Singletary v. Prudential Insurance Company of America, et al

Filing 56

ORDER & REASONS granting 46 Motion to Dismiss; 47 Motion to Dismiss; 19 Motion to Dismiss for Failure to State a Claim; & 22 Motion to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 4/30/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LINDA SINGLETARY

CIVIL ACTION

v.

NO. 14-2648

THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, ET AL.

SECTION "F"

ORDER AND REASONS
Before

the

Court

are

four

motions:

(1)

The

Prudential

Insurance Company of America's motion to dismiss Count III of the
plaintiff's complaint; (2) The United Parcel Service Flexible
Benefits Plan and United Parcel Service, Inc.'s motion to dismiss
Counts

I

(as

to

UPS

only),

II,

and

III

of

the

plaintiff's

complaint; (3) The Prudential Insurance Company of America's motion
to dismiss Count IV of the plaintiff's amended complaint; and (4)
The United Parcel Service Flexible Benefits Plan and United Parcel
Service,

Inc.'s

motion

to

dismiss

plaintiff's amended complaint.

Counts

III

and

IV

of

the

For the reasons that follow, the

motions are GRANTED.
Background
This lawsuit arises out of a widow's efforts to recover life
insurance benefits following her husband's tragic death at age 37
in a weekend motorcycle accident; benefits that were denied because
of her late husband's active military status.

1

Linda Singletary worked for United Parcel Service, Inc. as a
part-time, non-union employee.

As a UPS employee, Mrs. Singletary

participated in the UPS Service Flexible Benefits Plan, which
provides

group

insurance

coverage

employees and their dependents.

to

certain

qualified

UPS

The Plan, which includes benefits

for both basic dependent life insurance benefits and optional,
supplemental dependent life benefits,1 is an employee welfare
benefit plan governed by the Employee Retirement Income Security
Act, 29 U.S.C. § 1001, et seq. The Prudential Insurance Company of
America provides the life insurance benefit and is the plan
administrator with respect to the life insurance benefit at issue.2
Timothy Singletary died in October 2012.

Mr. Singletary was

a member of the United States Army, but he was stationed stateside
and was off-duty at the time of his death.3

After her husband's

death, Mrs. Singletary submitted a claim to Prudential for life

1

Under the Plan, as a dependent of Linda Singletary,
Timothy Singletary was allegedly covered in the amount of $2,000
for basic dependent life benefits and $500,000 for optional
dependent life benefits.
2

In connection with the Plan, Prudential issued to UPS
a group life insurance policy, Group Policy Number G-76536-GA,
which insured, among other things, dependent life insurance
benefits.
3

On October 21, 2012, Mr. Singletary was operating a
2003 Honda motorcycle on State Highway 195 in Killeen, Texas when
he was involved in a collision with another vehicle. After Mr.
Singletary was thrown from his motorcycle and came to rest in a
traffic lane, another vehicle drove over him and he became lodged
underneath the vehicle until it stopped.
Mr. Singletary was
transported to a nearby hospital, where he was pronounced dead.
2

insurance benefits under the Plan. On December 4, 2012, Prudential
denied her claim on the grounds that Mr. Singletary was not a
qualified dependent because he was on "active duty" in the armed
forces at the time of his death.4

Mrs. Singletary twice appealed

Prudential's adverse benefits determination on the grounds that (a)
Mr. Singletary was a qualified dependent at the time of his death
because he was off duty; and (b) it is illegal discrimination to
deny benefits to a serviceman.

Prudential twice denied Mrs.

Singletary's appeals.
Having exhausted her administrative remedies under the terms
of

the

Plan

and

ERISA,

Mrs.

Singletary

sued

The

Prudential

Insurance Company of America, the United Parcel Service Flexible
Benefits Plan, and United Parcel Service, Inc.

Mrs. Singletary

seeks to recover damages related to the denial of basic and
optional dependent life insurance benefits under the benefit plan
sponsored by her employer, UPS, and she advances four theories of
recovery.5 First, Mrs. Singletary seeks to recover from Prudential
dependent group life insurance benefits; a claim governed by ERISA

4

The group policy exclusion provides, in part:

(2)

Your spouse, Domestic partner or child is
not your Qualified Dependent while:
(a) on active duty in the armed forces
of any country.

