Cougle v. Berkshire Life Insurance Company of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ALLAN COUGLE CIVIL ACTION

VERSUS NO. 19-9257

BERKSHIRE LIFE INSURANCE SECTION “R” (3)

COMPANY OF AMERICA AND

AMERITAS LIFE INSURANCE

ORDER AND REASONS

Before the Court are defendants’ motions to dismiss for failure to state

a claim under Federal Rule of Civil Procedure 12(b)(6).1 Because plaintiff

cannot state a claim under his various causes of action, the Court grants the

defendants’ motions.

I. BACKGROUND

This action arises from the denial of insurance benefits. Christopher

Cougle suffers from delusional disorder with paranoid and grandiose

features, a severe psychiatric illness which interferes with his judgment and

perception of reality.2 Cougle was insured under three individual insurance

1 R. Doc. 10; R. Doc. 12.

2 R. Doc. 1-2 at 3 ¶¶ 6-7.

disability policies, two issued by the Berkshire Life Insurance Company of

America and one issued by Ameritas Life Insurance Company.3 In December

2016, Cougle made a claim for long-term disability with both Berkshire and

Ameritas.4 Both insurance companies accepted Cougle’s claim, and began

making payments under the insurance policies.5

After twenty-four months, in January 2019, both defendants

discontinued payments.6 When Cougle demanded continued payment, both

companies responded that their respective insurance policies covered only

twenty-four months for Cougle’s psychiatric illness.7 Ameritas asserts that

such twenty-four month limitations for psychiatric illnesses are commonly

used throughout the country in individual insurance disability policies.8

Allen Cougle, the appointed curator of Christopher Cougle, brought

this suit in state court against Berkshire and Ameritas, arguing that the

insurance companies breached the terms of their policies and violated a

number of Louisiana laws.9 On April 10, 2019, the insurance companies

3 Id. at 3 ¶ 8.

4 Id.

5 Id. at 3 ¶ 9.

6 Id. at 3 ¶ 10.

7 Id. at 3-4 ¶¶ 11-12; see also id. at 15-17.

8 R. Doc. 12-1 at 3.

9 R. Doc. 1-2.

removed the suit to federal court.10 Both insurance companies then moved

to dismiss Cougle’s complaint for failure to state a claim upon which relief

may be granted.11

II. LEGAL STANDARD

When considering a motion to dismiss for failure to state a claim under

Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view

the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75

F.3d 190, 196 (5th Cir. 1996). The Court must resolve doubts as to the

sufficiency of the claim in plaintiff’s favor. Vulcan Materials Co. v. City of

Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001). But to survive a Rule 12(b)(6)

motion, a party must plead “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). The claim must be dismissed if there are insufficient factual

allegations to raise the right to relief above the speculative level, Twombly,

550 U.S. at 555, or if it is apparent from the face of the complaint that there

is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007). The

10 R. Doc. 1.

11 R. Doc. 10; R. Doc. 12.

Court is not bound to accept as true legal conclusions couched as factual

allegations. Iqbal, 556 U.S. at 679.

On a Rule 12(b)(6) motion, the Court must limit its review to the

contents of the pleadings, including attachments thereto. Brand Coupon

Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).

The Court may also consider documents attached to a motion to dismiss or

an opposition to that motion when the documents are referred to in the

pleadings and are central to a plaintiff’s claims. Id.

III. DISCUSSION

Plaintiff’s claims largely hinge on his allegations that the policies

violate certain provisions of the Louisiana Insurance Code and therefore

should be reformed to conform with those provisions. Plaintiff also asserts

claims under the Louisiana Human Rights Act and the Louisiana Unfair

Trade Practices Act, as well as a breach of contract claim, in which he appears

to assert that after reformation, the insurance companies would be in breach.

Finally, plaintiff asserts a declaratory judgment claim, which is contingent

on the viability of his other claims. The Court addresses each claim in turn.

As an initial matter, plaintiff argues that because this case was removed

from a Louisiana state court, Louisiana’s pleading standards—rather than

federal pleading standards—should be used to analyze his claims. But when

a case is removed to federal court, the law is clear that federal pleading

requirements, rather than state pleading requirements, apply. See Genella

v. Renaissance Media, 115 Fed. App’x 650, 652-53 (5th Cir. 2004) (“While

this case originated in state court and was later removed to federal court . . .

pleadings must nevertheless conform to federal pleading requirements.”);

see also Fed. R. Civ. P. 81(c) (“These [Federal Rules of Civil Procedure] apply

to a civil action after it is removed from a state court.”).

