Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 1 of 13 PageID #: 3823
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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` CIVIL ACTION NO. 6:14-CV-576
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`MARCIA SLACK
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`Plaintiff,
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`V.
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`THE PRUDENTIAL INSURANCE
`COMPANY OF AMERICA
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendant’s Motion for Judgment on the Pleadings (Doc. No. 29).
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`Plaintiff filed a Response (Doc. No. 45); Defendant filed a Reply (Doc. No. 48); and Plaintiff
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`filed a Surreply (Doc. No. 53). Having fully considered the parties’ arguments and for the
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`reasons set forth herein, Defendant’s Motion for Judgment on the Pleadings is DENIED.
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`BACKGROUND
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`On May 27, 2014, Plaintiff Marcia Slack filed a complaint against Defendant, The
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`Prudential Insurance Company of America, in the District Court of Smith County, Texas alleging
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`(1) violations of the Deceptive Trade Practices Act (DTPA), (2) violations of the Texas
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`Insurance Code, (3) negligence, (4) negligent misrepresentation, (5) gross negligence, and
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`(6) fraud. See Doc. No. 1-1. On June 23, 2014, Defendant filed a Notice of Removal, removing
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`the case to the United States District Court for the Eastern District of Texas, Tyler Division. Doc.
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`No. 1. Defendant filed an answer generally denying Plaintiff’s allegations and asserting
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`affirmative defenses to Plaintiff’s causes of action. Doc. No. 5. Plaintiff subsequently filed her
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 2 of 13 PageID #: 3824
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`First Amended Original Complaint on December 19, 2014. Doc. No. 15. Defendant filed an
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`answer to Plaintiff’s amended complaint on February 18, 2015. Doc. No. 23. Plaintiff then filed a
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`Motion for Leave to File Second Amended Original Complaint on July 27, 2015, which the
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`Court granted on September 15, 2015. Doc. Nos. 104 & 141. On March 5, 2015, Defendant filed
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`Motion for Judgment on the Pleadings, arguing that Plaintiff does not have standing to bring her
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`claims. Doc. No. 29. In light of the Court’s granting of Plaintiff’s Second Amended Original
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`Complaint, that document will serve as the live complaint upon which the Court will decide
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`Defendant’s Motion for Judgment on the Pleadings.
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`Plaintiff’s husband, Tom Slack, purchased a life insurance policy (the Policy) from
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`Defendant in 2001. Doc. Nos. 29 at 2 & 105 at 2. Mr. Slack named Plaintiff as the beneficiary of
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`the Policy. Doc. No. 105 at 2. After Mr. Slack died on December 2, 2012, Plaintiff filed a claim
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`for death benefits under the Policy, and Defendant paid Plaintiff $274,391.56. Doc. Nos. 5 at 5,
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`29 at 1, & 105 at 9–10 (Plaintiff’s Second Amended Original Complaint).
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`Plaintiff contends that after purchase of the Policy, Defendant represented to Plaintiff and
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`Mr. Slack (the Slacks) that Ronnie William Shaffer was the “representative with whom they
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`should and could communicate regarding the Policy, including any questions concerning
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`payment of premiums.” Doc. Nos. 105 at 4 & 105-1. Plaintiff contends that the Slacks used
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`community funds to pay the annual premium payment of $10,580.00 plus an additional payment
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`of $6,720.00 from 2001 to 2010 because Defendant represented to them that if they made the
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`additional payment, the premium due under the Policy would vanish after ten years. Doc. No.
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`105 at 2–3.
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 3 of 13 PageID #: 3825
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`Plaintiff states that in 2011, Mr. Slack received a notice from Defendant stating that his
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`annual premium was due, which was contrary to Defendant’s original representation of
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`vanishing premiums. Id. at 3. Plaintiff asserts, however, that the notice also stated that Mr.
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`Slack’s policy had a “cash value of the Additional Paid-up Insurance [of] $108,984.93 and that
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`the Policy had a total cash value of $164,134.93.” Id.at 4. Plaintiff states that Mr. Slack then
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`contacted Shaffer to request the premium be paid from a portion of the Policy, and Shaffer called
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`Defendant to approve the payment method; Defendant approved the payment and told Mr. Slack
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`he could set the payment to be automatically paid from the Policy values 45 days after the
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`premium due date if Mr. Slack did not make the premium payments within 31 days of the due
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`dates. Id.at 6. Plaintiff states that Mr. Slack completed the necessary paperwork on July 18,
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`2011. Id. at 5. Plaintiff also contends that the Slacks relied on Defendant’s representations that
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`the payments could be taken directly from the Policy values instead of paid out of pocket on an
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`annual basis. Id. at 6. Defendant, in its answer, stated that Shaffer did contact Defendant and
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`spoke with “Justin,” but denies that Defendant stated that the 2012 premium would be
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`automatically paid from the Policy values. Doc. No. 5 at 3.