5

Mrs. Singletary alleges that each of the three named
defendants are liable jointly, severally, and in solido.
3

(Count I).6

Second, Mrs. Singletary alleges that UPS (only) has

violated the Uniformed Services Employment and Reemployment Rights
Act of 1994 by denying her equal access and coverage for life
insurance benefits under the terms of the Plan solely because her
husband was on active duty status in the armed forces at the time
of his death (Count II).

Third, Mrs. Singletary seeks to recover,

under the Louisiana Military Service Relief Act, La.R.S.

29:402,

an award of all basic and optional dependent life insurance
benefits under the Plan, plus an amount equal to that award as
liquidated damages and attorney's fees.
seeks

a

declaration

referenced

exclusion

under
(based

La.R.S.
solely

Fourth, Mrs. Singletary

22:943(A)
on

an

that

the

otherwise

Plan's

qualified

dependent's status as a member of the armed forces) is illegal; she
also seeks an award of all group life insurance benefits.7
Prudential now seeks to dismiss Counts III and IV of the
plaintiff's original and amended complaints.

And the Plan, along

with UPS, now seek to dismiss Counts II, III, and IV of the

6

Prudential has answered Count I.

7

Alternatively, Mrs. Singletary urges the Court to
reform the Prudential group policy to remove any coverage exclusion
or restriction premised solely on a person's status as an active
duty member of the armed forces (without regard to any causal
connection between the insured's death and war).
Mrs. Singletary added this fourth count when she amended
her complaint; in the amended complaint, she also revised her third
claim to invoke the Louisiana statutory provision governing group
life insurance policies, rather than individual life insurance
policies.
4

original and amended complaints; UPS also seeks to dismiss Count I
insofar as it is named as a defendant to the plaintiff's ERISA
claim.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accepts ‘all
well-pleaded

facts

as

true,

favorable to the plaintiff.’”

viewing

them

in

the

light

most

See Martin K. Eby Constr. Co. v.

Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

5

But, in

deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”

Id. at

678. Assuming the veracity of the well-pleaded factual allegations,
the Court must then determine “whether they plausibly give rise to
an entitlement to relief.” Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citations and footnote omitted).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (“The

plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted

unlawfully.”).

This

is

a

6

“context-specific

task

that

requires the reviewing court to draw on its judicial experience and
common sense.”

Id. at 679.

“Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.”

Funk v. Stryker Corp., 631 F.3d 777, 783 (5th

Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).
II.
Mrs. Singletary concedes that the Plan is subject to ERISA;
indeed, she alleges that her husband was covered under the Plan as
a qualified dependent.

She likewise concedes that the group life

insurance policy excludes coverage for dependent life insurance
benefits based solely on an individual's status as a member of the

7

armed forces without regard to any connection between the insured's
death and war (or other military activities or duties).
insists that it does so unfairly, and illegally.

But she

Thus, the

defendants in their four pending motions to dismiss focus not on
Mrs. Singletary's ERISA claim; rather, they focus on whether or not
Mrs. Singletary has stated any one of three claims that the group
policy exclusion is prohibited by the Louisiana Insurance Code, or
is illegal discrimination against members of the armed forces under
the Uniformed Services Employment and Reemployment Rights Act of
1994 or the Louisiana Military Service Relief Act.
A.
As an initial matter, insofar as the plaintiff seeks to
recover from UPS on her ERISA claim, the plaintiff has failed to
state a claim.

The plaintiff does not allege that UPS is more than

merely a plan sponsor, that UPS controls administration of the
Plan, or that UPS has the authority to fund or decide claims with
respect to the life insurance benefits at issue.

Accordingly, it

appears that UPS is not a proper defendant to Mrs. Singletary's
ERISA claim.

See LifeCare Management Services, LLC v. Insurance

Management Administrators Inc., 703 F.3d 835, 843 (5th Cir. 2013).
see also Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d
339, 349-50 (5th Cir. 2003). By failing to advance any argument in
opposition,

the

plaintiff

apparently

concedes

this

point.