The cases plaintiff cites to are inapposite, as they relate to the

application of the standard only in the fraudulent joinder context. And in

the Fifth Circuit, courts apply federal pleading standards even when

addressing fraudulent joinder in a case that has been removed. See Int’l

Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193,

207-08 (5th Cir. 2016) (holding that a federal court must apply the federal

pleading standard to state fraudulent joinder claims). Therefore, the Court

will apply the federal pleading standard in analyzing the sufficiency of

plaintiff’s claims.

A. Reformation

Plaintiff asks that the Court reform the insurance policies to remedy

alleged violations of Louisiana law. Louisiana law explicitly allows a court to

reform a policy which violates the Louisiana Insurance Code. The Louisiana

Insurance Code states that “[a]ny insurance policy . . . issued and otherwise

valid, which contains any condition or provision not in compliance with the

requirements of this Code, shall not be rendered invalid, but shall be

construed and applied in accordance with such conditions and provisions as

would have applied had such policy . . . been in full compliance with this

Code.” La. R.S. 22:880. The Louisiana Supreme Court has also approved

reformations of insurance polices to make them comply with the Insurance

Code. See Rudloff v. La. Health Servs. & Indem. Co., 385 So. 2d 767, 770

(La. 1979) (reforming a policy to comply with the Louisiana Insurance Code).

And the policies at issue here state that to the extent they violate a state law,

the policies are amended so as to be in conformity with the minimum

requirements of the law.12 Here, plaintiff requests reformation based on a

variety of statutes, which are addressed in turn below.

1. La. R.S. 22:1043

Plaintiff alleges that defendants’ policies violate La. R.S. 22:1043,

which states: “Any hospital, health, or medical expense insurance policy . . .

shall include benefits payable for the treatment of severe mental illness

12 See R. Doc. 10-4 at 16 (Berkshire Policy Z1347920), 65 (Berkshire

Policy Z1347930); R. Doc. 12-3 at 10 (Ameritas Policy).

under the same circumstances and conditions or greater as benefits are paid

under those policies . . . for all other diagnoses, illnesses, or accidents.” La.

R.S. 22:1043(A)(1)(a). This statute is inapplicable here, as the policies at

issue are excluded from this prohibition.

La. R.S. 22:1043 excludes individual health insurance policies or

contracts like the ones at issue here. The statute states: “The provisions of

this Section shall not apply to health insurance individual policies or

contracts; limited benefit health insurance policies or contracts; and short

term health insurance policies or contracts.” La. R.S. 22:1043(A)(3)(b). The

Berkshire and Ameritas policies are limited benefit health insurance and

individual health policies, and are therefore excluded from the statute’s

prohibition on providing different benefits for mental illness.

Plaintiff argues that the relevant policies are health insurance and are

not “limited benefit health insurance policies.” But this argument is without

merit. Plaintiff first seems to argue that limited benefit health insurance

policies cannot include disability insurance, and therefore any disability

insurance must be health insurance. But the statutory definition of limited

benefit health insurance policy specifically includes disability insurance. See

La. R.S. 22:47(2)(c) (defining limited benefit insurance as a “[h]ealth and

accident insurance policy designed, advertised, and marketed to supplement

major medical insurance that includes . . . disability income.”).

Plaintiff simply ignores that La. R.S. 22:1043 also specifically excludes

“health insurance individual policies or contracts” and is designed to apply

only to group plans. See La. R.S. 22:1043(A)(3)(b) (“The provisions of this

Section shall not apply to health insurance individual policies or

contracts. . . .”) (emphasis added); see also id. 22:1043(A)(3)(a) (“The

provisions of this section shall apply only to group, blanket, and association

policies.”). Plaintiff does not contest that the relevant policies were

individual policies. And because the policies at issue are explicitly excluded

under the statute, Cougle has no claim for reformation under La. R.S.

22:1043.

2. La. R.S. 22:990

Cougle also alleges that defendants violate La. R.S. 22:990. That

statute sets the boundaries for what an insurance policy may define as “total

disability.” As relevant here, it states:

A general definition of total disability in such a policy

shall not be more restrictive than one requiring the

individual to be totally disabled from engaging in any

employment or occupation for which he is, or

becomes, qualified by reason of education, training,

or experience and which provides him with

substantially the same earning capacity as his former

earning capacity prior to the start of the disability.

