Succession of John Patrick Theriot, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-639 consolidated with 16-961

SUCCESSION OF JOHN PATRICK THERIOT, JR., ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 15421
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED, IN PART, REVERSED AND RENDERED, IN PART.

Alan K. Breaud
Timothy W. Basden
Breaud & Meyers
P. O. Drawer 3448
Lafayette, LA 70502
(337) 266-2200
COUNSEL FOR OTHER APPELLANT:
Kathryn H. Theriot

Paul Philip Breaux, Jr.
Breaux & Hornstein, LLC
P. O. Box 116
St. Gabriel, LA 70776
(225) 642-5532
COUNSEL FOR OTHER APPELLEE:
Lynn Jordan

Porteus R. Burke
Joseph Burke
Burke & Cestia
P. O. Box 10337
New Iberia, LA 70562-0337
(337) 365-6628
COUNSEL FOR OTHER APPELLEE:
Pat Theriot Trust

Allan L. Durand
In Proper Person
235 Rue France
Lafayette, LA 70508
(337) 237-8501
COUNSEL FOR OTHER APPELLANT:
Allan Durand, Executor

Edmond L. Guidry, Jr.
Attorney at Law
324 S. Main Street
St. Martinville, LA 70582
COUNSEL FOR OTHER APPELLANT:
Allan Durand, Executor

Mark N. Mallery
Jacob C. Credeur
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
701 Poydras St., Ste 3500
New Orleans, LA 70139
(504) 648-3840
COUNSEL FOR OTHER APPELLANT:
State Farm Mutual Auto Ins. Co.

SAUNDERS, Judge.

These appeals arise from a dispute over the correct recipient of a decedent’s

initial termination and extended termination payments from his employment as an

insurance agent. The trial court found that the corporate agent was the correct

recipient of the initial termination payments while no party had shown it was

eligible for the extended termination payments. The executor of the estate, the

insurance agency, and the decedent’s wife have all appealed.

FACTS AND PROCEDURAL HISTORY:

Pat Theriot (the decedent) worked as an insurance agent for State Farm

Mutual Automobile Insurance Company (State Farm) since 1981. In 1994, the

decedent formed a corporation named Pat Theriot Insurance Agency, Inc. (the

corporation). The decedent was the sole shareholder and served as President while

the corporation was referred to as the agent of State Farm. The 1994 Agreement

provided for sixty monthly termination payments to start when it was terminated.

These are known as the initial termination payments. Extended termination

payments would begin on the 61st month after termination of the 1994 Agreement

and would continue until the month of the decedent’s death. A joint and survivor

option could replace the applicable terms for entitlement to these extended

termination payments by amendment prior to the decedent’s death.

The decedent had been married three times prior to meeting his wife at the

time of his death, Kathryn Hempel Theriot (Ms. Theriot). The decedent had

several children from his previous marriages, all of whom are adults at the time of

these suits. The decedent and Ms. Theriot were married on October 10, 2012. In

the summer of 2013, the decedent’s failing health was evident, and he was given

three months to live. The decedent passed away on September 6, 2013.

Prior to his death, the decedent met with his attorney, Allan Durand, whom

he named as executor of his estate (the Executor). The decedent named Mr.

Durand the Executor in his last will and testament. The decedent revised his

previously prepared testament to include provisions for Ms. Theriot.

In the decedent’s Last Will and Testament and codicil that were executed on

August 2, 2013, and September 3, 2013, respectively, the following provision at

the heart of this dispute states, “3.2(B) Any termination payment due to me or my

estate from State Farm shall go to my wife, Kathy.” The residuary estate, except

for a bequest to the decedent’s sister not relevant to these proceedings, was to be

left in trust for the decedent’s children. This trust was also made the beneficiary of

the decedent’s life insurance proceeds.

The decedent also contacted State Farm to sign additional paperwork in

order for both the initial and extended termination payments would go to Ms.

Theriot. Jarrod Landry, a representative of State Farm’s from the Dallas regional

office, brought documents for the decedent to sign to ensure Ms. Theriot would

receive the termination payments.