Accordingly, UPS's motion to dismiss Count 1 (as against UPS) must

8

be granted.8
B.
UPS's motion to dismiss Count II of the plaintiff's complaint
presents the issue of whether the Plan's armed forces coverage
exclusion is prohibited under the anti-discrimination provisions of
the Uniformed Services Employment and Reemployment Rights Act of
1994.9
In Count II, Mrs. Singletary alleges that UPS has violated the
Uniformed Services Employment and Reemployment Rights Act of 1994
by denying her equal access and coverage for life insurance
benefits

under

the

terms

of

the

Plan

solely

because

of

her

husband's active duty status in the armed forces at the time of his
death.

UPS contends that dismissal of Count II is warranted as a

matter of law where, as here, Mrs. Singletary, who herself has
never applied to or served in the military, seeks to recover from
UPS a benefit of her employment that she has been denied due to her
late husband's uniformed service.
The Uniformed Services Employment and Reemployment Rights Act
of 1994 was "enacted to prohibit discrimination by employers
against

persons

services."

because

of

their

service

in

the

38 U.S.C. § 4301(a)(3)(emphasis added).

uniformed
To advance

this and similar purposes, this anti-discrimination law is self-

8

Count 1, as to Prudential, is not reached.

9

UPS is the only defendant named in Count II.
9

limiting and focused; § 4311(a) states:
Discrimination against persons who serve in the uniformed
services and acts of reprisal prohibited
(a) A person who is a member of, applies to be a member
of, performs, has performed, applies to perform, or has
an obligation to perform service in a uniformed service
shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of
employment by an employer on the basis of that
membership, application for membership, performance of
service, application for service, or obligation.
The statute's text is clear and direct.

This Act applies, for

example, to preclude discrimination against a service member by
that service member's employer.

Nowhere in the plain text of the

statute does the USERRA prohibit discrimination against a spouse of
a service member by the spouse's employer.

See

Lourens v. Merit

Systems Protection Board, 193 F.3d 1369, 1371 (Fed. Cir. 1999)("If
Congress desired [§ 4311(a)] to include spouses or widows [of those
in uniformed service], an additional phrase in the statute would
have done the job. That phrase is not there.").
Notwithstanding the Act's express application only to a person
who is a "member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform
service in a uniformed service," Mrs. Singletary nevertheless seeks
the shelter of its anti-discrimination provision by virtue of her
deceased husband's military status.

Ignoring subsection (a), she

invokes subsection (b) of § 4311, which states:
(b) An employer may not discriminate against or take any
adverse employment action against any person because such
10

person (1) has taken action to enforce a protection
afforded to any person under this chapter[] or (4) has
exercised a right provided for in this chapter.
The
prohibition in this subsection shall apply with respect
to a person regardless of whether that person has
performed service in the uniformed services.
Mrs. Singletary claims that, by denying her claim for dependent
life insurance benefits solely because of Mr. Singletary's status
as a member of the armed forces, she has been denied by UPS a
benefit of her employment.

UPS counters that Mrs. Singletary's

argument is defeated by the express application of the Act, and
further points out that she fails to offer up even one case that
would support a spouse or widow's enforcement rights under the Act.
The Court agrees that her USERRA claim is not plausible.
Mrs. Singletary takes entirely out of its statutory schematic
context the "any person" and "regardless of whether that person has
performed service in the uniformed services" term and phrase of §
4311(b).

In fact, the anti-retaliation provision articulated in

(b) appears to have no bearing on her attempt to state a claim
under the USERRA. "Section 4311," it has been observed, "prohibits
employers from discriminating against employees on the basis of
military service and retaliating against individuals, whether
service members or not, who testify or give statements on behalf of
a USERRA claimant." See Coffman v. Chugach Support Services, Inc.,
411

F.3d

1231,

1234

(11th

Cir.

2005).

The

Act's

pronouncement (§ 4301(a)) strictly delimits its scope.
Singletary

has

advanced

no

allegations
11

that

would

purpose
Mrs.
trigger

application of the USERRA here: she was neither a service member,
nor an applicant to be a service member; nor is she alleging that
she seeks to enforce a protection afforded to her deceased husband
or any service member or applicant.

