United States Court of Appeals

for the Fifth Circuit

No. 21-30254

Russell Thomas, 

Plaintiff—Appellee,

versus

Ameritas Life Insurance Corp., 

Defendant—Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-00741

Before Smith, Costa, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

In Louisiana, the errors and omissions of an insurance agent in filling 

out an application for insurance on behalf of an insured are attributable to the 

insurer. Johnny Alfred, a producer for Ameritas Life Insurance Corporation, 

erroneously completed a life insurance application and bound Ameritas to a 

temporary insurance agreement covering the life of Deshon Murphy. 

Deshon died, and his father, Russell Thomas, sought to recover as the policy 

beneficiary. After a bench trial, the district court concluded Ameritas was 

bound by Alfred’s errors and omissions and found for Thomas. We affirm.

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2022

Lyle W. Cayce

Clerk

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I.

As neither party challenges the factual findings of the district court, 

the facts of this case are represented as that court found them. In 2018, 

D’Sha Murphy and Russell Thomas sought insurance covering the life of 

their adult son, Deshon Murphy. They met with Johnny Alfred in his office 

in Baton Rouge to apply for the life insurance. Alfred had been a producer 

with Ameritas since earlier that year, and he walked D’Sha and Thomas 

through an application for insurance with Ameritas. Based on responses 

from D’Sha and Thomas, Alfred actually filled out the application, as well as 

a temporary insurance agreement (the TIA) to cover Deshon’s life while the 

application was pending. After completing the application and the TIA on 

his laptop, Alfred gave Thomas the opportunity to review them. Alfred 

subsequently submitted the application and authorized the TIA. 

Despite that D’Sha and Thomas answered Alfred’s questions 

accurately, the application and TIA contained multiple erroneous 

statements, including omissions of Deshon’s history of ADHD, asthma, and 

chest pain. Both documents omitted that there was other life insurance 

covering Deshon. Deshon’s name was signed to both documents, even 

though he was not present, and Thomas’s name was not listed as owner of 

the policy. 

Before the policy application was processed, Deshon died in a car 

accident. After receiving notice of the death, Ameritas sent Thomas a letter 

notifying him that the application had not been processed and delineating the 

procedure for filing a claim under the TIA. Ameritas subsequently denied 

coverage. Its basis for doing so was the misrepresentation and omission of 

key parts of Deshon’s medical history. Thomas then filed suit in Louisiana 

state court against Alfred and Ameritas.

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Ameritas removed the case to federal district court on the basis of 

diversity. Thomas subsequently filed an amended complaint that dropped all 

claims against Alfred from the suit. Both parties filed cross-motions for 

summary judgment; the district court denied both motions. The parties then 

filed motions in limine. Thomas sought to bar Ameritas from arguing that 

Alfred was not its agent. He argued that, based on Louisiana law, Alfred had 

to be Ameritas’s agent and any argument to the contrary would be specious. 

Conversely, Ameritas sought to bar Thomas from introducing any evidence 

that would establish Alfred was its agent. Ameritas argued that while 

Thomas’s initial complaint referenced Alfred’s agency relationship, the 

amended complaint made no reference to agency, so Thomas could not 

proceed under that theory at trial. The district court determined that neither 

motion was properly a motion in limine and denied them both. 

After a bench trial, the district court enumerated its findings of fact 

and conclusions of law. It found that D’Sha and Thomas had not made any

of the misrepresentations in the application or the TIA and that Alfred was 

responsible for the errors and omissions in those documents. Then, finding 

that Alfred was Ameritas’s agent, the district court imputed Alfred’s actions 

to Ameritas and estopped Ameritas from denying coverage. Finally, the 

district court determined that Ameritas denied coverage without just cause 

and assessed statutory interest against Ameritas as a result. Ameritas 

appeals. 

II.

As this is a diversity case arising from Louisiana, this court applies the 

substantive law of that state. Klocke v. Watson, 936 F.3d 240, 244 (5th Cir. 

