REVISED October 23, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51295

ELVIA CARDENAS,

Plaintiff-Appellant

v.

UNITED OF OMAHA LIFE INSURANCE COMPANY,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

Before STEWART, Chief Judge, and KING and PRADO, Circuit Judges.

KING, Circuit Judge:

This case arises from Defendant-Appellee United of Omaha Life Insurance

Company’s denial of Plaintiff-Appellant Elvia Cardenas’s claim for benefits from

a life insurance policy taken out by Cardenas’s daughter, Elvia Sierra. The

policy lapsed and was subsequently reinstated; Sierra died thirteen months after

the reinstatement. As required by the Texas Insurance Code, the policy

contained a provision that it would become incontestable if it remained in force

“for two years from its date of issue during the lifetime of the insured.” Although

the policy does not have a provision dealing with contestability following

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2013

Lyle W. Cayce

Clerk

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reinstatement, the parties agree there is such a period. They differ over how the

death of the insured during the contestability period will affect the

reinstatement. The district court found that the reinstated policy never became

incontestable because Sierra died before the two-year period ran. Cardenas

appeals from the district court’s denial of her post-verdict motion for judgment

as a matter of law. She argues that a section of the Texas Administrative Code

controls and requires finding that the reinstated policy became incontestable. 

For the following reasons, we AFFIRM the district court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

United of Omaha Life Insurance Company (“United of Omaha”) issued a

life insurance policy to Elvia Cardenas’s daughter, Elvia Sierra, on March 26,

2001. The policy lapsed for nonpayment of premiums in June 2005. United of

Omaha reinstated the policy on January 3, 2006, after Sierra submitted a

reinstatement application.

1 Sierra made several misstatements about her health

in the reinstatement application. The application required Sierra to certify that

she had not lost more than ten pounds in the prior year, and that in the prior

five years, she had not undergone any blood tests, laboratory tests, or special

examinations, been ill or injured, or received medical or surgical advice or

treatment. In fact, Sierra suffered from Crohn’s disease and had been

hospitalized for four weeks during June and July 2005. She lost thirty pounds

between March and July 2005, including eighteen pounds in one week.

Sierra died on February 20, 2007. Her death certificate lists toxic

megacolon, sepsis, cachexia, and Crohn’s disease as the causes of death. 

1 The reinstatement application required that Sierra “agree that [United of Omaha]

may rely upon the Insured’s answers to the following questions as being true and complete,”

and “agree[] that the foregoing information is the basis for reinstatement of the policy . . . .”

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Cardenas filed a claim for benefits on March 26, 2007. United of Omaha denied

the claim on May 14, 2007, and on May 23, 2007, informed Cardenas that it was

rescinding the policy due to misrepresentations it found in the reinstatement

application. 

Cardenas filed suit in state district court on February 16, 2011, claiming

that United of Omaha had failed to pay the $150,000 death benefit under the

policy. United of Omaha removed the case to federal court based on diversity of

citizenship. The parties filed cross-motions for summary judgment. In its

motion, United of Omaha argued that it satisfied the requirements for

rescinding an insurance policy procured by fraud, and that the policy remained

contestable because Sierra died before the two-year period ran. Cardenas

contended, inter alia, that the reinstated policy was incontestable because

United of Omaha failed to contest it within the requisite two years, as provided

by § 3.104(a) of the Texas Administrative Code, Title 28. The district court

denied both motions in a memorandum opinion and order dated February 29,

2012, and found that fact issues remained regarding whether Sierra’s

misrepresentations were material and intentional. 

The case went to trial on October 22, 2012. Cardenas filed a motion for

judgment as a matter of law at the close of evidence, which the court denied. 

The jury returned a verdict in favor of United of Omaha, finding that Sierra’s

representations in the reinstatement application were material and intentional. 

Cardenas filed a renewed motion for judgment as a matter of law after the

verdict, contending that: (1) the insurer could not contest the reinstatement

because the policy did not provide for a contestability period after reinstatement;

(2) § 3.104(a) of the Texas Administrative Code provides an absolute two-year

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deadline for contesting the reinstatement; and (3) insufficient evidence

supported the jury’s findings. The district court denied the motion and entered

judgment for United of Omaha. Cardenas timely appealed. 

II. DISCUSSION

Cardenas argues that the district court failed to correctly apply Texas law

governing incontestability provisions in life insurance contracts and that the

district court erred by expanding the interpretation of the insurance contract. 

We will address each argument in turn.2 We note at the outset that we review

de novo a district court’s ruling on a motion for judgment as a matter of law. 