Insofar as she seeks to step

into Mr. Singletary's shoes and enforce any rights that he may have
had under the USERRA, she is not entitled to do so.10

See Lourens,

193 F.3d at 1371 ("We find no basis in USERRA for Mrs. Lourens's
assertion that she assumes her deceased husband's rights and is
thus covered by virtue of his service.").

Because the statute

clearly limits anti-discrimination coverage to claimants who are
service members or applicants, Mrs. Singletary's claim against UPS
falls outside the USERRA's scope of protection.

See 38 U.S.C. §§

4301(a), 4311(a); see also Erickson v. U.S. Postal Service, 636
F.3d 1353, 1355 (Fed. Cir. 2011)(The Act "prohibits public and
private employers from discriminating against their employees on
the basis of military service."); see also Petty v. Metropolitan
Government of Nashville-Davidson County, 538 F.3d 431, 439 (6th
Cir. 2008)("Courts have recognized that '[b]ecause USERRA was
enacted to protect the rights of veterans and members of the
uniformed services, it must be broadly construed in favor of its
military beneficiaries."); see also Coffman v. Chugach Support
Services, Inc., 411 F.3d 1231, 1234 (11th Cir. 2005)("Congress

10

Nor is that the theory of recovery she advances: she
seeks to recover from her own employer, UPS, a benefit conferred
upon her.
12

enacted USERRA to prohibit employment discrimination on the basis
of military service as well as to provide prompt reemployment to
those individuals who engage in non-career service in the military"
and "Sections 4311 and 4312 provide separate and distinct statutory
protections for service members."); see also Lourens v. Merit
Systems Protection Board, 193 F.3d 1369 (Fed. Cir. 1999); see also
Harden-Williams v. Agency for Int'l Dev., 469 Fed. Appx. 897, 899
n.2 (Fed. Cir. 2012)("In any event, this court has already held
that a widow of a military serviceman who has not herself served in
a

uniformed

service

is

not

entitled

to

the

protections

of

USERRA."); see also 70 Fed.Reg. 75313 ("To the extent that the
comment seeks an affirmative statement that spouses and dependents
are protected from discrimination by their own employers because
they are related to an individual covered by the USERRA, such a
request exceeds the coverage of the statute.").

Mrs. Singletary

has failed to state a plausible USERRA claim as a matter of law.
C.
Next,

the

defendants

seek

to

dismiss

Count

III

of

the

plaintiff's complaint, the plaintiff's Louisiana Military Service
Relief Act claim.

In support of dismissal, the defendants contend

that the LMSRA is preempted by ERISA, and even if it is not
preempted,

the

active-military

prohibited by the LMSRA.

exclusion

in

the

Plan

is

not

Prudential additionally contends that

because the LMSRA applies only to employers, the plaintiff fails to

13

state an LMSRA claim as to it for the additional reason that
Prudential was not Mrs. Singletary's employer, UPS was.
The Louisiana Military Service Relief Act, La.R.S. 29:401, et
seq., like the USERRA, prohibits discrimination by an employer
against a member of or an applicant to uniformed service; it
provides, in part:
A. A person who is a member of, applies to be a member
of, performs, has performed, applies to perform, or has
an obligation to perform service in a uniformed service
shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of
employment by an employer on the basis of that
membership, application for membership, performance of
service, application for service, or obligation.
...
C. An employer may not discriminate in employment against
or take an adverse employment action against any person
because such person has taken an action to endorse a
protection afforded any person under this Part, ... or
has exercised a right provided for in this Part.
La.R.S. 29:404.