2019) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). Ameritas levies 

four arguments on appeal: First, that the district court erred by denying its 

motion in limine; next, that the TIA was not formed properly, and even if it 

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was, that it violated Louisiana law; then, that Thomas cannot rely on Alfred’s 

apparent authority to recover; and finally, that the district court erred in 

assessing statutory interest against Ameritas. We address each in turn.

A.

“The grant or denial of a motion in limine is considered discretionary, 

and thus will be reversed only for an abuse of discretion and a showing of 

prejudice.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir. 2005) 

(citing Buford v. Howe, 10 F.3d 1184, 1188 (5th Cir. 1994)). “A trial court 

abuses its discretion when its ruling is based on an erroneous view of the law 

or a clearly erroneous assessment of the evidence.” Knight v. Kirby Inland 

Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007) (internal quotation marks 

omitted) (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 

2003)). In assessing a motion in limine, “[t]he trial court must weigh the 

evidence’s contribution to the case against any potential prejudice or 

confusion.” FDIC v. Wheat, 970 F.2d 124, 131 (5th Cir. 1992).

Ameritas’s motion in limine sought to preclude Thomas 

from asserting or contending at . . . trial that a principal-agency 

relationship exist[ed] between Johnny Alfred . . . and 

Ameritas, that Alfred’s actions or inactions may be imputed to 

Ameritas under an agency theory of liability, that Ameritas is 

liable for actions or inactions of Alfred and/or that 

Ameritas’[s] defenses are somehow limited or not viable based 

on Plaintiff’s contention that a principal-agency relationship 

exist[ed] between Alfred and Ameritas because Plaintiff has 

asserted no such allegations in his Complaint . . . . Because any 

such contention(s) is beyond the scope of Plaintiff’s 

allegations, any such contention is not properly before the 

Court, and Plaintiff should be precluded from raising or 

asserting any such theory or contention . . . .

 

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The district court concluded that “[t]he Defendant’s Motion is not properly 

a Motion in Limine. The purported Motion in Limine seeks a legal 

determination of whether an agency relationship exists. It does not challenge 

the admissibility of any discreet or particular evidence on evidentiary 

grounds, and is DENIED.” 

Contrary to the district court’s conclusion, Ameritas raised a valid 

evidentiary concern, namely, that Thomas sought to offer evidence irrelevant 

to the claim he asserted in his complaint. See Fed. R. Evid. 402 advisory 

committee’s note to 1972 proposed rules (quotation omitted) (stating that 

the relevancy of evidence is the threshold consideration for admissibility). 

Ameritas is correct that Thomas’s amended complaint excised all references 

to Alfred’s alleged role as Ameritas’s agent. From there, Ameritas reasons

that Thomas should not have been allowed to offer evidence related to 

Alfred’s agency relationship.

But we only require that “a pleading allege[] facts upon which relief 

can be granted,” and we have acknowledged that a pleading “states a claim 

even if it ‘fails to categorize correctly the legal theory giving rise to the 

claim.’” Sanchez Oil & Gas Corp. v. Crescent Drilling & Prod., Inc., 7 F.4th 

301, 309 (5th Cir. 2021) (internal quotation marks omitted) (quoting Homoki 

v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir. 2013)); see also Fed. R. 

Civ. P. 8. While Thomas’s two complaints were fairly barebones, and he 

deleted what agency allegations about Alfred he had pled in the original 

complaint when he filed his amended complaint, he retained two statements 

about Alfred in the live pleading: First, he alleged that “Alfred electronically 

submitted an application for life insurance . . . to Ameritas[,]” and second, 

that “Alfred completed the Policy’s application which indicates that Murphy 

and Thomas signed electronically.” These statements articulate facts upon

which relief could be granted on an agency theory. Sanchez Oil & Gas Corp., 

7 F.4th at 309. The allegations are sufficient to outline a claim that Alfred 

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filled out the documents and submitted them, logically leaving him to blame 

for any errors or inconsistencies in the applications. Thus, Thomas 

preserved, if barely, this theory for trial. It follows that because Ameritas’s 

motion would have been properly denied even if the district court had 

construed it as a motion in limine, Ameritas cannot demonstrate prejudice 

from the district court’s denial of its motion, and this issue is without merit.

