FERDINAND MEGGS, JR. VERSUS DAVIS MORTUARY SERVICE, INC. AND SECURITY PLAN LIFE INSURANCE COMPANY
NO. 19-CA-432
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
August 05, 2020
STEPHEN J. WINDHORST JUDGE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 788-275, DIVISION “B” HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING. Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst.
AFFIRMED
SJW
FHW
JGG
COUNSEL FOR PLAINTIFF/APPELLANT, FERDINAND MEGGS, JR.
Pius A. Obioha
Daniel C. Obioha
COUNSEL FOR DEFENDANT/APPELLEE, SECURITY PLAN LIFE INSURANCE COMPANY
Thomas H. Huval
Appellant/plaintiff, Ferdinand Meggs, Jr., seeks review of the trial court‘s judgment granting Security Plan Life Insurance Company‘s peremptory exception of prescription and dismissing his claims under two life insurance policies against Security Plan with prejudice. For the following reasons, we affirm the trial court‘s judgment sustaining Security Plan‘s peremptory exception of prescription and dismissing Mr. Meggs‘s claims.
Facts and Procedural History
This is a contract claim for benefits due under two lifе insurance policies. On May 1, 1992 and September 15, 1996, respectively, Security Plan issued two life insurance policies, Policy Nos. C-04836502 and
On August 22, 2008, the insured, Ms. Vincent, died. After Ms. Vincent‘s death, Security Plan was presented with an Irrevocable Assignment of Benefits allegedly executed by Mr. Meggs, irrevocably assigning, transferring, and conveying to Davis Mortuary Service all benefits due under the two Security Plan policies. Security Plan also received an Irrevocable Assignment of Benefits to Davis Mortuary signed by Ms. Vincent‘s spouse, Eddie Vincent, relative to both policies. Pursuant to the Irrevocable Assignments, on November 6, 2008, Security Plan paid all benefits duе under the policies to Davis Mortuary.
On October 4, 2018, over ten (10) years after Ms. Vincent‘s death, Mr. Meggs filed this lawsuit against Davis Mortuary and Security Plan, alleging that defendants fraudulently deprived him of the benefits to which he was entitled under the life insurance policies. Mr. Meggs alleges that he was unaware that he was the policies’ named beneficiary at the time of Ms. Vincent‘s death, but that he later learned a claim had been opened by an unknown person who fraudulently forged his signature. Mr. Meggs alleges he is entitled to the full value of the proсeeds under the policies with interest and attorneys’ fees and general and special damages based on Security Plan‘s failure to honor the contractual obligation created by the life insurance policies and Security Plan‘s bad faith conduct, fraudulent acts, and ill practices.
On January 10, 2019, Security Plan filed a peremptory exception of prescription asserting that Mr. Meggs‘s claim was prescribed because (1) the claim was not filed within the prescriptive period set forth in the policies; and (2) the clаim was not filed within the ten year contractual prescriptive period under
Mr. Meggs opposed the exception of prescription based on his lack of knowledge of his rights under the Security Plan policies. He attached to his opposition a March 26, 2019 letter he sent to Security Plan, with the certified receipt, asserting his rights under the policies and an affidavit in which he attested that he did not know of the policies or the irrevocable assignments until May of 2018.
On May 1, 2019, at the hearing on Security Plan‘s prescription exception, Security Plan argued that Mr. Meggs‘s claim was prescribed because he made a claim outside the period of the policies’ legal action and prescription provision. Specifically, Mr. Meggs made a claim under the policies more than one year and sixty days after Ms. Vincent‘s death. Security Plan also argued that Mr. Meggs‘s claim was prescribed under the ten year prescriptive period set forth in
In opposition to the prescription exception, Mr. Meggs argued that he has the right to make a claim under the policies after the expiration of the policies’ prescriptive period because the untimely discovery of his rights under the policies was due to no fault of his own. As to the contractual prescriptive period, Mr. Meggs argued that the doctrine of contra non valentem applied because he had no knowledge of his claim until May of 2018.
By judgment dated May 21, 2019, the trial court sustained Security Plan‘s peremptory exception of prescription and dismissed Mr. Meggs‘s claims against Security Plan. In granting the exception, the trial court stated that “I see where it was Rhett Osborne (sic), who was the notary in that, and I find it highly unlikely that Mr. Osborne would not take the proper precautions in notarizing somebody‘s signature.” According to the hearing transcript, thе exhibits attached to the parties’ pleadings were not introduced into evidence.
Law and Analysis
In this appeal, Mr. Meggs challenges the trial court‘s judgment granting Security Plan‘s peremptory exception of prescription.
On a peremptory exception of рrescription, the burden of proof is ordinarily on the party pleading prescription. Carter v. Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261, 1267. However, when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action is not prescribed. Id. At the hearing on an exception of prescription, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.”
As noted above, Security Plan attached doсumentary evidence to its exception; however, these exhibits were not formally introduced into evidence at the hearing on the exception. The Louisiana Supreme Court has explained that, absent formal introduction of exhibits at a hearing on an exception of prescription, those exhibits merely contained in the record or attached to a memorandum in support of an exception of prescription are not to be considered. See Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88-89. Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Meaux v. Miller, 08-712 (La. App. 3 Cir. 12/10/08), 999 So.2d 281, 284-85. As a result, the documеnts attached to Security Plan‘s exception cannot be considered.