Brennan’s Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th Cir. 2004). 

A. Incontestability Provision

 Cardenas’s challenge to the district court’s ruling turns on a question of

statutory construction that we also review de novo. F.D.I.C. v. Shaid, 142 F.3d

260, 261 (5th Cir. 1998) (per curiam). “[W]e interpret [a] state statute the way

we believe the state Supreme Court would, based on prior precedent, legislation,

and relevant commentary.” Id. (citing Transcon. Gas Pipe Line Corp. v. Transp.

Ins. Co., 953 F.2d 985, 987–88 (5th Cir. 1992)). We note that “[t]he text of an

administrative rule must be construed under the same principles as if it were a

statute.” Tex. Gen. Indem. Co. v. Tex. Workers’ Comp. Comm’n, 36 S.W.3d 635,

641 (Tex. App.—Austin 2000, no pet.).

At the heart of this case is the question whether a life insurance policy,

after it has been reinstated, automatically becomes incontestable after two

years, or whether the insured must survive that two-year period. The answer

2 Because Cardenas does not challenge the sufficiency of the evidence that supported

the jury’s findings, that issue is not before us. Sama v. Hannigan, 669 F.3d 585, 589 (5th Cir.

2012).

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to this question depends on how we interpret two key statutory and regulatory

provisions, one of which expressly requires that in order to become incontestable,

a policy must be in force for two years “during the lifetime of the insured.” These

provisions are Texas Insurance Code § 1101.006, and 28 Texas Administrative

Code § 3.104(a), promulgated by the Texas Department of Insurance

(“Department”). 

Section 1101.006 states that “a life insurance policy must provide that a

policy in force for two years from its date of issue during the lifetime of the

insured is incontestable, except for nonpayment of premiums.” Tex. Ins. Code

Ann. § 1101.006 (West 2003). Section 3.104(a) (which is set out in full below)

provides, in relevant part, that “[i]f a reinstatement is contested for

misrepresentation, no representation other than one causing the reinstatement

may be used to contest the policy, any contest of the reinstatement may be for

a material and fraudulent misrepresentation only and reinstatement may not

be contested more than two years after it is effectuated . . . .” 28 Tex. Admin.

Code § 3.104(a) (1982) (Tex. Dep’t of Ins., Incontestable Clause). 

Cardenas argues that § 1101.006 and § 3.104(a) are unambiguous and part

of a consistent statutory scheme. She urges us to find that § 3.104(a), which

does not contain the “lifetime of the insured” language, applies to policy

reinstatements, whereas § 1101.006 applies to policy issuances. Under her

reading, if an insurer does not contest a policy reinstatement within the

two-year contestability period, then the policy becomes incontestable, regardless

of whether or not the insured survived the two-year period. She concludes that

Sierra’s policy became incontestable and United of Omaha cannot challenge it. 

United of Omaha urges us to find that § 1101.006 is controlling and

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applies to policy reinstatements, and that § 3.104(a) contradicts § 1101.006 and

is beyond the Department’s authority. Therefore, it argues, the “lifetime of the

insured” language applies to policy reinstatements, and since Sierra did not

survive for two years after reinstatement, the policy remains contestable

indefinitely.

For the reasons that follow, we conclude that § 1101.006 applies to

reinstatements. We find § 3.104 persuasive in reaching this conclusion, and we

do not interpret § 3.104(a)’s provisions as contradicting § 1101.006. We find that

§ 3.104(a) applies, subject to § 1101.006’s requirements. As a result, we hold

that a contestability period following a policy reinstatement is subject to the

“lifetime of the insured” requirement.

1. Insurance Code § 1101.006 and Administrative Code § 3.104(a)

Insurance Code § 1101.006, captioned “Incontestability,” is the Insurance

Code’s incontestability provision for life insurance policies. It states, in relevant

part: “a life insurance policy must provide that a policy in force for two years

from its date of issue during the lifetime of the insured is incontestable, except

for nonpayment of premiums.” Tex. Ins. Code Ann. § 1101.006 (emphasis

added). Thus, if an insured survives the two-year “contestability period”

following the issuance of a policy, then the policy will become incontestable for

any reason except nonpayment of premiums. Id.; contra Great Am. Reserve Ins.

Co. v. Fry, 418 S.W.2d 716, 719 (Tex. Civ. App.—Austin 1967, writ ref’d n.r.e.)

