United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
the Court is a Rule 12(b) Motion To Dismiss filed by State
Farm Mutual Automobile Insurance Company, State Farm Life
Insurance Company, State Farm Fire and Casualty Company and
State Farm General Insurance Company (“State
Farm”) [Rec. Doc. 8], Plaintiff Kathryn H. Theriot's
Memorandum in Opposition [Rec. Doc. 15] and State Farm's
Reply [Rec. Doc. 20]. For the following reasons, the
undersigned recommends that the Motion to Dismiss [Rec. Doc.
8] be denied.
Factual and Procedural Background
Katheryn Theriot (“Theriot”), is the surviving
spouse of John Patrick Theriot (“Pat Theriot”),
who prior to his death was a State Farm insurance agent in
St. Martinville, Louisiana for many years. R. 1-1, ¶
2. Pat Theriot entered into an Agent's Agreement
with State Farm in 1994 (“Agent's
Agreement”). Section IV of the Agent's Agreement
provided for sixty (60) monthly termination payments to start
when it was terminated (“initial termination
payments”). Under Section V, extended termination
payments would begin on the 61st month after termination of
the Agent's 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
agent's death. R. 1-1, ¶¶ 2, 3; Succession
of Theriot, 221 So.3d 862, 864 (La.App. 3 Cir.,
2017). The actual amount of the termination payments
owed by State Farm cannot be determined until the Agent's
Agreement is terminated and the final figures become
available to State Farm. R. 15, Exh. 1.
August 28, 2013, Pat Theriot and representatives of State
Farm met and entered into several contracts which amended the
Agent's Agreement, including the following: (1)
Termination Payment Amendment; (2) Extended Termination
Payment Amendment; (3) Irrevocable Assignment of Extended
Termination Payments; and (4) Election to Receive Extended
Termination Payments Under the Joint and 66-2/3% to Survivor
Option. R. 1-1, ¶ 4, R. 15, Exh. 2. The
contracts specifically named Theriot as Pat Theriot's
assignee and beneficiary for the termination payments. R.
1-1, ¶ 4.
Theriot died on September 6, 2013. At that time, the
Agent's Agreement terminated and State Farm became
obligated to pay termination payments to Theriot pursuant to
the Election To Receive Extended Termination Payments Under
the Joint And 66-2/3% To Survivor Option. Id. at
¶ 5, R. 15-1, Exh.2. On November 19, 2013, State Farm
sent correspondence to Theriot confirming that it owed
termination payments directly to her as Pat Theriot's
beneficiary under the direct assignment contracts executed by
Pat Theriot and State Farm prior to Pat Theriot's death.
The correspondence stated:
This letter is to confirm that you are set to receive
Termination Payments for 5 years in the estimated amount of
$13, 935. You are also set to receive Extended Termination
Payments starting the 6th year and paid to you until your
death in the estimated amount of $5, 969.
These payments are paid from Pat Theriot's agent's
agreement with State Farm.
R. 1-1, ¶ 6, R. 15-1, Exh. 3. In November of 2013, State
Farm made one termination payment to Theriot. Id. at
¶ 12. Thereafter, State Farm refused to pay
additional termination payments to Theriot. R. 1-1,
Theriot's succession proceeding to probate his Last Will
and Testament was opened in the 16th Judicial
District for the Parish of St. Martin, State of Louisiana
(hereafter “state district court”). R. 1-1,
¶¶ 5, 9. Within the succession proceeding, the
Theriot Trust, composed of Pat Theriot's five children,
asserted that it was entitled to receive the termination
payments under the Will; the Executor and Theriot disputed
the Theriot Trust's claim. 1-1, ¶ 8. State
Farm then filed a Petition in Intervention for concursus
within the succession proceeding. State Farm made the
following admission in its Petition In Concursus:
10. State Farm acknowledges that termination payments are due
to be paid for sixty months following Pat Theriot's death
pursuant to an Agent's Agreement signed by Pat Theriot
prior to his death
11. Pursuant to a promise of indemnification, State Farm made
one termination payment to Kathy Theriot on or about the
first of November 2013 in the amount of $15, 078.67.
submits in her opposition and the record confirms that State
Farm took no steps to have the concursus decided-it did not
deposit any termination payments into the registry of the
court and did not seek an adjudication of competing claims.
