     Case: 10-30077     Document: 00511200026          Page: 1    Date Filed: 08/10/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 10, 2010

                                     No. 10-30077                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JASON B. ROCHON,

                                                   Plaintiff – Appellant
v.

AXA EQUITABLE LIFE INSURANCE COMPANY, formerly known as
Equitable Life Insurance Society of the United States,

                                                   Defendant – Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:08-CV-5023


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        The beneficiary under an insurance policy appeals from the dismissal of
his claims, which were held barred as untimely. We AFFIRM.
        On November 3, 1997, AXA Equitable Life Insurance Company issued a
disability income policy to Jason B. Rochon. Rochon submitted a claim on
September 27, 1999, for a disabling mental illness, the onset of which began on



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 10-30077

October 1, 1998. AXA denied the claim on December 30, 1999 due to Rochon’s
failure to disclose a preexisting mental illness at the time of his application for
the policy. Almost eight years later, on October 17, 2007, Rochon filed suit
alleging a wrongful denial of benefits. The district court granted summary
judgment for AXA. Rochon’s claims were held to be barred by the policy’s three-
year prescriptive period.    The issues on appeal are legal ones, which are
reviewed de novo. Bradley v. Allstate Ins. Co., 606 F.3d 215, 222 (5th Cir. 2010).
      In the district court and now on appeal, Rochon argues that AXA cannot
simultaneously deny benefits under the policy on the basis that it was void ab
initio and also assert his claims are time barred due to the prescriptive period
in Section 10.4 of the policy. Rochon is mistaken. “A party may set out 2 or
more statements of a claim or defense alternatively or hypothetically” and “may
state as many separate claims or defenses as it has, regardless of consistency.”
Fed. R. Civ. P. 8(d)(2) & (3).
      Rochon also argues that the prescriptive period in the policy should be
voided because it is adhesionary. Instead, the ten-year prescriptive period in
Louisiana Civil Code Article 3499 should apply.           However, the statutory
prescription period applies “[u]nless otherwise provided by legislation.” La. Civ.
Code art. 3499. Two statutes address the prescriptive periods for insurance
policies. One provides that the insured must furnish proof of loss within ninety
days after the end of the period for which he claims benefits, and no action shall
be brought more than one year after the time the proof of loss is required. La.
Rev. Stat. Ann. § 22:975(5), (11). The other provides that an insurance policy
cannot limit the insured’s time to file a first party claim to less than two years.
Id. § 22:868(B). This policy validly allowed three years.
      Rochon filed a claim on September 27, 1999 for the period October 1, 1998
to September 27, 1999. He therefore needed to provide a written proof of loss by



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                                  No. 10-30077

December 26, 1999. He also needed to file his lawsuit by December 26, 2002.
Rochon waited almost eight years to file suit. His claims are prescribed.
      Third, Rochon’s claims that the policy is adhesionary similarly fail because
the prescriptive period in the policy is required by Louisiana law and is actually
more favorable than the two-year and one-year periods provided in Section
22:868. See La. Rev. Stat. Ann. § 22:975(A) (setting forth provisions that are
required in health and accident insurance policies). Further, the policy properly
provided that Rochon consented to the policy upon delivery and payment of the
first premium. No signature on the policy itself was required for consent.
      Finally, Rochon argues that his disability is an “ongoing disability” that
precludes any finding that his claims for attorney’s fees and penalties are not
prescribed under this statutory provision: “No action for the recovery of penalties
or attorney fees provided in this Section shall be brought after the expiration of
one year after the date proofs of loss are required to be filed.” La. Rev. Stat.
Ann. § 22:1821(E). Proof of loss in this case was required ninety days after the
termination of the period for which Rochon claimed he was entitled to benefits.
      We agree with the district court that by Rochon’s analysis, the ninety-day
period for which an insured is required to file a written proof of loss would
continue indefinitely, regardless of the insured’s inaction. Rochon failed to
pursue his claim for almost eight years after AXA denied him disability benefits.
His claim for attorney’s fees and penalties are prescribed.
      AFFIRMED.




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