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Laborde v. Northwestern Mutual Life Insurance Co.

United States District Court, W.D. Louisiana, Lafayette Division

September 8, 2017

KENNETH J. LABORDE, M.D.
v.
NORTHWESTERN MUTUAL LIFE INSURANCE CO.

          CAROL B. WHITEHURST, MAG. JUDGE

          RULING

          ROBERT G. JAMES, UNITED STATES DISTRICT JUDGE

         This is an action brought by Plaintiff Kenneth J. Laborde, M.D. (“Laborde”) against his insurer, Defendant Northwestern Mutual Life Insurance Co. (“Northwestern”) for breach of contract, attorney's fees, and statutory penalties pursuant to La. Rev. Stat. § 22:1821. Laborde, a surgeon, brought suit after Northwestern denied his application for disability benefits after he suffered a rotator cuff injury and could no longer perform hand microsurgery.

         Pending before the Court is Northwestern's Motion in Limine [Doc. No. 32]. Northwestern moves the Court to exclude from evidence (1) Laborde's claims that Northwestern breached the insurance contract by failing to provide disability benefits based on conditions he suffered after the filing of his Complaint and which were not the subject of an amended complaint and (2) any expert testimony by Laborde's accountant. Laborde opposes the motion. [Doc. No. 38]. Northwestern filed a reply memorandum. [Doc. No. 46].

         For the following reasons, the Motion in Limine is GRANTED IN PART and DENIED IN PART.

         A. Claims Not Pleaded in the Complaint

         Northwestern first argues that the Court should exclude from evidence Laborde's claims that Northwestern breached the insurance contract by failing to provide disability benefits based on conditions he suffered after the filing of his Complaint and which were raised for the first time in his opposition to Northwestern's Motion for Summary Judgment. Because the deadline for amending the Complaint passed on March 2, 2017, Northwestern argues that Laborde cannot add these “new claims of disability.” [Doc. No. 32, p. 2]. Instead, Northwestern contends that Laborde should be limited to arguing that he was/is disabled based on the right rotator cuff tear that was diagnosed on March 11, 2014.

         Laborde responds that his Complaint pleads two causes of action: a breach of contract claim for Northwestern's refusal to pay disability benefits under several disability insurance contracts and a claim for penalties and attorney fees under La. Rev. Stat. § 22:1821 for the alleged bad faith refusal to pay the benefits under the disability insurance contracts. Laborde contends that the disability insurance contracts insured him against any illness or injury which rendered him disabled in his ability to perform his occupation as a microsurgeon, and no new claims have been added. However, following the filing of the Complaint, Laborde had an accident causing damage to his finger and developed a heart condition, both of which he contends have continued his disability, so that he cannot return to performing microsurgery. Laborde placed Northwestern on notice of these additional conditions by filing a second Request for Disability Benefits with Northwestern on June 1, 2016, six days after the Complaint was filed, Northwestern has conducted discovery, and obtained disclosure regarding all Laborde's medical conditions.

         Northwestern responds that Laborde pled only one claim: that he is disabled from performing microsurgery because of his shoulder condition. Laborde failed to move to amend in a timely manner to assert claims of later developed disabilities. Therefore, Northwestern argues that Laborde should not be allowed to present evidence on the alleged disabilities which were never included in a complaint or amended complaint.

         During the pre-trial conference, in response to a question from the Court, Laborde's counsel expounded on his opposition memorandum, explaining that Laborde's later developed conditions have limited the number of general surgeries he can perform as well as completely preventing him from performing microsurgery.

         First, the parties apparently contest what constitutes the “claim” in this case for purposes of amending the complaint. Northwestern characterizes Laborde's claim as one for damages based on the denial of disability benefits for his rotator cuff or shoulder injury. Laborde contends, in his memorandum, that his claims are for breach of contract and statutory penalties based on Northwestern's denial of disability benefits and that his later developed conditions are merely additional facts of which Northwestern has been aware and which show that he continues to be unable to return to his occupation of microsurgery. In the pre-trial conference, Laborde's counsel expanded this claim to include Laborde's inability to perform or limitation on the number of general surgeries he performs as well.

         “Under Federal Rule of Civil Procedure 8(a)(2), a [complaint] must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.' As the [Supreme] Court held in [Bell Atlantic Corp. v.] Twombly, 550 U.S. 544 . . ., the pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Twombly, 550 U.S. at 555). In this case, there is no claim that Laborde failed to meet the requirements of Rule 8 when he initially filed his Complaint.

         However, the issue becomes whether, when, and in what manner Laborde must move to amend his Complaint when he raises additional factual allegations and/or changes the legal theory.

         As the Fifth Circuit has explained to this Court, “Under our precedent, when a claim is raised for the first time in response to a summary judgment motion, the district court should construe that claim as a motion to amend the complaint under Federal Rule of Civil Procedure 15(a).” Riley v. Sch. Bd. Union Par., 379 F. App'x 335, 341 (5th Cir. 2010)(citing Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n. 2 (5th Cir. 2008); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972)). While this rule is “particularly true” of pro se litigants, the Fifth Circuit has not limited its application to unrepresented parties. Id.; see Sherman, 455 F.2d 1235. Under Rule 15(a), leave to amend must be “freely given when justice so requires.” Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994). Rule 15(a) “evinces a bias in favor of granting ...


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