(holding that an incontestability clause did not prevent an insurer’s challenge

to coverage of policy, as distinguished from validity of policy). This bar to

contestability applies even if the insured intentionally made a material

misrepresentation in the policy application. Kan. Life Ins. Co. v. First Bank of

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Truscott, 78 S.W.2d 584, 586–87 (Tex. 1935). Section 1101.006 does not

expressly address how incontestability periods operate following a policy

reinstatement. 

Section 1101.006 was codified in 1951 as Texas Insurance Code Article

3.44(3),3 which provided that a life insurance policy “shall be incontestable not

later than two years from its date, except for non-payment of premiums.” Act

of June 28, 1951, 52d Leg., R.S., ch. 491, 1951 Tex. Gen. Laws 903. Article

3.44(3) was amended in 1963 to include the “lifetime of the insured” provision,4

Act of June 22, 1963, 58th Leg., R.S., ch. 498, 1963 Tex. Gen. Laws 1307, and

was recodified at § 1101.006 in 2001, with no substantive changes.5 Acts 2001,

77th Leg., R.S., ch. 1419, 2001 Tex. Gen. Laws 3658, 4041 (effective June 1,

2003).

3 Article 3.44, in turn, was based on Article 4732. Tex. Ins. Code art. 3.44 (historical

comment) (Vernon 1952).

4 The full text of Article 3.44(3) provided:

That the policy, or policy and application, shall constitute the entire contract

between the parties and shall be incontestable after it has been in force during

the lifetime of the insured for two (2) years from its date, except for non-payment

of premiums, and which provisions may, at the option of the company, contain

an exception for violation of the conditions of the policy relating to naval and

military service in time of war.

Act of June 22, 1963, 58th Leg., R.S., ch. 498, 1963 Tex. Gen. Laws 1307 (emphasis added).

5 Article 3.44 appears to have been the operative provision when United of Omaha

issued Sierra her policy on March 26, 2001, since the recodification was not passed until May

22, 2001, and was not effective until June 1, 2003. Acts 2001, 77th Leg., R.S., ch. 1419, 2001

Tex. Gen. Laws 4209. Since the recodification was not substantive, and the focus of this

appeal has been on Article 3.44’s current codification at § 1101.006, we will refer to § 1101.006

as the relevant provision of the Insurance Code.

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The regulation at issue is § 3.104(a) of Texas Administrative Code, Title

28, which provides:

The policy must provide that it shall be incontestable not later than

two years from its date as provided in the Insurance Code, Article

3.44(3). If a reinstatement is contested for misrepresentation, no

representation other than one causing the reinstatement may be

used to contest the policy, any contest of the reinstatement may be

for a material and fraudulent misrepresentation only and

reinstatement may not be contested more than two years after it is

effectuated; provided, this provision does not affect the company’s

right to contest a policy for a representation respecting the initial

policy issuance or a different reinstatement during the incontestable

period applicable to such issuance or reinstatement. Accidental

death benefits and disability benefits need not be subject to such

provision.

28 Tex. Admin. Code § 3.104(a). The regulation was adopted in 1976 and

amended in 1982. Id. The parties’ arguments turn on the reference to Article

3.44(3) in the first sentence, and the absence of the “lifetime of the insured”

language.

2. Analysis

The language ofthe two sections and the caselaw lead us to our conclusion 

that § 1101.006 applies to policy reinstatements, that the sections are consistent

with one another, and that § 3.104 applies subject to § 1101.006’s provisions. In

performing our analysis of the sections, “we begin with the words of the statute,

keeping in mind that ‘the meaning of statutory language, plain or not, depends

on context.’” In re Cortez, 457 F.3d 448, 454 (5th Cir. 2006) (quoting Brown v.

Gardner, 513 U.S. 115, 118 (1994)). We are guided by the principle that “when

interpreting a statute, it is necessary to give meaning to all its words and to

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render none superfluous.” United States v. Rayo–Valdez, 302 F.3d 314, 318 (5th

Cir. 2002).

Section 1101.006 provides for the application of incontestability provisions

in life insurance contracts. The fact that it does not expressly address policy

reinstatements is not enough for us to conclude, as Cardenas urges, that the

section therefore does not apply to reinstatements. Furthermore, § 3.104

provides persuasive authority for finding that § 1101.006 applies to

reinstatements, and that § 3.104(a) applies subject to § 1101.006’s provisions. 

