IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 01-10859

Summary Calendar

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METROPOLITAN LIFE INSURANCE CO.,

Plaintiff,

VERSUS

RICHARD E. COUCH, SR.,

Defendant-Appellant,

VERSUS

CHAD J. BURGESS AND KYLI A. COUCH,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Texas

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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determined that this opinion should not be published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.
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 contractualentitlementsto insurance payments. 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 evidence 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 summaryjudgment is AFFIRMED. All

pending motions are DENIED.