In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true. Id. Becаuse Security Plan did not properly and officially offer and introduce the exhibits attached to its memorandum into evidence, the trial court was obligated to decide the exception of prescription on the facts alleged in the petition, which are accepted as true.
An insurance policy is a contract between the insured and insurer and as such has the effect of law between the
According to the petition, Ms. Vincent died on or about August 22, 2008. Mr. Meggs filed this action under the life insurance policies at issue against Security Plan on October 4, 2018, more than ten years after Ms. Vincent died. Because Mr. Meggs filed suit against Security Plan more than ten years after Ms. Vincent‘s death, his claims under the policies are prescribed on the face of the petition.
Mr. Meggs asserts that contra non valentem applies given that he did not discover his rights under the policies until May of 2018. Analyzing this petition on its face, this petition fails to set forth facts sufficient to succeed in that claim.
The doctrine of contra non valentem is available as an exception to prescription in four situations:
(1)where there was some legal cause which prevented the courts or their officers from taking cognizancе of or acting on the plaintiff‘s action;
(2)where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3)where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4)where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiff‘s ignorance is not induced by the defendant.
Marin v. Exxon Mobil Corp., 09-2368 (La. 10/19/10), 48 So.3d 234, 245.
Mr. Meggs argues that the third and fourth categоries apply in this case. Specifically, he argues as to the fourth category that he was unaware either that the life insurance policies at issue existed or that he was a named beneficiary on those policies until May of 2018 and, further, that his ignorance of his claims against defendants is attributable to something other than his lack of diligence, namely defendants’ fraudulent acts. Mr. Meggs argues that the third category applies because defendants engaged in or were complicit in the fraud against him. Specifically, Mr. Mеggs alleged that an unknown third person forged his signature and social security number on the irrevocable assignment of benefits, and that defendants colluded with the fraudster to deprive him of the benefits to which he was entitled.
The fourth category of contra non valentem is known as the “discovery rule.” See, e.g., Wells v. Zadeck, 11-1232 (La. 3/30/12), 89 So.3d 1145, 1150. The Louisiana Supreme Court has clarified that this cаtegory of contra non valentem applies only in “exceptional circumstances” and is not available when the plaintiff‘s ignorance of his cause of action is attributable to his own willfulness or neglect. See, e.g., Renfroe v. State ex rel. Dept. of Transp. and Development, 01-1646 (La. 2/26/02), 809 So.2d 947, 953. If the plaintiff could have discovered the cause of aсtion by exercising reasonable diligence, the doctrine will not prevent the running of prescription. Id.
When pleading fraud, “the circumstances constituting fraud shаll be alleged with particularity.” Bottinelli Real Estate, L.L.C. v. Johns Manville, Inc., 19-0619 (La. App. 4 Cir. 12/27/19), 288 So.3d 179, 185;
Likewise, in this case, Mr. Meggs‘s petition merely contains conclusory allegations that “employees” of defendants, Davis Mortuary and Security Plan, “aided the fraudster who misrepresented the facts and falsifying information in committing the fraud.” Mr. Meggs‘s petition contains bare allegations that defendants’ “employees colluded with the fraudster in committing the fraudulent act.” Mr. Meggs alleged no specific facts which tend to show an agreement between either the two defendants or one or both defendants and the unknown fraudster to intentionally deprive him of the insurance benefits.
Further, no facts are alleged in the petition which tend to show that the cause of action was not discoverable through the exercise of due diligence. Therefore, on the face of the petition, Mr. Meggs has failed to successfully allege sufficient facts for the doctrine of contra non valentem to apply in this case.
In addition, Mr. Meggs did not introduce into evidence any proof that he did not discover these claims until May of 2018 in support of his contra non valentem argument. Thus, there is nothing before this Court to support application of that doctrine. Accordingly, we find that Mr. Meggs‘s claims under the Security Plan policies are prescribed, and that the trial court properly granted Security Plan‘s exception of prescription. We therefore affirm the trial court‘s judgment sustaining Security Plan‘s peremptory exception of prescription and dismissing Mr. Meggs‘s claims.
Decree
For the reasons stated above, we affirm the trial court‘s judgment sustaining Security Plan‘s peremptory exception of prescription and dismissing Mr. Meggs‘s claims.
AFFIRMED
SUSAN M. CHEHARDY CHIEF JUDGE
FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON STEPHEN J. WINDHORST HANS J. LILJEBERG JOHN J. MOLAISON, JR. JUDGES
CURTIS B. PURSELL CLERK OF COURT
MARY E. LEGNON CHIEF DEPUTY CLERK
SUSAN BUCHHOLZ FIRST DEPUTY CLERK
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY AUGUST 5, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL CLERK OF COURT
19-CA-432
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CORNELIUS E. REGAN (DISTRICT JUDGE)
PIUS A. OBIOHA (APPELLANT) R. A. OSBORN, JR. (APPELLEE) THOMAS H. HUVAL (APPELLEE)
MAILED
DANIEL C. OBIOHA (APPELLANT)
ATTORNEY AT LAW
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