B.

Ameritas next challenges the district court’s legal conclusion that the 

TIA was enforceable between Thomas and Ameritas. We review this 

question de novo. Lehmann v. GE Global Ins. Holding Corp., 524 F.3d 621, 

624 (5th Cir. 2008) (quoting Teco Barge Line, Inc. v. Exmar Lux (In re MidSouth Towing Co.), 418 F.3d 526, 531 (5th Cir. 2005)).1 In Louisiana, the four 

elements of a valid contract are “capacity, consent, a lawful cause, and a valid 

object.” Granger v. Christus Health Cent. La., 2012-1892 (La. 6/28/13); 144 

So. 3d 736, 760. Ameritas contends that the TIA lacked both a lawful cause 

and consent. Ameritas first argues that because Deshon never signed the 

TIA, the cause of the TIA was unlawful. Next, it argues that because 

Ameritas and Deshon were the only parties listed on the TIA, Thomas was 

not a party, and, because Deshon never actually signed the TIA, there was 

no consent to form the agreement.

1.

“Cause is the reason why a party obligates himself.” La. Civ. 

Code art. 1967. “[I]n Louisiana, the common law tradition that requires 

‘consideration’ to effect an enforceable contract has not been adopted; 

‘cause’ is sufficient for a party to enter into a contract.” Granger, 144 So. 3d 

1

As noted above, Ameritas does not contest the district court’s factual findings. 

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at 760 n.27 (citing Aaron & Turner, L.L.C. v. Perret, 2007-1701 (La. App. 1 

Cir. 5/4/09), 22 So. 3d 910). “Consideration is an objective element 

required to form a contract, whereas cause is a more subjective element that 

goes to the intentions of the parties.” Perret, 22 So. 3d at 915. 

“The cause of an obligation is unlawful when the enforcement of the 

obligation would produce a result prohibited by law or against public policy. 

Examples of obligations with unlawful causes include those that arise from 

gaming, gambling, and wagering not authorized by law.” La. Civ. Code

art. 1968. Another example of an unlawful cause is an individual’s agreeing 

to “boycott, coerce, or intimidate” another as part of a noncompetition 

agreement. Citizens Bank & Trust Co. v. West Bank Agency, Inc., 540 So. 2d 

440, 443-44 (La. Ct. App. 1989).

Ameritas’s argument regarding cause is simple. First, Louisiana 

requires that “[n]o life . . . insurance contract upon an individual . . . shall be 

made or effectuated unless at the time of the making of the contract the 

individual insured . . . in writing applies therefor or consents thereto[.]” La. 

Stat. Ann. § 22:856. Second, the district court found that Deshon, the 

insured under the putative contract, never signed the contract or otherwise 

evinced consent in writing. On those two premises, the cause of the 

contract—insuring an individual’s life who has not consented to the 

insurance—was unlawful because it directly contradicts a Louisiana statute.

“In the state of Louisiana, the principles of the common law are not 

recognized . . . . They have a system peculiar to themselves, adopted by their 

statutes[.]” Wright v. Paramount-Richards Theatres, 198 F.2d 303, 306 (5th 

Cir. 1952) (internal quotation marks omitted) (quoting Parsons v. Bedford, 

Breedlove, & Robeson, 28 U.S. (3 Pet.) 433, 450 (1830) (McLean, J., 

dissenting)). “The sources of law are legislation and custom.” La. Civ. 

Code art. 1. Louisiana’s system requires that “courts look first and 

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foremost to the statutory law.” Chevron USA, Inc. v. Vermilion Parish Sch. 

Bd., 377 F.3d 459, 462 (5th Cir. 2004). Mindful of the unique importance of 

Louisiana’s positive statutory law, Thomas contends that because the record 

is devoid of any argument related either to section 22:856 or, more generally,

to improper cause, Ameritas has forfeited its argument that under section 

22:856, the cause of the TIA was improper, such that the contract was never 

confected.

