Loewer v. New York Life Ins. Co.

• Decision Date: 20 September 1991
• Docket Number: No. 91-104-CIV-FTM-17(D).,91-104-CIV-FTM-17(D).
• Citation: 773 F. Supp. 1518
• Parties: Irene S. LOEWER, Plaintiff, v. NEW YORK LIFE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Florida

773 F. Supp. 1518

Irene S. LOEWER, Plaintiff, v. NEW YORK LIFE INSURANCE COMPANY, Defendant.

No. 91-104-CIV-FTM-17(D).

United States District Court, M.D. Florida, Fort Myers Division.

September 20, 1991.

Phillip A. Roach, Bass & Chernoff, Naples, Fla., for plaintiff.

Sherryll Martens Dunaj, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, Fla., for defendant.

KOVACHEVICH, District Judge.

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court on Defendant's Motion to Dismiss the claim of Plaintiff, IRENE S. LOEWER, filed May 24, 1991. Memoranda in support of the motion were filed May 24, 1991, and June 12, 1991. Memoranda in opposition were filed June 7, 1991, and July 19, 1991.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

The complaint in this cause of action was filed April 3, 1991, by Plaintiff Irene S. Loewer, widow of the decedent, Alvin C. Loewer, Jr. The complaint named New York Life Insurance Company as the defendant.

The complaint asserts the following facts, which the Court accepts as true for the purposes of the Motion to Dismiss:

1. Plaintiff Irene S. Loewer or the Alvin C. Loewer marital trust, to be determined, was the designated beneficiary on two group life insurance policies issued by New York Life Insurance Company. Those policies were, namely:

(a) The Operations Research Society of America (hereinafter referred to as ORSA), policy number G-9400, certificate number XXXX-XXXXXX; and

(b) The American Society of Civil Engineers (hereinafter referred to ASCE) policy number G-10500, certificate number 172440.

2. Plaintiff Irene S. Loewer is the beneficiary of the Alvin C. Loewer marital trust.

3. The policy amount on the ORSA policy was $36,000.00. The policy amount of the ASCE policy was $43,200.00.

4. The insured on the ORSA and ASCE policies was Alvin C. Loewer, Jr., date of birth, 04/28/21, date of death, February 11, 1986.

5. New York Life Insurance Company failed or refused to pay the proceeds of the ORSA policy to Plaintiff nor (sic) to the Alvin C. Loewer marital trust.

6. New York Life Insurance Company did not pay the proceeds of the ASCE policy to Plaintiff nor to the Alvin C. Loewer marital trust.

NEW YORK LIFE'S MOTION TO DISMISS CLAIMS

FAILURE TO FILE A CLAIM WITHIN THE STATUTE OF LIMITATIONS PERIOD

Initially, Defendant moves to dismiss the complaint because the complaint was not filed within five years of the decedent's death. Defendant alleges that the claim is barred by the statute of limitations specified under Florida Statutes, § 95.11 (1985), which requires that a legal or equitable action on a contract, obligation, or liability founded on a written instrument shall be commenced within five years, or be barred by the statute of limitations.

The parties agree that a five-year statute of limitations applies to non-payment of insurance policies. See Motion to Dismiss Complaint and Supporting Memorandum of Law at p. 2; Opposition Memorandum at p. 2. The complaint alleges that the decedent died on February 11, 1986. However, the complaint was not filed until April 3, 1991, more than five years later. Thus, if the statute of limitations began to accrue on the date of the decedent's death, the Motion to Dismiss should be granted according to Rule 12(b)(6), Fed.R.Civ.P. See New Port Largo, Inc. v. Monroe County, 706 F.Supp. 1507, 1516 (S.D.Fla.1988) ("when, after taking plaintiff's allegations in the complaint as true, a claim is time barred on its face, the granting of a motion to dismiss is proper"); Hendrickson v. Buchbinder, 465 F.Supp. 1250 (S.D.Fla.1979) ("where the statute of limitations appears on the face of a complaint, the complaint fails to state a claim for which relief can be granted and dismissal pursuant to Rule 12(b)(6) is proper"); White v. Padgett, 475 F.2d 79 (5th Cir.1973), cert. denied 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973) ("the complaint is subject to dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted when the affirmative defense clearly appears on the face of the complaint").