In its opening sentence, § 3.104(a) provides that a life insurance “policy

must provide that it shall be incontestable not later than two years from its date

as provided in the Insurance Code, Article 3.44(3).” 28 Tex. Admin. Code

§ 3.104(a) (emphasis added). As noted, § 1101.006 and its predecessor, Article

3.44(3), provide that policies only become incontestable after being in force for

two years “during the lifetime of the insured.” Section 3.104(a)’s express

reference to Article 3.44(3) suggests that § 3.104(a) is subject to § 1101.006. 

We find unpersuasive Cardenas’s argument that the first sentence of 

§ 3.104(a) serves “efficacy purposes” only—by removing the need to amend the

regulation—and plays no role in interpreting the remainder of the section. Such

a reading divorces the first sentence from the next two, and deprives the

sentence of any meaning, rendering it superfluous.6 See In re Cortez, 457 F.3d

at 454. Cardenas’s proposed reading also requires that we interpret the first

6 Additionally, the Department appears to have added the phrase, “as provided in the

Insurance Code, Article 3.44(3),” in its 1982 amendment of § 3.104(a), thereby clarifying that

§ 3.104(a) was to be applied subject to Article 3.44(3). 28 Tex. Admin. Code § 3.104, 7 Tex.

Reg. 1146 (March 19, 1982). As noted infra, the Department made other changes in its 1982

amendment likewise suggesting that § 3.104(a) is to be applied subject to § 1101.006.

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sentence as applying to policy issuances only and the next two sentences as

applying to policy reinstatements, an interpretation that finds no support in the

text. 

The other subsections of § 3.104 likewise point towards the conclusion that 

§ 3.104(a) is subject to § 1101.006’s “lifetime of the insured” language. Section

3.104(b) provides:

Any provision which could lengthen the contestable period of a

policy beyond two years from its date is prohibited. For example,

the policy may not state that it is incontestable after two years

“while the policy is continuously in force.”

28 Tex. Admin. Code § 3.104(b). Interpreting § 3.104(b) without reference to

§ 1101.006 would put § 3.104(b) into direct conflict with the statute. According

to § 1101.006, if an insured dies during the contestability period, then the period

does not close after two years, but continues indefinitely; the policy never

becomes incontestable. Thus, § 1101.006’s “lifetime of insured” language is a

“provision which could lengthen the contestable period of a policy beyond two

years . . . ,” per § 3.104(b). Interpreting § 3.104(b) without reference to

§ 1101.006, however, would prevent policies from including the “lifetime of the

insured” provision, as required by § 1101.006. Such a result runs counter to both

the Department’s duties, see Tex. Ins. Code Ann. § 31.002 (“[T]he department

shall . . . ensure that this code and other laws regarding insurance and insurance

companies are executed . . . .”), and to § 1101.006’s position as an enacted

statute, see generally State v. Pub. Util. Comm’n, 131 S.W.3d 314, 321 (Tex.

App.—Austin 2004, pet. denied). Therefore, subsection (b) must be read to

prohibit any policy provision extending the contestable period of a policy other

than a “lifetime of the insured” provision. The fact that the only valid reading

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of § 3.104(b) is subject to the “lifetime of the insured” language—which is absent

from the subsection—lends support to understanding § 3.104(a) to include this

provision, as well.7

The text of §§ 3.104(c) and 3.104(d) also demonstrates § 3.104’s deference

to § 1101.006. Section 3.104(c) merely restates the requirements of

§§ 1101.006(a) and 1101.006(b). Compare 28 Tex. Admin. Code § 3.104(c), with

Tex. Ins. Code Ann. §§ 1101.006(a) & (b). Section 3.104(d) anticipates policies,

like the one at issue, in which an insurer fails to include a provision about a

post-reinstatement contestability period: “If the form under review contains no

reference to contest after reinstatement, it will also be acceptable.”828 Tex.

Admin. Code § 3.104(d). By stating that the Department will nonetheless accept

policies that do not reference “contest after reinstatement,” this subsection

makes clear that policies generally contain such provisions, and thus become

contestable following a reinstatement. The subsection may also suggest that the

Department will understand all policies to contain such provisions, since it will

accept even those that do not. 

7 The 1976 version of § 3.104(b) appears to have provided that a policy “cannot state

that it is incontestable after two years ‘during the lifetime of the insured’ or after two years

‘while the policy is in force.’” 28 Tex. Admin. Code § 3.104 (1976), as reflected in 7 Tex. Reg.

1146 (March 19, 1982), amended by 28 Tex. Admin. Code § 3.104 (1982), 7 Tex. Reg. 3245

(Sept. 7, 1982). The Department removed the “during the lifetime of the insured” prohibition

in 1982, perhaps realizing belatedly that the provision conflicted directly with § 1101.006’s

predecessor. Compare 7 Tex. Reg. 1146, with 7 Tex. Reg. 3245. This adds additional support

for considering § 3.104(b) to be consistent with, and subject to, § 1101.006.

