The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ALLSTATE LIFE INSURANCE COMPANY
CIVIL ACTION
VERSUS
21-CV-469-SDD-SDJ
MARCELLE, ET AL.
RULING
This matter comes before the Court on the Motion for Summary Judgment1 filed
by Defendant-in-Counterclaim, Allstate Life Insurance Company (“Allstate”). Plaintiffs-in-
Counterclaim, Eunice Valleria Moore-Lavigne, the Estate of Dr. Marilyn Ray-Jones, and
the Ray-Jones Family Irrevocable Trust (collectively, “Counterclaimants”) filed an
Opposition,2 to which Allstate filed a Reply.3 For the reasons that follow, the Motion will
be granted.
I. BACKGROUND AND PROCEDURAL FACTS
In 2004, Dr. Marilyn Ray-Jones (“Dr. Ray-Jones”) purchased a life insurance policy
(the “Policy”) from Allstate, naming as the primary beneficiary her son, Thomas E. Ray,
II, naming her cousin, Yvette Marcelle (“Marcelle”), as the contingent beneficiary.4 From
December 2005 through December 2019, Allstate sent Dr. Ray-Jones annual
policyholder statements at the address she provided to Allstate.5 Counterclaimants
confirm that Dr. Ray-Jones “received at least some” of these statements.6 Each of the
1 Rec. Doc. 88.
2 Rec. Doc. 89.
3 Rec. Doc. 92.
4 Rec. Doc. 88-2, p. 1; Rec. Docs. 88-4 and 88-5.
5 Rec. Doc. 88-2, p. 2; Rec. Docs. 88-6 and 89-2, p. 2.
6 Rec. Doc. 89-2, p. 2; Rec. Doc. 88-2, p. 2; Rec. Doc. 88-9, Dep. Transcript 133:23–138:7.
annual statements identifies Thomas E. Ray, II, as the primary beneficiary and Marcelle
as the contingent beneficiary.7 In June 2020, Dr. Ray-Jones, and Earl Marcelle, Jr. (“Mr.
Marcelle, Jr.”), Dr. Ray-Jones’ cousin and Co-Trustee of the Ray-Jones Family
Irrevocable Trust, contacted Allstate about the Policy.8 Counterclaimants allege Allstate
outsourced their customer service call center and Dr. Ray-Jones and Mr. Marcelle, Jr.
spoke with representatives from EXL Services Philippines, Inc.9 Counterclaimants allege
that the customer service representatives informed them that there was not a contingent
beneficiary on the Policy, but Allstate denies this allegation.10 Following the call, Allstate
sent a change of beneficiary request form to Counterclaimants and Dr. Ray-Jones.11
However, Dr. Ray-Jones did not execute the change of beneficiary form.12
Counterclaimants allege Dr. Ray-Jones failed to complete the form because she was told
there was no contingent beneficiary and therefore without a designated beneficiary she
knew the Policy’s proceeds would go to her estate.13 By October 2020, Dr. Ray-Jones
and her son, Thomas, E. Ray, II were deceased. After Dr. Ray-Jones’ death,
Counterclaimants notified Allstate that they had a claim to the death benefit.14 Allstate
filed an interpleader to resolve the competing claims to the Policy’s proceeds and
deposited the proceeds in the Court’s registry.15 Marcelle moved for summary judgment
7 Rec. Doc. 88-6.
8 Rec. Doc. 88-2, p. 2; Rec. Doc. 88-7; Rec. Doc. 89-2, p. 2.
9 Counterclaimants assert this allegation in their Separate Concise Statement of Facts and provide a record
citation. Rec. Doc. 89-1, p. 3. But, upon review of the citation, this assertion is not supported. However,
Allstate does not deny their customer service center is outsourced.
