Istre v. Life Ins Co N Amer

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 28, 2002
• Docket: 02-30102
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30102 Summary Calendar

AARON J. ISTRE,

Plaintiff-Appellant,

versus

LIFE INSURANCE COMPANY OF NORTH AMERICA; ET AL,

Defendants,

LIFE INSURANCE COMPANY OF NORTH AMERICA,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CV-544 -------------------- August 23, 2002 Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Aaron J. Istre appeals the district court’s order granting a

summary judgment in favor of Life Insurance Company of North

America (LINA). Istre argues that LINA improperly refused to pay

$225,000 in accidental death benefits to him after the accidental

death of his common-law spouse, Desiree Lynne Schambough. In the

district court, Istre argued that LINA was equitably estopped

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-30102 -2-

from challenging its liability under the policy. For the first

time on appeal, he argues that LINA waived the right to assert a

defense to its liability under the policy. He relies on Pitts

and Pitts v. American Security Life Ins. Co., 931 F.2d 351, 356-

57 (5th Cir. 1991). Istre may not raise this issue for the first

time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d

339, 342 (5th Cir. 1999). Nonetheless, Istre has not shown that

LINA waived the right to assert a defense to its liability under

the policy. Istre’s reliance on Pitts is misplaced as Pitts is

limited to its factual circumstances and is distinguishable. The

accidental death policy at issue was not valid initially because

Schambough was not Istre’s legal spouse under Louisiana law and,

therefore, she was not an eligible dependent under the plain

language of the policy. See State v. Williams, 688 So. 2d 1277,

1281 (La. Ct. App. 1997). Unlike the insurer in Pitts, LINA did

not make a payment of benefits under the policy without making a

reservation of rights despite notice that policy was voidable.

Because Istre has not shown that the district court erred in

holding that Schambough was not an eligible dependent under the

accidental death policy, the district court’s judgment is

AFFIRMED.