The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JESSE CLARENCE BROWN, JR. CIVIL ACTION NO. 17-1486
ESTATE, ET AL.
VERSUS JUDGE TERRY A. DOUGHTY
NEW YORK LIFE INSURANCE CO., MAG. JUDGE KAREN L. HAYES
ET AL.
RULING
Pending before the Court are Plaintiffs’ Motion for Partial Summary Judgment [Doc. No.
79] and Defendant New York Life Insurance Company’s (“NY Life”) Motion for Summary
Judgment [Doc. No. 83]. Plaintiffs move the Court for partial summary judgment, contending
that it is undisputed that the decedent, Jesse Clarence Brown, Sr., was the owner of three NY
Life policies and that NY Life has acted in bad faith by failing to timely pay the amounts due to
them under the policies. Therefore, Plaintiffs move the Court for attorney’s fees and bad faith
penalties.
NY Life moves the Court for dismissal of Plaintiffs’ case in its entirety, contending that
they failed to raise a genuine issue of material fact that NY Life had an obligation to Plaintiffs,
that all their claims are time-barred, and that their fraud claims as to two of the policies are
further barred by res judicata.
For the following reasons, Plaintiffs’ Motion for Partial Summary Judgment is DENIED,
and NY Life’s Motion for Summary Judgment is GRANTED.
I. FACTS
Jesse Clarence Brown, Sr. (“Mr. Brown”) purchased multiple life insurance
policies from NY Life. First, in 1978, Mr. Brown purchased a whole life NY Life Insurance
Policy No. 36 661 185. Mr. Brown was to pay recurring premium payments for the remainder
of his life, but NY Life’s records do not indicate that he did so. Neither NY Life nor Plaintiffs
have a copy of this policy.
Mr. Brown then purchased NY Life Policy No. 62 05 1294, dated November 2, 1984.
Mr. Brown was to pay continuing premium payments until his death, but did not do so. As a
result of the nonpayment of premium, Policy No. 62 05 1294 lapsed. According to NY Life
records, this policy expired February 2, 1994.
Mr. Brown then purchased Policy No. 44 807 414 (“Policy 414”), dated February 18,
1993. Mr. Brown used the cash value of Policy No. 62 05 1294 to fund the purchase of Policy
414. Together with policy Nos. 36 661 185 and 62 05 1294 (“the Policies”), Mr. Brown was to
pay recurring premium payments in connection with Policy 414 for the rest of his life.
Premium payments were made from 1993 through 2001.
In July 1995, a group of life insurance policyholders filed a class action lawsuit
against [NY Life] in New York state court [in Willson v. New York Life Insurance
Company, et al., Index No. 94/127804 (Sup. Ct. Ny. Co.)]. The allegations of the
suit included claims that [NY Life] misled policyholders regarding the nature of
their policy benefits. The class of plaintiffs was nationwide and included persons
who had purchased certain [NY Life] life insurance policies between January 1,
1982 and December 31, 1994. In August 1995, the parties filed a proposed
settlement of the dispute with class-members being afforded until October 31,
1995 to decide whether to participate in the settlement or to opt-out. The notice of
the proposed settlement was mailed to policyholders nationwide, including
Louisiana policyholders.
McConathy v. Ungar, 33,368 (La. App. 2 Cir. 8/23/00), 765 So. 2d 1214, 1215, writ denied,
2000-2678 (La. 11/17/00), 774 So. 2d 982; see also [Doc. No. 83-4, Exh. B, Affidavit of Robert
Rosh (“Rosh Aff.”), ¶¶ 3-19]. There were “nearly three million class members” that NY Life
sent court-approved notice of the class action and post-settlement notice by first class mail. See
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Couvillon v. New York Life Ins. Co., No. CV 6:10-1468, 2012 WL 13054649, at *3 (W.D. La.
Jan. 10, 2012). Additionally, notice of the Willson class action and settlement was published in
numerous national and local newspapers, including The Wall Street Journal, USA Today, The
New York Times, The Times Picayune and The Baton Rouge Advocate. Id. A toll-free
telephone number was also established for class members, and this number was included in the
notifications. [Doc. No. 83-4, Rosh Aff., ¶ 18].
Mr. Brown’s Policy 62 05 1294 and Policy 414 are included in the Willson class period.
Class notices were mailed to Mr. Brown on September 26, 1995, and September 26, 1996, for
Policy No. 62 05 1294 and for Policy 414. The notices sent to Mr. Brown were not returned as
undeliverable or undelivered. Mr. Brown did not opt-out of the Willson class action. [Doc. No.