10 Rec. Doc. 89-2, pp. 20–21; Rec. Doc. 88-1, pp. 7–8.
11 Rec. Doc. 88-9, Dep. Transcript 123:7–124:19.
12 Id.
13 Id; Rec. Doc. 89-1, p. 4; Rec. Doc. 89-2, p. 2.
14 Rec. Doc. 7; Rec. Doc. 89-2, pp. 25–26.
15 Rec. Docs. 1, 8, and 31.
claiming that she was the lawful beneficiary of the Policy’s proceeds.16 Counterclaimants
filed a response to Allstate’s interpleader and brought a counterclaim against them.17 The
Court granted Marcelle summary judgment finding that there was no factual dispute that
she was the sole surviving named beneficiary under the Policy.18
Now, the Court addresses Allstate’s motion for summary judgment seeking
dismissal of Counterclaimants’ counterclaim. In their Complaint, Counterclaimants allege
Allstate is liable for (1) breaching its fiduciary duty; (2) breaching the contract (the Policy);
(3) detrimental reliance; and (4) breach of the customer service representatives’ fiduciary
duties under the theory of respondeat superior.19 The Counterclaimants filed an
Opposition,20 to which Allstate replied.21
II. LAW AND ANALYSIS
A. Summary Judgment Standard
Summary Judgment should granted if the record, taken as a whole, “together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”22 The Supreme Court has
interpreted the plain language of Rule 56(c) to mandate “the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.”23 A party moving for summary
16 Rec. Doc. 22.
17 Rec. Doc. 7.
18 Rec. Doc. 38.
19 Rec. Doc. 7.
20 Rec. Doc. 89.
21 Rec. Doc. 92.
22 Basil v. Dow Chem. Co., 2020 WL 1964155, at *1 (M.D. La. Apr. 23, 2020).
23 Id.
judgment “must ‘demonstrate the absence of a genuine issue of material fact,’ but need
not negate the elements of the nonmovant’s case.”24 If the moving party “fails to meet this
initial burden, the summary judgment must be denied, regardless of the nonmovant’s
response.”25
If the moving party meets this burden, Rule 56(c) requires the nonmovant to go
beyond the pleadings and show by affidavits, depositions, answers to interrogatories,
admissions on file, or other admissible evidence that specific facts exist over which there
is a genuine issue for trial. The nonmovant’s burden may not be satisfied by conclusory
allegations, unsubstantiated assertions, metaphysical doubts as to the facts, or a scintilla
of evidence. Factual controversies are to be resolved in favor of the nonmovant, “but only
when there is an actual controversy, that is, when both parties have submitted evidence
of contradictory facts.”26 The Court will not, “in the absence of any proof assume that the
nonmoving party could or would prove the necessary facts.”27 Unless there is sufficient
evidence for a jury to return a verdict in the nonmovant’s favor, there is no genuine issue
for trial.
B. Breach of Fiduciary Duty
Allstate moves for summary judgment on the Counterclaimants’ breach of fiduciary
duty claim because Counterclaimants cannot prove that Allstate “knowingly committed”28
any acts that would constitute a breach of its’ duties, as codified by Louisiana Revised
Statute 22:1973:
24 Id.
25 Id.
26 Id at *2.
27 Id.
28 Rec. Doc. 88-1, p. 7.
A. An insurer. . .owes to his insured a duty of good faith and fair dealing.
The insurer has an affirmative duty to adjust claims fairly and promptly and
to make a reasonable effort to settle claims with the insured or the claimant,
or both. Any insurer who breaches these duties shall be liable for any
damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an
insurer, constitutes a breach of the insurer's duties imposed in Subsection
A of this Section:
(1) Misrepresenting pertinent facts or insurance policy provisions
relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement
is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of
an application which the insurer knows was altered without notice to,
or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
(5) Failing to pay the amount of any claim due any person insured by
the contract within sixty days after receipt of satisfactory proof of loss
from the claimant when such failure is arbitrary, capricious, or without
probable cause.