Its anti-discrimination provision extends to an

in-state employer's provision of group life insurance, as one of
many benefits identified in the LMSRA:
A. The provisions of this Section shall be applicable to
any group life insurance, group insurance, family group,
blanket and franchise health and accident insurance, and
health care services plan provided by any private or
public employer in this state.
B. Any employee shall have the right to maintain the
insurance or plan coverage enumerated in Subsection A....
Upon timely receipt of the employee's contributions
required by the insurance policy or plan provisions, the
employer shall provide the applicable insurer or health
maintenance organization with those contributions plus an
amount equal to what the employer would have contributed
during the period of service in the uniformed services.
The employee shall notify his employer of his election to
continue insurance or plan coverage at the time he enters
14

service in the uniformed services.
C. Family members or dependent children of an employee
who are covered by any insurance policy or plan
enumerated in Subsection A herein who are subsequently
called to service in the uniformed services shall
continue to be considered family members or dependents
under the provisions of the policy or plan without any
lapse
of
coverage,
provided
that
all
required
contributions are paid in accordance with the policy or
plan provisions.
E. The provisions of this Section shall not be construed
to invalidate the provision of any life insurance policy
excluding or restricting coverage in the event of death
as provided for in R.S. 22:170(b)(1) and (2).
F. The provisions of this Section shall not invalidate
any legitimate exclusions to coverage of any policy or
plan enumerated in Subsection A herein.
La.R.S. 29:407.

See La.R.S. 29:405-420 for additional benefits

such as compensation, leave status, worker's compensation, right to
reinstatement, and retirement credit.
The plaintiff's LMSRA claim fails as a matter of law for
several reasons.

First, the LMSRA is preempted by ERISA.

Second,

even if it is not preempted (or was somehow saved from ERISA
preemption), the LMSRA permits policy exclusions such as the one
challenged here based on military status. Third, as to Prudential,
the plaintiff cannot state a claim under the LMSRA, which (like its
federal

counterpart,

insurers.11

the

USERRA)

applies

to

employers,

not

The plaintiff alleges that the Plan is an employee

welfare benefit plan governed by ERISA, and indeed it is.

11

See 29

Insofar as the LMSRA is directed to employers, the Court
agrees that Prudential is not a proper defendant for any LMSRA
claim. The plaintiff advances no credible argument in opposition.
15

U.S.C. § 1002.12

ERISA preempts "any and all State laws insofar as

they may now or hereafter relate to any employee benefit plan." 29
U.S.C. § 1144(a).13

ERISA’s expansive preemptive scope is only

limited by the “savings clause,” in which ERISA does not preempt
any

state

law

1144(b)(2)(A).
Supreme

Court,

that

“regulates

insurance.”

29

U.S.C.

§

Under the conflict preemption test endorsed by the
a

state

law

is

deemed

a

law

which

regulates

insurance, and thereby exempt from preemption, if the law (1) is
directed

toward

12

entities

engaged

in

insurance;

and

(2)

ERISA defines an "employee welfare benefit plan" as:

any plan, fund, or program which was
heretofore or is hereafter established or
maintained by an employer or by an employee
organization, or by both, to the extent that
such plan, fund, or program was established or
is maintained for the purpose of providing for
its participants or their beneficiaries,
through
the
purchase
of
insurance
or
otherwise, (A) medical, surgical, or hospital
care benefits, or benefits in the event of
sickness, accident, disability, death or
unemployment....
29 U.S.C. § 1002.
13

The Supreme Court has broadly interpreted this federal
preemption provision. See Metro. Life Ins. Co. v. Mass., 471 U.S.
724, 739, 85 L. Ed. 2d 728, 105 S. Ct. 2380 (1985).
ERISA’s
preemptive scope is purposefully broad, so as to establish the
regulation of federal pension plans as an exclusively federal
concern. See Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217
(5th Cir. 1992)(“Preempted state law includes any state law cause
of action as it relates to an employee benefit plan, even if it
arises under a general law which in and of itself has no connection
to employee benefit plans.”). When the underlying conduct at issue
is connected to an employee benefit plan, “state law claims are
preempted in their entirety.” Id. at 1220.
16

substantially affects the risk pooling arrangement between the
insurer and the insured.

Kentucky Ass'n of Health Plans, Inc. v.

Miller, 538 U.S. 329, 341-42 (2003).
The Court finds that the LMSRA fails the first part of the
Miller test.

The LMSRA is not directed toward the insurance

industry;14 it is directed at employers generally to advance its
anti-discrimination purpose by mandating that employers provide a
variety of benefits to uniformed service members.
therefore not saved from ERISA preemption.