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`According to Plaintiff’s Second Amended Original Complaint, following an initial
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`refusal to pay the 2011 premium from the cash value of the additional paid up insurance,
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`Defendant sent Mr. Slack written notice of the approval of the payment. Doc. No. 105 at 5.
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`Plaintiff asserts that in June of 2012, Mr. Slack requested an accounting of the Policy values to
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`determine if they were sufficient to satisfy the 2012 premium, and the document he received
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`showed that he had a “cash value of paid up additional insurance” of $100,304.07 and a “total
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`net cash surrender value” of $163,370.77 Id. at 7 & Doc. No. 105-3. Plaintiff states that Mr.
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 4 of 13 PageID #: 3826
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`Slack then received a notice of payment due dated July 19, 2012, stating that he was to pay
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`$17,300.00 for his 2012 annual premium, but that the Slacks took no action because Defendant
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`previously represented that the premium would automatically be paid 45 days after the payment
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`was due if the Slacks did not make the payment within 31 days after the due date. Doc. No. 105
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`at 6.
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`Further, Plaintiff claims that Mr. Slack contacted Defendant on September 2, 2012, to
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`ensure that the 2012 premium would be paid in the same way as the 2011 premium; Plaintiff
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`states that during that conversation, Defendant represented that the 2012 premium would, in fact,
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`be automatically paid from the Policy values. Id. at 8. However, Defendant sent Mr. Slack a
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`letter dated September 20, 2012, stating that his policy lapsed due to nonpayment. Id. Plaintiff
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`asserts that Mr. Slack then contacted Shaffer, who in turn contacted Defendant and determined
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`that the Policy lapse was a mistake and that the Policy would be reinstated. Id. at 9. Plaintiff then
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`asserts that Mr. Slack received a letter from Defendant on November 8, 2012, stating that if he
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`wished to reinstate the Policy, he was required to pay $17,300. Id. & Doc. No. 105-5.
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`When Mr. Slack died and Plaintiff filed a claim for death benefits under the Policy,
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`Defendant paid Plaintiff $274,391.56. Doc. No. 105 at 9–10. Plaintiff asserts that Defendant
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`researched the reasoning for the issuance of less than $500,000 for over a year and then “advised
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`Plaintiff that Defendant, without any authorization from the Slacks and over the objections of
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`Defendant’s designated agent, Shaffer, had unilaterally used the over $160,000.00 in cash value
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`of this Policy account and almost $200,000 in premiums paid by the Slacks since 2001 to
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`purchase what Defendant characterized as ‘Reduced Paid-up Insurance’ with a death benefit of
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`$270,000.00.” Id. at 12.
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 5 of 13 PageID #: 3827
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`LEGAL STANDARD
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`A party may file a motion for judgment on the pleadings under Federal Rule of Civil
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`Procedure 12(c) “after the pleadings are closed but within such time as not to delay the trial.”
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`Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312–313 (5th Cir.
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`2002). A Rule 12(c) motion is designed to dispose of cases where the material facts are not in
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`dispute and a judgment on the merits can be rendered by looking to the substance of the
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`pleadings and any judicially noticed facts.” Id. (quoting Hebert Abstract Co. v. Touchstone
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`Props., Ltd., 914 F.2d 74, 76 (5th Cir.1990)).
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`To evaluate a judgment on the pleadings, the Court uses the same standard as a Rule
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`12(b)(6) motion to dismiss. Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010). The Court may
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`not look beyond the pleadings to decide the motion. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
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`1996). Further, the complaint is construed liberally in favor of the plaintiff, and all well pleaded
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`facts are taken as true. Kocurek v. Cuna Mut. Ins. Soc., 459 F. App’x. 371, 373 (5th Cir. 2012);
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`Baker, 75 F.3d at 196. The Court should grant a judgment on the pleadings if “in the light most
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`favorable to the plaintiff and with every doubt resolved on his behalf, the complaint states a valid
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`claim for relief.” Kocurek, 459 F. App’x. at 373. A “judgment on the pleadings is appropriate
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`only if there are no disputed issues of material fact and only questions of law remain.” Brittan
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`Communications Intern. Corp. v. Southwestern Bell Telephone Co., 313 F.3d 899, 904 (5th Cir.
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`2002).