La. R.S. 22:990(C). The Berkshire policies’ definition of “Total Disability”

reads:

Total Disability means that, because of sickness or

injury, you are not able to perform the material and

substantial duties of your occupation. Your

occupation means the regular occupation (or

occupations, if more than one) in which you are

engaged at the time you become disabled. You will

be totally disabled even if you are at work in some

other capacity so long as you are not able to work in

your occupation.13

And the Ameritas policy reads: “Total Disability . . . means that, solely due

to sickness or injury, you are not able to perform the material and substantial

duties of your occupation.”14

Cougle’s argument does not seem to be that these general definitions

of “total disability” in the policies are illegally limiting as they are written.

Rather, Cougle argues that the presence of a separate clause in the policies,

which limits benefits for mental or substance abuse disorders to twenty-four

months, acts as a limit on the definition of “total disability,” and thus is

impermissible under La. R.S. 22:990.

Cougle’s argument fails. La. R.S. 22:990 is designed to apply to the

general definitions of “Total Disability” in a policy. And plaintiff does not

13 R. Doc. 10-4 at 11 (Policy Z1347920); Id. at 58 (Policy X1347930).

14 R. Doc. 12-3 at 4 (emphasis removed).

argue that those general definitions are insufficently broad. La. R.S. 22:990

does not speak to other limitations on the application of the definition of

“Total Disability.” Significantly, as discussed above, another portion of the

Louisiana Insurance Code speaks specifically to limitations for mental and

substance abuse disorders. See La. R.S. 1043. And that statute specifically

excludes individual disability policies from its prohibition on limitations on

mental health disorder benefits. See id. 1043(A)(3)(b). When two statutes

on a similar subject matter conflict “the statute specifically directed to the

matter at issue must prevail as an exception to the statute more general in

character.” Oubre v. La. Citizens Fair Plan, 79 So. 3d 987, 997 (La. 2011).

Here, La. R.S. 1043 directly addresses the distinct treatment of mental health

disorders, while La. R.S. 22:990, if it does so at all, does so only generally

and indirectly. Because it is more specific, La. R.S. 1043, and its exception

regarding limitations on mental health benefits, must apply.

Moreover, the exclusion in La. R.S. 1043(A)(3)(b) would be

meaningless if La. R.S. 22:990 forbade individual or limited benefit

insurance policies from providing less beneficial treatment of mental health

disorders than other conditions. And it is “a cardinal principle of statutory

construction that a statute ought, upon the whole, to be so construed that, if

it can be prevented, no clause, sentence, or word shall be superfluous, void,

or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal

quotation marks omitted) (citing Duncan v. Walker, 533 U.S. 167, 174

(2001)); see also Oubre, 79 So. 3d at 987 (“[C]ourts are bound, if possible, to

give effect to all parts of a statute and to construe no sentence, clause, or word

as meaningless and surplusage if a construction giving force to and

preserving all words can legitimately be found.”). To read La. R.S. 22:990 as

broadly as Cougle requests would render La. R.S. 22:34(A)(3)(b)

meaningless, and therefore violate this “cardinal principle of statutory

construction.” TRW Inc., 534 U.S. at 31. This would be improper under

Louisiana law.

The case plaintiff cites to argue that the twenty-four-month limitation

necessarily violates La. R.S. 22:990, Scott v. Unum Life Insurance Company

of America, 80 So. 3d 740 (La. App. 2 Cir. 2011), does not require the

opposite result. In that case, the Louisiana Court of Appeals for the Second

Circuit affirmed the trial court’s decision that the policy at issue violated La.

R.S. 22:990 because the insurance company had construed the policies to

deny that the plaintiff was totally disabled on the grounds that he could still

perform work in certain alternative occupations, when these alternative

occupations paid less than plaintiff’s former job. The Court found that the

policy’s definition of “totally disabled,” as construed by defendants, was

impermissibly circumscribed. Scott, 80 So. 3d at 752.

That analysis is inapposite here. Cougle makes no argument that the

general definition of “Total Disability” in the Berkshire or Ameritas policies

are construed in a similarly impermissible manner. Moreover, Scott did not

deal with the 24-month limitations based on mental disabilities that Cougle

takes issue with. The Court therefore dismisses Cougle’s claim for

reformation pursuant to La. R.S. 22:990.

