Opinion
Civil Action No: 00-1345, Section: "R" (2)
August 14, 2000
ORDER AND REASONS
Before the Court is defendant Physicians Mutual Insurance Company's motion to dismiss the petition of plaintiff Henry Thomas Jones pursuant to Federal Rule of Civil Procedure 12(b) (6). For the following reasons, defendant's motion is granted.
I. BACKGROUND
This case arises from an action brought against Physicians Mutual Insurance Company ("Physicians Mutual") by a former agent, Henry Thomas Jones. Jones had contracted as an agent for Physicians Mutual on August 9, 1990. Approximately one year later, on August 1, 1991, Physicians Mutual terminated Jones's Agent Agreement.
On March 11, 1992, Jones brought an action against Physicians Mutual alleging that he was induced to contract with Physicians Mutual on the basis of false representations and that he was terminated without justification. The complaint presented four claims for relief: wrongful termination, unfair trade practices under Louisiana Revised Statutes 51:1401 et seq., interference with contractual business relations, and fraud. On October 14, 1992, the court dismissed Jones complaint without prejudice.
Plaintiff then filed this lawsuit on March 20, 2000, realleging that Physicians Mutual induced him to contract on the basis of false representations and that his Agent Agreement was terminated wrongfully. Once again, he presents four causes of action styled as breach of contract, fraud, unfair trade practices, and violation of the Louisiana Insurance Code.
Physicians Mutual now moves to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. The motion sets forth three core arguments. First, Jones cannot state a claim for breach of contract because his employment as an independent contractor was terminable at will. Second, Jones cannot state a claim for fraud or unfair trade practices because these claims are time-barred. Third, Jones cannot state a claim under the Louisiana Insurance Code because that legislation does not provide for a private right of action.
In response, Jones concedes that his claims for fraud and unfair trade practices are time-barred. He further concedes that there is no private right of action under the Louisiana Insurance Code. Jones argues, however, that his breach of contract claim should not be dismissed because the general rule that employment is terminable at will does not apply when an employer discharges an employee in violation of a statute or constitutional provision.
II. DISCUSSION
In a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). Dismissal is warranted if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
B. Prescribed Claims
1. Fraud
As Jones concedes, his claim for fraud is time-barred and must be dismissed under Rule 12(b)(6). Fraud, as a delictual action, is subject to a one year prescriptive period. LA. Civ. CODE ANN. art. 3492 (West 2000). Physicians Mutual's allegedly fraudulent acts occurred in 1991, and Jones filed this suit in 2000. As his 1992 complaint evinced an awareness of this cause of action, the jurisprudential doctrine of contra non valentum is inapplicable. See Bergeron v. Pam American Assurance Co., 731 So.2d 1037, 1042 (La.App. 4th Cir. 1999) (Under contra non valentum "prescription will not begin to run unless a plaintiff either knew or should have known of a cause of action. . . ."). Therefore, the Court finds that Jones's claim for fraud is time-barred and must be dismissed pursuant to Rule 12(b)(6).
2. Unfair Trade Practices
Jones also concedes that he is unable to state a claim under the Louisiana Unfair Trade Practices and Consumer Protection Law ("LUTPA"). Even assuming he has a right of action under LUTPA, Jones's claim would be time-barred. Actions under LUTPA prescribe one year "from the time of the transaction or act which gave rise to this right of action." LA. REV. STAT. ANN. § 51:1409(E) (West 2000). As Louisiana state courts have "construed [this] one-year period as peremptive, rather than prescriptive," Jones's unfair trade practice claims are time-barred and must be dismissed pursuant to Rule 12(b)(6). Fox v. Dupree, 633 So.2d 612, 614 (La.App. 1st Cir. 1994)
Although Louisiana Revised Statute section 51:1409(A) appears to create a right of action for "any person" meeting the statutory requirements, only consumers or business competitors have a cause of action under LUTPA. See Computer Management Assistance Co. v. Robert F. DeCastro, Inc., 2000 WL 1022812 (5th Cir. July 25, 2000). Jones, however, has not pled that he is either a consumer or a business competitor.
C. Louisiana Insurance Code
Jones further concedes that he is unable to state a claim for violation of the Louisiana Insurance Code. While the legislative scheme empowers the Commissioner of Insurance "to investigate allegations of unfair methods of competition or unfair or deceptive acts in the insurance business," it does not create a private cause of action. Clausen v. Fidelity Deposit Co. of Md., 660 So.2d 83, 86 (La.App. 1st Cir. 1995). See also A-I Nursery Registry Inc. v. United Teacher Assocs. Ins. Co., 682 So.2d 929, 931-32 (La.App. 3d Cir. 1996). Therefore, the Court finds that Jones does not have standing to press his claims under the Louisiana Insurance Code claims and dismisses those claims under Rule 12(b)(6).
D. Breach of Contract
The only claim Jones does not concede is his breach of contract claim. Under Louisiana Civil Code Article 2747, "[a] man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing." Therefore, the general rule under Louisiana law is that employment is terminable at will, with or without cause. See Page v. Crambling State Univ., 722 So.2d 329, 331 (La.App. 2d Cir. 1998). There are, however, exceptions to this general rule. "Under Louisiana law an employee may be terminated at will unless he has an employment contract covering a certain time period or is otherwise statutorily or constitutionally protected from termination." Wusthoff v. Bally's Casino Lakeshore Resort, Inc., 709 So.2d 913, 914 (La.App. 4th Cir. 1998). Moreover, "[a]n employee cannot be terminated because of race, sex, or religious beliefs or because he/she exercised constitutionally protected rights such as free speech." Id.
As a threshold matter, the parties disagree about whether Jones was an employee or an independent contractor. The characterization is pertinent because Physicians Mutual contends that the public policy exception to the general at-will rule does not apply to independent contractors. Although Jones identifies himself as an agent of Physicians Mutual in his complaint, he does not specify whether he considered himself to be an employee or an independent contractor. As Jones correctly observes, however, that determination is a question of fact. (Pl.'s Reply Mem. at 2.) Accordingly, as Physicians Mutual moves for dismissal under Rule 12(b)(6), the Court must view the facts in the light most favorable to the plaintiff. Therefore, for the purposes of this motion, the Court will treat Jones as an employee.
Jones does not contend that he had a contract for a definite period of time or that Physicians Mutual violated his constitutional rights. Rather, he asserts that Physician Mutual's violated LUTPA and the Louisiana Insurance Code. As already explained, however, Jones does not have standing to assert violations of LUTPA and the Louisiana Insurance Code. Accordingly, he has not alleged a statutory violation that would trigger an exception. Furthermore, neither statute explicitly protects employee's rights, which is what Louisiana law apparently requires for application of the exception. See Wusthoff, 709 So.2d at 914 (In discussing this exception, the court notes: "There are specific Louisiana statutes that set out employee's rights and prohibit employers from terminating employees because they exercise their right[s]. . . ."). Moreover, to the extent Jones's contentions present a novel public policy exception, the Louisiana courts have declared that "[b]road policy considerations creating exceptions to employment at will and affecting relations between employer and employee should not be considered by [the] court[s]." Id. at 915. Accordingly, the Court rejects Jones novel public policy exceptions and dismisses his breach of contract claim under Rule 12(b)(6)
III. CONCLUSION
For the foregoing reasons, defendant's Rule 12(b)(6) motion is granted.