Succession of Barreca v. Weiser

53 So. 3d 481, 2010 La.App. 4 Cir. 0574, 2010 La. App. LEXIS 1543, 2010 WL 4397001
CourtLouisiana Court of Appeal
DecidedNovember 3, 2010
DocketNo. 2010-CA-0574
StatusPublished
Cited by3 cases

This text of 53 So. 3d 481 (Succession of Barreca v. Weiser) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Barreca v. Weiser, 53 So. 3d 481, 2010 La.App. 4 Cir. 0574, 2010 La. App. LEXIS 1543, 2010 WL 4397001 (La. Ct. App. 2010).

Opinions

MAX N. TOBIAS, JR., Judge.

|, The plaintiffs, Joseph Barreca and the Succession of Lynette S. Barreca (collectively, “Barreeas”), appeal an adverse judgment rendered against them dismissing their breach of contract claims against the defendant, New York Life Insurance Company (“New York Life”). The district court granted summary judgment in favor of New York Life, finding that the Barre-cas’ claims had prescribed. Based upon our de novo review of the record, we affirm the dismissal of the Barreeas’ claims, finding that no breach of the insurance contract occurred on the part of New York Life and, accordingly, pretermit a discussion of the assigned errors relating to the issue of prescription.

In 1964, New York Life issued a life insurance policy insuring the life of Joseph Barreca. His wife, Lynette Barre-ca, now deceased, was the beneficiary. In 1988, the policy was surrendered and its cash value of $20,801 was used to fund a new New York Life life insurance policy (“the policy”) to Mrs. Barreca, as the owner, beneficiary, and spouse of the insured, Mr. Barreca. The Barreeas describe the policy as a single-premium policy with a term of twenty years until the insured, Mr. Barreca, an attorney, reached the age of eighty. The Barreeas further posit that in the event of the death of Mr. Barreca, the policy was to pay death benefits to the | beneficiary; if, however, the insured lived through the twenty-year term of the poli[483]*483cy, which he did, the plaintiffs aver he was entitled to the cash value and dividends pursuant to the policy. According to the Barrecas, the twenty-year policy term ended on 8 September 2007 without the death of the insured and though a claim for payment was made by Mr. Barreca, New York Life refused to pay the cash value of the policy.1

In March 2008, the Barrecas instituted the instant suit against New York Life and their agent, Matthew D. Weiser, asserting claims for breach of contract, breach of implied good faith and fair dealing, breach of fiduciary duty, violation of Louisiana’s Unfair Trade Practices Act, and fraud. New York Life moved for summary judgment, which the trial court granted, finding that the Barrecas’ claims against New York Life had prescribed. The Barrecas timely filed the instant appeal.

While the Barrecas raise on appeal three alleged errors committed by the trial court, asserting that the trial court erred in concluding that their breach of contract claims have prescribed, based upon our de novo review of the policy at issue, we do not reach the issue of prescription because we do not find that New [sYork Life committed any breach of the contract’s terms.2 This entire case centers upon whether the 1988 policy issued by New York Life was a whole life policy having an annual premium that lapsed due to nonpayment of pre[484]*484miums or whether the policy was a single-premium whole life policy that would have a cash surrender value of $80,000 on its twentieth anniversary and which would begin to decrease in value below $80,000 after twenty years from its inception.

In support of their contention that the policy was a single-premium policy, the Barrecas aver that the insurance agent, Mr. Weiser, who convinced the Barrecas to enter into the transaction surrendering one insurance policy for its cash value to purchase a new one, verbally advised them that the policy would necessitate their making a single payment of a $20,801 premium and that no other premium payments would ever be required. The Bar-recas further direct the court to a letter written by Mr. Weiser referencing the “single premium” of $20,801. According to the Barrecas, the verbal and written representations by Mr. Weiser confirm the contents of the policy, which they contend repeatedly refers to a “single premium policy.”

|4Conversely, New York Life avers that the Barrecas were sold a whole life policy, requiring payment of annual premiums of $3,642.00. This is evidenced by the policy itself, which the Barrecas were to read upon receipt. Further, New York Life maintains that its communications with the Barrecas through the years put them on notice that additional premiums were due annually throughout the life of the policy. New York Life sent annual notices listing the amount of dividends associated with the policy for the year, the amount of the dividend to be applied to the payment of the annual premium, and the outstanding amount, if any, of the annual premium.

In addition to these regular updates, New York Life communicated with Mrs. Barreca in writing about policy-related information regarding payment of policy premiums. By letter dated 7 August 1998, New York Life reminded her that while she had elected to pay premiums through the “Premium Offset Plan,” which paid premiums from the policy’s dividends, the policy no longer had sufficient dividend values; thus, the Premium Offset Plan would be discontinued and out-of-pocket payments for the premiums were required.

By letter dated 4 October 1999, New York Life advised that the $3,642 premium due on 3 September 1999 was overdue and under the policy’s “Automatic Premium Loan” provision, the premium would be paid using the loan provision against the policy’s cash surrender value unless payment was received within 30 days. New York Life then sent a letter dated 9 November 1999, alerting the Barrecas that a loan in the amount of $3,642 had been made against the policy to pay the yearly premium. The same scenario arose in 2000, whereby the premium was paid through a loan made against the policy. The letter of 8 [ ^November 2000 also noted that by the terms of the policy, the next premium due in 2001 could not be paid by the Automatic Premium Loan.

The Barrecas were advised by letter dated 4 October 2001, that the policy had lapsed due to nonpayment of the premium due 3 September 2001. However, New York Life stated that the policy could be reinstated by either sending the past due premium or by participating in the “Default Premium Payment Option” by 3 November 2001. Finally, by letter dated 7 December 2001, New York Life advised that the policy had lapsed due to nonpayment of premiums. The Barrecas have not disputed receipt of the correspondence and notices from New York Life.

The Barrecas have alleged that in April 1988, their agent, Mr. Weiser, induced them to purchase the policy in question by misrepresenting that the poli[485]*485cy would require the payment of a single premium. According to the Barrecas, Mr. Weiser merely facilitated the underlying transaction of the sale of the policy by New York Life.3 The Barrecas contend New York Life breached the contract between them by failing to comply with the terms of its own contract. In support of this argument, the Barrecas rely on certain policy language, and a letter they received from Mr. Weiser soon after the policy was purchased that refers to the payment of a “single premium,” which was to come from the cash value of their preexisting policy, to purchase the new policy.

The following policy provisions are pertinent to this appeal:

| fiPage one of the policy provides:
10 Day Right To Examine Policy. Please examine your policy. Within 10 days after delivery, you can return it to New York Life Insurance Company or to the agent through whom it was purchased, with a written request for a full refund or premium. Upon such request, the policy will be void from the start, and a full premium refund will be made.

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53 So. 3d 481, 2010 La.App. 4 Cir. 0574, 2010 La. App. LEXIS 1543, 2010 WL 4397001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-barreca-v-weiser-lactapp-2010.