3. La. R.S. 22:34

Cougle also alleges that defendants’ policies violate La. R.S. 22:34.

That statute states, in relevant part, that

No insurer shall make or permit any unfair

discrimination . . . between insureds or subjects of

insurance having substantially like insuring risk, and

exposure factors, or expense elements, in the terms

or conditions of any insurance contract . . . or in the

benefits payable or in any other rights or privileges

accruing thereunder.

La. R.S. 22:34. Cougle argues that he can maintain a relevant claim for

reformation under this statute because he pleads that the insurance

companies pay benefits for psychiatric disorders “at a lesser benefit duration,

than for other mental health conditions such as dementia or Alzheimer’s

Disease that have the same or similar results and functional effects and a

lesser benefit duration than other physical diagnoses, illnesses, or conditions

that have the same or similar functional effects.”15

At its broadest, Cougle’s argument is that La. R.S. 22:34 prohibits

individual or limited benefit insurance policies from treating physical and

mental illnesses differently. But, as with La. R.S. 22:990, this argument flies

in the face of La. R.S. 1043(A)(3)(b). The distinction between delusional

disorder and physical conditions is barred by the clear terms of La. R.S.

1043(A)(1)(a). And as discussed above, individual disability policies are

explicitly excluded from that prohibition. See La. R.S. 1043(A)(3)(b). Such

an exclusion would be rendered meaningless if La. R.S. 22:34 was read so

broadly as to apply here. See TRW Inc., 534 U.S. at 31 (stating that statutes

should be construed so that no clause is superfluous or insignificant). La.

R.S. 22:1043 also more specifically addresses policies distinguishing

between mental and physical illnesses. Because it is more specific, La. R.S.

22:1043, and its exception regarding limitations on mental health benefits

must apply. See Oubre, 79 So. 3d 987 at 997 (holding that more specific

statutes govern over more general ones).

To the extent that Cougle also argues that the policies impermissibly

differentiate between two mental conditions that have similar functional

15 R. Doc. 1-2 at 4-5 ¶ 17.

effects, this argument also fails because Cougle fails to state a claim. To

survive a Rule 12(b)(6) motion, a party must plead “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Cougle does not do so here.

Cougle correctly states that the insurance policies apply the twenty-

four-month limitation to mental illnesses, such as delusional disorder, and

not to other illnesses that may share some similar symptoms, such as

Alzheimer’s Disease. But this distinction is based on classifications in the

Diagnostic and Statistical Manual of Mental Disorders, also known as the

“DSM.” The DSM is “a classification of mental disorders and associated

criteria” that is “a standard reference for clinical practice in the mental health

field.”16 The DSM draws a distinction between conditions of physical or

biological origin—such as physical trauma, infections, or a form of senility or

irreversible dementia such as Alzheimer’s Disease—and nonorganic mental

disorders, such as delusional disorder.

Plaintiff’s bald assertion that his condition has “the same or similar

results and functional effects” as conditions that are not subject to the

16 Diagnostic and Statistical Manual of Mental Disorders xli (5th ed.

2013).

twenty-four-month limitation, such as Alzheimer’s Disease, is not sufficient

to state a claim. Indeed, plaintiff does not even allege that his condition has

“like insuring risk, and exposure factors, or expense elements” as conditions

such as Alzheimer’s Disease or dementia, which is what is required to violate

the statute. See La. R.S. 22:34.

Moreover, the DSM itself—the basis for the distinction about which

Cougle complains—offers reasons why the insuring risk of delusional

disorder and disorders such as Alzheimer’s Disease are different. For

example, the DSM notes that prevalence of Alzheimer’s Disease “increases

steeply with age” after age sixty,17 but that delusional disorder “can occur in

younger age groups.”18 Insurance risk and expense factors for disorders that

are more likely to occur later in life are less than those that occur earlier in

life. Because Cougle does not plausibly state a claim that his disorder has

like insuring risk, exposure factors, or expense elements as other diseases

such as Alzheimer’s Disease, the Court dismisses Cougle’s claim for

reformation under La. R.S. 22:34.

17 Diagnostic and Statistical Manual of Mental Disorders 608 (5th ed.

2013).