83-6, Exh. C, Affidavit of Kevin Welton, ¶¶ 4-5].
The Willson settlement was approved by the presiding court and resulted in the release of
all claims of class members that were or could have been asserted in the lawsuit and further
enjoined all class members from prosecuting claims in any forum against NY Life based on the
released claims.
On May 27, 1997, Mr. Brown took out a cash loan in the amount of $5,300 on the cash
value of Policy 414, which NY Life paid to Mr. Brown by check.
On March 27, 1998, Mr. Brown took out a second cash loan in the amount of $7,164.00,
which NY Life paid to Mr. Brown by check. Between the period of May 27, 1997, and April
24, 2001, funds were loaned on the cash value of Policy 414 towards satisfaction of premium
payment obligations. Mr. Brown did not pay into Policy 414 additional funds (beyond
premium payments) sufficient to offset the interest accruing on his various loans. As a result,
the cash value of the policy was offset by the loan interest.
The last premium payment was received by NY Life on or about April 24, 2001, and it
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was paid by paid-up additions.
Policy 414 provides that “[i]f a premium is not paid by the end of the grace period, this
policy will lapse. All insurance will end at the time of the lapse, if the policy has no cash value
and no dividend values. If the policy has cash value or dividend values, insurance can be
continued only as stated in Options 1 or 2 of the Options Upon Lapse provision, but any
insurance or benefits from riders or dividends will end at the time of the lapse.” [Doc. No. 83-3,
Bates No. MSJ0079, attached to Exh. A, Affidavit of Laura Matyja (“Matyja Aff.”)]. Policy
414 lapsed on June 19, 2001. On that date, NY Life transmitted a notice to Mr. Brown and to
his assignee, Tensas State Bank. The notice provided:
When you purchased your New York life policy in 1993, you enjoyed the benefit
of knowing that you made a wise decision for your future. Because we realize
how important this life insurance coverage is to you, we are concerned about the
current status of your policy.
Our records show that your current premium of $2,020.50, due May 18, 2001,
remains unpaid. Unfortunately, this unpaid premium has caused your policy to
lapse. You may reinstate your valuable coverage by mailing the past due
premium, along with the remittance form at the bottom of this page, in the
enclosed return envelope, by July 19, 2001. We will be glad to reinstate your
policy and continue your insurance coverage, provided all persons covered under
the policy are living when payment is received. To reinstate your policy after
this date, you would have to meet certain requirements for evidence of
insurability.
If your policy had any cash value or dividend values at the time of the lapse,
limited coverage will continue under the “Non-Forfeiture Benefit” or “Options
Upon Lapse” terms of your policy. Please disregard this notice if your premium
payment has already been made.
[Doc. No. 83-3, Exh. A, Matyja Aff., ¶15; Bates No. MSJ 0035-0040].
Upon lapse, NY Life purchased extended term insurance for Mr. Brown’s benefit with
the remaining $914.16 cash value of Policy 414. The extended term expired on July 15, 2001.
On August 22, 2001, a second notice was sent which advised that the policy’s net cash
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value of $914.16 had been applied to purchase extended term insurance, but that the extended
term insurance had expired.
Mr. Brown died on October 6, 2016. By the time of his death, NY Life had no record of
receipt of any premium payments for more than fifteen years and no record of any existing,
active policies.
Following Mr. Brown’s death, his children requested payment of the life insurance
proceeds. After reviewing its records, NY Life denied the claims and has not issued payments
to Mr. Brown’s alleged beneficiaries.
On October 6, 2017, Plaintiffs, the children of Mr. Brown, filed a Petition for Damages
from Breach of Contract and Fraud and for Unfair and Deceptive Insurance Practices (“Petition”)
in the Sixth Judicial District Court for the Parish of Tensas in the State of Louisiana under
Docket No. 24056.
On November 3, 2017, NY Life filed an Answer, asserting as one of its defenses that the
underlying policies were terminated prior to Mr. Brown’s death.
On November 13, 2017, NY Life removed the case to this Court, alleging that removal
was proper because the Louisiana State Commissioner of Insurance had been improperly joined.1
After removal, the parties filed various motions. On April 4, 2018, the Court issued a
1Plaintiffs make much of the fact that this removal was “flawed” and argues that NY Life
made “admissions” by failing to appear in state court proceedings after the case was removed to
this Court. The flaw to which Plaintiffs refer was NY Life’s failure to specify whether it was a
corporation, a limited liability company, or some other type of unincorporated association. On
February 27, 2018, NY Life amended its notice of removal to reassert that it was a mutual
insurance company, organized under the laws of the State of New York, and that it is treated as a
New York corporation. The clarification was necessary to confirm the Court’s subject-matter
jurisdiction over this diversity action, but has no import to Plaintiffs’ arguments otherwise.
