Jason Rochon v. AXA Equitable Life Ins. Co.

Filing

Case: 10-30077

Document: 00511200026

Page: 1

Date Filed: 08/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 10, 2010 N o . 10-30077 S u m m a r y Calendar Lyle W. Cayce Clerk

J A S O N B. ROCHON, P la in t iff ­ Appellant v. A X A EQUITABLE LIFE INSURANCE COMPANY, formerly known as E q u it a b le Life Insurance Society of the United States, D e fe n d a n t ­ Appellee

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:08-CV-5023

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* T h e beneficiary under an insurance policy appeals from the dismissal of h is claims, which were held barred as untimely. We AFFIRM. O n November 3, 1997, AXA Equitable Life Insurance Company issued a d is a b ilit y income policy to Jason B. Rochon. Rochon submitted a claim on S e p t e m b e r 27, 1999, for a disabling mental illness, the onset of which began on

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-30077

Document: 00511200026

Page: 2

Date Filed: 08/10/2010

No. 10-30077 O c t o b e r 1, 1998. AXA denied the claim on December 30, 1999 due to Rochon's fa ilu r e to disclose a preexisting mental illness at the time of his application for t h e policy. Almost eight years later, on October 17, 2007, Rochon filed suit a lle g in g a wrongful denial of benefits. The district court granted summary ju d g m e n t for AXA. Rochon's claims were held to be barred by the policy's threey e a r prescriptive period. The issues on appeal are legal ones, which are

r e v ie w e d de novo. Bradley v. Allstate Ins. Co., 606 F.3d 215, 222 (5th Cir. 2010). I n the district court and now on appeal, Rochon argues that AXA cannot s im u lt a n e o u s ly deny benefits under the policy on the basis that it was void ab in itio and also assert his claims are time barred due to the prescriptive period in Section 10.4 of the policy. Rochon is mistaken. "A party may set out 2 or m o r e statements of a claim or defense alternatively or hypothetically" and "may s t a t e as many separate claims or defenses as it has, regardless of consistency." Fed. R. Civ. P. 8(d)(2) & (3). R o c h o n also argues that the prescriptive period in the policy should be v o id e d because it is adhesionary. Instead, the ten-year prescriptive period in L o u is ia n a Civil Code Article 3499 should apply. However, the statutory

p r e s c r ip t io n period applies "[u]nless otherwise provided by legislation." La. Civ. C o d e art. 3499. Two statutes address the prescriptive periods for insurance p o lic ie s . One provides that the insured must furnish proof of loss within ninety d a y s after the end of the period for which he claims benefits, and no action shall b e brought more than one year after the time the proof of loss is required. La. R e v . Stat. Ann. § 22:975(5), (11). The other provides that an insurance policy c a n n o t limit the insured's time to file a first party claim to less than two years. Id. § 22:868(B). This policy validly allowed three years. R o c h o n filed a claim on September 27, 1999 for the period October 1, 1998 t o September 27, 1999. He therefore needed to provide a written proof of loss by

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Case: 10-30077

Document: 00511200026

Page: 3

Date Filed: 08/10/2010

No. 10-30077 D e c e m b e r 26, 1999. He also needed to file his lawsuit by December 26, 2002. Rochon waited almost eight years to file suit. His claims are prescribed. Third, Rochon's claims that the policy is adhesionary similarly fail because t h e prescriptive period in the policy is required by Louisiana law and is actually m o r e favorable than the two-year and one-year periods provided in Section 2 2 :8 6 8 . See La. Rev. Stat. Ann. § 22:975(A) (setting forth provisions that are r e q u ir e d in health and accident insurance policies). Further, the policy properly p r o v id e d that Rochon consented to the policy upon delivery and payment of the fir s t premium. No signature on the policy itself was required for consent. F in a lly , Rochon argues that his disability is an "ongoing disability" that p r e c lu d e s any finding that his claims for attorney's fees and penalties are not p r e s c r ib e d under this statutory provision: "No action for the recovery of penalties o r attorney fees provided in this Section shall be brought after the expiration of o n e year after the date proofs of loss are required to be filed." La. Rev. Stat. A n n . § 22:1821(E). Proof of loss in this case was required ninety days after the t e r m in a t io n of the period for which Rochon claimed he was entitled to benefits. We agree with the district court that by Rochon's analysis, the ninety-day p e r io d for which an insured is required to file a written proof of loss would c o n t in u e indefinitely, regardless of the insured's inaction. Rochon failed to p u r s u e his claim for almost eight years after AXA denied him disability benefits. His claim for attorney's fees and penalties are prescribed. AFFIRMED.

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