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 6 of 13 PageID #: 3828
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`A. Standing under the DTPA
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`DISCUSSION
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`Defendant urges the Court to decide that Plaintiff does not have standing under the DTPA
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`because as the designated beneficiary, Plaintiff is not a “consumer” as defined by Section
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`17.45(4). Doc. No. 29 at 4–5. Defendant cites Kocurek v. Cuna Mutual Insurance Society in
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`support of its Motion, contending that here—like in Kocurek—Plaintiff’s claim should be
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`dismissed because the spouse-beneficiary of a decedent’s life insurance policy is not considered
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`a consumer under the DTPA. Doc. No. 29 at 5, citing Kocurek, 459 F. App’x at 374.
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`Additionally, in its Motion, Defendant states that the Southern District of Texas has ruled that
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`the beneficiary of a homeowner’s insurance policy was not a consumer under the DTPA because
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`she was not a party to the contract, and Defendant urges the Court to apply the same rule to the
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`facts of this case. Metro. Life Ins. Co. v. Barretto, 178 F. Supp. 2d 745, 748 (S.D. Tex. 2001).
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`Defendant further asserts that because (1) Plaintiff was not involved with the “Policy until after
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`the alleged wrongdoing occurred,” (2) she does not explain her reliance on Defendant’s
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`representations, and (3) her “only relation to the insurance policy is to seek policy proceeds,” she
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`is not a consumer. Doc. No. 48 at 2 (emphasis in original). Defendant argues that Plaintiff
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`“alleged that all representations were made to Mr. Slack, and she failed to allege that she – as
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`opposed to Mr. Slack – acted in reliance on them.”1 Id.
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`Plaintiff argues that she is entitled to consumer status as the intended third party
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`beneficiary of the life insurance policy. Doc. No. 45 at 4 (citing Wellborn v. Sears, Roebuck &
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`Co., 970 S.W.2d 1420 (5th Cir. 1992); Bohls v. Oakes, 75 S.W.3d 473 (Tex. App.—San Antonio
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`1 Within its Motion, Defendant’s arguments are based on Plaintiff’s First Amended Original Complaint. However,
`as stated above, the Court will look only to the live complaint for purposes of this Motion (Plaintiff’s Second
`Amended Original Complaint, Doc. No. 105).
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 7 of 13 PageID #: 3829
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`2002, pet. denied); Kersh v. United Healthcare Ins. Co., 946 F. Supp. 2d 621 (W.D. Tex. 2013);
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`Bynum v. Prudential Residential Services, LP, 129 S.W.3d 781 (Tex. App.—Houston [1st
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`District] 2004, pet. denied)). Additionally, Plaintiff asserts that because “the Slacks” paid the
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`Policy premiums from community funds, Plaintiff is a consumer under the DTPA. Doc. No. 45
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`at 4 (citing Kocurek, 459 F. App’x at 374). In support of her argument, Plaintiff cites caselaw
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`stating that one’s “standing as a consumer is established by the plaintiff’s relationship to the
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`transaction and not their contractual relationship with the defendant.” Doc. No. 53 at 2–3 (citing
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`Wellborn, 970 F.2d at 1426; Kersh, 946 F. Supp. 2d at 643; Bohls, 75 S.W.3d at 479).
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`To obtain consumer status under the DTPA, a person must seek or acquire goods or
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`services by purchase or lease. TEX. BUS. & COMM. CODE ANN. § 17.45(4) (West 2007). The
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`Texas Supreme Court has provided courts with guidance, stating “we must give the [DTPA],
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`under the rule of liberal construction, its most comprehensive application possible without doing
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`any violence to its terms.” Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex. 1985) (citing Cameron v.
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`Terrell & Garrett, Inc., 618 S.W.2d 535, 539–40 (Tex. 1981)). It is well settled that there is no
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`requirement of privity between a plaintiff and a defendant in order for a plaintiff to assume
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`consumer status. Flenniken v. Longview Bank and Trust Co., 661 S.W.2d 705, 707 (Tex. 1983).
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`Instead, the only additional requirement is “that the goods or services sought or acquired by the
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`consumer form the basis of [the plaintiff’s] complaint.” Id. For instance, in Kennedy, the court
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`held that an employee whose employer purchased an insurance policy on his behalf was a
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`consumer under the DTPA because, although he “did not ‘seek’ the benefits . . . he most
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`assuredly did ‘acquire’ those benefits when he was covered by the policy provisions.” Kennedy,
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`689 S.W.2d at 892. See also Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 368
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 8 of 13 PageID #: 3830
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`(Tex. 1987) (holding that an infant hospital patient was a consumer under the DTPA—although
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`the patient did not contract for the services she received, she ‘acquired’ the services nonetheless).