(6) Failing to pay claims pursuant to R.S. 22:1893 when such failure
is arbitrary, capricious, or without probable cause.29
In response, Counterclaimants state that they are “not claiming that Allstate
‘knowingly’ breached the terms of the Policy.” Instead, they allege that “Allstate’s contract
breach was attributable to its negligence.”30 A breach of contact claim is distinct and
separate from a breach of fiduciary duty claim, and Counterclaimants fail to substantively
oppose dismissal of the breach of fiduciary duty claim. This Court has held on numerous
occasions that the “failure to brief an argument in the district court waives that argument
in that court,”31 and the “failure to oppose the substance of an argument is a waiver and
dismissal is proper on these grounds alone.”32 Accordingly, pursuant to Middle District
29 La. Stat. Ann. § 22:1973.
30 Rec. Doc. 89, p. 8.
31 Williams v. Louisiana State Univ., 2022 WL 17330106, at *6 (M.D. La. Nov. 29, 2022), appeal dismissed
sub nom., Williams v. Palermo, 2023 WL 4231618 (5th Cir. Feb. 13, 2023) (citations omitted).
32 JMF Med., LLC v. Team Health, LLC, 490 F. Supp. 3d 947, 981 (M.D. La. 2020) (citing Bourgeois v.
Walmart Inc., 2020 WL 1161928, at *3 (M.D. La. 2020)).
Local Rule 7(f) and applicable jurisprudence, the breach of fiduciary duty claim is deemed
abandoned, and shall be dismissed with prejudice.
C. Breach of Contract
In Louisiana, to establish a breach of contract claim a party must establish three
essential elements: (1) the obligor's undertaking an obligation to perform; (2) the obligor
failed to perform the obligation (the breach); and (3) the failure to perform resulted in
damages to the obligee.33 “To state a claim for breach of an insurance contract under
Louisiana law, a plaintiff must allege a breach of a specific policy provision.”34
Allstate moves for summary judgment on Counterclaimants’ breach of contract
claim because (1) Counterclaimants are not parties to or beneficiaries of the Policy; (2)
Counterclaimants failed to identify a breach of a specific provision of the Policy; and (3) if
the Court finds Counterclaimants’ allegations bear on Allstate’s obligations under the
General Provisions, Allstate fulfilled all of its obligations under these provisions.35 The
Court grants summary judgment on Counterclaimants’ breach of contract claim for several
reasons.
First, Counterclaimants’ argument that this Court should deny summary judgment
dismissal because Dr. Ray-Jones substantially complied with the Policy is unpersuasive.
They argue Dr. Ray-Jones was within her power to comply with the terms of the Policy’s
“Beneficiary” and “Change of Owner or Beneficiary” provisions of the Policy, but Allstate
breached the Policy’s provisions by providing Dr. Ray-Jones with the wrong information
33 Omkar, LLC v. AmGUARD Ins. Co., 624 F. Supp. 3d 646, 650 (E.D. La. 2022) (citing IberiaBank v.
Broussard, 907 F.3d 826, 835 (5th Cir. 2018)).
34 Id at 650– 51 (internal citations and quotations omitted).
35 Rec. Doc. 88-1, pp. 8–9.
and failing to pay the proceeds to Dr. Ray-Jones’ Estate.36 From a procedural standpoint,
Counterclaimants did not raise this theory or allegation in their Complaint; thus, it is not
properly before the Court.37 But even assuming it was properly plead, this Court already
held that this theory does not apply here because Counterclaimants failed to provide
evidence showing Dr. Ray-Jones substantially complied with the Policy regarding naming
beneficiaries.38 The Change of Beneficiary provision states, “[i]f you have reserved the
right to change the owner or beneficiary, you can file a written request with us to make
such a change.”39 Counterclaimants concede that Allstate provided Dr. Ray-Jones with a
change of beneficiary form upon her request, but Dr. Ray-Jones never submitted the
form.40 Moreover, Counterclaimants concede that Yvette Marcelle was named a
contingent beneficiary on the Policy.41 Accordingly, Counterclaimants fail to raise any
genuine issue of fact with respect to Dr. Ray-Jones’ compliance and Allstate’s breach
under this theory.