8 The Texas Insurance Code provides that an insurer cannot use certain insurance

documents, including life insurance policies, contracts, and applications, until it has filed “the

form of the document” with the Department. Tex. Ins. Code Ann. § 1701.051(a) (West 2005)

(“Except as provided by Section 1701.005, an insurer may not use a document described by

Section 1701.002 in this state unless the form of the document is filed with the department

in accordance with this chapter.”).

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As becomes clear when considering § 3.104 as a whole, not only is it

consistent with § 1101.006, but it must be read in conjunction with § 1101.006. 

One subsection of § 3.104 is suggestive of including § 1101.006’s “lifetime of the

insured” language by expressly citing to § 1101.006’s predecessor; one subsection

must be subject to the “lifetime of the insured” language in order to be valid; one

subsection directly tracks the language of § 1101.006; and one subsection

suggests applying a contestability period following reinstatement even when the

policy does not so provide.

Our conclusion that § 1101.006’s “lifetime of the insured” provision applies

to a reinstated policy when the policy does not expressly so provide is analogous

to Texas courts’ application of § 1101.006 to policies that fail to include an

incontestability clause at all. Hatch v. Turner, 193 S.W.2d 668, 670 (Tex. 1946)

(holding, under the predecessor statute to Article 3.44, that “[a]lthough the

incontestable clause does not appear in [the insured’s] policy, that circumstance

is wholly immaterial because the statute makes the clause a part of the policy,

whether written therein or not”); Am. Nat’l Ins. Co. v. Welsh, 22 S.W.2d 1063,

1064 (Tex. Comm’n App. 1930, judgm’t adopted) (“By operation of law, [the

predecessor statute’s incontestability provisions] are read into and control the

terms of every policy issued by a domestic life insurance company . . . .”). Our

conclusion is also analogous to § 3.104(d)’s provision that the Department will

accept a life insurance policy even if it “contains no reference to contest after

reinstatement,” suggesting that a policy without a post-reinstatement

contestability clause may nonetheless be considered subject to one.

The inclusion of the “lifetime of the insured” language is consistent with

the sparse caselaw on policy reinstatements. State Mut. Life Ins. Co. v.

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Rosenberry, 213 S.W. 242, 245 (Tex. Comm’n App. 1919, judgm’t adopted), is the

seminal case holding that a contestability period follows a policy reinstatement.9

Since both parties agree that a contestability period exists here, we do not find

Rosenberry instructive beyond supporting our conclusion that a contestability

period exists and the general rationale, noted infra, that an insurer should be

afforded some protection when it has been defrauded. We note that Rosenberry

pre-dates both § 1101.006’s amendment in 1963 and § 3.104’s promulgation, and

that its reasoning is not helpful in determining whether § 1101.006’s “lifetime

of the insured” language applies to reinstated policies.

We do not read Rosenberry to hold, as United of Omaha urges and the

district court found, that there is never an incontestability time limit following

a reinstatement. Neither Rosenberry’s facts nor its language suggests such an

interpretation. Further, Perry v. Bankers Life & Casualty Co., 362 S.W.2d 213,

215 (Tex. Civ. App.—Fort Worth 1962, writ ref’d n.r.e.), casts serious doubt on

any such reading. Rather, Rosenberry provides that in cases of fraud, an

equitable contestability period exists following reinstatement—a fact that was

not clear prior to Rosenberry, but which § 3.104 now reflects. As is clear from

reading § 3.104 in conjunction with § 1101.006, an incontestability time limit

following reinstatement does exist, and is two years, but only when an insured

survives for two years following the reinstatement.

9

In Rosenberry, the court reversed in favor of the insurer when the insurer contested

a policy reinstatement as fraudulent within one year of the reinstatement, even though the

contract at issue did not provide for a contestability period after reinstatement. 213 S.W. at

245. The court rested its reasoning on the principle that the reinstatement is “a new contract

to provide for a waiver by the company of the forfeiture [i.e. the lapse] and a reinstatement of

the policy.” Id. The court held that the insurer “had the right to show that the reinstatement

was secured by material fraudulent representation, and that therefore the contract of

reinstatement was void, and that the policy was not thereby revived.” Id.