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`The court stated that the consumer herself does not necessarily have to be the one who purchases
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`or leases the goods or services at issue; instead, a purchase by another person for a third party’s
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`benefit can satisfy the requirements under the DTPA of consumer status. Kennedy, 689 S.W.2d
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`at 892. As such, Plaintiff correctly points out that whether she is a consumer under the DTPA is
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`determined by her “relationship to the transaction, not by a contractual relationship with
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`[Defendant].” Wellborn, 970 F.2d at 1426; Kersh, 946 F. Supp. 2d at 643; Bohls, 75 S.W.3d at
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`479.
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`With respect to Defendant’s argument that Plaintiff was not involved with the Policy
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`until after the alleged wrongdoing occurred, the Texas Supreme Court has held that “there is no
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`requirement that the defendant’s unconscionable act occur simultaneously with the sale or lease
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`of the goods or services that form the basis of the consumer’s complaint. If, in the context of a
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`transaction, . . . any person engages in an unconscionable course of action which adversely
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`affects a consumer, that person is subject to liability under the DTPA.” Flenniken, 661 S.W.2d at
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`707 (internal citations omitted). Similarly, the Court declines to impose a temporal prerequisite
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`upon a consumer who is alleging another’s wrongdoing under the DTPA.
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`This case is distinguishable from Kocurek. In that case, the court stated that because
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`“Kocurek’s husband, and not Kocurek, actually purchased the policies, Kocurek [did] not qualify
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`as a consumer under the statute” but recognized that Kocurek argued for consumer status “by
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`virtue of her community property interest in the policies which were paid for with community
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`funds. However, Kocurek failed to raise [that] argument in a timely manner in the district court.”
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 9 of 13 PageID #: 3831
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`Kocurek, 459 F. App’x at 374. Here, Plaintiff has raised the argument that community funds paid
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`for Mr. Slack’s policy premiums in a timely manner because she makes such contentions in her
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`Second Amended Original Complaint, which the Court granted leave for her to file. Doc. No.
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`105 at 3, 12. When Plaintiff’s assertion that community funds paid for the policy premiums is
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`taken as true, her pleadings support that she is a consumer under the DTPA.
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`For the foregoing reasons, the Court DENIES Defendant’s Motion for Judgment on the
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`Pleadings with regard to Plaintiff’s DTPA claim.
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`B. Standing under the Insurance Code
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`Defendant, in its Motion, argues that Plaintiff does not have standing to assert a claim
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`under the Texas Insurance Code because she is merely a third party to the Policy. Doc. No. 29 at
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`7. Defendant also contends that “claims under the Texas Insurance Code do not survive
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`following the insured’s death.” Id. at 8 (citing Launius v. Allstate Ins. Co., No. 3:06-CV-0579-B,
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`2007 WL 1135347, at *6 (N.D. Tex. Apr. 17, 2007)). Defendant attempts to bolster its argument
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`by stating that (1) Plaintiff does not assert that any of Defendant’s representations reached
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`Plaintiff (and instead were only made to Mr. Slack), (2) Plaintiff only asserts that Mr. Slack paid
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`the Policy premiums, (3) Plaintiff was not designated as the beneficiary until after Mr. Slack
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`took out the Policy, and (4) Plaintiff did not allege any reliance on Defendant’s representations.2
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`Doc. Nos. 29 at 8 & 48 at 3.
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` In response, Plaintiff argues that one does not have to be a consumer under the DTPA to
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`bring a claim under the Texas Insurance Code. Doc. No. 45 at 5 (citing Kocurek, 459 F. App’x at
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`374). Plaintiff references a Texas Supreme Court holding that “‘any person’ injured by another’s
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`deceptive acts or practices in the business of insurance has a cause of action and the statute
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`2 See supra note 1.
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 10 of 13 PageID #: 3832
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`defines ‘person’ broadly to include ‘any individual.’” Id. at 6 (citing Crown Life Ins. Co. v.
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`Casteel, 22 S.W.3d 378 (Tex. 2000)). Plaintiff adds weight to her argument by distinguishing her
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`case from Allstate Ins. Co. v. Watson, asserting that her objectives align with her late husband’s
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`objectives. Id. Finally, Plaintiff argues that as the intended beneficiary under the Policy, she has
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`standing under the Insurance Code even if she does not have standing under the DTPA because
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`she is a “person” as defined by Section 541.002(2) of the Texas Insurance Code. Id. at 6–7.
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`The Court notes critical distinctions between the facts of this case and those cited by
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`Defendant. For instance, in Allstate Ins. Co. v. Watson, a 1994 Texas Supreme Court case
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`holding that a third-party claimant does not have standing under the Insurance Code, the court
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`dealt with conflicting interests between the insured and the third-party claimant. In its holding,
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`the court stated “were we to extend to third party claimants the same duties insurers owe to their
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`insureds, insurers would be faced with owing coextensive and conflicting duties.” Allstate Ins.