Second, although Counterclaimants argue that Allstate breached the Policy by
failing to pay the proceeds to Dr. Ray-Jones’ estate, the Court finds that the summary
36 Rec. Doc. 89, p. 11.
37 This Court has held that a party “cannot amend pleading through opposition memoranda. The law is well-
settled that arguments in a brief are not a substitute for properly pleaded allegations: “it is axiomatic that a
complaint cannot be amended by briefs in opposition to a motion [for summary judgment].” Becnel v. St.
Charles Par. Sheriff's Off., 2015 WL 5665060, at *1 n.3 (E.D. La. Sept. 24, 2015) (internal brackets omitted)
(quoting In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011). See
also LeBlanc v. DISA Glob. Sols., Inc., 2020 WL 8363123, at *5 (M.D. La. Feb. 19, 2020) (finding claims
that were presented in the plaintiff’s opposition to summary judgment were not properly before the Court).
38 The Court found that “[w]hether or not Dr. Ray-Jones’ failure to submit a written request was the result
of misrepresentations by Allstate is the subject of the [Counterclaimants]’ counterclaim against Allstate and
does not change the fact that, according to summary judgment evidence in the record, Dr. Ray-Jones did
not ‘substantially comply’ with the terms of her policy related to a change of beneficiary by sending Allstate
a written request.” Rec. Doc. 38, p. 7.
39 Rec. Doc. 88-4, p. 8.
40 Rec. Doc. 88-9, Dep. Transcript 123:7–124:16; Rec. Doc. 89-2, p. 21; Rec. Doc. 88-2, p. 3; Rec. Doc.
89-1, p. 4.
41 Rec. Doc. 89-1, p. 2; Rec. Doc. 89-2, p. 2.
judgment evidence demonstrates that there are no genuine issues of fact raised regarding
Allstate’s fulfillment of its obligations. Counterclaimants point to the Beneficiary and the
Change of Owner or Beneficiary provisions.42 The Beneficiary provision requires that
Allstate “pay the proceeds of this Contract to the beneficiary or beneficiaries who are
named in the application for this Contract unless [Dr. Ray-Jones] subsequently change[s]
the beneficiary.”43 Further, “[i]f no beneficiary survives the Insured, [Allstate] pay[s] the
proceeds of this Contract to [Dr. Ray-Jones], if living, otherwise to [Dr. Ray-Jones]’
estate.”44 The Change of Owner or Beneficiary provision requires Allstate to take into
effect any written request to change the owner or beneficiary of the Policy once Dr. Ray-
Jones signs a request form.45
There is no dispute that Allstate provided Dr. Ray-Jones with a change of
beneficiary form but she did not complete it. There is no dispute that once
Counterclaimants made a claim for the Policy’s proceeds, Allstate filed an interpleader to
resolve the Counterclaimants’ and Marcelle’s claims and deposited the funds into the
Court’s registry.46 The Court found on summary judgment that there was no dispute that
Marcelle was the sole surviving named beneficiary under the Policy.47 Moreover,
Counterclaimants concede that Allstate provided Dr. Ray-Jones with annual statements,
and the statements as well as the Policy Application designate Yvette Marcelle as the
42 Rec. Doc. 89, p. 11.
43 Rec. Doc. 88-4, p. 8.
44 Id.
45 Id.
46 Rec. Docs. 1 and 31.
47 Rec. Doc. 38, p. 6.
contingent beneficiary.48 Accordingly, Counterclaimants fail to raise any genuine issue of
fact regarding Allstate’s breach of either of these provisions.
Thus, the Court grants Allstate summary judgment as to Counterclaimants’ breach
of contract claim.
D. Detrimental Reliance
Allstate moves for summary judgment on Counterclaimants’ claim for detrimental
reliance in part because Counterclaimants fail to raise this cause of action in the
Complaint. However, the Court disagrees with Allstate’s reading of the Complaint.
