Istre v. Life Ins Co N Amer

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30102
Summary Calendar
AARON J. ISTRE,
Plaintiff-Appellant,
versus
LIFE INSURANCE COMPANY OF NORTH AMERICA; ET AL,
Defendants,
LIFE INSURANCE COMPANY OF NORTH AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-544
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August 23, 2002
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Aaron J. Istre appeals the district court’s order granting a
summary judgment in favor of Life Insurance Company of North
America (LINA). Istre argues that LINA improperly refused to pay
$225,000 in accidental death benefits to him after the accidental
death of his common-law spouse, Desiree Lynne Schambough. In the
district court, Istre argued that LINA was equitably estopped

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No. 02-30102
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from challenging its liability under the policy. For the first
time on appeal, he argues that LINA waived the right to assert a
defense to its liability under the policy. He relies on Pitts
and Pitts v. American Security Life Ins. Co., 931 F.2d 351, 356-
57 (5th Cir. 1991). Istre may not raise this issue for the first
time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999). Nonetheless, Istre has not shown that
LINA waived the right to assert a defense to its liability under
the policy. Istre’s reliance on Pitts is misplaced as Pitts is
limited to its factual circumstances and is distinguishable. The
accidental death policy at issue was not valid initially because
Schambough was not Istre’s legal spouse under Louisiana law and,
therefore, she was not an eligible dependent under the plain
language of the policy. See State v. Williams, 688 So. 2d 1277,
1281 (La. Ct. App. 1997). Unlike the insurer in Pitts, LINA did
not make a payment of benefits under the policy without making a
reservation of rights despite notice that policy was voidable.
Because Istre has not shown that the district court erred in
holding that Schambough was not an eligible dependent under the
accidental death policy, the district court’s judgment is
AFFIRMED.

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