The initial question this Court will address, then, is whether the statute of limitations for the filing of a claim on the life insurance policy began to run on the date of the insured's death, and is thus barred by the applicable statute of limitations.

The statute of limitations applicable to a legal or equitable action on a contract, obligation, or liability founded on a written instrument is five years. FLA.STAT. § 95.11(2)(b) (1985). Defendant urges that this period should begin to run on the date the event which triggered payments under the policy occurred, and asserts that this date was the date of the insured's death. To support this proposition, the claimant cites to Fladd v. Fortune Insurance Company, 530 So.2d 388 (Fla.2d DCA 1988). In that case, the court held that when applied to an automobile passenger's action against the insurer for breach of contract for failure to pay personal injury benefits, the five-year statute of limitations under Florida Statutes § 95.11(2)(b) commenced to run on the date of the accident. The Fladd court cited to State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So.2d 632 (Fla.1982), where the Florida Supreme Court held that a cause of action for an uninsured/underinsured motorist claim stems from the plaintiff's cause of action against the tortfeasor, and thus, the statute of limitations begins to run on the date of the accident.

To the contrary, Plaintiff urges that the statute of limitations period should begin to run from the time of the breach of the insurance contract. This date, she asserts, was not the date of the insured's death, but rather the date of improper payment under the insurance contract. She asserts that this brings the commencement of the action within the five-year statute of limitations period. In support of this proposition, she cites to Levy v. The Travelers Insurance Company, et al, 580 So.2d 190 (Fla. 4th DCA 1991). The Levy court acknowledged conflict with Fladd, in holding that the statute of limitations should begin to accrue from the time of the breach of the contract. The insurance contract at issue in that case pertained to personal injury protection benefits. However, the court found "no reason to depart from the usual and customary rules regarding application of the statute of limitations to insurance contracts, unless there is an exception brought about by the nature of the claim, as in the uninsured motorist instance set forth in Kilbreath." Id. At the time of the accident at issue in that case, the court reasoned, the defendant owed no contractual obligation to pay first-party benefits, and therefore, it had not yet breached any contractual obligation to the plaintiff. In addition, in the Fladd case, as in the case at bar, the manner in which payments under the policy were to be made was governed by the Florida Statutes. See FLA.STAT. § 627.736(4)(b) and FLA.STAT. § 733.808 (1985).

The Florida Legislature did not explicitly set out its intent regarding when the limitations period should begin to run under the statute of limitations listed under § 95.11 of the Florida Statutes. However, there has been some judicial interpretation of this issue. Specifically, in Walker v. Beech Aircraft Corp., 320 So.2d 418 (Fla. 3d DCA 1975), the court held that the intent of § 95.11(6) (a similar statute of limitations provision applying to wrongful death actions) was to limit the commencement of actions to two years from the time of their accrual (emphasis added). A cause of action cannot be said to have accrued, within the meaning of the statute of limitations, however, until an action may be brought. "There must be some person capable of suing or being sued upon the claim in order for the statute to begin to run." Berger v. Jackson, 156 Fla. 251, 259-60, 23 So.2d 265, 269 (1945). As this pertains to a cause of action on a contract, the general rule is that "in contract cases, the cause of action accrues and the statute of limitations begins to run from the time of the breach of the contract." Kassner & Co. v. City of New York, 46 N.Y.2d 544, 389 N.E.2d 99, 415 N.Y.S.2d 785 (1979).

In determining at what point the insurance contract at bar was breached, at what point an action could have been brought, and thus, when the statute of limitations began to run, the statutory provisions regarding payments under life insurance policies are relevant. Florida Statutes, § 733.808(2) provides that "upon the admission of the will to probate, the death benefits shall be paid to the trustee, to be held, administered, and disposed of in accordance with the terms of the trust created by the will." Under the same provision, when no trustee makes proper claim to the proceeds within six months after the date of death of the insured, or if satisfactory evidence is furnished to the insurer within that period that there is, or will be, no trustee to receive the proceeds, "payment shall be made to the personal representative of the person making such designation, unless otherwise provided" in the agreement with the insurer. FLA.STAT. § 733.808(3) (1985) (emphasis added).

Thus, Defendant in the case at bar was obligated to pay the proceeds of the life insurance policies to the trustee upon admission of the will to probate, or after six months following the date of death, or, whenever satisfactory evidence was furnished the insurer that there was or would be no trustee to receive the proceeds, to the personal representative of the insured,...