18 Id. at 93.

B. Discrimination

Cougle also brings a claim for discrimination under the Louisiana

Human Rights Act. See La. R.S. 51:2231, et seq. As relevant here, that statute

states that “it is a discriminatory practice for a person to deny an individual

the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, and accommodations of a place of public accommodation . . . on

the grounds of . . . disability.” La. R.S. 51:2247. “Disability” is then defined

as “a physical or mental impairment that substantially limits one or more of

the major life activities of the individual.” La. R.S. 51:2232(3)(a). The statute

goes on to define “mental impairment” as “any mental or psychological

disorder, such as . . . emotional or mental illness.” Id. 51:2232(3)(a)(ii).

Whether the LHRA is applicable turns on two issues. First, the parties

debate whether the insurance was sold in a “place of public accommodation”

as defined by the statute. Second, the parties similarly dispute whether the

practice at issue here constitutes a “discriminatory practice” as defined by

the statute. There is a dearth of Louisiana case law on both questions.

Neither party has cited a case in which a Louisiana court applied the LHRA

in the insurance context, nor can the Court identify one. Indeed, the one case

defendants point to, Franklin v. Arc of East Ascension, is inapposite, as that

case decided only that the LHRA is not applicable to employment

discrimination. It specifically noted that “the LHRA prohibits

discrimination in public accommodations.” No. 16-684, 2017 WL 722599,

*3 (M.D. La. Feb. 23, 2017). Because of the lack of case law on point in

Louisiana, Cougle asks the Court to look to an analogous statute, the

American with Disabilities Act, 42 U.S.C. § 12182, to determine the whether

the terms “discriminatory practice” and “public accommodation” are

expansive enough to cover the actions of the insurance companies here.

Other courts have looked to the ADA when interpreting the scope of the

LHRA. See, e.g., Smith v. Board of Comm. of La. Stadium and Exposition

Dist., 385 F. Supp. 3d 491, 506-08 (E.D. La. 2019). As the Court finds this

appropriate, the Court will examine the LHRA issues through the lens of the

ADA.

1. Public Accommodation

“Place of public accommodation” is defined in the LHRA as “any place,

store, or other establishment . . . which supplies goods or services to the

general public or which solicits or accepts the patronage or trade of the

general public.” La. R.S. 51:2232(9). The ADA similarly prohibits

discrimination in public accommodations against those with disabilities. See

42 U.S.C. § 12182 (“No individual shall be discriminated against on the basis

of disability in the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public

accommodation. . . .”). The ADA defines “public accommodation” differently

and more narrowly than the LHRA, listing specific places such as hotels and

restaurants. See id. § 12181(7)(A)-(B). Notably, unlike the LHRA, the ADA

specifically includes insurance offices as public accommodations. Id.

§ 12181(7)(F).

The primary dispute between the parties on this issue seems to deal

with whether insurance that is not purchased at a physical establishment can

still be considered subject to the laws prohibiting discrimination in public

accommodations. Indeed, a number of the cases cited by the parties go to

this issue. See, e.g., Winslow v. IDS Life Ins. Co., 29 F. Supp. 2d 557, 561-63

(D. Minn. 1998) (holding that the phrase “public accommodations” is not

limited to access to actual physical structures, but also covers access to

insurance policies offered by public accommodations); Carparts Dist. Cen.,

Inc. v. Auto. Wholesaler’s Ass’n. of New England, 37 F. 3d 12, 18-20 (1st Cir.

1994) (holding the same).

Whatever arguments can be made about whether physical access is

necessary to make an establishment, including an insurance office, a “public

accommodation” under the ADA, they are of no moment here. In the first

paragraph of his complaint, Cougle alleges that he obtained the policies

“from an insurance agent at a physical business establishment located in the

State of Louisiana offering insurance services to the general public on behalf

of defendants.”19 The Court must accept as true plaintiff’s allegations in his

complaint that he purchased the relevant policies from an insurance agent at

a physical business establishment. Therefore, the Court need not address

whether purchasing insurance policies other than at a physical establishment

would violate the ADA or the LHRA.

Moreover, the Court finds that the LHRA’s definition of “public

accommodation” includes insurance offices, such as the one where Cougle

purchased the policies at issue. Although the LHRA does not explicitly list

insurance offices, as the ADA does, the general definition of “public

accommodation” under the Louisiana law is broader than under the ADA’s.