Additionally, once the case was removed, no further action should have taken place in state
court. Likewise, any action unknowingly taken by the state court following removal has no
effect on the parties to this proceeding.
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Judgment [Doc. No. 35] adopting the Report and Recommendation of the Magistrate Judge and
denying Plaintiff’s Motion to Remand, as well as NY Life’s Motion to Dismiss. However, the
Court also dismissed without prejudice any claims against Jim Donelon, in his capacity as
Commissioner of Insurance.
After further extensive motion practice, on April 4, 2019, Plaintiffs filed the instant
Motion for Partial Summary Judgment. On April 11, 2019, NY Life filed the instant Motion for
Summary Judgment. The motions are fully briefed, and the Court is prepared to rule.
II. LAW AND ANALYSIS
A. Standard of Review
Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary
judgment is sought. The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party bears the initial burden of informing the court of the basis for its motion by
identifying portions of the record which highlight the absence of genuine issues of material fact.
Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A
party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . ). A fact is “material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if
the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party.
Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
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party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the
Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in
its favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
In a bench trial, “a district court has somewhat greater discretion to consider what weight
it will accord the evidence.” In re Placid Oil Co., 932 F.2d 394, 397 (5th Cir. 1991). A court
“has the limited discretion to decide that the same evidence, presented to him or her as a trier of
fact in a plenary trial, could not possibly lead to a different result.” Id. at 398 (citing Nunez v.
Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978)).
B. Analysis
1. Breach of Contract
First, Plaintiffs assert a breach of contract action against NY Life, contending that it has
failed to pay the life insurance proceeds due to Mr. Brown’s beneficiaries under the Policies and
that the denial of the claim is in bad faith. Plaintiffs move for partial summary judgment that
NY Life’s denial violated its duty of good faith and fair dealing under LA. REV. STAT. 22:1973.2
2Plaintiffs cite a number of Louisiana statutory provisions in support of their claims.
First, Plaintiffs cite to LA. REV. STAT. 22:657-658,which address reinsurance agreements. The
Court assumes that Plaintiffs refer to the former LA. REV. STAT. 657-658, which are now
codified at LA. REV. STAT. 22:1891-1892. However, even these statutes are inapposite.
Section 1892 provides for bad faith damages for “policies other than life.” LA. REV. STAT.
22:1892. Likewise, Plaintiffs’ references to LA. REV. STAT. 22:1212 and 1214 are inapposite
because those address health and accident coverage. Therefore, the Court has disregarded these
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Specifically, Plaintiffs seek bad faith penalties as a matter of law pursuant to LA. REV. STAT.
22:1973(B)(5), which provides that an insurer breaches its duty of good faith and fair dealing
when it fails “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.” Louisiana Revised Statute 22:1973(C) provides for
penalties “assessed against the insurer in an amount not to exceed two times the damages
sustained or five thousand dollars, whichever is greater.”; see also Henderson v. State Farm
Mut., 51,567 (La. App. 2 Cir. 8/9/17), 244 So. 3d 576, 579 (“Both La. R.S. 22:1892(B)(1) and
La. R.S. 22:1973(B)(5) and (C) provide for penalties, including attorney fees, against an insurer
whose failure to pay a claim after receiving satisfactory proof of loss is found to be arbitrary,
capricious, or without probable cause.”).
NY Life moves for summary judgment and opposed Plaintiffs’ Motion for Partial
Summary Judgment, arguing that Plaintiffs have failed to produce evidence that there are any
Policies upon which payment is due and that any such claims are untimely.
As a federal court is sitting in diversity, the Court applies the substantive law of
Louisiana, the forum state. See, e.g., Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th
Cir. 2010) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)).
Under Louisiana law, to prevail on a valid claim for breach of contract, the plaintiff must
prove “(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.”
references. Finally, Plaintiffs cite to LA. REV. STAT. 22:1220, but that statute is now codified at
LA. REV. STAT. 22:1973.
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Favrot v. Favrot, 68 So. 3d 1099, 1108-09 (La. App. 4 Cir. 2011).
The duty of good faith and fair dealing does not exist absent a contract. Spillway Inv.,
L.L.C. v. Pilot Travel Centers L.L.C., No. Civ. A. 04-2451, 2005 WL 517498, at *7 (E.D. La.
Feb. 22, 2005) (“Louisiana recognizes an implied covenant of good faith and fair dealing in
every contract.... Conversely, where no enforceable contract exists, no covenant of good faith
and fair dealing can be implied.”) (internal citations omitted).