Counterclaimants allege, “Defendants and Counterclaim-Plaintiffs. . . ultimately relied on
erroneous and misleading information provided to them by Allstate which was detrimental
to their interest.”49 Accordingly, Allstate was on notice of the detrimental reliance claim.
Nevertheless, the Court finds that summary judgment is warranted as a matter of law.
Louisiana Civil Code art. 1967 states that “[a] party may be obligated by a promise
when he knew or should have known that the promise would induce the other party to
rely on it to his detriment and the other party was reasonable in so relying.”50 To establish
a claim for detrimental reliance under Louisiana Civil Code art. 1967, a plaintiff must
demonstrate (1) a representation by conduct or word; (2) made in such a manner that the
promisor should have expected the promisee to rely on it; (3) justifiable reliance by the
promise; and (4) a change to the promisee's detriment because of the reliance.51 “The
doctrine is ‘designed to prevent injustice by barring a party from taking a position contrary
48 Rec. Doc. 89-2, p. 2; Rec. Doc. 88-5; Rec. Doc. 88-6, pp. 21, 27, 33, 40, 47, 54, 61, 68, 75, 82, 89, and
95.
49 Rec. Doc. 7, p. 13.
50 La. Civ. Code Ann. art. 1967.
51 Jaxon Energy, LLC v. Admiral Ins. Co., 661 F. Supp. 3d 583, 595 (E.D. La. 2023) (citing In re Ark-La-Tex
Timber Co., Inc., 482 F.3d 319, 334 (5th Cir. 2007)).
to his prior acts, admissions, representations, or silence.’”52 “Claims of detrimental
reliance are ‘not favored in Louisiana [and] detrimental reliance claims must be examined
carefully and strictly.’”53
Even if a party does show reliance, “[r]eliance may be unreasonable as a matter
of law ‘when a plaintiff relies on oral representations despite the law’s insistence on
certain formalities.’”54 Under Louisiana law, insurance contracts must be in writing.55
Here, Counterclaimants allege that Dr. Ray-Jones and Mr. Marcelle, Jr. spoke with
customer service representatives who informed them that the Policy did not have a
contingent beneficiary.56 Therefore, Dr. Ray-Jones relied on this erroneous information
and did not take steps to change her beneficiary.57 Counterclaimants argue Dr. Ray-
Jones’ reliance on this information was reasonable under the circumstances.58 Allstate
counters that even if a customer service representative misrepresented the status of the
contingent beneficiaries on the Policy, Counterclaimants’ reliance on these oral
representations was unreasonable as a matter of law because the oral representations
were inconsistent with the unambiguous terms of the Policy.59 The Court agrees with
Allstate and finds that Counterclaimants’ reliance was unreasonable as a matter of law.60
Counterclaimants concede Yvette Marcelle was named as the contingent beneficiary on
52 Id (citing Blackstone v. Chase Manhattan Mortg. Corp., 802 F. Supp. 2d 732, 739 (E.D. La. 2011)).
53 Id (citing In re Ark-La-Tex Timber Co., 482 F.3d at 334).
54 Brown v. Phoenix Life Ins. Co., 843 F. App'x 533, 545 (5th Cir. 2021) (internal citation omitted).
55 Id.
56 Rec. Doc. 89, pp. 13–14; Rec. Doc. 7, p. 13.
57 Id.
58 Rec. Doc. 89, p. 14.
59 Rec. Doc. 92, pp. 5–6.
60 See Brown, 843 F. App'x at 545 (affirming lower court’s dismissal of detrimental reliance claim in part
because any reliance by the plaintiff on the life insurance agent’s oral representation was unreasonable as
a matter of law given that insurance contracts must be in writing in Louisiana); Cenac v. Orkin, LLC, 2018
WL 2970838, at *9–10 (E.D. La. June 13, 2018) (finding that the defendant was entitled to judgment as a
matter of law on the plaintiffs’ claims for detrimental reliance because their reliance on oral statements were
not justified in light of the express language of the documents at issue).
the Policy and its Application.61 Additionally, the summary judgment evidence shows that
Yvette Marcelle is named as a contingent beneficiary on the annual statements and
Counterclaimants acknowledge these statements were sent to the address Dr. Ray-Jones
provided to Allstate.62 Thus, the Counterclaimants cannot claim justifiable reliance when
the express terms of the Policy are contrary to the alleged oral representation.
