Merten v. American Home Assurance Co.
Merten v. American Home Assurance Co.
Opinion of the Court
This case involves a judgment of dismissal based on the peremptory exception raising the objection of prescription. Because we agree with the trial court’s determination that the claim has prescribed, we affirm.
The record, which consists of the pleadings, a transcript of the attorneys’ argument at the hearing, and a deposition of Mr. A. J. Sartain, reflects the following
Plaintiff’s attorney submitted a claim for the death benefits on November 20, 1979 and after months of correspondence on the matter filed suit on August 21, 1980. The defendant, American Home Assurance Company, filed the peremptory exception urging the objection of prescription, and after a hearing on the matter the trial court sustained the objection and dismissed the suit.
Mr. Sartain testified Dow customarily mails a “certification of insurance” to all employees shortly after enrollment in the insurance program. This certificate gives a brief explanation of the conditions of the policy and specifically states all suits must be filed within three years after the time written proof of loss is required to be furnished. (It also states written proof of loss must be furnished within 90 days of the loss.) He testified all employees are given a booklet explaining the insurance program when they report for their first day of work. We find this testimony sufficient to establish a presumption that Mr. Merten did receive the certificate and/or insurance booklet and therefore was aware of the time limitations of the policy. If he did not receive either of these items this fact should have been established at the hearing on the exception. Since Mr. Merten did not testify at the hearing there is no evidence he did not receive these items. Therefore we have no choice but to assume he was aware of the time limitation yet failed to take any action to prosecute his claim prior to the expiration of the three-year period.
We reject appellant’s argument that because there was no delivery of the policy to Dow’s Louisiana office nor to the individual employees, the failure to file suit timely should be excused. This argument was raised in King v. Pan American Life Insurance Company, 324 So.2d 535 (La.App. 1st Cir. 1975), writ refused 1976, and was rejected by this court. There we held that the testimony established the insurer’s customary practice was to deliver the policy to the group and the group was to deliver the certificates of insurance to the individual employees. The delivery of the certificates was deemed to be adequate notice of the contents (and time limitation) of the policy. In the present ease Mr. Sartain admitted his office did not have a copy of the master policy. However, it must be noted Dow’s main office is in Midland, Michigan and there is no evidence indicating the policy was not delivered to the main office. We find it sufficient that the evidence shows the usual procedure is to mail the certificate to the insured therefore informing him of the time limitation.
Appellant relies heavily on the case of Suire v. Combined Insurance Company of America, 290 So.2d 271, (La. 1974). That case held that a beneficiary who did not know of the existence of an insurance policy until eight years after the death of the insured was not bound by the time limits of the policy. Appellant argues that the same rule should apply in the present case be
For these reasons, we affirm the trial court’s dismissal of the suit. Appellant is to pay all costs.
AFFIRMED.
. Sartain testified the normal procedure was for the employee to provide him with the necessary information and to fill out a claim form. He would then forward the information to Dow’s main office in Midland, Michigan. The main office would then send the claim to the insurance company.
. We note that in this case Mr. and Mrs. Mer-ten were both insured under the policy and were each other’s beneficiaries.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.