The decedent signed all of the documents provided to him during this

meeting on August 28 (the August 28th Documents). The decedent entered into

the early notification program, under which a State Farm Agent may give advance

notice of retirement and be immediately eligible to assign the termination

payments. These documents provided that the decedent would retire no later than

August 31, 2014, qualified the decedent for the extended termination payments,

qualified the decedent to receive a reduced extended termination payment for the

rest of his life in exchange for the reduced extended termination payments to

continue for the rest of Ms. Theriot’s life, and assigned all of the corporation’s

rights to the extended termination payments to the decedent. State Farm asked the
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decedent to delay his retirement date. The decedent passed away the following

week on September 6, 2013.

On November 22, 2013, the executor filed a petition for partial possession

and/or interim allowance seeking to recognize Ms. Theriot as the recipient of the

termination payments. The trust responded that, as residual legatee and owner of

the corporation, it was entitled to the termination payments because they were

owed to the corporation.

After learning there was a dispute between Ms. Theriot and the trust, State

Farm filed a concursus petition as an intervenor. The executor had previously filed

a separate petition against State Farm. The trust and Ms. Theriot both answered

the concursus asserting claims to the initial termination payments. Ms. Theriot

additionally filed a petition for intervention into the succession proceeding seeking

to be recognized as the proper recipient of the termination payments. State Farm’s

concursus petition was eventually denied and dismissed after a trial was held

determining the proper party to receive the termination payments.

The executor filed a petition for reformation of contracts seeking to reform

the August 28th documents to reflect the joint intent of the parties and also praying

for relief on the alternative ground that the decedent relied on Jarrod Landry’s

assurance to the decedent that the August 28th documents would successfully

transfer the termination payments to Ms. Theriot. A supplemental and amended

petition for reformation of contracts was subsequently filed.

The trust filed a motion for summary judgment seeking to be declared the

owner of the termination payments. This motion was opposed by Ms. Theriot and

the executor. The trial court denied this motion.

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Ms. Theriot filed a motion for summary judgment seeking to have the trial

court find that she was entitled to the termination payments. Her motion was

denied as well.

Prior to trial, the trust filed a motion in limine to exclude all parol evidence

from trial, which was opposed by Ms. Theriot and the executor. The motion in

limine was granted, and the trial court ordered the exclusion of all evidence

concerning the circumstances surrounding the drafting of the decedent’s last will

and testament and the execution of the August 28th documents. A motion for

reconsideration was also filed and denied.

The case went to trial. On May 5, 2015, the trial court dismissed the

executor’s petition for reformation, denied relief for detrimental reliance, ruled that

under the decedent’s will, the initial termination payments should go to the trust

via its ownership of the corporation. Further, the trial court ruled that the extended

termination payments were not owed to anyone because the extended termination

payments were not owed to the decedent at the time of his death and were not

payable under the August 28th documents since the decedent passed away before

the retirement date specified in the early notification program enrollment

document.

The executor filed a timely motion for new trial which was denied. The trial

court signed an order granting State Farm’s suspensive appeal. The trial court then

signed an order granting the executor’s devolutive appeal. Ms. Theriot was also

granted a devolutive appeal by the trial court.

Next, the trial court signed an order granting State Farm’s devolutive appeal

of the separate judgment denying and dismissing its petition-in-intervention for

concursus. Thereafter, the trial court signed an order consolidating the appeals

filed by the executor, Ms. Theriot, and both appeals filed by State Farm. This
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court then issued an order stating that the trial court erred in consolidating appeals

and ordered separate appeals. Those separate appeals were then consolidated by

this court.

KATHRYN THERIOT’S ASSIGNMENTS OF ERROR:

1. The trial court erred as a matter of law in refusing to consider
“all competent evidence” in the interpretation of the Last Will and
Testament of Pat Theriot.

2. The trial court erred as a matter of law in its refusal to admit
parol evidence, or any evidence at all, on the Petition to Reform
Contracts.

3. The trial court erred as a matter of law in its ruling that the State
Farm initial termination payments were payable to the Pat Theriot
Trust under the language of the Last Will and Testament of Pat
Theriot.

4. The trial court erred as a matter of law in its ruling that State
Farm had no obligation to pay extended termination payments to
Kathy Theriot, as Pat Theriot’s surviving spouse and designated
beneficiary.

5. If the State Farm contract documents signed on August 28,
2013 were insufficient to assign all termination payments to Kathy
Theriot, the trial court erred in failing to reform the contract
documents to accomplish the stated intent of the parties at the time the
documents were executed.

6. The trial court erred in failing to place Kathy Theriot in
possession of both Pat Theriot’s initial and extended termination
benefits from State Farm.