Specifically, such an insurance office is certainly a place “which solicits or

accepts the patronage or trade of the general public.” La. R.S. 51:2232(9).

The Court therefore finds that Cougle purchased the insurance policies from

a “public accommodation” within the meaning of the LHRA.

2. Discriminatory Practice

That plaintiff purchased the insurance policies from a public

accommodation does not necessarily entitle him to relief. Defendants must

19 R. Doc. 1-2 at 2 ¶ 1 (emphasis added).

also have engaged in a “discriminatory practice” that denied “an individual

the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, and accommodations of a place of public accommodation.” La.

R.S. 51:2247. Here, the LHRA defines a

discriminatory practice in connection with public

accommodations” as “any direct or indirect act or

practice of exclusion, distinction, restriction,

segregation, limitation, refusal, denial, or any other

act or practice of differentiation or preference in the

treatment of a person or persons because of . . .

disability.

Id. 51:2232(5). Because no Louisiana court has applied the LHRA in this

context, the Court again turns to the ADA and its caselaw as a reference.

The primary issue is whether the statute regulates only access to goods

and services, or also the content of those goods and services—that is, whether

the LHRA protects not only Cougle’s access to various insurance offices, but

also the relevant content of the policies offered in those offices. With respect

to the ADA, the Fifth Circuit has addressed this issue directly, and its

reasoning and holding dictates the outcome in this case. In McNeil v. Time

Insurance Company, 205 F.3d 179 (5th Cir. 2000), the Fifth Circuit

addressed whether an insurance company—which it assumed was a public

accommodation—violated the ADA by offering a policy that limited the

amount of coverage for AIDS. Id. The court held that while the ADA

prohibits an insurance company from denying disabled individuals access to

insurance policies, it “does not, however, regulate the content of goods and

services that are offered.” Id. at 186. The court found that a plain reading of

the statute’s requirement that disabled individuals must have access to “the

full and equal enjoyment” of a business’s goods means only that they provide

disabled individuals the same access to the goods and services of the

business, which exist a priori and independently from any discrimination.

Id. at 186-87. The court also listed a parade of horribles that could result

from a broader reading of the statute, noting, for example, that if the statute

were read as broadly as Cougle urges, bookstores would have to offer a copy

of each book they sell in print in braille as well. Id. at 197. Applying the

reasoning of the Fifth Circuit in McNeil demonstrates that Cougle cannot

maintain a claim, as laws governing public accommodations regulate only

access to goods and services, not the content of the goods and services

themselves.

Cougle’s attempts to distinguish McNeil are not persuasive. He first

argues that the polices at issue allow for reformation, and suggests that the

policy at issue in McNeil did not. But the lack of a reformation clause was in

no way the basis for the Fifth Circuit’s holding in McNeil. This argument also

puts the cart in front of the horse—Cougle suggests that the policy should be

reformed because it violates Louisiana law, and therefore McNeil is not

applicable. But here, the question McNeil addresses is whether the insurance

policies violate public accommodations laws in the first instance.

Other courts are divided on this issue. But the bulk of the caselaw holds

that, at least in this context, only the rights of access to goods and services

are protected, not the content of the goods and services. See, e.g., Weyer v.

Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000)

(“Title III does not address the terms of the polices that [an insurance

company] sells”.); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1012 (6th

Cir. 1997) (“Title III does not govern the content of a long-term disability

policy offered by an employer.”). Of note, many of the cases relied on by

plaintiff have been vacated, reversed, or called into doubt by later opinions.

See, e.g., Johnson v. K-Mart Corp., 273 F.3d 1035 (11th Cir. 2001), reh’g en

banc granted, opinion vacated (Dec. 19, 2001); Chamber v. United of

Omaha Life Ins. Co., 994 F. Supp. 1185 (N.D. Cal. 1998); aff’d on other

grounds, 225 F.3d 1042 (9th Cir. 2000); Attar v. UNUM Life Ins. Co. of Am.,

No. 3-96-397, 1998 WL 574885 (N.D. Tex. Aug. 31, 1998). These cases are

therefore of limited persuasive value to the Court.

