than an attorney retained by any litigant under normal

circumstances.    See Kollsman, 996 F.2d at 706.   The Kollsman court

                                  33
adequately explained why an appointed attorney ad litem is in no

better posture than retained counsel with respect to entitlement to

fees:

           The guardian ad litem's presence is necessitated by
           the litigation and it is his duty to determine
           policy regarding litigation. The guardian ad litem
           is frequently not an attorney and if legal services
           are required, he must seek and employ counsel.
           Counsel obtained thereby on behalf of a ward or
           incompetent is in no different circumstance from
           counsel for any other litigant. See Hull by Hull,
           971 F.2d at 1511; duPont, 771 F.2d at 882;
           Schneider, 658 F.2d at 854-55; Franz, 38 F.2d at
           606. An attorney who serves as both legal counsel
           and guardian ad litem does not thereby acquire any
           greater right to recover his fees than have his
           brethren who are hired directly by a litigant. Id.


Kollsman, 996 F.2d at 706.

     In its answer and interpleader, General American requested

that the court appoint a guardian ad litem to represent the

interests of the minor children and require that they be joined as

parties so that Carolyn and the minor children could “settle

amongst themselves their rights to the money due under the policy.”

At the point of interpleader, the district court appointed Mr.

Kuchera “as guardian ad litem for [the children]” and directed that

Kuchera “file all appropriate pleadings on behalf of the minor

children and represent their interests for all purposes” (emphasis

added).   In no manner, did the district court require that Kuchera

file an intervenor complaint under § 21.23 for the purpose of

litigating the children's entitlement to the proceeds.   Rather, as


                                 34
in the general case where a guardian ad litem is appointed to

represent the interests of minor children with respect to disputed

proceeds, the guardian ad litem's initial task was to assess his

wards’ potential claim of entitlement and decide what course of

action should be taken on behalf of his wards, i.e., litigate,

settle or waive their claim.

     Here, Kuchera examined the circumstances of this case and

decided to file a motion to intervene and to file a complaint on

behalf of the children asserting their entitlement to the proceeds.

He was unsuccessful, and by failing to preserve or recover assets

or proceeds for his clients in his capacity as their attorney, and

not as their guardian, he is in no better position than a separate

counsel he might have retained.       At the time Kuchera decided to try

to establish Appellant's involvement, there was no lie detector

evidence,    and   only    limited    circumstantial     evidence     of   her

involvement in Mr. Gibbs' death.           Additionally, Appellant had not

been charged or indicted, and based on the botched investigation,

it was likely that she never would be.              Kuchera's decision to

pursue the § 21.23 claim of entitlement to the proceeds was a

gamble; he rolled the dice hoping he could get the necessary

evidence    to   recover   proceeds    for    the   children,   and   he   was

unsuccessful. Whether or not Texas state law would permit recovery

of attorney’s fees by the attorney ad litem for an unsuccessful

claimant under § 21.23 out of the insurance proceeds in question is

an issue which the district court did not address, either factually

                                      35
or legally.

     Furthermore, the only part of Kuchera's expenses which are

taxable as costs against any party under Rule 54(d) of the Federal

Rules of Civil Procedure are those expenses related to his role as

the guardian ad litem.    And those costs are taxable only against

the prevailing party, Appellant in this case, upon a showing of

good cause. Under Rogers v. Wal-Mart Stores, Inc., 686 S.W.2d 599,

600 (Tex. 1985), we think the trial court correctly found good

cause within the record of this case to support awarding those

limited costs against Appellant since the district court did say

that she was “likely” involved, that General American acted in

“good faith,” and that Kuchera made a good faith effort on behalf

of the children.    Consequently, we have determined that remand is

necessary in order to give the district court the opportunity to

determine which of Kuchera's claimed expenses fall under each

category, that is -- which are recoverable guardian ad litem

expenses taxable as costs, and which are non-taxable attorney ad

litem expenses.    The district court should also determine whether,

under Texas state law, the latter category of expenses may be

recovered by the guardian ad litem from Appellant and/or General

American.