EXECUTOR’S ASSIGNMENTS OF ERROR:

1. The District Court was in error in failing to follow the clear
language of Pat’s will by ruling that Pat Theriot’s bequest that “any
termination payment due to me or my estate from State Farm shall go
to my wife, Kathy” had no effect whatsoever.

2. The District Court was in error in ruling that it was Pat’s intent
that the termination payments were to be inherited by the Trust, and
not by Pat’s wife, Kathy.

3. The District Court was in error in refusing to admit parol
evidence offered by the Executor on the issue of Pat’s intent in using
the phrase “. . .due to me, or my estate. . .”, after having admitted
parol evidence offered by other parties as to Pat’s intent.
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4. If the District Court was not in error in failing to give any effect
to Pat’s bequest of the Termination Payments to his wife, then the
District Court was in error in refusing to treat the Will as an
“assignment.”

5. The District Court was in error in ruling that the “August 28
documents” did not result in the assignment of the Extended
Termination Payments to Kathy, and in not interpreting the documents
in the method most favorable to the non-drafter.

6. The District Court was in error in not reforming the August 28
contracts to reflect the intent of the parties, i.e., to assign both the
Initial Termination Payments and the Extended Termination Payments
to Kathy.

7. The District Court was in error in failing to allow parol
evidence in support of the Petition to Reform the Contracts, and in
failing to reform the contracts to reflect the intent of the parties.

8. The District Court was in error in refusing to allow parol
evidence in support of the claim of detrimental reliance, and in
denying the claim of detrimental reliance by Pat upon the
representations of State Farm.

9. The District Court was in error in ruling that the Termination
Payments should not go to Kathy, for the reason that Pat relied to his
detriment on the representations of State Farm.

10. The District Court was in error in failing to admit the parol
evidence that State farm accepted Pat’s will as a valid transfer of the
termination payments to Kathy.

STATE FARM’S ASSIGNMENTS OF ERROR:

1. The District Court erred when it determined that the record was
supported by sufficient evidence to indicate State Farm owed
Termination Payments under Section IV of the 1994 State Farm
Agent’s Agreement signed by John Patrick Theriot to the
Testamentary Trust of John Patrick Theriot, Jr.

2. The District Court erred when it refused to allow State Farm to
introduce evidence in support of its Concursus Petition at the May 5,
2015, trial, thereby improperly increasing State Farm’s risk of double
recovery in this proceeding (hence, leaving State Farm no choice but
to suspensively appeal the July, 20, 2015, Judgment).

3. The District Court erred when it concluded contractual Section
IV Termination Payments, any entitlement to which was not triggered
until Pat Theriot’s death but which have also been held by this
Honorable Court to be contingent contractual payments that do not
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and cannot become payable until other conditions are satisfied after
termination of the contract, ever became part of Pat Theriot’s estate.

4. The District Court erred when it placed on State Farm the
burden of proving the absence of contractual conditions precedent to
receipt of Termination Payments.

5. The District Court erred when it held State Farm’s Concursus
Petition could be relied upon as a “judicial confession” even though
the District Court denied and dismissed that same Concursus Petition
and even though State farm never earned the benefit of or any relief
from that same Concursus Petition.

6. There was no evidence presented at trial that the post-
termination contractual prerequisites to receipt of Section IV
Termination Payments were satisfied, and the District Court erred in
finding these conditions were met.

7. The District Court erred when it failed to allow State Farm to
present evidence on its Petition-in-Intervention for Concursus at the
May 5, 2015, trial.

8. The District Court also erred when it denied and dismissed
State Farm’s Petition-in-Intervention for Concursus in light of the fact
that there are distinctly competing claims to termination payments
allegedly owed by State Farm to multiple parties in the Succession of
John Patrick Theriot.

9. The District Court failed to properly recognize that State Farm,
as the party responsible for making the termination payments
allegedly owed, was or has been exposed to multiple claims and suits
from Concursus Defendants, who have asserted an interest to all or a
portion of the termination payments.

10. The District Court also erred in failing to grant all of the relief
prayed for in State Farm’s Petition-in-Intervention for Concursus,
including dismissal of State Farm and precluding other parties from
bringing claims against State Farm.

DISCUSSION OF THE MERITS:

All of the assigned errors above can be combined into core contested issues.