The LMSRA is

See Aucoin v. RsW

Holdings, L.L.C., 476 F. Supp. 2d 608, 614-15 (M.D. La. 2007)
(finding that provision of Louisiana Insurance Code does not
regulate insurance "but rather imposes an obligation on employers
parallel to the requirements of COBRA under ERISA"); see also Perry
v. FTData, 198 F. Supp. 2d 699 (D. Md. 2002)(finding that Maryland
insurance law did not regulate insurance "but rather regulates an
employee benefit plan by providing the same obligation to employers
that COBRA does").
Even if the plaintiff had persuaded the Court that her LMSRA
claim was saved from ERISA preemption, she nevertheless has failed
to state a claim for which relief may be granted.

This is so

because -- even if the LMSRA applies to the Plan -- exclusions

14

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50
(1987)("in order to regulate insurance, a law must not just have an
impact on the insurance industry, but must be specifically directed
toward that industry.").
17

based on military status for group life insurance, such as the one
in her Plan, are permitted by the LMSRA and the Louisiana Insurance
Code.

The LMSRA states that "[t]he provisions of this Section

shall not invalidate any legitimate exclusions to coverage of any
policy or plan enumerated in Subsection A herein [i.e., group life
insurance]."
"legitimate

La.R.S. 29:407(F).
exclusions",

but

the

The LMSRA does not define
Louisiana

Insurance

Code

articulates valid exclusions. In particular, La.R.S. 22:943, which
governs group life insurance (set forth more completely below)
provides that a policy of group life insurance may exclude or
restrict coverage "in the event of death occurring: . . . (2) While
in the military, naval, or air forces of any country at war,
declared or undeclared."

La.R.S. 22:943(A).

As explained more

thoroughly in connection with the defendants' final motion to
dismiss Count IV (the plaintiff's claim under La.R.S. 22:943),
Louisiana insurance law expressly permits a group life insurance
plan such as the one at issue here to exclude coverage in the event
that

death

occurs

while

the

individual

is

in

the

military.

Notably, questions of fairness aside, the Louisiana state law
permits such exclusions regardless of any connection or causation
between the insured's death and war.

Here, as discussed in

connection with Count IV below, Mr. Singletary died while an active
member of the armed forces in 2012, when the United States was
involved in an undeclared war with Afghanistan.

18

Accordingly, Mrs.

Singletary's

LMSRA

claim

fails

as

a

matter

of

law

for

the

additional reason that the LMSRA would not and does not apply here
to invalidate the Plan's exclusion; rather, the LMSRA permits such
"legitimate exclusions" as contained in the general insurance code.
D.
Finally, the defendants seek dismissal of Count IV, a claim
added by the plaintiff in her amended complaint in which she
alleges that the terms of the Plan violate the Louisiana Insurance
Code.

The defendants challenge the plausibility of this latest

claim on the grounds that (1) the Insurance Code does not apply;
and (2) even if it does, the Code in fact permits the challenged
policy exclusion contained in the Plan.

The Court agrees on both

counts.
Louisiana Revised Statute 22:943 states:
A. No policy of group life insurance delivered or
issued for delivery in this state shall contain any
provision which excludes or restricts liability for death
caused in a certain specified manner or occurring while
the insured has a specified status, except the following
provisions, excluding or restricting coverage in the
event of death occurring:
(1) As a result of war, declared or undeclared,
under conditions specified in the policy;
(2) While in the military, naval, or air forces of
any country at war, declared or undeclared; or in any
ambulance, medical, hospital, or civilian noncombatant
unit serving with such forces, either while serving or
within six months after termination of service in such
forces or units.
B.
The commissioner may also allow provisions
which, in the opinion of the commissioner, are
substantially the same....
La.R.S. 22:943(A).
19

First, the defendants submit that the plaintiff has not and
cannot plead that the policy here is a policy of group life
insurance "delivered or issued for delivery in" the state of
Louisiana and, thus, the Louisiana Insurance Code is not triggered.
The Court agrees.
Whether an insurance policy has been delivered in the state of
Louisiana depends on the intention of the parties as manifested by
their actions or words.

See McDermott Intern., Inc. v. Lloyds

Underwriters

120

of

London,

F.3d

583,

586

(5th

Cir.

