Wilbourn v. Equitable Life Ass. Soc'y of the U.S.
| Docket Number: | 2005-CA-02244-COA Linked Case(s): 2005-CT-02244-SCT2005-CA-02244-COA2005-CT-02244-SCT |
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| Oral Argument: | 04-05-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-07-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Statute of limitations - Section 15-1-49 - Fraudulent concealment Judge(s) Concurring: GRIFFIS, ISHEE AND CARLTON, JJ. Non Participating Judge(s): ROBERTS, J. Dissenting Author : CHANDLER, J. Dissent Joined By : KING, C.J., LEE, P.J. AND IRVING, J Concurs in Result Only: BARNES, J. Procedural History: Dismissal Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 11-03-2005 Appealed from: QUITMAN COUNTY CIRCUIT COURT Judge: Kenneth L. Thomas Disposition: PLAINTIFF’S CLAIMS BARRED BY THE STATUTE OF LIMITATIONS Case Number: 2004-0043 |
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| Note: | This opinion was later reversed and remanded by the Supreme Court on 12/11/2008. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO53028.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JANE M. WILBOURN, AS TRUSTEE OF THE
JAMES G. WILBOURN IRREVOCABLE TRUST |
RICHARD E. WILBOURN, III |
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| Appellee: | THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES AND WILLIAM J. BYRD | W. WAYNE DRINKWATER, JR. STEPHEN L. THOMAS MARGARET OERTLING CUPPLES JEFFREY R. BLACKWOOD J. ALEX PURVIS DANIELLE DAIGLE IRELAND WILLIAM LARRY LANTHAM G. TODD BURWELL W. JEFFREY COLLIER |
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| Topic: | Contract - Statute of limitations - Section 15-1-49 - Fraudulent concealment |
| Summary of the Facts: | Jane M. Wilbourn, as Trustee of the James G. Wilbourn Irrevocable Trust, filed a complaint against Equitable Life Assurance Society of the United States, and its agent William J. Byrd, alleging various torts including conspiracy, fraudulent concealment, fraudulent inducement, and breach of duty of good faith and fair dealing. Each count is based on or arises out of alleged fraudulent concealment and oral misrepresentations of Equitable Life, through its agent Byrd, regarding alleged “vanishing premiums” on a life insurance policy issued to the Trust in 1986. The court dismissed the complaint, and Wilbourn appeals. |
| Summary of Opinion Analysis: | The applicable statute of limitations for this cause of action is found in section 15-1-49, which imposes a three-year statute of limitations. However, for claims that accrued prior to July 1,1989, the statute imposed a six-year statute of limitations. The parties differ on when the cause of action accrued, and therefore, when the statute of limitations began to run. The Trust argues that Byrd’s fraudulent concealment of the “vanishing premiums” operated to toll the statue of limitations so that the period did not begin to run until receipt of the notice of lapse in 2002. Equitable Life and Byrd argue that no action for fraudulent concealment can be sustained because the express terms of the contract both prohibit and contradict the alleged oral modifications. Equitable Life and Byrd also argue that the express contract language negates any claim of an overt act or conduct on the part of the insurer to prevent the Trust from discovering the actual terms of the contract. Equitable Life and Byrd assert that the statute of limitations began to run when the policy was sold and delivered in 1986, and it expired in 1992. Since the complaint was not filled until May 2004, they argue the claims are time-barred. In order to establish a claim of fraudulent concealment, the plaintiff must demonstrate that some affirmative act or conduct was done to prevent discovery of a claim, and due diligence was performed on their part to discover the claim. The cause of action for fraudulent concealment accrues when the person, with reasonable diligence, first knew or first should have known of the fraud. In this case, the contract is clear and unambiguous on at least three points. First, the “Premiums and Benefits” section states that the premiums are due annually “FOR LIFE.” Second, the “Other Important Provisions” section clearly states that the written policy statement is the entire contract. Third, only the President or one of the Vice Presidents of Equitable Life had the power to modify the contract and such modification was required to be in a signed writing. It is undisputed that the Trust had the policy in hand, and the payment terms of the contract unambiguously state that premiums are due annually for life. Therefore, the Trust has failed to satisfy the first prong of the supreme court’s test for tolling the statute of limitations. It is undisputed that the Trust was required to make an additional premium payment beyond the eight allegedly promised by Byrd in July 1993. The Trust was therefore put on notice of a possible misrepresentation in 1993. Therefore, the statute, at the very least, began to run in 1993, and it expired in 1996. Whether the statute began to run in 1986 and expired in 1992 or began to run in 1993 and expired in 1996, the action is time-barred. |
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