They are: (1) whether the trial court properly excluded parol evidence concerning

the decedent’s will; (2) whether the trial court properly awarded the initial

termination payments to the trust via its ownership of the corporation under the

terms of the decedent’s will; (3) whether the trial court properly found that State

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Farm did not potentially owe any extended termination benefits; and (4) whether

the trial court properly denied and dismissed State Farm’s petition-in-intervention

for concursus. As such, rather than specifically address the multitude of repetitive

assigned errors, we will adjudicate the pertinent issues in this matter.

Did the trial court properly exclude parol evidence concerning the will?

Ms. Theriot asserts that the trial court erred by refusing to consider all

competent evidence under La.Civ.Code art. 1611(A) in the interpretation of the

decedent’s will. Likewise, the executor contends that the trial court erred by

refusing to admit parol evidence on the issue of the decedent’s intent in using the

phrase “. . .due to me or my estate. . .” in the will after having admitted parol

evidence offered by other parties as to the decedent’s intent.

Louisiana Civil Code Article 1611(A)(emphasis added) states:

The intent of the testator controls the interpretation of his
testament. If the language of the testament is clear, its letter is not to
be disregarded under the pretext of pursuing its spirit. The following
rules for interpretation apply only when the testator’s intent cannot be
ascertained from the language of the testament. In applying these
rules, the court may be aided by any competent evidence.

Thus, in order for the proffered parol evidence to be considered by this

court, the language of the relevant provision of the will must fail to clearly express

the decedent’s intent, i.e., it must be ambiguous. The determination of whether

language is ambiguous is a question of law. Louisiana Ins. Guar. Ass’n v.

Interstate Fire & Cas. Co., 93-911 (La. 1/4/94), 630 So.2d 759. Questions of law

are reviewed by appellate courts via a de novo review as to whether the

determination was legally correct. Citgo Petroleum Corp. v. Frantz, 03-88

(La.App. 3 Cir. 6/4/03), 847 So.2d 734, writ denied, 03-1911 (La. 10/31/03), 857

So.2d 484. “Language is ambiguous when it can be reasonably interpreted to mean

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different things.” Adams v. Willis, 00-589, p. 5 (La.App. 3 Cir. 11/2/00), 777 So.2d

5, 9, writ denied, 00-3289 (La. 2/2/01), 784 So.2d 7.

The language relevant here is the first sentence of provision 3.2(B) in the

decedent’s will. It reads, “Any termination payment due to me or my estate from

State Farm shall go to my wife, Kathy.” Ms. Theriot and the executor contend that

the language indicated the decedent’s clear intent to convey to Ms. Theriot both

types of termination payments. Contrarily, the trust contends that the language,

specifically where the will states “to me or my estate,” indicates that the decedent’s

intent was to convey the termination payments to the trust because the decedent

knew that the termination payments are payable to the corporation and that the

trust inherited the corporation via its status as the universal legatee.

It is clear from the arguments above that the language in the provision can

reasonably be interpreted to mean different things. As such, we find that the trial

court improperly excluded “any competent evidence,” under La.Civ.Code art.

1611(A), to aid in finding the intent of the testator when having his will drafted.

Accordingly, we find that the trial court committed legal error.

“[W]hen a provision in a will is subject to more than one equally reasonable

interpretation, then the court may consider all circumstances existing at the time of

the execution of the will (and not just the language of the will) which may aid in

determining the intent of the testator.” Succession of Williams, 608 So.2d 973, 975

(La.1992). Therefore, we will look to the record, proffered competent evidence,

and “any and all circumstances existing at the time of the execution of the will” in

order to determine the decedent’s intent in the first sentence of provision 3.2(B).

Id. Because the language of provision 3.2(B) can reasonably be interpreted to mean

different thing, i.e., it was ambiguous, we found that the trial court improperly

excluded “any competent evidence” under La.Civ.Code art. 1611(A). As such, we
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will consider the record and any improperly excluded evidence in order to

ascertain the decedent’s intent with respect to the initial termination benefits.

Did the trial court properly award the Initial Termination Payments to the trust?

Ms. Theriot contends that the trial court erred as a matter of law in its ruling

that the initial termination payments were payable to the trust under the decedent’s

will. The executor asserts that the trial court was in error in ruling that it was the

decedent’s intent that the initial termination payments were to be inherited by the

trust and not Ms. Theriot. We find that these arguments have merit.