Counterclaimants assert that, while the annual statements were sent to Dr. Ray-
Jones’ address, “they do not know for certain how extensively and when Dr. Ray-Jones
last reviewed an entire annual statement—which are quite lengthy.”63 Whether Dr. Ray-
Jones reviewed her statements is insufficient to raise any genuine issue of fact, however,
because in Louisiana those who are insured are generally responsible for reading their
policies and expected to know the provisions.64 Accordingly, the Court grants summary
judgment with respect to the detrimental reliance claim.65
E. Vicarious Liability
Under Louisiana Civil Code art. 2320, “an employer is subject to vicarious liability
for the tortious conduct of his employee, irrespective of his title, while acting within the
course and scope of employment.”66 The Louisiana Supreme Court has “stated that an
employee’s conduct is generally within the course and scope of his employment if the
conduct is of the character and nature that he is employed to perform, occurs substantially
61 Rec. Doc. 89-1, p. 2; Rec. Doc. 89-2, p. 2.
62 Rec. Doc. 89-2, p. 2; Rec. Doc. 88-2, p. 2; Rec. Doc. 88-9, Dep. Transcript 133:23–138:7.
63 Rec. Doc. 89-1, p. 3.
64 Voitier v. S. Farm Bureau Life Ins. Co. , 2012 WL 3527888, at *4 (W.D. La. Aug. 14, 2012) (citing Motors
Ins. Co. v. Bud's Boat Rental, Inc., 917 F.2d 199, 205 (5th Cir.1990)); Northgate Plaza LLC v. Safepoint
Ins. Co., 2022 WL 17254937, at *2 (W.D. La. Nov. 28, 2022) (finding that the purchase of the insurance
policy was sufficient to place the plaintiff on notice of the policy’s terms and limits).
65 Ordinarily, the Court would not address a claim or new argument asserted in a reply brief; however, in
the interests of justice and judicial economy, and because this claim is foreclosed as a matter of law, the
Court will consider the claim.
66 Brasseaux v. Town of Mamou, 752 So. 2d 815, 821 (La. 2000).
within the authorized limits of time and space, and is activated at least in part by a purpose
to serve the employer.”67
Counterclaimants allege that Allstate outsources its customer service call center
to EXL Services Philippines, Inc., and Allstate should be held vicariously liable for the
customer service representatives providing Dr. Ray-Jones and Mr. Marcelle, Jr. with
erroneous or misleading information.68 Because the Court finds that summary judgment
must be granted on the detrimental reliance claim as a matter of law, the
Counterclaimants’ vicarious liability claim must face summary judgment dismissal for the
same reasons.
Accordingly, Allstate’s motion for summary judgment is granted as to the vicarious
liability claim for the customer service representatives’ conduct.
III. CONCLUSION
For the reasons set forth above, Allstate’s Motion for Summary Judgment69 is
hereby GRANTED. Counterclaimants’ claims are dismissed with prejudice. The Pre-Trial
Conference set for July 23, 2024 and the Jury Trial set to begin August 5, 2024, are
hereby canceled.70
67 Brasseaux, 752 So. 2d at 820 (internal citations omitted).
68 Rec. Doc. 89-1, p. 3; Rec. Doc. 89, pp. 14–15.
69 Rec. Doc. 88.
70 Rec. Doc. 61.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on this Day, May, 2024.
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA