Metro Life Ins Co v. Couch, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-10859
Summary Calendar
_______________
METROPOLITAN LIFE INSURANCE CO.,
Plaintiff,
VERSUS
RICHARD E. COUCH, SR.,
Defendant-Appellant,
VERSUS
CHAD J. BURGESS AND KYLI A. COUCH,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
January 31, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
* 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determined that this opinion should not be published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.

-- 1 of 2 --

2
I.
Richard Couch killed his wife in November
1997 and pleaded guilty of involuntary
manslaughter. In October 2000, Metropolitan
Life Insurance Company (“Metropolitan”)
sued in interpleader to clarify its obligation to
pay benefits because of Martha’s death.
Martha’s children, Kyli Couch and Chad
Burgess, claimed that under Texas law, they
were entitled to Richard’s share because he
had forfeited it by killing Martha.
The district court granted summary
judgment in favor of the children, and Richard
appeals pro se. Finding no error, we affirm.
II.
We review a summary judgment de novo
under the same standard applied by the district
court. King v. Ames, 179 F.3d 370, 373 (5th
Cir. 1999). The record is reviewed in the light
most favorable to the nonmoving party, and
the movant is required to “demonstrate that
there are no genuine issues of material fact.”
Id.
III.
Couch argues that the claim is prescribed,
because in Texas, a wrongful death action
must be filed within two years after accrual.
TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.0003(b) (Vernon 1986). This is not a
wrongful death claim, however, but a dispute
over contractual entitlements to insurance pay-
ments. In Texas, “a breach of contract claim
is governed by a four-year limitation period.”
Kan. Reinsurance Co. v. Congressional Mort.
Corp., 20 F.3d 1362, 1369 (5th Cir. 1994)
(citing TEX. CIV. PRAC. & REM. CODE ANN. §
16.0004 (Vernon 1986)). Thus, there is no
doubt that the claims were timely filed,
because Metropolitan initiated this litigation
well within the allotted four-year period.
IV.
Couch contends he cannot be deprived of
his right to collect on the policy because he
was not convicted of intentional homicide.
Under Texas law, a life insurance beneficiary
forfeits his rights only if he is a principal or
accomplice in willfully bringing about the
death of the insured. TEX. INS. CODE ANN.
art. 21.23 (Vernon Supp. 2001). Couch was
convicted only of involuntary manslaughter.
This, however, is not ground for reversal.
“[I]t is settled law” in Texas “that the
judgment in the criminal case [is] not binding
upon the court in the civil proceeding.”
Bounds v. Caudle, 560 S.W.2d 925, 928 (Tex.
1977). This principle is “particularly
applicable here where the conviction was
based upon plea bargaining.” Id.
V.
Couch argues that the district court
improperly admitted five affidavits submitted
by the children because they were not “sworn
statements” admissible under FED. R. CIV. P.
56. To the contrary, all five were sworn to be
“true and correct” before a notary public and
are proper summary judgment evidence under
FED. R. CIV. P. 56(e). Cf. Nissho-Iwai Am.
Corp. v. Kline, 845 F.2d 1300, 1305-06 (5th
Cir. 1988) (finding that a notarized affidavit
was not admissible as summary judgment evi-
dence under rule 56(e), but only because it
was “neither sworn nor its contents stated to
be true and correct nor stated under penalty of
perjury”).
The summary judgment is AFFIRMED. All
pending motions are DENIED.

-- 2 of 2 --