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`Co. v. Watson, 876 S.W.2d 145, 150 (Tex. 1994). The court fortified its holding by pointing out
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`that the third party had not paid any premiums on the policy and had “no legal relationship to the
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`insurer or special relationship of trust with the insurer.” Id. at149. Here however, there is no
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`indication that Plaintiff’s interests conflict with what Mr. Slack’s interests were when he named
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`Plaintiff as the beneficiary of the Policy. Plaintiff also asserts that “the Slacks” paid the Policy
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`premiums, which is distinct from the facts of Watson and gives Plaintiff a more stable basis for
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`standing.
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`Under Fifth Circuit jurisprudence, there is no requirement that a Plaintiff be a consumer
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`to bring a claim under the Texas Insurance Code. Kocurek, 459 F. App’x at 374. Instead, any
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`“person” who suffers an injury during her course of dealing with someone in the practice of
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 11 of 13 PageID #: 3833
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`insurance has standing under the Insurance Code. Casteel, 22 S.W.3d at 383. In Casteel, the
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`court pointed out that a “person is defined broadly as ‘any individual, corporation, association,
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`partnership, . . . and any other legal entity engaged in the business of insurance, including agents,
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`brokers, adjusters and life insurance counselors.” Id. (emphasis in original). Plaintiff—as an
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`individual—clearly fits into the category of a person.
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`Further, a person has standing under the Insurance Code if she is an intended third-party
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`beneficiary under an insurance policy. Kersh, 946 F. Supp. 2d at 642. Casteel distinguished its
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`holding from Watson by explaining that among an insurer’s duties are “defend[ing] its insured
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`against the claims asserted by a third party. But the claimant in Watson asked [it] to extend
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`[those] same duties to a party adverse to the insured.” Casteel, 22 S.W.3d at 384 (emphasis in
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`original). The court held that, unlike in Watson, the claimant in Casteel was not in conflict with
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`the insured because “the duty owed by the insurer to the insured [was] in harmony with the duty
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`owed to the [claimant].” Id. Similarly, the logic applied in Watson does not apply to Plaintiff’s
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`claims because her interests directly align with Mr. Slack’s.
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`Defendant’s argument that Plaintiff’s claim under the Insurance Code is futile is
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`unpersuasive. In Launius, the court ruled that a homeowner’s claim under his insurance policy
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`did not survive his death. Launius, 2007 WL 1135347, at *6. However, the court’s logic does
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`not apply to Plaintiff’s claim under Mr. Slack’s life insurance policy. Life insurance claims
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`necessarily survive the death of the insured because only then can beneficiary receive the
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`benefits of the policy. Further, in Plaintiff’s Second Amended Original Complaint, she asserts
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`that Defendant made representations to the Slacks and that the Slacks relied on those
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 12 of 13 PageID #: 3834
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`representations. Plaintiff also asserts that the Slacks paid the Policy premiums from community
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`funds. Those assertions are sufficient to support Plaintiff’s standing under the Insurance Code.
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`As such, the Court DENIES Defendant’s Motion for Judgment on the Pleadings with
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`regard to Plaintiff’s claim under the Texas Insurance Code.
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`C. Plaintiff’s common law tort claims
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`Plaintiff’s Second Amended Original Complaint appears to allege new facts that—when
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`taken as true—would support her common law causes of action. Because the Court allowed
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`Plaintiff to file her Second Amended Original Complaint, the Court will take up the sufficiency
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`of Plaintiff’s common law claims when the Court considers Defendant’s Motion for Summary
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`Judgment. Doc. Nos. 123 & 141.
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`Therefore, the Court DENIES Defendant’s Motion for Judgment on the Pleadings with
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`respect to Plaintiff’s claims of negligence, negligent misrepresentation, gross negligence, and
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`fraud. The motion as to these claims is denied without prejudice, and Defendant may re-urge the
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`Court to dismiss those claims in its supplemental pleading.
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`CONCLUSION
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`For all the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings is
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`DENIED with respect to Plaintiff’s claims of (1) violations of the DTPA, (2) violations of the
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`Texas Insurance Code, and DENIED without prejudice as to (3) negligence, (4) negligent
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`misrepresentation, (5) gross negligence, and (6) fraud.
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`Case 6:14-cv-00576-JDL Document 146 Filed 09/22/15 Page 13 of 13 PageID #: 3835
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` So ORDERED and SIGNED this 22nd day of September, 2015.
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