In this case, there is no doubt that Mr. Brown purchased the Policies from NY Life, and,
if he had met his obligations under those Policies, NY Life would have had the obligation to
perform by paying life insurance proceeds to his beneficiaries. However, NY Life has presented
undisputed and proper summary judgment evidence through the affidavits and the accompanying
business records that show the Policies had all lapsed well before Mr. Brown’s 2016 death and
that the cash value had been used for loans to Mr. Brown, to pay premiums, and on interest.
Although Plaintiffs have attempted to raise a genuine issue of material fact for trial that
their father continued to pay the premiums and/or that there was remaining cash value to the
Policies, they have failed to do so. First, their belief, like conjecture and speculation, cannot
serve to raise a genuine issue of material fact for trial.
Second, Plaintiffs’ reliance on the testimony of Skip Hawkins (“Hawkins”) of Tensas
State Bank is misplaced. Hawkins offered testimony on the general practices of the bank and, to
some extent, of Mr. Brown. He testified that Tensas State Bank did not make premium
payments as an assignee, but it “would not be unusual” for the bank to deduct premium
payments from an account holder. [Doc. No. 83-16, Exh. G at Bates No. MSJ0898, transcript
pp. 67-68]. Nevertheless, Hawkins did not have any personal memory of payments drafted or
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otherwise made by Mr. Brown to NY Life. The only records of draft payments from Mr. Brown
to NY Life dated back to 1993-1996 and were credited by NY Life. Thus, Hawkins’ testimony
is not inconsistent with the evidence produced by NY Life and does not raise a genuine issue of
material fact for trial.3
Finally, to the extent that Plaintiffs would seek to rely on statements by Mr. Brown at
trial, such statements are clearly inadmissible hearsay. There is no admissible evidence to show
that Mr. Brown made premium payments after April 2001, more than fifteen years prior to his
death, or that there was remaining cash value to any life insurance policy. Thus, Plaintiffs have
failed to raise a genuine issue of material fact for trial that NY Life had an obligation to pay their
claim. According, NY Life is entitled to summary judgment on Plaintiffs’ breach of contract
claims, and Plaintiffs’ Motion for Partial Summary Judgment must be denied.
2. Fraud and Deceptive Practices
Plaintiffs also assert claims against NY Life of fraud and deceptive practices. NY Life
moves for summary judgment on these claims as well
Pursuant to Louisiana law, “[f]raud is a misrepresentation or a suppression of the truth
made with the intention either to obtain an unjust advantage for one party or to cause a loss or
inconvenience to the other.” Ballard’s Inc. v. N. Am. Land Development Corp., 677 So.2d 648,
650 (La. App. 2d Cir. 1996); see also LA. CIV. CODE ART. 1953. The elements of a Louisiana
delictual fraud or intentional misrepresentation claim are (1) a misrepresentation of a material
3Plaintiffs seem to question Mr. Brown’s indebtedness and the fact that he took out loans
against the cash value of the Policies. While Hawkins certainly characterized Mr. Brown as a
good customer of Tensas State Bank, he also testified that Mr. Brown remained in debt until
approximately five years before his death. Therefore, Hawkins’ testimony certainly does not
raise a genuine issue of material fact for trial as to the credibility of NY Life’s records.
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fact; (2) made with the intent to deceive; and (3) justifiable reliance thereon with resultant injury.
Guidry v. United States Tobacco, 188 F.3d 619, 627 (5th Cir. 1999) (citations omitted). Fraud
may also result from silence or inaction. LA. CIV. CODE ART.1953; Ballard's, 677 So.2d at 650.
First, as NY Life points out, it is not precisely clear what misrepresentations were
allegedly made or what information it failed to disclose to Mr. Brown. However, even if the
Court were to disregard this lack of clarity, Plaintiffs have failed to raise a genuine issue of
material fact for trial for two reasons: (1) such claims are time barred as to all Policies, and (2)
such claims are barred by res judicata at least as to the two more recent policies.
Fraud claims are generally subject to a one-year prescriptive period for tort or delictual
actions. See LA. CIV. CODE ART. 3492. If there is a breach of a fiduciary duty, then such claims
are subject to a ten-year prescriptive period. See Copeland v. Wasserstein, Perella & Co., 278
F.3d 472, 478 (5th Cir. 2002).