“[T]he first and natural impression conveyed to the mind on reading the will

as a whole is entitled to great weight. The testator is not supposed to be

propounding riddles, but rather to be conveying his ideas to the best of his ability

so as to be correctly understood at first view.” Carter v. Succession of Carter, 332

So.2d 439, 442 (La.1976). When the language of a will is unclear, acts done by the

testator after the will’s execution may be taken into consideration in ascertaining

his intent. Succession of Ehrenberg, 21 La.Ann 280 (La. 1869); Clark v. Preston, 2

La.Ann. 580 (La. 1847). “A disposition should be interpreted in a sense in which it

can have effect, rather than in one in which it can have none.” La.Civ.Code art.

1612. “It is a cardinal rule of testamentary construction that each and every part of

the will shall be given effect; no word, phrase or clause shall be declared

surplusage if it can be afforded a reasonable and legal interpretation.” Succession

of Lambert, 210 La. 636, 657, 28 So.2d 1, 8 (1946).

In the case before us, the decedent used the language, “[a]ny termination

payment due to me or my estate from State Farm shall go to my wife, Kathy.”

This is a positive expression of the decedent’s seeming intent that his wife get any

termination payments. As such, this court’s first and natural impression is that the

decedent intended for Ms. Theriot to get any termination payments.
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The trust points out that the decedent’s use of the language “due to me or my

estate” is indicative that he wanted the trust to get the initial termination payments

because the decedent knew that he, personally, was not due any initial termination

payments. Rather, as found by the trial court and argued by the trust, the decedent

knew that the corporation was due the initial termination payments and used this

language to purposefully leave the initial termination payments to the trust because

he knew that the trust would obtain ownership of the corporation via its status as

universal legatee.

We find no merit to the trust’s argument and find error by the trial court in

reaching this conclusion regarding the decedent’s intent. The trial court’s finding

necessitates the decedent leaving a riddle by using superfluous language

specifically naming Ms. Theriot in order to allow the trust to inherit the initial

termination payments through its ownership of the corporation via its designation

as the universal legatee. Had the decedent truly intended to leave the initial

termination payments to the trust, he could have directly granted them to the trust

via a specific legacy or by not mentioning termination payments.

Moreover, the testimony of Mr. Jarrod Landry, an agency sales leader for

State Farm, certainly tends to indicate that the decedent’s intent was for Ms.

Theriot to receive both types of termination benefits. Mr. Landry testified to the

following regarding the decedent’s state of mind in August of 2013, the month the

decedent’s will was written:

Q Okay. You met with Pat, [the decedent,] at his home about
August 28th of [2013]; is that correct?

A As I recall.

Q All right. Did Pat ask you - - tell you he wanted something and
asked you to bring the paperwork or did some other person at State
Farm tell you to go to Pat’s house and what to bring with you? How
did that happen, how did that meeting happen?
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A Pat’s intention from the beginning was for his retirement funds,
his retirement, his agency retirement to go to Kathy Theriot, and so he
requested that I do whatever it took to make sure that took place.

Q All right. He made that request directly to you?

A He did.

Q All right. He told you he wanted his retirement to go to his
wife, Kathy?

A Correct.

Q All right. And did he ask you if he needed to sign anything to
accomplish that?

A He asked me to do whatever it took to do that, and that is what I
did. I did what I had to do within my responsibility to make sure that
what he wanted took place.

....

Q Okay. Pat told you he wanted to assign the retirement benefits
to Kathy; am I correct?

A Correct.

Q And you passed that on to agency ASR [corporate State Farm]?

A Correct.

Q And they sent you these forms and said, “Go have him sign
these”.

A Correct.

Q You were given the understanding this would accomplish what
Pat wanted.

A That was my understanding.

....

Q All right. Am I correct that it was your understanding that the
documents Pat signed on August 28th which are in front of you and
part of Exhibit 1 - - Was it your understanding that those documents
were going to be sufficient to transfer to his wife, Kathy, both his
termination payments?

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A Pat’s intention was for his retirement termination payments, his
extended termination payments to go to Kathy.

Q Both of them.

A Both of them.

Q The termination payments and the extended termination
payments.

A Correct.

Q And when you met with Pat did you tell him that, “These
documents are what you need to sign to transfer your termination
payments and your extended termination payments to Kathy”?

A Yes. My understanding was that these documents were
sufficient and that is what I explained to him when we completed and
signed the documents.