                             CONCLUSION

     For all of the foregoing reasons, we AFFIRM the judgment of


                                  36
the district court in so far as it denies attorneys' fees and costs

to Appellant Carolyn Gibbs; REVERSE the judgment of the district

court in so far as it awards attorneys' fees and costs to Appellee

General   American   Life   Insurance;   VACATE   the   judgment   of   the

district court insofar as it awards attorneys’ fees and costs to

Intervenor-Appellees' guardian ad litem, John Kuchera; and REMAND

with instructions that the district court determine, pursuant to

duPont v. Southern Nat. Bank, 771 F.2d 874 (5th Cir. 1985), which

of Mr. Kuchera's fees and expenses were generated in his role as

guardian ad litem, and tax such fees and expenses as costs against

Appellant Carolyn Gibbs and/or General American.            The district

court should also determine whether the portion of Mr. Kuchera's

fees and expenses generated in his role as attorney ad litem are

recoverable from Appellant and/or General American under Texas

state law in the circumstances of this case.

            AFFIRMED in part; REVERSED in part; VACATED in part; and

REMANDED.




                                   37
BENAVIDES, J., specially concurring:

     I join the judgment of the majority and its holding that under

our decision in duPont v. Southern Nat’l Bank of Houston, Texas,

771 F.2d 874 (5th Cir. 1985), Mr. Kuchera cannot recover his

attorney ad litem fees as costs under Federal Rule of Civil

Procedure 54(d).    duPont binds this panel to its holding.        I

nevertheless write separately to emphasize my conviction that we

painted with too broad a brush in deciding duPont.

     While duPont forecloses payment of Mr. Kuchera’s fees in his

capacity as attorney, as opposed to guardian, ad litem pursuant to

Rule 54(d), the court simultaneously revealed another possible

avenue for compensating attorneys ad litem: “when an attorney ad

litem acts to preserve a trust for the benefit of a minor, then his

expenses, although not taxable as costs, can be recovered from the

trust.”   771 F.2d at 883 (citing United States v. Equitable Trust

Co., 283 U.S. 738 (1931)).         This rule is a well-established

exception to “American Rule” that “absent statute or enforceable

contract, litigants pay their own attorneys’ fees.”          Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257 (1975).

See id. (“[T]he 1853 [fee statute] was read as not interfering with

the historic power of equity to permit the trustee of a fund . . .

, or a party preserving or recovering a fund for the benefit of

others . . . , to recover his costs, including his attorneys’ fees,

from the fund . . . itself[.]”).    I believe that American General’s

deposit of the funds into the district court’s registry, under the

                                   38
circumstances (where American General made no claims to the funds

as such and whereby it relieved itself of potential liability for

payment of   the    funds   to   the    improper   party)     is   sufficiently

analogous to a settler’s contribution of funds to a trust to

warrant application of this rule.           Mr. Kuchera acted to preserve

the interpleader funds for the benefit of the Gibbs children, and

he may therefore be able to recover his fees from the insurance

proceeds.

     Unfortunately, here, the district court did not award fees

against the fund on the basis of this theory, but instead pursuant

to Rule 54(d).     I would remand for consideration of attorneys fees

also under this alternative theory described in duPont.

     Texas law, which provides for payment of ad litem fees by the

prevailing   party,   see   Tex.   R.    Civ.   Proc.   141    (permitting   an

assessment of costs against a prevailing party for good cause shown

on the record), articulates the compelling rationale for duPont’s

alternative theory: “those who accept ad litem appointments should

be reasonably sure of receiving a fee for their services.”               Dover

Elevator Co. v. Servellon, 876 S.W.2d 166, 171 (Tex. Civ. App.

1993, no writ); see also Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex.

