Gilbert Wilson Versus Lincoln Benefit Life Company

GILBERT WILSON NO. 20-C-1

VERSUS FIFTH CIRCUIT

LINCOLN BENEFIT LIFE COMPANY COURT OF APPEAL

STATE OF LOUISIANA

February 18, 2020

Susan Buchholz
Chief Deputy Clerk

IN RE LINCOLN BENEFIT LIFE COMPANY

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT,
PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
MADELINE JASMINE, DIVISION "A", NUMBER 69,274

Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Stephen J. Windhorst

WRIT GRANTED; JUDGMENT REVERSED; MOTION FOR
LEAVE GRANTED; MATTER REMANDED

Relator/defendant, Lincoln Benefit Life Company, seeks this Court’s
supervisory review of the trial court’s December 4, 2019 judgment which denied
defendant’s motion for leave to file a first amending and restated answer and
affirmative defenses. For the following reasons, we grant this writ application,
reverse the judgment under review, grant defendant’s motion for leave to file its
first amending and restated answer and affirmative defenses, and remand the
matter to the trial court for further proceedings consistent with this disposition.

On April 18, 2016, plaintiff/respondent, Gilbert Wilson, filed a petition for
damages against defendant, alleging that his brother, Lionel Wade Wilson, was
issued a life insurance policy by defendant with an effective date of April 8, 2013.
The petition alleged that plaintiff was the primary beneficiary of the policy, and
that Lionel died as a result of prostate cancer on February 22, 2015. The petition
further alleged that because Lionel’s death was within the two-year contestable
period of the contract, defendant conducted an investigation to determine the
extent of its liability, and that as a result of the investigation, defendant denied
plaintiff’s claim due to Lionel’s failure to disclose psychiatric issues. Plaintiff
alleged that the denial of his claim was arbitrary, capricious, and/or in bad faith.
On May 31, 2016, defendant filed an answer and affirmative defenses. On
October 8, 2018, defendant filed a motion for leave to file a first amending and
restated answer and affirmative defenses. The amendment sought to add the
following two affirmative defenses:

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Sixth Defense

Plaintiff’s claims are barred, in whole or in part, by the limits,
provisions, terms, conditions, endorsements and/or exclusions of
Lincoln’s life insurance policy number 01N1E45663 (“the Policy”),
including but not limited to incontestability provisions provided in the
rider, which are adopted herein as if copied in their entirety.

Seventh Defense
Lincoln asserts all defenses available under La. R.S. 22:860(B),
including the affirmative defense of misrepresentation. Lincoln
further asserts that the misrepresentation made by the applicant Lionel
Wade Wilson was made with actual intent to deceive, and that the
misrepresentation materially affected either the acceptance of the risk
or the hazard assumed by Lincoln under the Policy. This
misrepresentation voids the Policy and/or entitles Lincoln to rescind
the Policy.

In its motion, defendant argued that the amendment was brought in good faith,
discovery is not complete, there is no scheduling order in the case, and no trial date
has been set.
In his opposition to the motion, plaintiff argued that the subject affirmative
defenses are conclusory and legally insufficient. Plaintiff further argued that the
inclusion of said affirmative defenses would be unduly burdensome, in that it
would require plaintiff to undertake extensive discovery and possibly require him
to retain experts.

Following a hearing on November 21, 2019,1 the trial court denied the
motion by written judgment dated December 4, 2019, stating that “affirmative
defenses must be initially raised in the Answer.”

In its writ application, defendant argues that the trial court erred as a matter
of law in holding that affirmative defenses are lost if not “initially raised in the
Answer.” Further, defendant argues that the trial court abused its discretion in
denying leave to amend where there is no trial date, no relevant deadlines, no
surprise to plaintiff, and no undue prejudice or delay.

In his opposition to the writ application, plaintiff contends that there was no
error of law because the trial court’s judgment did not make a determination that
defendant waived its affirmative defenses when it failed to raise them in its original
answer. Additionally, plaintiff argues that the trial court did not abuse its
discretion because: 1) the defense of misrepresentation could have and should have
been raised in defendant’s original answer; 2) the new defenses are not alleged
with factual specificity; 3) their addition would be unduly burdensome since
plaintiff would be required to hire experts and conduct extensive discovery; 5) the
proposed amendment is contrary to Louisiana’s principle of fact pleading; and 6)
even with additional facts, the new defenses are unfounded.
A defendant may amend his answer once without leave of court at any time
within ten days after the petition has been served. Otherwise, the answer may only
be amended by leave of court or by written consent of the adverse party. La.
1
The writ application did not include a copy of the transcript of this hearing; rather, it only includes a
minute entry indicating that a hearing was held on the motion for leave and that the matter was “submitted.”

2

C.C.P. art. 1151. The trial court is vested with broad discretion in ruling on
motions to amend pleadings, and its decision to grant or deny a motion to amend
may not be disturbed absent an abuse of discretion. Zulli v. Coregis Ins. Co., 05-
155 (La. App. 5 Cir. 7/26/05), 910 So.2d 437, 440, writ denied, 05-2226 (La.
2/17/06), 924 So.2d 1017. Liberality is appropriate to the amendment process
where: 1) the moving party is acting in good faith; 2) the amendment is not being
used as a delaying tactic; 3) the opponent will not be unduly prejudiced; and 4) the
trial will not be unduly delayed. Rainey v. Entergy Gulf States, Inc., 01-2414, (La.
App. 1 Cir. 11/8/02), 840 So.2d 586, 589-90, on reh’g, 01-2414 (La. App. 1 Cir.
6/25/04), 885 So.2d 1193. An affirmative defense is a defense to the action which
will have the effect of defeating a plaintiff’s demand on the merits and must be
affirmatively pled. Zulli, 910 So.2d at 439.

Upon review, we have found no statute or jurisprudence that requires a
defendant to bring his affirmative defenses only in his original answer. Further,
defendant sought to amend its answer at a time when there were no pending
deadlines and the case had not yet been set for trial. Thus, plaintiff has not shown
that he will be unduly prejudiced by the granting of the motion for leave. We
further find that, on the showing made, defendant, as the moving party, was acting
in good faith in filing the motion for leave, the amendment was not being used as a
delaying tactic, and the trial will not be unduly delayed by the filing of the first
amending and restated answer and affirmative defenses. See Rainey, supra.
Therefore, considering the writ application, the opposition thereto, and the reply to
the opposition, we find that the trial court abused its broad discretion in denying
defendant’s motion for leave to file its first amending and restated answer and
affirmative defenses.

For the foregoing reasons, we grant defendant’s writ application, reverse the
trial court judgment under review, grant defendant’s motion for leave to file its
first amending and restated answer and affirmative defenses, and remand the
matter to the trial court for further proceedings consistent with this disposition.

Gretna, Louisiana, this 18th day of February, 2020.

JGG
RAC
SJW

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 02/18/2020 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

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E-NOTIFIED
40th District Court (Clerk)
Honorable Madeline Jasmine (DISTRICT JUDGE)
Judy Y. Barrasso (Relator)
Christopher U. Robles (Respondent)
Kelly S. Rizzo (Respondent)

MAILED
Travis J. Causey, Jr. (Respondent) Stephen R. Klaffky (Relator)
John W. Redmann (Respondent) Madison A. Sharko (Relator)
Edward L. Moreno (Respondent) Attorneys at Law
Attorneys at Law 909 Poydras Street
1101 Westbank Expressway Suite 2350
Gretna, LA 70053 New Orleans, LA 70112