Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cooper v. General American Life Insurance Co.

United States Court of Appeals, Eighth Circuit

June 28, 2016

Donnie Cooper, Plaintiff-Appellant
v.
General American Life Insurance Company, Defendant-Appellee

          Submitted: March 16, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Jonesboro

          Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Donnie Cooper appeals the district court's[1] grant of General American Life Insurance Company's ("General American") motion for summary judgment and denial of Cooper's request to alter and amend or correct the judgment. We affirm.

         I.

         Cooper purchased an annuity from General American on August 2, 2012, by transferring $144, 818.27 to General American from his account with the Arkansas Teacher Retirement System ("ARTRS"). ARTRS sent General American the corresponding treasury warrant in that amount. Cooper began receiving statements from General American indicating that his annuity was funded and accruing interest. On May 6, 2013, ARTRS notified General American that the warrant had never cleared, so General American reversed the transaction. Cooper's June 2013 statement from General American showed that the transaction had been reversed. Cooper called General American to find out why this had occurred, and General American offered to restore his annuity policy with interest under the condition that a hold would be placed on the account until a replacement warrant was received and cleared. On June, 17, 2013, ARTRS faxed General American the form necessary to obtain a replacement warrant. General American returned the completed form on July 12, 2013. On July 24, 2013, General American received the replacement warrant and finalized the restoration of Cooper's account with interest, accruing from August 2, 2012.

         In the meantime, Cooper hired an attorney who filed this action on July 23, 2013, seeking interest, a 12% penalty under Ark. Code Ann. § 23-79-208, and attorney's fees under Ark. Code Ann. §§ 23-79-208 or 23-79-209. In Cooper's Reply in Opposition to Defendant's Response to Plaintiff's Motion for Summary Judgment ("Reply in Opposition"), Cooper for the first time suggested that if §§ 23-79-208 and 209 were not applicable, he should be awarded attorney's fees under Ark. Code Ann. § 16-22-308, which provides for discretionary fees in breach of contract actions. The district court determined that §§ 23-79-208 and 209 did not apply in this case, that Cooper's argument for discretionary breach of contract attorney's fees under § 16-22-308 was not timely made, and that Cooper had not asserted a breach of contract claim. The district court entered judgment dismissing Cooper's complaint. Cooper filed a motion requesting that the district court alter and amend or correct its judgment pursuant to Federal Rules of Civil Procedure 59(e) and 60, but the court denied his motion.

         II.

         "We review a grant of summary judgment de novo." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). We review the district court's denial of a motion to alter and amend or correct judgment for an abuse of discretion. Briscoe v. Cnty. of St. Louis, Mo., 690 F.3d 1004, 1015 (8th Cir. 2012) (stating the standard of review for a motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e)); Murphy v. Mo. Dept. of Corrs., 506 F.3d 1111, 1117 (8th Cir. 2007) (stating the standard of review for denial of relief under Fed.R.Civ.P. 60(b)).

         Section 23-79-208 is "highly penal in nature and is to be strictly construed." McKee v. Federal Kemper Life Assur. Co., 927 F.2d 326, 328 (8th Cir. 1991) (quoting Callum v. Farmers Union Mut. Ins. Co., 508 S.W.2d 316, 319 (Ark. 1974)). It states:

(a)(1) In all cases in which loss occurs and the . . . insurance company . . . liable therefor shall fail to pay the losses within the time specified in the policy after demand is made, the person, firm, corporation, or association shall be liable to pay the holder of the policy . . . in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney's fees for the prosecution and collection of the loss.

         Accordingly, § 23-79-208 provides "in the event an insurer wrongly refuses to pay benefits under an insurance policy, the insured may recover the overdue benefits, twelve percent (12%) damages upon the amount of the loss, and reasonable attorneys' fees." Running M Farms, Inc. v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 265 S.W.3d 740, 743 (Ark. 2007) (quoting Phelps v. U.S. Credit Life Ins. Co., 10 S.W.3d 854, 856 (Ark. 2000)). "The penalty and attorneys' fees [are] for the benefit of the one who is only seeking to recover, after demand, what is due him under the terms of his contract, and who is compelled to resort to the courts to obtain it." State Farm Fire & Cas. Co. v. Andrews, 210 S.W.3d 896, 903 (Ark. 2005) (internal quotation omitted). Section 23-79-208(a)(1) confirms this by stating that fees are only available where the insurer "fail[s] to pay the losses within the time specified in the policy." And § 23-79-209 provides:

(a) In all suits in which the judgment or decree of a court is against a life, property, accident and health, or liability insurance company, either in a suit by it to cancel or lapse a policy . . . or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the policy to require the company to reinstate the policy, the company shall also be liable to pay the holder of the policy all reasonable attorney's fees for the defense or prosecution of the suit, as the case may be.

         Thus, one situation where the statute applies is where a party is seeking declaratory judgment to "determine the obligations of the insurer under a policy of insurance." S. Farm Bureau Cas. Ins. Co. v. Watkins, 386 S.W.3d 6, 10 (Ark. Ct. App. 2011). In summary, the cases applying ยงยง 23-79-208 and 209 involve insurers' contractual promises to pay benefits under policies of insurance when ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.