Whitfield v. Countrywide Home , 280 F. App'x 363 ( 2008 )

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No. 08-30130
REVISED JUNE 5, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2008
No. 08-30130
Summary Calendar Charles R. Fulbruge III
Clerk
LEON WHITFIELD; MARY WHITFIELD
Plaintiffs - Appellants
v.
ALPHA INSURANCE LLC
Defendant - Appellee
Appeal from the United States District Court for the Eastern District of
Louisiana
USDC No. 2:06-cv-04166
Before JOLLY, HIGGINBOTHAM and HAYNES, Circuit Judges.
PER CURIAM:*
Leon and Mary Whitfield appeal the trial court’s summary judgment in
favor of Alpha Insurance LLC (“Alpha”). Because no genuine issue of material
fact exists concerning Alpha’s defense of peremption, and Alpha is entitled to
prevail as a matter of law, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not be published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.
1
No. 08-30130
On September 30, 1994, the Whitfields purchased a home in New Orleans.
Subsequently, the Whitfields purchased a $33,000 flood insurance policy (the
“Old Policy”) through their lender, Countrywide Home Loans, Inc.
(“Countrywide”).1 Countrywide paid for the Old Policy premiums with funds
held in escrow.
“On or about June 4, 2003,” in conjunction with refinancing their home,
the Whitfields purchased a separate $133,000 flood insurance policy (the “New
Policy”). The Whitfields contend that the New Policy was designed to replace the
Old Policy.2 Alpha was the independent insurance agent that secured this
coverage on the New Policy.3 The Whitfields allege that in submitting their
application for the New Policy, Alpha failed to properly designate their
mortgagee, Countrywide Home Loans, as the payor of renewal premiums.4 As
a result, the renewal notices went to the Whitfields directly and to Alpha.
The Whitfields received a renewal invoice for the New Policy and allegedly
contacted Alpha, but Alpha “did not take any actions to determine the cause of
the flood insurance problems when the Whitfield’s [sic] contacted them in April
of 2004.”5 Consequently, the Whitfields contend that they had to call
Countrywide. Countrywide told the Whitfields that it had paid the policy
premiums. But Countrywide had been paying premiums on the Old Policy, not
on the New Policy. As a result, Mrs. Whitfield admittedly called and informed
Alpha that Countrywide had paid the policy premiums. Mrs. Whitfield also
admitted that she did not expect to hear anything further from Alpha.6
Ultimately, the New Policy lapsed in June of 2004 for nonpayment of premiums.
Hurricane Katrina damaged the Whitfields’ home on August 29, 2005.
1
R. at 785, Pre-Trial Order.
2
R. at 718, Appellants’ Petition for Damages.
3
R. at 777, Pre-Trial Order.
4
Appellants’ Brief at 9.
5
R. at 829.
6
R.at 754.
2
No. 08-30130
The Whitfields contend that they learned of the lapse of the New Policy only
after making a claim following Hurricane Katrina. They filed this lawsuit on
June 23, 2006 against Countrywide, Alpha and Fidelity (the carrier on the New
Policy). The trial court granted summary judgment to all three defendants. The
Whitfields appeal only the grant of summary judgment to Alpha.
“We review a summary judgment de novo.” Carrizales v. State Farm
Lloyds,

518 F.3d 343

, 345 (5th Cir. 2008). This court must review the facts in
the light most favorable to the nonmovant. United States v. Lawrence,

276 F.3d 193

, 197 (5th Cir. 2001). Under well-established law, a summary judgment
movant bears the initial burden of demonstrating the absence of a genuine issue
of material fact and that it is entitled to prevail as a matter of law. FED. R. CIV.
P. 56©; Celotex Corp. v. Catrett,

477 U.S. 317

, 322-23 (1986). If that burden is
met, the burden shifts to the non-movant to raise a dispute of material fact.
Lawrence,

276 F.3d at 197

.                 Alpha moved for summary judgment under
Louisiana’s peremption statute which provides for an absolute limitations period
of three years in a case involving an insurance agent’s wrongdoing:
No action for damages against any insurance agent . . . [regardless
of legal theory] shall be brought unless filed in a court of competent
jurisdiction and proper venue within one year from the date of the
alleged act, omission, or neglect or within one year from the date
that the alleged act, omission or neglect is discovered or should have
been discovered. However, even as to actions filed within one year
from the date of such discovery, in all events such actions shall be
filed at the latest within three years from the date of the alleged act,
omission or neglect.
LA. REV. STAT. ANN. § 9:5606 (2007).
Alpha contends, and the trial judge agreed, that its wrongdoing, if any,
was the failure to list Countrywide as the payor of premiums.7 Similarly, the
Whitfields’ first issue on appeal is whether Alpha was negligent in failing to
7
R. at 878-79, Eastern District’s Order and Reasons.
3
No. 08-30130
designate Countrywide as the payor of the premiums on the New Policy
application.8 Alpha’s alleged negligence occurred on May 30, 2003 when the New
Policy application was completed. But the Whitfields did not purchase the New
Policy until June 4, 2003. Louisiana case law states that peremption begins to
run on the “date of purchase.” Holmes v. AAA Ins., No. 06-3837,

2007 WL 3124678

, *2 (E.D. La. Oct. 25, 2007); see Calvin v. Janbar Enters.,

856 So. 2d 88

,
91 (La. Ct. App. 2003); Bel v. State Farm Mut. Auto. Ins. Co.,

845 So. 2d 377

,
381-82 (La. Ct. App. 2003). Accordingly, the Whitfields should have filed suit no
later than June 4, 2006.
To extend this date, the Whitfields raise three arguments. First, they
argue that they “did not have actual or constructive knowledge that they were
victims of a tort until well after they filed their claim.”9 Second, they assert that
Alpha’s conduct in 2004 began the peremption time clock anew, such that their
June 23, 2006 filing was within three years. Finally, they argue that various
legislative enactments passed in the wake of the Katrina disaster extended their
time to file this lawsuit. We will address each argument in turn.
First, the Whitfields’ argument that they did not learn of the 2003 Alpha
error until after filing their claim is unavailing. Louisiana law sets an absolute
outside time limit for such claims of three years from the date of the alleged
wrongdoing, regardless of when the wrongdoing was discovered. LA. REV. STAT.
ANN. § 9:5606. Here, the peremption period began to run June 4, 2003 and ended
on June 4, 2006. When the Whitfields discovered the error is irrelevant for
purposes of applying the three-year peremption period.
Second, the Whitfields claim that in May of 2004, they contacted Alpha
such that “there was further occasion for misrepresentation,”10 citing Sonnier v.
8
Appellants’ Brief at 7.
9
Appellants’ Brief at p. 14.
10
Appellants’ Brief at 16.
4
No. 08-30130
La. Farm Bureau Mut. Ins. Co.,

924 So. 2d 419

 (La. Ct. App. 2006). The
Whitfields argue this prompted the beginning of a new peremption period.
However, the Whitfields neither described in their brief nor raised a fact issue
in the district court concerning any “misrepresentation” by Alpha in 2004. In
Sonnier, the insureds alleged that each year they asked the insurance agent for
replacement cost coverage, and each year, he falsely said none was available.

924 So. 2d at 422

. By contrast, Alpha’s failure to advise the Whitfields in 2004
of its mistake in 2003 is not a new tort.11 See Biggers v. Allstate Ins. Co.,

886 So. 2d 1179

(La. Ct. App. 2004) (peremption period for agent’s failure to procure
adequate coverage began with the initial failure; each successive renewal period
did not start the clock running anew). Thus, the beginning of the Whitfields’
peremption period is still June 4, 2003, and their second argument does not
provide a basis on which to reverse the trial court’s judgment.
Finally, the Whitfields quote at length from various enactments designed
to address the immediate aftermath of Katrina during which courts were closed
or inaccessible and potential claimants were scattered.12 The latest deadline
extension provided by the sections cited was June 1, 2006. See LA. REV. STAT.
ANN. § 5824. The Whitfields filed this lawsuit three weeks later on June 23,
2006. The enactments designed to address the immediate aftermath of Katrina
do not apply to the Whitfields’ case.
The district court’s judgment is AFFIRMED.
11
Even if this were a “new” inaction, it was an inaction of which the Whitfields were clearly aware
because they took it upon themselves “to perform the research to determine what happened themselves.”
(Appellants’ Brief at 16). Thus, even if they had raised a fact issue on this point and even if it were a
“separate action” it would be barred by the one-year from the date of discovery peremptive period of
Section 9:5606.
12
Appellants’ Brief at 17-24 (quoting LA. REV. STAT. ANN. §§ 9:5821-5825 and Louisiana v. All
Prop. & Cas. Ins. Carriers Authorized and Licensed to do Business in the La.,

937 So. 2d 313