* Pursua nt to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

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 Insuran ce 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 threeyear 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 that2

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 representativ es 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 und er 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 th e plaintiff exercised due

diligence to discover the claim. Stephens v. Equitable Life

Assurance Society of U.S.

, 850 So.2 d 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 polic ies 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

con cealment sufficient to toll the applicable statute of

limitations. Reassure’s letter of March 1998 was a response to3

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

i n value. However, it acknowledged that Mayronne’s position was

that the premiums would va nish in seven years. Yet, there is

simply no indication that Reassure’s failure to address the issue

more specifical ly somehow precluded Mayronne from discovering a

discrepancy between Reassure’s previous representations to Mayronne

on that topic and the substance of Mayronne’s l ife insurance

policy.

Mayronne was at all relevant times capable of r eviewing 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 act2 Reassure’s motion to strike portions of Mayronne ’s reply

brief is denied.

4 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.