This testimony evidences Mr. Landry’s understanding of the decedent’s

intent. This testimony as to the decedent’s intent for Ms. Theriot to receive both

types of termination payments is bolstered by the actions of the decedent during

the same month he signed his will. He contacted State Farm in an attempt to

achieve the result of Ms. Theriot receiving both types of termination payments.

Then, he actually signed the paperwork he thought necessary to do so. Thus, in

executing the August 28th documents, we find that the decedent made his intent

clear.

Accordingly, we find that the trial court was legally incorrect in finding that

the decedent intended to leave the initial termination payments to the trust. It is

clear from the record and the decedent’s actions during the relevant time frame that

he intended to leave the initial termination payments to Ms. Theriot.

However, the analysis of who is entitled to the initial termination payments

does not end with finding the decedent’s intent. The trust argues that the decedent

could not leave the initial termination payments to Ms. Theriot because they were

the property of the corporation.
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An officer of a private corporation may legally be clothed with the
powers and authority of a general manager. He may be entrusted with
the entire management of the business and affairs of the corporation
and, when such is done, his acts are virtually the acts of the
corporation itself. Fletcher on Corporations, vol. 3, p. 3202; 19 C.J.S.
Corporations § 756 p. 99; Southern Hide Co. v. Best, 174 La. 748, 141
So. 449 (1932). Also see Russ v. United Farm, 230 La. 889, 89 So.2d
380; City Savings Bank and Trust Co. v. Shreveport Brick Co., Inc.,
172 La. 471, 134 So. 397.

Medallion Tower, Inc. v. Fort Lauderdale Technical College, Inc., 323

F.Supp. 180 (E.D. La.1970).

Here, the decedent was the sole shareholder, sole officer, and sole board

member of the corporation. As stated above, his actions regarding any property or

potential receivables due the corporation were binding on the corporation.

Accordingly, his statement that “[a]ny termination payment due to me or my estate

from State Farm shall go to my wife, Kathy” includes any termination payments

due the corporation.

Therefore, we find that the initial termination payments are to be paid to Ms.

Theriot, as the decedent intended.

Did the trial court properly find that State Farm had no duty to pay any

Extended Termination Payments?

Both Ms. Theriot and the executor assert that the trial court erred when it

failed to find that the August 28th documents executed by the decedent and State

Farm warranted Ms. Theriot be awarded the extended termination benefits. We

find merit to these assertions.

Where factual findings are pertinent to the interpretation of a contract,
those factual findings are not to be disturbed unless manifest error is
shown. However, when appellate review is not premised upon any
factual findings made at the trial level, but is, instead, based upon an
independent review and examination of the contract on its face, the
manifest error rule does not apply. In such cases, appellate review of
questions of law is simply whether the trial court was legally correct
or legally incorrect. (citations omitted).

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Evangeline Parish Sch. Bd. v. Energy Contracting Servs, Inc., 617 So.2d 1259,

1265 (La.App. 3 Cir.), writ denied, 624 So.2d 1228 (La.1993) (quoting Borden,

Inc. v. Gulf States Utils. Co., 543 So.2d 924, 928 (La.App. 1 Cir.), writ denied, 545

So.2d 1041 (La.1989)).

“When the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’

intent.” La.Civ.Code art. 2046. “Language is ambiguous when it can be

reasonably interpreted to mean different things.” Adams, 777 So.2d at 9. Where an

ambiguity remains even after methods of contractual interpretation are employed,

“the ambiguous provision is to be construed against the drafter and in favor of the

insured.” Reynolds v. Select Props., Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180,

1183.

In the case before us, when dealing with extended termination payments,

Section V of the 1994 agreement between the corporation and State Farm states

that State Farm “will pay the Agent monthly payments beginning on the last day of

the 61st month following termination and continuing until the last day of the month

in which the death of the President occurs. . . .” The decedent, personally and on

behalf of the corporation, and State Farm signed five documents on August 28,

2013. Those five documents were an Early Notification of Program Enrollment, a

Termination Payment Amendment, an Extended Termination Payment

Amendment, an Irrevocable Assignment of Extended Termination Payments, and

an Election to Receive Extended Termination Payments Under the Joint and 66

2/3% to Survivor Option.

The parties stipulated that the decedent met the requirements to receive

extended termination payments. However, the trial court found that no extended

termination benefits were due to the decedent or Ms. Theriot because the decedent
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chose a date of termination of the agreement as either September 30, 2013, or

August 31, 2014, and he died on September 6, 2013. We find error by the trial

court in reaching this conclusion.

