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Belanger v. Geico General Insurance Co.

United States District Court, M.D. Louisiana

December 22, 2014

MICHAEL L. BELANGER
v.
GEICO GENERAL INSURANCE COMPANY

RULING ON MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

STEPHEN C. RIEDLINGER, Magistrate Judge.

Before the court is GEICO'S Motion To Dismiss Plaintiff's Claims Pursuant to Rule 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted, Or Alternatively Motion for Summary Judgment. Record document number 23. The motion is opposed.[1]

For the reasons which follow, the defendant's motion is granted.

Background

Plaintiff filed a Petition for Damages ("Petition") in state court against GEICO General Insurance Company ("GEICO") alleging a claim based on GEICO's bad faith failure to settle a claim and lawsuit for the policy limits. Plaintiff alleged that he and GEICO's insured, Natalie N. Stephen, were in an automobile accident on December 27, 2007. Plaintiff sued Stephen and GEICO in state court. Plaintiff alleged that he offered to settle his claim against Stephen and GEICO for the policy limits of $25, 000 numerous time before the trial, however GEICO rejected his offers. After the trial on April 26, 2011, the court rendered a judgment against Stephen in the amount of $450, 000 and against GEICO for the policy limits of $25, 000, plus interest and court costs. Defendants' Motion for Judgment Notwithstanding the Verdict and Motion for New Trial was denied in court on September 8, 2011 and signed order was issued on November 17, 2011. Defendants appealed the case to the Louisiana First Circuit of Appeal, and the appellate court affirmed the trial court's judgment on November 13, 2012. Defendants' application for a Writ of Certiorari to the Louisiana Supreme Court was denied on April 1, 2013.

GEICO paid the policy limits to the plaintiff in May 2013. On September 25, 2013, he entered into a compromise agreement with Stephen, by which he acquired any rights she had against GEICO arising from the excess judgment against her due to GEICO's alleged bad faith handling of her claim. Plaintiff filed the Petition against GEICO in state court on October 4, 2013. The case was subsequently removed to this Court on November 20, 2013.

Defendant moved to dismiss the plaintiff's claims arguing that it is facially apparent from the allegations in the plaintiff's Petition that his claim against GEICO is barred by Louisiana's one-year prescription period. Defendant argued that the plaintiff's cause of action based on an insurer's bad faith failure to settle a claim is a delictual action that is subject to a one-year prescriptive period. Defendant cited Louisiana case law holding that the right to enforce such an action begins when a judgment is entered on the principal demand in excess of the policy limits that harms the insured. Defendant argued that the prescriptive period began at the time the state court entered a judgment on against Stephen on April 26, 2011, and expired one year from that date. Thus, defendant argued, the plaintiff's claim alleged in the Petition filed on October 4, 2013 is prescribed.

Plaintiff opposed the motion, arguing that the prescriptive period did not begin until Stephen had knowledge that she was injured by her insurer's bad faith failure to settle. Plaintiff argued that the date of injury was when the Louisiana Supreme Court denied review, thereby exhausting her appellate rights. In the alternative, the plaintiff asserted that the Louisiana jurisprudential exception of contra non valentem should exempt the claim from prescription because Stephen was unaware of GEICO's settlement actions that formed the basis of her bad faith claim until she was informed by the plaintiff's counsel, which was after appeal process had been exhausted.

Applicable Law

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P. the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). The Supreme Court recently expounded upon the Twombly standard, explaining that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. It follows that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief.'" Id. at 1950 (quoting Rule 8(a)(2), Fed.R.Civ.P.). The court need not accept "a legal conclusion couched as a factual allegation, " or "naked assertions [of unlawful misconduct] devoid of further factual enhancement." Id. at 1949-50 (internal quotation marks omitted).

Summary judgment is only proper when the moving party, in a properly supported motion, demonstrates that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986). If the moving party carries its burden under Rule 56(c), the opposing party must direct the court's attention to specific evidence in the record which demonstrates that it can satisfy a reasonable jury that it is entitled to verdict in its favor. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. This burden is not satisfied by some metaphysical doubt as to the material facts, conclusory allegations, unsubstantiated assertions or only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). In resolving the motion the court must review all the evidence and the record taken as a whole in the light most favorable to the party opposing the motion, and draw all reasonable inferences in that party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. The court may not make credibility findings, weigh the evidence, or resolve factual disputes. Id .; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110 (2000). A genuine issue of material fact exists when the evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. Amerisure Ins. Co. v. Navigators Ins.Co., 611 F.3d 299, 304 (5th Cir. 2010).

On summary judgment, evidence may only be considered to the extent not based on hearsay or other information excludable at trial. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

The substantive law dictates which facts are material. Canady v. Bossier Parish School Bd., 240 F.3d 437, 439 (5th Cir. 2001). Under Louisiana law, delictual actions have a prescriptive period that commence one year "from the date injury or damage is sustained."[2] U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 295 (5th Cir. 2003). While the party asserting prescription initially generally bears the burden of proof, this burden shifts to the plaintiff to show that the claim has not prescribed if prescription is evident from the allegations in the petition. Quinn v. Louisiana Citizens Property Ins. Corp., XXXX-XXXX, La. 11/2/12, 118 So.3d 1011, 1017. "Although evidence may be introduced to support or controvert the exception, in the absence of evidence, an exception of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true." Id., citing, La. C.C.P. art. 931; Wells v. Zadeck, 11-1232, p. 7 (La. 3/30/12), 89 So.3d 1145, 1149-1150.

Contra non valentem is a Louisiana jurisprudential doctrine under which prescription may be suspended. Kling Realty Co., Inc. V. Chevron USA, Inc., 575 F.3d 510, 517 (5th Cir. 2009). "The doctrine of contra non valentem prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff." Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La. 1993). Under the rule of contra non valentem, the prescriptive period "commences on the date the injured party discovers or should have ...


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