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Perry is similarly uninstructive in light of subsequent statutory

enactments. In Perry, 362 S.W.2d at 213–14, the Texas Court of Civil Appeals

reversed in favor of the appellant beneficiary when the policy did not contain a

post-reinstatement contestability clause, the insured died nine months after

reinstatement, and the insurer failed to contest the reinstatement within two

years. Because the legislature amended § 1101.006’s predecessor the year after

Perry was decided to include the “lifetime of the insured” language, Perry does

not determine the outcome in this case. Given the requirements of § 1101.006

and our reasoning above, any reading of Perry to require a strict two-year

contestability period, ending without regard to the insured’s survival during that

period, is foreclosed.

We decline to read § 3.104(a), as Cardenas urges, as codifying Rosenberry,

Perry, and “the common law reasoning that the incontestability provision [in

§ 1101.006] does not apply to contracts for reinstatement of a policy.” The

framework provided by § 1101.006 and § 3.104(a) makes clear that § 1101.006’s

incontestability provisions apply to reinstatements. Additionally, neither

Rosenberry nor Perry stands for Cardenas’s proposition. The courts in both cases

concluded that contestability periods existed following reinstatement, even when

the policies did not expressly so provide, and neither case dealt with § 1101.006’s

application to reinstatements or to § 3.104(a).

We find it logical to conclude that § 1101.006 treats policy issuances and

policy reinstatements in a uniform manner, when neither § 1101.006 nor

§ 3.104(a) provides any reason to treat issuances and reinstatements differently. 

This conclusion also appears to conform with the majority rule. See 8 Appleman

on Insurance Law and Practice § 83.09 (Matthew Bender ed., 2013) (“The vast

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majority of jurisdictions hold that where a policy of life insurance is reinstated

as a result of misrepresentations, the contestable period begins to run anew.”);

17 Couch on Insurance § 240:25 (3d ed.) (“In the absence of anything either in

the policy or the reinstatement to require a different construction, the

incontestable clause is renewed on reinstatement of the policy, and applies to the

reinstatement as to both parties in the same manner and to the same extent as

it applied to the original policy.”). 

Finally, this result is not inconsistent with the rationale behind

incontestability clauses. See Fields v. Universal Life & Accident Ins. Co., 424

S.W.2d 704, 707 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ dism’d w.o.j.);

29 Appleman § 178.03[A]. We find unpersuasive any argument that the

legislature intended to protect beneficiaries, to the detriment of insurers, where

the insured committed fraud and failed to satisfy the requirements of

§ 1101.006. 

Our interpretation of § 3.104(a) does not strip the section of meaning. 

Rather, § 3.104(a) retains its vitality. During the two-year contestability period

following reinstatement, if an insurer challenges the reinstatement for

misrepresentation, § 3.104(a) requires that “no representation other than one

causing the reinstatement may be used to contest the policy, [and] any contest

of the reinstatement may be for a material and fraudulent misrepresentation

only . . . .” 28 Tex. Admin. Code § 3.104(a).

In sum, though our interpretation of the relationship between § 1101.006

and § 3.104(a) differs from that of the district court, we conclude that the district

court properly denied Cardenas’s motion for judgment as a matter of law on this

issue. 

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B. Expansion of the Contract Terms

“[W]e review a district court’s interpretation of an insurance policy de

novo.” F.D.I.C. v. Mijalis, 15 F.3d 1314, 1319 (5th Cir. 1994) (citing Harbor Ins.

Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir. 1993)). Cardenas argues

that the district court misinterpreted the contract for the insurance policy and

expanded its terms. Cardenas observes that the contract provided for a

contestability period following issuance, as required by § 1101.006, but did not

provide for a contestability period following reinstatement. The reinstatement

application similarly did not say anything about a post-reinstatement

contestability period. As a result, Cardenas contends, the district court erred by

reading into the contract a contestability period following reinstatement.

We disagree. Our conclusion that § 1101.006’s “lifetime of the insured”

language applies to the contract at issue is consistent with § 3.104(a), as well as

with caselaw applying § 1101.006’s predecessor to contracts that fail to provide

for a contestability period following issuance. Thus, we conclude that the district

court properly denied Cardenas’s motion for judgment as a matter of law.

III. CONCLUSION

For the aforementioned reasons, the district court’s judgment is

AFFIRMED.10

10 Because we find that Cardenas does not prevail in her appeal, we do not reach the

issue raised in United of Omaha’s conditional cross-appeal of whether the statute of

limitations bars Cardenas’s claim for statutory penalties.

16

 Case: 12-51295 Document: 00512416884 Page: 16 Date Filed: 10/23/2013