Mayrone v. Reassure Amer Life, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 28, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-61065
Summary Calendar
_____________________
HUGH MAYRONNE,
Plaintiff - Appellant,
versus
REASSURE AMERICA LIFE INSURANCE CO.,
formerly known as Allied Life Insurance
Co.; UNKNOWN DEFENDANT,
Defendants - Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:03-CV-542
_________________________________________________________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Hugh Mayronne appeals the district court’s grant of Reassure
America Life Insurance Company’s (“Reassure”) Motion for Summary
Judgment. The district court ruled that Mayronne’s claims were
time barred under Miss. Code Ann. § 15-1-49, which imposes a three-
year limitation on claims of fraud. Mayronne argues that the
district court erred in finding that the statute of limitations on
his fraud claims began to run in 1993 when he purchased his life
insurance policy from Allied Insurance Company (“Allied”), and that

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the statute was not tolled by any act of fraudulent concealment on
the part of Reassure. He maintains that the statute of limitations
was tolled because representatives of Allied and its successor,
Reassure, fraudulently concealed the fact that Mayronne would be
required to pay premiums for more than seven years.
For an act of fraudulent concealment to toll the statute of
limitations under Miss. Code § 15-1-67, the plaintiff must show
that some affirmative act of the defendant prevented the plaintiff
from discovering the claim and that the plaintiff exercised due
diligence to discover the claim. Stephens v. Equitable Life
Assurance Society of U.S., 850 So.2d 78, 84 (Miss. 2003). Here,
Mayronne contends that Reassure fraudulently concealed Mayronne’s
claim when it failed to specifically address his assertion in a
March 1998 letter that he believed that his premiums would vanish
after seven years. In rejecting Mayronne’s argument, the district
court concluded that Mayronne “has shown no act of [Reassure] that
affirmatively prevented [Mayronne] from discovering that the
provisions of his policies were different from what [Mayronne]
alleges he was told at the time he purchased them.”
After reviewing the record and the parties’ briefs, we find
that the district court did not err in holding that Mayronne could
not show that Reassure committed an affirmative act of fraudulent
concealment sufficient to toll the applicable statute of
limitations. Reassure’s letter of March 1998 was a response to

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Mayronne’s letter, the focus of which was Mayronne’s discovery that
his insurance policy had decreased in value. Reassure’s response
primarily addressed Mayronne’s concern about his policy’s reduction
in value. However, it acknowledged that Mayronne’s position was
that the premiums would vanish in seven years. Yet, there is
simply no indication that Reassure’s failure to address the issue
more specifically somehow precluded Mayronne from discovering a
discrepancy between Reassure’s previous representations to Mayronne
on that topic and the substance of Mayronne’s life insurance
policy.
Mayronne was at all relevant times capable of reviewing his
policy, which would have revealed to him that the policy did not
provide for an end to his premiums after seven years. In short, if
he had only read his policy, he would not need to ask for tolling
of the statute of limitations. “[A] person is under an obligation
to read a contract before signing it, and will not as a general
rule be heard to complain of an oral misrepresentation the error of
which would have been disclosed by reading the contract.”
Stephens, 850 So.2d at 82 (citing Godfrey, Basset & Kuykendall
Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254,
1257 (Miss. 1991)). Thus, Mayronne cannot show an affirmative act

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2 Reassure’s motion to strike portions of Mayronne’s reply
brief is denied.
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of the defendant that would support fraudulent concealment or that
he exercised due diligence to discover his claim.2
Accordingly, the statute of limitations was not tolled and the
district court’s grant of summary judgment is
AFFIRMED.

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