Cougle also suggests that the LHRA is necessarily broader than the

ADA, and therefore the ADA is of limited value in this context. This

argument, too, is without merit. The LHRA provides that disabled

individuals are entitled to “equal enjoyment” of goods and services in places

of public accommodation. This language is perhaps even less expansive than

that of the “full and equal enjoyment” language of the ADA, which was

interpreted in McNeil. See 42 U.S.C. § 12182(a). The Court therefore finds

the reasoning of McNeil and similar cases persuasive and equally applicable

to the LHRA. And because Cougle was given equal access to goods and

services, the Court must dismiss his claim under the LHRA. To the extent

Cougle also asserts a claim for reformation of the polices so that they comply

with the LHRA, this claim is also dismissed, as the Court finds the policies

do not violate the LHRA.

C. Unfair Trade Practices

Plaintiff also alleges a claim under Louisiana’s Unfair Trade Practices

and Consumer Protection Law, La. R.S. 15:1401, et seq. Defendants contend

that plaintiff cannot maintain a claim under LUTPA because unfair trade

claims in the insurance context are excluded by the statute. LUTPA states:

“The provisions of this Chapter shall not apply to . . . [a]ny . . . actions or

transactions subject to the jurisdiction of . . . the insurance commissioner.”

La. R.S. 15:1406(1). Here, the insurance policies at issue fall under the

jurisdiction of the insurance commissioner.

The Louisiana Insurance Code contains its own unfair trade practices

provision, which states:

No person shall engage in this state in any trade

practice which is defined in this Part to be an unfair

method of competition or an unfair or deceptive act

or practice in the conduct of the business of

insurance, including unauthorized insurance as

provided in R.S. 22:1902 et. seq.

LA. R.S. 22:1963. The Louisiana Insurance Code also gives the insurance

commissioner the power to determine what is an unfair trade practice in the

insurance industry. The Insurance Code states:

The commissioner of insurance shall have power to

examine and investigate the affairs of every person

engaged in the business of insurance, including

violations of 22:1902 et seq., in order to determine

whether such person has been or is engaged in any

unfair method of competition or in any unfair or

deceptive act or practice prohibited by this part.

La. R.S. 22:1967. This language makes clear that unfair trade practices in the

insurance context fall within the authority of the commissioner of insurance,

and no authority suggests otherwise.

Because unfair trade practices fall under the jurisdiction of the

insurance commissioner, the plain language of LUTPA bars Cougle’s unfair

trade practices claim. See S. Gen. Agency, Inc. v. Safeway Ins. Co. of La.,

769 So. 2d 606, 608-09 (La. App. 3 Cir. 2000) (holding that where the

insurance commissioner has the power to investigate unfair or deceptive acts

or practices, a plaintiff cannot maintain a claim under LUTPA). Therefore,

as Cougle recognizes, his claim under LUTPA is barred.20 To the extent

Cougle also asserts a claim for reformation of the policies to comply with

LUPTA, that claim is similarly barred, as Cougle can bring no action under

LUPTA.

Although Cougle recognizes that his claim under LUTPA is barred, he

argues the Court should reform the insurance policies so that they do not

violate the unfair trade provisions of the Louisiana Insurance Code. But

there are two problems with Cougle’s argument. First, there is no private

right of action for a claim of unfair trade practice under the Louisiana

Insurance Code, whether for damages or for reformation. The Louisiana

Insurance Code allows for private actions for unfair trade practices for only

a narrow set of enumerated claims, none of which is at issue here. See Klein

v. Am. Life & Cas. Co., 858 So. 2d 527, 533 (La. App. 1 Cir. 2003) (“No

provision in this statutory scheme, however, creates a cause of action in favor

of a person allegedly injured by unfair trade practices in the insurance

business.”).

20 R. Doc. 14 at 22 (“[P]laintiff concedes that his right to bring an action

against an insurer for damages, penalties and attorneys fees for unfair or

deceptive trade practices is precluded by the provisions of La. R.S.

22:1406 . . . .”).

Second, the Louisiana insurance commissioner has the authority to

investigate and determine whether an insurance company has engaged in

unfair trade practices under the Louisiana Insurance Code. See La. R.S.

22:1967. Plaintiff has not alleged that the Louisiana insurance commissioner

has found that these policies—or policies with similar provisions—are an

unfair trade practice. Indeed, defendants assert that the insurance

commissioner approved the relevant policies.21 There is therefore no

authority for the Court to find the policies invalid or to reform them.