1997);

Ostrowiecki v. Aggressor Fleet, Ltd., No. 07-6598, 2008 WL 2185326,
at *4 (E.D. La. May 20, 2008)(citations omitted). No alleged facts
indicate that the group policy at issue here was delivered or
issued for delivery in Louisiana.

Although the allegations of the

plaintiff's complaint fail to advance resolution of this threshold
issue, the Court need only look to the applicable group policy
incorporated by reference into the complaint; the group policy
manifests

the

intention

of

the

contract is delivered in Georgia.

contracting

parties

that

the

Indeed, the plaintiff alleges

(correctly) that UPS is a Georgia-based company, and the insurance
contract states that the group contract "is delivered in and
governed by the laws of . . . Georgia."

Taking the alleged facts

together with the policy language, the policy was delivered or
issued for delivery in Georgia; thus, La.R.S. 22:943 is not

20

triggered.15 The plaintiff has failed to state a plausible claim
under La.R.S. 22:943.

Count IV must be dismissed on this ground

alone.
Even if the Louisiana Insurance Code were triggered, however,
the Court is persuaded that La.R.S. 22:943(A) would not and does
not provide a plausible basis for the plaintiff's claim in Count
IV.

This

is

so

because

La.R.S.

22:943(A)

expressly

allows

exclusions based on military status for group life insurance.
Again, this result is compelled by the statutory text.
Louisiana Revised Statute 22:943 states:
A. No policy of group life insurance delivered or
issued for delivery in this state shall contain any
provision which excludes or restricts liability for death
caused in a certain specified manner or occurring while
the insured has a specified status, except the following
provisions, excluding or restricting coverage in the
event of death occurring:
(1) As a result of war, declared or undeclared,
under conditions specified in the policy;
(2) While in the military, naval, or air forces of
any country at war, declared or undeclared....
B.
The commissioner may also allow provisions
which, in the opinion of the commissioner, are
substantially the same....
La.R.S. 22:943(A)(emphasis added).
The statute patently permits a group life insurance policy to
exclude coverage when the death occurs while the individual is in

15

That a copy of the Certificate of Coverage was sent (or
required to be sent) to the plaintiff does not alter the state of
delivery for the government group insurance contract; which on the
face of the contract was delivered to UPS in Georgia.
21

the military of a nation at war; there is no statutory requirement
that the insured's death be connected to the war.

The defendants

submit, and the Court takes judicial notice of the fact, that in
October 2012 when Mr. Singletary died, the United States was at war
in Afghanistan.16

By application of Louisiana law, too, then, a

policy of group life insurance delivered in Louisiana may except
from coverage death occurring while the individual in the military
of any country at war, even undeclared war.

For this additional

reason, because Mr. Singletary died while serving in the military
of a nation at war, if Louisiana applies, it permits the coverage
exclusion contained in the group contract that Mrs. Singletary now
challenges.17

For this additional reason, the plaintiff has failed

to state a plausible claim against the defendants under the

16

The Court takes judicial notice of the then-ongoing war
in Afghanistan in 2012. The defendants submit support for their
assertion that the war was still ongoing two years after Mr.
Singletary's death. Statement by the President on the End of the
Combat Mission in Afghanistan, Office of Press Secretary, Dec. 28,
2014 (stating that after 13 years of war, the United States is
ending its combat mission in Afghanistan and the longest war in
American history).
17

The plaintiff alleges and persists in arguing that it
is unfair to exclude from coverage the death of her husband, who
was stationed stateside and was killed in a weekend motorcycle
accident that had no causal connection between his death and a
faraway war (that the plaintiff disputes was even a "war"). This
is a matter for the state legislature.
Notably, La.R.S.
22:943(A)(1) includes a separate and distinct exception for deaths
as a result of war, which allows for group life insurance coverage
exclusions for military service members who die "[a]s a result of
war declared or undeclared under conditions specified in the
policy."
22

Louisiana Insurance Code.
Accordingly, the four motions to dismiss are GRANTED.

The

Court notes that the plaintiff has still pending and viable an
ERISA claim as alleged in Count 1 of her complaint.

New Orleans, Louisiana, April 30, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

23