“A party forfeits an argument by failing to raise it in the first instance 

in the district court—thus raising it for the first time on appeal[.]” Rollins v. 

Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021). This rule exists for a 

simple reason: It is “an efficient approach that allows a full consideration of 

all the parties’ arguments in the district court . . . . A thorough ruling might 

avoid an appeal by making clearer the unlikelihood of appellate success based 

on the strengths of the district court decision.” In re Crescent Energy Servs., 

L.L.C., 896 F.3d 350, 354-55 (5th Cir. 2018). “[I]n order to preserve an 

argument for appeal, the argument (or issue) not only must have been 

presented in the district court, a litigant also ‘must press and not merely 

intimate the argument during proceedings before the district court.’” 

Templeton v. Jarmillo, 28 F.4th 618, 622 (5th Cir. 2022) (quoting FDIC v. 

Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994)). 

Of course, there is a significant difference between raising an issue or 

argument for the first time on appeal and supplementing an argument with 

new authority. A party can produce new authority on appeal provided that it 

“[m]a[de] an issue clear, or as the First Circuit stated the point . . . , 

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present[ed] the issue ‘face up and squarely in the trial court[.]’” Id. (quoting 

Alston v. Town of Brookline, 997 F.3d 23, 44 (1st Cir. 2021)).2

Ameritas’s illegal-cause argument is appealingly straightforward, but 

not preserved for appeal. Ameritas contends that its argument is not forfeited 

because both section 22:856 and the notion of unlawful cause were 

referenced in its argument for judgment on partial findings during the bench 

trial. But the portion of the bench trial motion Ameritas references in its 

briefing on appeal is related to Ameritas’s own internal requirements and 

definitions of an insurable interest, not the relevant provisions of positive 

Louisiana law. Scrutinizing the record, we cannot find any argument related 

to section 22:856 or unlawful cause. Simply put, Ameritas did not present

any argument that the TIA ran afoul of section 22:856’s written consent 

requirement “face up and squarely” in the district court. Id. We therefore 

decline further to address this forfeited argument.

2.

Ameritas’s second argument, that Deshon was the only named party 

other than Ameritas and that he did not consent to the TIA, while not 

waived, is defeated on appeal by the district court’s unchallenged factual 

findings. The district court found that Alfred filled out the application and 

TIA erroneously, which included erroneously placing Deshon as the 

contracting party rather than Thomas and then signing the agreement for the 

contracting parties. The district court also found that Alfred was Ameritas’s 

2

Because this is a procedural rule, we have at times relaxed its bar and exercised 

our discretion to hear forfeited arguments. Generally, though, we only do so when the 

argument is “a purely legal matter and failure to consider the issue will result in a 

miscarriage of justice.” Rollins, 8 F.4th at 398 (internal quotation marks omitted) (quoting 

Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450, 453 (5th Cir. 2008)). As our later 

discussion demonstrates, declining to reach Ameritas’s forfeited argument here results in 

no miscarriage of justice.

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agent. Ameritas has not challenged these findings on appeal. Thus, under 

Louisiana law, Alfred’s errors and omissions in this context are wholly 

attributable to Ameritas. Rudd v. Carpenter, (La. App. 2 Cir. 1/13/21); 311 

So. 3d 568, 573 (citing Harris v. Guar. Life. Ins. Co., 75 So. 2d 227 (La. 1954); 

Miller v. Preferred Life Ins. Co., 107 So. 2d 323 (La. Ct. App. 1958)). As a 

result, the district court did not err by estopping Ameritas from arguing that 

Thomas was not a party to the TIA, that Deshon had never consented to the 

agreement, and, therefore, that the parties never consented to enter the TIA.

C.

