# Cougle v. Berkshire Life Insurance Company of America

> District Court, E.D. Louisiana · December 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10185089

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** December 13, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185089

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185089. Public record. Not legal advice.