In discovery responses, Plaintiffs assert that NY Life portrayed “life insurance policies as
investment, savings or retirement plans without disclosing the true nature of the policies carrying
out the replacement of existing life insurance policies with new policies or funding new policies
in whole or part by using an existing policy’s cash value in order to obtain premiums and sales
commissions from the insured. . . .” [Doc. No. 71-4, p. 15]. Given these allegations, it would
appear that the one-year prescriptive period applies. However, even if the Court were to infer a
fiduciary duty because of the nature of the relationship, any such failures to disclose would have
occurred more than ten years ago as to all Policies. At best, if Plaintiffs contend that there were
on-going fraudulent practices or failures to disclose, the last admissible evidence of any
communication from NY Life took place in 2001, more than fifteen years before Mr. Brown’s
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death. Accordingly, Plaintiffs’ fraud claims are time barred, and NY Life is entitled to summary
judgment on this basis alone.
Additionally, even if there were no time bar, such allegations with regard to Policy 414
and Policy No. 62 05 1294 would fall into the type of claims raised in the Willson class action.
While Plaintiffs are adamant that Mr. Brown was not a party to that lawsuit, there is absolutely
no evidence to dispute the reasonableness of the notice provided or that he failed to opt out of the
class. Therefore, he is a class member as defined by Willson to include “those persons or
entities (1) who have or had an ownership interest in one or more whole life or universal life
insurance policies issued by NYL from January 1, 1982 through December 31, 1994, and (2)
who did not timely request exclusion from the class.” [Doc. No. 83-5, Bates No. MJ0327-28].
The Louisiana Supreme Court has ruled that “[t]he purpose and intent of class action
procedure is to adjudicate and obtain res judicata effect on all common issues applicable not
only to the representatives who bring the action, but to all others who are ‘similarly situated’. . ..”
Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So. 2d 542, 544, on reh'g in part, 96-
2913 (La. 10/10/97), 710 So. 2d 235. “La. Code Civ. Proc. art. 597 provides that any judgment
rendered in a class action suit is conclusive as to all class members, whether joined as parties or
not.” Aisola v. Louisiana Citizens Prop. Ins. Corp., 2014-1708 (La. 10/14/15), 180 So. 3d 266,
269 (citing Duckworth v. Louisiana Farm Bureau Mut. Ins. Co.,11–2835 (La.11/2/12), 125
So.3d 1057, 1069).
The Louisiana Supreme Court has set forth five prerequisites for a finding of res
judicata under LA. REV. STAT. 13:4231: (1) the judgment is valid; (2) the judgment is final; (3)
the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the
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time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in
the second suit arose out of the transaction or occurrence that was the subject matter of the first
litigation. Oliver v. Orleans Par. Sch. Bd., 2014-0329 (La. 10/31/14), 156 So.3d 596, 612
(citing Burgeuieres v. Pollingue, 02-1385 (La 2/25/03, 843 So.2d 1049, 1052, 1053)). The
Oliver court further clarified that “[b]oth a dismissal with prejudice and a settlement are ‘final’
adjudications for the purposes of res judicata.” Id. at 612 (citing Ortega v. State, Dep’t. of
Transp. and Dev., 96–1322 (La. 2/25/97), 689 So.2d 1358, 1363).
NY Life has presented sufficient evidence to show that all five elements are met. The
Willson Judgment confirming the settlement is a valid final judgment based on the merits,
satisfying the first two elements. The evidence shows that notice reasonably calculated to reach
Mr. Brown was sent, and he did not opt out of the class, satisfying the third element. Further,
the Willson court released and enjoined any claims relating to representations made during the
marketing, solicitation, and/or sale of the subject policies regarding whether the policies would
operate or could function as an investment plan, the rate of return on premiums paid and
illustrations of dividend values, cash values or death benefits. [Doc. No. 83-4 Exh. B, Rosh Aff.,
¶ 22; Doc. No. 83-4, Bates No. MSJ099, 107-157; Doc. No. 83-5, Bates No. MSJ0267-0331].
Because Plaintiffs’ claims arise from alleged fraud and failures to disclose in connection with the
sale, administration, servicing, and performance of Policy 414 and Policy No. 62 05 1294, which
are within the Class Period, the Willson Judgment bars such claims as a matter of law. Thus, for
this additional reason, NY Life is entitled to summary judgment on the fraud claims with regard
to Policy 414 and Policy 62 05 1294.
III. CONCLUSION
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For the foregoing reasons, NY Life’s Motion for Summary Judgment is GRANTED,
and Plaintiffs’ claims are DISMISSED WITH PREJUDICE. Plaintiffs’ Motion for Partial
Summary Judgment is DENIED.
MONROE, LOUISIANA, this 28" day of May, 2019.
CAA mt
FERRY A. DOUG!
UNI STATES DISTRICT JUDGE
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