1992). Quite logically, without such assurances, courts might find

themselves unable to obtain necessary representation for minors in




                                       39
court.14    Indeed, securing needed representation of minors is so

important in Texas that the designation of the representative as

“guardian ad litem” or “attorney ad litem” has little bearing on

the recovery of attorneys’ fees: “the paramount concern is not the

technical designation of the representative but the protection of

the minor’s interest.” Phillips Petroleum Co. v. Welch, 702 S.W.2d

672, 674 (Tex. Civ. App. 1995, no writ).15               In my view, to the

extent that duPont precludes payment of Mr. Kuchera’s fees pursuant

to Rule 54(d), the reasoning of the Texas courts persuasively

explains why such an outcome is undesirable.

        I take some heart from our decision today to sanction the

district court’s consideration of the availability of attorneys’

fees under Texas law, to be paid either out of the insurance

proceeds or by Carolyn Gibbs or American General.                     I remain

convinced that an attorney, who in good faith and with good cause,

undertakes an obligation imposed upon him by the district court

both to protect the interests of minors and to file pleadings on

their behalf, and who undisputably discharges this obligation in a

   14
      In fact, the Supreme Court cites a similar explanation for the historic
rule of equity permitting a trustee litigating on behalf of a fund to recover his
attorneys’ fees from the trust: “‘Such a rule of practice,’ it has been said, ‘is
absolutely essential to the safety and security of a large number or persons who
are entitled to the protection of the law–indeed, stand most in need of it–but
who are incompetent. . . to ask for protection or redress.’” Equitable Trust,
283 U.S. at 744 (quoting Voorhees v. Polhemus, 36 N.J.Eq. 456, 458 (1883)).
   15
      Significantly, Texas state courts routinely use “guardian ad litem” and
“attorney ad litem” interchangeably. See Estate of Catlin, 936 S.W.2d 447, 452
(Tex. App.–Houston (14th Dist.) 1996, no writ) (“The attorney ad litem in this
case was appointed pursuant to rule 173 which provides [for the appointment of
a guardian ad litem.]”); Strawder v. Thomas, 846 S.W.2d 51, 64 (Tex. App.–Corpus
Christi 1992, no writ) (“[C]ompensation to be paid to the guardian ad litem
(attorney ad litem) shall be fixed by the court[.]”).

                                       40
faithful and responsible manner should not be abandoned by the

system that has required and made use of his services. This is not

to say that all attorneys’ fees incurred in connection with ad

litem    representation     would       be    compensated    merely      because   the

attorney initiated some legal action.               Certainly, unreasonable or

bad faith efforts on behalf of the client should not result in

compensation.

        Here, however, the facts of the case indicated the complicity

of a party, Carolyn Gibbs, in a criminal offense, and the district

court found that Carolyn Gibbs more likely than not participated,

in some manner, in Joel Gibbs’ death.                   In these circumstances, a

reasonable attorney, consistent with his duties imposed on him by

virtue of his appointment by the court, should have sought to

recover the insurance funds for the Gibbs children, as Mr. Kuchera

did.     Far from “rolling the dice” and “gambling” on recovery, Mr.

Kuchera’s decision to intervene was virtually dictated by the facts

themselves; he acted in a measured and reasonable manner, which was

calculated to protect the best interests of the Gibbs children.16

His reasonable and good faith efforts in this regard should not go

uncompensated.

        With   these   comments,    I    join     the    judgment   of    this   court


   16
      In fact, had he not intervened on behalf of the Gibbs children, he would
have exposed himself to a potential malpractice suit that either of the Gibbs
children could have brought upon attaining the age of majority. See, e.g., Byrd
v. Woodruff, 891 S.W.2d 689, 708 (Tex. App.–Dallas 1994, no writ) (“We hold that
the guardian ad litem . . . can be liable in a civil action for damages resulting
from a breach of his duties as a personal representative for the minor.”).

                                             41
remanding Mr. Kuchera’s claim for attorneys’ fees for further

consideration by the district court and join the court’s opinion

with respect to its resolution of American General’s claim for

attorneys’ fees.




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