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Lee v. Sapp

Court of Appeals of Louisiana, Fourth Circuit

February 20, 2019

RODERICK F. LEE
v.
THOMAS D. SAPP, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, BMW FINANCIAL SERVICES, N.A., L.L.C. AND FINANCIAL SERVICES VEHICLE TRUST, INC.

          Appeal From Civil District Court, Orleans Parish No. 2010-07164, Division "G-11" Honorable Robin M. Giarrusso, Judge

          Roderick F. Lee Pro Se /Appellant

          Charles R. Rumbley Lobman, Carnahan, Batt, Angelle & Nader Counsel For Defendant/Appellee

          Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Regina Bartholomew-Woods

          JAMES F. MCKAY III CHIEF JUDGE

         This is a personal injury case. The plaintiff, Roderick F. Lee ("Mr. Lee"), appeals the June 22, 2018 judgment granting an exception of prescription filed by the defendants, State Farm Mutual Automobile Insurance Company ("State Farm"), and dismissing the matter with prejudice. For the reasons set forth below, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         On August 15, 2009, Mr. Lee was involved in an automobile accident with another vehicle driven by State Farm's insured, Thomas Sapp ("Mr. Sapp"). Mr. Lee filed a petition for damages on July 12, 2010, alleging Mr. Sapp's negligence. State Farm denied coverage, asserting that Mr. Sapp's policy of insurance was not in effect on the date of the accident, because the policy had not been renewed. In a prior appeal, this Court held that coverage existed at the time of the accident. Lee v. Sapp, 2014-1047 (La.App. 4 Cir. 3/4/15), 163 So.3d 60. (Sapp I).

         In support of their coverage defense, State Farm relied on the August 16, 2013 affidavit ("first affidavit") of Jonathan Owens, which stated that State Farm sent a non-renewal notice to Mr. Sapp on March 17, 2009, advising him that his policy would not renew after June 3, 2009, unless Mr. Sapp contacted an agent in his new area of residence to transfer the policy. The affidavit also states that Mr. Sapp did not renew the policy. After discovery, State Farm produced Jonathan Owens' January 24, 2014 affidavit ("second affidavit"), stating that upon further review of the underwriting file, the March 17, 2009 notice was not sent to Mr. Sapp.

         In light of the information presented in State Farm's second affidavit, Mr. Lee asserts that the first affidavit was false. On July 13, 2016, Mr. Lee filed a Second Supplemental and Amended Petition, asserting various first-party and third-party bad faith claims against State Farm.

         On August 24, 2016, Mr. Lee entered into a settlement with Mr. Sapp and State Farm, reserving all bad faith claims asserted against State Farm in the Second Supplemental and Amended Petition. In a prior proceeding, all of the first-party bad faith claims were dismissed. See Lee v Sapp, 2017-0490 (La.App. 4 Cir. 12/6/17), 234 So.3d 122. (Sapp II). Thus, the only action remaining in this case is Mr. Lee's claim of misrepresentation against State Farm brought pursuant to La. R.S. 22:1973(B)(1).[1]

         In response to Mr. Lee's Second Supplemental and Amended Petition, State Farm filed an exception of prescription with respect to the remaining misrepresentation claim. State Farm argues that their discovery response, which included the second affidavit, was sent to Mr. Lee's attorney of record on January 27, 2014. Therefore, State Farm submits that as of January 27, 2014, Mr. Lee was placed on notice of any potential claim for misrepresentation, and he had until January 27, 2015, to file his action. The Second Supplemental and Amended Petition was not filed until July 13, 2016.

         The matter was brought before the trial court on May 25, 2018. Judgment was rendered on June 22, 2018, granting State Farm's exception of prescription, and dismissing Mr. Lee's remaining bad faith claim for misrepresentation with prejudice.

         In this pro se appeal, Mr. Lee's assignments of error are not clearly enumerated. He argues, generally, that: (1) the Second Supplemental and Amended Petition related back to the original petition; and (2) prescription was interrupted and/or renounced by State Farm when they tendered payment on September 9, ...


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