All parties and the trial court agree that the 1994 Agreement terminated on

the date of decedent’s death, September 6, 2013. The disagreement is whether

there was still a requirement that the decedent terminate the 1994 Agency

Agreement prior to his death in order to have the August 28th documents have any

effect on the extended termination payments. We find that the August 28th

documents mandate that Ms. Theriot is to receive the extended termination benefits

should she be living when they become due.

The Early Notification Program Enrollment document was signed by the

decedent and received by State Farm on August 26, 2013. It notified State Farm of

the decedent’s date of retirement with a date of August 31, 2014. Todd Romig, the

assistant manager for agency sales resources at State Farm, testified to the

following:

Q . . . Does a retirement date recorded by anybody with State
Farm make any difference whatsoever as long as he signed it, this
early notification program enrollment, before his death?

A No, it does not.

Q The face that [the decedent] signed Exhibit 1 allows him to sign
these other documents, particularly the Election to Receive Extended
Termination Payments Under the Joint and 66-2/3 to Survivor
Option?

A Correct.

Thus, it is clear that the decedent was able to execute the August 28th

documents immediately after enrolling in the early termination program. As such,

we will look to these documents to determine what effect, if any, they had on the

extended termination payments.

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The Extended Termination Payment Amendment states:

WHEREAS, there exists a State Farm Agent’s Agreement . . .
(“Agreement”) between the corporation known as PAT THERIOT
INSURANCE AGENCY, INC. of Saint Martinville, LA (“Agent”),
and the undersigned State Farm Insurance Companies (“Companies”);

WHEREAS, Section V of the Agreement provides for extended
termination payments under certain conditions in the event the
Agreement is terminated;

AND WHEREAS, Agent has met the requirements of the Early
Notification Program;

NOW THEREFORE, the Companies and Agent agree:

1. If, as of the date the Agreement is terminated; the President of
Agent is 55 years of age or older and:

(a) has met all but the age requirement for the receipt
of extended termination payments, or

(b) has a combination of age and length of Agency
Service equal to or greater than 80 years and has
met all but the age and length of service
requirement for the receipt of extended termination
payments,

Agent shall be eligible for extended termination
payments calculated in accordance with the formulas set
forth in Section V. of the Agreement.

....

3. If Agent assigns its rights to extended termination payments to
the President of Agent, the Joint and Survivor Option will be
available to President of Agent.

The Extended Termination Payment Amendment was signed by both State

Farm and the decedent, individually, and on behalf of the corporation on August

28, 2013. Our reading of the Extended Termination Payment Amendment is State

Farm and the decedent agreed that when the 1994 Agreement is terminated, if

certain listed criteria were met (which all parties stipulated the decedent met), then

the decedent “shall be eligible for extended termination payments.” Thereafter, the

Extended Termination Payment Agreement states that if the corporation assigns its
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rights to the extended termination payments to the decedent, then the decedent can

choose the joint survivor option.

On that same date, the decedent then signed the Irrevocable Assignment of

Extended Termination Payments. It states, “Agent [Pat Theriot, Inc.] does hereby

irrevocably transfer, assign, and set over all right, title and interest to and in the

payments provided for under the terms of Section V of the Agent’s Agreement to

its President, absolutely.” Therefore, the document purported to give the decedent,

individually, the right to direct who would receive the Extended Termination

Payments. State Farm signed this document on February 20, 2014.

Thereafter, the decedent signed the Election to Receive Extended

Termination Payments Under the Joint and 66 2/3% to Survivor Option. It

designates Ms. Theriot as a joint beneficiary of those extended termination

payments stating, “I further understand that in the event of my death or the death of

my joint beneficiary, the survivor will receive 66-2/3% of the amount payable prior

to the death of the first to die for his or her lifetime.” This document was signed

by State Farm on February 20, 2014.