Ameritas also attacks Alfred’s apparent authority. It asserts that 

because Thomas had the chance to review the insurance documents and 

likely saw Alfred’s errors, Thomas cannot rely on Alfred’s apparent 

authority to ratify the errors because no one represented that Alfred had the 

authority to do so. Ameritas analyzes apparent authority in its briefing but 

under Louisiana law, this is not the relevant consideration. As outlined 

above, the actions of an insurance agent in completing an application for an 

insured are imputed to the insurer, and that insurer is bound by its agent’s

actions “provided the insured has no actual or implied knowledge thereof.” 

Rudd, 311 So. 3d at 573 (citing Harris, 75 So. 2d 227; Miller, 107 So. 2d 323). 

This was the basis of the district court’s holding, not Alfred’s apparent 

authority. Ameritas’s arguments, while couched in terms of apparent 

authority, amount to a contention that Thomas had actual or constructive 

knowledge that the application was filled out improperly such that the 

responsibility for the errors fall not on Ameritas, but on Thomas. Again, the 

district court’s factual findings defeat Ameritas’s argument. 

The district court found that Thomas “was provided the opportunity 

to read the policy application on Alfred’s laptop computer screen.” 

Critically, the court also found that “Thomas made no changes because he 

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relied on Alfred’s experience and expertise in completing the Ameritas policy 

application form[.]” It is well-established in Louisiana law that “an 

insurance applicant may rely upon and sign an application as completed by 

the agent and may rely upon the agent’s expertise in interpreting the nature 

of the information sought by the company he represents.” Toups v. Equitable 

Life Assurance, 94-1232 (La. App. 3 Cir. 5/3/95); 657 So. 2d 142, 147 (citing 

Economy Auto Salvage, Inc. v. Allstate Ins. Co., 499 So. 2d 963 (La. Ct. App. 

1986)). 

As Ameritas has not challenged the district court’s factual finding that 

Thomas relied on Alfred’s expertise, Thomas’s cursory review of the 

insurance application and TIA, via Alfred’s laptop computer screen, does 

not without more satisfy the actual or implied knowledge requirement. 

Therefore, we cannot conclude that the district court erred in finding that 

Ameritas was bound by Alfred’s errors and omissions in the application and 

the TIA, such that Ameritas could not deny Thomas coverage under the 

TIA on that basis.

D.

Ameritas concludes by arguing that the district court improperly 

assessed statutory interest against it. Under Louisiana’s insurance statutes, 

“claims . . . shall be settled by the insurer within sixty days after the date of 

receipt of due proof of death, and if the insurer fails to do so without just 

cause, the amount due shall bear interest at the rate of eight percent . . . .” 

La. Stat. Ann. § 22:1811. Ameritas asserts that it had just cause to deny 

Thomas’s claim because of the material misrepresentations in the application 

and the TIA. But as the district court found, the false information was 

attributable to Alfred. Because Alfred’s actions were attributable to 

Ameritas, and “[a]n investigation of its own agent’s actions in issuing the 

policy would have revealed to [Ameritas] that” it could not maintain its 

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defenses, we discern no reversible error in the district court’s determination 

that Ameritas acted without just cause. Swain ex rel. Estate of Swain v. Life 

Ins. Co. of La., 537 So. 2d 1297, 1304 (La. Ct. App. 1989); see also Ryan v. 

Security Indus. Ins. Co., 386 So. 2d 939, 943-45 (La. Ct. App. 1980). The 

district court’s imposition of statutory interest pursuant to section 22:1811

was appropriate.

III.

The district court acted within its discretion to deny Ameritas’s 

pretrial motion in limine. On substance, Ameritas forfeited its argument 

related to the contractual element of “cause,” as provided by Louisiana’s

positive law, by not first presenting it to the district court. As for the 

insured’s “consent” to the contracts, Alfred’s actions, errors and omissions 

in completing the insurance application and TIA were properly imputed to

Ameritas, such that Ameritas was estopped from raising Deshon’s lack of 

consent. Finally, the district court acted within its discretion in assessing 

penalty interest against Ameritas. 

AFFIRMED.

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