The concursus was abandoned by State Farm after the trial
court in the succession proceeding rendered its judgment.
R. 15, pp. 9-10. In its opinion, the Third Circuit
found that the concursus was “moot.”
Succession of Theriot, 221 So.3d 221 So.3d 862, 875
(La.App. 3 Cir. 5/17/2017).
filed an Intervention into the succession proceedings seeking
a judgment rejecting all competing claims to the termination
payments and an award of those payments to her. R.
15-5. The trial court held that the initial termination
payments were owed to the Theriot Trust under Pat
Theriot's Will. The trial court also held that extended
termination payments were not owed to anyone. Theriot, the
Executor and State Farm all filed appeals from the judgment.
17, 2017, the Louisiana Third Circuit resolved the dispute in
the succession proceeding by reversing the state district
court's judgment in favor of the Theriot Trust and
rendering judgment in favor of Theriot. R. 1-1,
¶¶ 8, 9, 10; Succession of Theriot, 221 So.3d
at 865. The court stated,
We render judgment declaring that the proper recipient of
those initial payments is Kathryn Hempel Theriot... We render
judgment holding that those extended termination payments are
owed to Kathryn Hempel Theriot.
the Third Circuit held that the concursus was moot and that
State Farm was not entitled to any of the benefits of a
properly conducted concursus procedure. Id. at 875.
Theriot's petition acknowledges that on October 10, 2017,
and on October 31, 2017, more than four (4) years after the
Termination Payments became due and payable, State Farm made
respective payments of $650, 000.00 and $24, 846.11 to her.
R. 1-1, ¶¶ 18, 19. Theriot made amicable
demand upon State Farm for an accounting of the actual amount
of the Termination Payments which State Farm owed to her,
using the accounting data which in the possession of State
Farm. State Farm refused such an accounting and further
refused to provide any data from which the actual amount of
the presently owed Termination Payments could be calculated.
Id. at ¶ 20.
Complaint, Theriot prays for Judgment including: (1) Full
accounting of all Termination Payment owed under the
Agent's Agreement from September 6, 2013 through the
present date and into the future; (2) Full disclosure of all
underlying data used in the calculation of Termination
Payments owed to Theriot; (3) All damages incurred by Theriot
due to State Farm's bad faith breach of its obligations
under the Agent's Agreement, including damages for delay,
legal interest on all amounts due, all attorney fees and
expenses incurred in the probate proceedings, mental anguish
and inconvenience, and loss of necessary funds owed; (4) All
additional Termination Payments owed as determined by a
complete accounting; (5) A full accounting and disclosure of
all unjust enrichment and investment income realized by State
Farm due to the bad faith retention and investment of the
Termination Payments; (6) An award to Theriot disgorging all
unjust enrichment realized by State Farm by its retention of
the Termination Payments; (7) Damages caused by State
Farm's fraud by concealment and refusal to disclose the
amount of Termination Payments due or owed and how they are
calculated as well as all attorney fees, expenses and costs
incurred in the present lawsuit; (8) For all costs of these
proceedings and legal interest on all amounts owed; and (9)
For all general and equitable relief, etc. R. 1-1.
The Succession Proceedings
Farm submits that the Court should take judicial notice of
the following information from the prior succession
proceeding, Succession of Theriot, Docket No. 15421,
16th Judicial District Court, St. Martin Parish,
Louisiana and the subsequent appeal in that case. State Farm
asserts these documents are salient to the instant motion.
“A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b). When reviewing a
motion to dismiss, a district court “must consider the
complaint in its entirety, as well as other sources courts
ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.” Funk v. Stryker Corp., 631
F.3d 777, 783 (5th Cir. 2011) (quoting
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322, (2007)). The Court will take judicial
notice of the following documents which are located in the
record and are not subject to dispute:
1. On September 12, 2013, letters testamentary were issued in
relation to the appointment of Allan Durand as Executor of
the Succession of John Patrick Theriot, R. 8, Exh.
2. On November 22, 2013, the Executor filed a petition for
possession to place Theriot in possession of the Termination
Payments, Succession of Theriot, 221 So.3d at
865, Exh. B;
3. Pat Theriot's “other heir” that made a
claim to the Termination Payments was a testamentary trust
(“Theriot Trust”), established in favor of Pat
Theriot's children; the Theriot Trust responded to the
Executor's petition for possession with a dispute as to