Plaintiff cites Rudloff v. Louisiana Health Services. & Indemnity. Co.,

385 So. 2d 767, 771 (La. 1979), for the proposition that a court may reform

an insurance policy to conform to the Louisiana Insurance Code. But the

plaintiff in Rudloff did not bring suit under the unfair trade practices portion

of the Louisiana Insurance Code. Rather he sued under a separate section

that allowed for private rights of action. Rudloff provides no justification for

reforming a policy when the commissioner of insurance has not found a

violation. The Court therefore finds that Cougle’s LUTPA claim is barred by

the plain language of the statute, and that he has no private cause of action

under the unfair trade practices sections of the Louisiana Insurance Code.

These claims are therefore dismissed.

21 See R. Doc. 10-2 at 8; R. Doc. 12-1 at 4; see also R. Doc. 12-5.

D. Breach of Contract

Plaintiff alleges a breach of contract claim against both Berkshire and

Ameritas, stating that both companies “are in breach of their own respective

contract terms by failing to pay all benefits to [Cougle] under the terms of the

LTD policy.”22 In order to survive a motion to dismiss, plaintiff must

plausibly plead that (1) defendants undertook an obligation to perform;

(2) defendants failed to perform the obligation; and (3) the failure to perform

resulted in damages. See La. Civ. Code art. 1994; see also Denham Homes,

L.L.C. v. Teche Federal Bank, 182 So. 3d 108, 119 (La. App. 5 Cir. 2015).

Here, plaintiff cannot plausibly plead these elements. Both insurance

companies point to policy limitations stating that the companies would pay

benefits for Cougle’s disability for only twenty-four months. The Berkshire

policies state:

The benefit period for a disability due to a mental

and/or substance-related disorder is also subject to

the following limitations: (a) monthly indemnity will

not be paid for more than an aggregate total of 24

months during the entire time the policy is in force.23

22 R. Doc. 1-2 at 4 ¶ 16.

23 R. Doc. 10-4 at 25 (Policy Z1347920), 72 (Policy Z1347930).

Similarly, the Ameritas policy states that the “MNDA [Mental/Nervous

Disorders, Alcoholism and/or Drug Abuse] Benefit Period” has a lifetime

maximum of 24 months.24

Plaintiff does not contest that the twenty-four month limitation exists.

Indeed, in his response to the motions to dismiss, plaintiff in no way

addresses his breach of contract claim or the defendants’ argument that this

claim should be dismissed. Plaintiff has not plausibly pleaded that either

company undertook an obligation to perform beyond paying benefits for

twenty-four months. Each company paid benefits for twenty-four months,

as required by the plain terms of the contract.25 Defendants therefore do not

breach the plain terms of the policies. And to the extent that Cougle’s breach

of contract claim was contingent upon reformation of the policies pursuant

to Cougle’s other arguments, this claim also fails, as the Court has found no

cause to reform the policies. This claim is therefore dismissed.

E. Declaratory Judgment

Finally, Cougle brings a claim for declaratory judgment. Federal courts

treat a state court declaratory action that is removed as invoking the Federal

Declaratory Judgment Act, 28 U.S.C. § 2201. See Hartford Fire Ins. Co v.

24 R. Doc. 12-3 at 4.

25 R. Doc. 1-2 at 3 ¶¶ 9-10.

Harleysville Mut. Ins. Co, 736 F.3d 255, 261 n.3 (4th Cir. 2013). Here,

Cougle seeks a declaration that the defendants’ policies provide continuing

coverage of plaintiff. As discussed above, the Court has found that neither

insurance company breached the terms of their policies. Similarly, the Court

has found no violation of law, and therefore no reason to reform the policies

at issue. Cougle cannot maintain a claim for declaratory judgment, as it was

rendered moot by the dismissal of Cougle’s other claims. See Barlett v.

Overslaugh, 169 F. Supp. 3d 99,110 (D.D.C. 2016) (“A court may dismiss as

moot a claim for declaratory relief where the claim duplicates or is wholly

subsumed by another claim that has been dismissed.”). The Court therefore

dismisses Cougle’s declaratory judgment claim.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the defendants’ motions

to dismiss under Federal Rule of Civil Procedure 12(b)(6). The complaint is

dismissed WITH PREJUDICE.

New Orleans, Louisiana, this _13th day of December, 2019.

Van22

SARAH 8S. VANCE

UNITED STATES DISTRICT JUDGE

29