The executor and Ms. Theriot argue that the August 28th documents

amended the 1994 original agreement. As such, they point out that these August

28th documents neglected to include the requirement that the decedent terminate

the 1994 agreement via retirement prior to becoming eligible for extended

termination payments. The trial court disagreed finding that the decedent was

required to terminate the agreement via retirement under the 1994 agreement’s

terms prior to the August 28th documents having any effect. As such, the trial

court found that the decedent never became eligible for extended termination

payments because he died prior to his designated date of retirement, i.e., when the

1994 agreement would have been terminated.
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The August 28th documents are clear. State Farm allows for participation in

the program in order to reduce the amount it will have to pay to its former agents in

extended termination payments in exchange for the agents selecting to add his or

her spouse as a beneficiary. There is no requirement in the August 28th documents

that the termination of the relationship between State Farm and Pat Theriot must

come from retirement.

State Farm argues that it is significant that the decedent died prior to some of

the August 28th documents being signed by it. The basis of State Farm’s argument

is that the August 28th documents were offers by the decedent and were not

accepted by State Farm until after the decedent’s death. Given that an offer dies

with the party making the offer, see La.Civ.Code art. 1932, State Farm argues that

these contracts were not valid. This argument lacks merit.

These contracts were prepared by State Farm to accomplish the decedent’s

specific goal of having Ms. Theriot receive his extended termination payments.

It has long been held by our courts that a party who prepares the
contract and presents it to the other party for their signature may not
later claim he is not bound by the contract because his signature is
lacking. Auto–Lec Stores, Inc. v. Ouachita Valley Camp, No. 10,
W.O.W., 185 La. 876, 883, 171 So. 62, 64 (1936); Finishers Drywall,
Inc. v. B & G Realty, Inc., 516 So.2d 420, 422 (La. Ct.App. 1
Cir.1987).

Rainey v. Entergy Gulf States, Inc., 09-572, p. 18 (La. 3/16/10), 35 So.3d 215, 227.

In the cases cited by Rainey and in Rainey, itself, the courts enforced the

contracts even though they were not signed by the preparer of the contract. Here,

the contracts were, in fact, signed by State Farm, just not until a date after the

decedent’s death. Accordingly, we find no merit to this argument.

The decedent chose to exercise his right to participate in State Farm’s early

notification program. In doing so, the options that he chose, altering the

requirements for eligibility for the extended termination payments, assigning the
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extended termination benefits to himself, and adding his wife as a beneficiary

under the joint survivor option, immediately became effective once he signed the

documents. Thereafter, when State Farm signed the documents, it only served to

reinforce its assent to the terms of the contracts it prepared to reach the decedent’s

goals. The decedent chose to exercise those options, and, under the clear language

of the August 28th documents, chose to have the extended termination payments

go to Ms. Theriot.

Moreover, we note that it is clear from the record that both the decedent and

State Farm believed that once these August 28th documents were executed, Ms.

Theriot would receive the extended termination benefits when they became due.

Did the trial court properly adjudicate State Farm’s Petition-in-Intervention for

Concursus?

State Farm asks this court to reverse the trial court’s ruling and order

denying its petition-in-intervention for concursus. State Farm also asks that we

order that it be granted the opportunity to deposit any funds that may be

determined to be owed in this matter into the court’s registry, that it be dismissed

from these proceedings entirely, and that it be granted an injunction from any

further prosecution of any claims by any party in this matter.

The trial court denied State Farm’s concursus request as not timely or proper

given that it had already determined that the corporation was entitled to the initial

termination benefits. We find that this matter is moot. Allowing State Farm to

deposit funds into the registry and to be dismissed is of no consequence because

we have determined that Ms. Theriot is the proper recipient of all the termination

benefits.

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DISPOSITION:

Kathryn Hempel Theriot, Executor Allan Durand, and State Farm Mutual

Automobile Insurance Company all assigned errors in this case. We find that the

trial court improperly excluded parol evidence in ascertaining Pat Theriot’s intent

in making his will. We find merit to those assignments contending that the trial

court erred in awarding the trust, via ownership of Pat Theriot Insurance Agency,

Inc., initial termination payments. We render judgment declaring that the proper

recipient of those initial termination payments is Kathryn Hempel Theriot.

Further, we find merit to those assignments of error asserting that the trial court

erred in denying that State Farm Mutual Automobile Insurance Company

potentially owes anyone extended termination payments. We render judgment

holding that those extended termination payments are owed to Kathryn Hempel

Theriot. Finally, we affirm the trial court’s denial of State Farm Mutual

Automobile Insurance Company’s petition-in-intervention for concursus. All costs

of these proceedings are assessed to Pat Theriot Insurance Agency, Inc.

AFFIRMED, IN PART, REVERSED AND RENDERED, IN PART.

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