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Stevenson v. Progressive Security Insurance Co.

Court of Appeals of Louisiana, First Circuit

March 25, 2019


          On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No. 181534 Honorable Juan W. Pickett, Judge Presiding.

          A Catharina Vastbinder Nicholas J. Zeringue Thibodaux, Louisiana Counsel for Plaintiffs/ Appellants Jacob Stevenson, Jesse Stevenson, individually and on behalf of his minor son, Logan Stevenson.

          John J. Erny, III Counsel for Defendants/ Appellees Metairie, Louisiana Progressive Security Insurance Company and Anthony J. Leblanc.



         The plaintiffs seek review of a judgment that granted the defendants' exception raising the objection of prescription and dismissed plaintiffs' action against the defendants. For the reasons that follow, we affirm.


         This suit arises out of a car accident that occurred on December 13, 2016. Jesse Stevenson and Logan Stevenson were passengers in a vehicle driven by Jacob Stevenson. As a result of the accident, the Stevensons filed suit against Anthony J. Leblanc, Jr., the other involved driver, and his insurer, Progressive Security Insurance Company, on December 14, 2017. The defendants answered the petition and filed an exception raising the objection of prescription. The plaintiffs opposed the exception, citing a series of unfortunate events as the cause of their inability to file the petition on the final day of the prescriptive period.

         Plaintiffs' counsel obtained the plaintiffs' file from their previous attorney on December 13, 2017 at 2:00 p.m. As counsel was preparing the petition for filing, an electrical breaker tripped in her law office followed by a power surge. This delayed counsel's ability to complete the petition prior to 4:30 p.m., the close of the clerk of court's normal business hours. Counsel attempted to fax file the petition with the Terrebonne Parish Clerk of Court at 4:57 p.m. on December 13, 2017. She tried several more times, to no avail. Unbeknownst to plaintiffs' counsel, the Terrebonne Parish Clerk of Court's fax machines are turned off at 4:30 p.m. Consequently, the petition was not filed until December 14, 2017, the day after the prescriptive period expired.[1]Because the petition was filed "only one day late" and because the defendants were aware of the plaintiffs' claims, the plaintiffs argued that the defendants were not prejudiced by the delinquent filing and, therefore, the exception should be denied.[2]

         The plaintiffs further argued that the exception should be denied because Progressive interrupted prescription by acknowledging its obligation, and since Progressive and Leblanc are solidary obligors, Progressive's acknowledgment also interrupted prescription against Leblanc. To support this argument, the plaintiffs relied on letters sent by Progressive to the plaintiffs' prior counsel on April 4, 2017 and June 20, 2017.[3] In its April 2017 letters, Progressive acknowledged the letter of representation received on behalf of each plaintiff and stated, ``In order to properly evaluate your client's claim, please forward to us copies of supporting documentation as you receive it." Similarly, in June 2017, Progressive requested documentation to complete its investigation of the plaintiffs' claims for medical and economic damages. At that time, Progressive also advised the plaintiffs of its insured's policy limits. According to the plaintiffs, this communication, coupled with Progressive's failure to expressly deny liability, amounted to an acknowledgment of the plaintiffs' rights against the defendants which served to interrupt prescription. The defendants disputed this contention, arguing that Progressive's effort to obtain information and potentially negotiate a settlement was not an acknowledgment of any alleged obligation owed to the plaintiffs.

         The trial on the exception took place on March 19, 2018. The trial court rejected the plaintiffs' arguments, particularly finding that Progressive did not acknowledge an obligation allegedly owed to the plaintiffs, and granted the defendants' exception, dismissing the plaintiffs' suit. A judgment was signed on April 11, 2018.

         The plaintiffs appealed, asserting that the trial court erred in granting the exception of prescription, because: (1) the plaintiffs attempted to timely file the petition before the accrual of prescription, (2) the defendants interrupted prescription by acknowledging their obligation to the plaintiffs, and (3) the rules of procedure are not "intended to be an end in themselves" and there would be no injustice against the defendants by maintaining the action.


         The objection of prescription may be raised by a peremptory exception. LSA-C.C.P. art. 927A(1). Ordinarily, the party urging an exception of prescription bears the burden of proving that the prescriptive period has elapsed. However, if the plaintiff's claims are prescribed on the face of the petition, the burden shifts to the plaintiff to prove that the prescriptive period has not elapsed. Calloway v. Lobrano, 16-1170 (La.App. 1st Or. 4/12/17), 218 So.3d 644, 650. Evidence may be introduced to support or controvert an exception of prescription. LSA-C.C.P. art. 931. When evidence is introduced and evaluated at the trial of an exception of prescription, the trial court is not bound to accept as true the allegations of the plaintiffs petition, and an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions. Krolick v. State ex rel. Dep't of Health & Human Res., 99-2622 (La.App. 1st Cir. 9/22/00), 790 So.2d 21, 25, writ denied, 00- 3491 (La. 2/9/01), 785 So.2d 829. See also Calloway, 218 So.3d at 650. Pursuant to this standard, the trial court's ruling must be affirmed unless a reasonable factual basis does not exist for the finding of the trial court, and the record establishes that the finding is clearly wrong. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

         The prescriptive period applicable in the case subjudi" is the one-year liberative prescription for delictual actions, commencing the day the injury or damage is sustained. LSA-C.C. art. 3492. This statute, like all prescription statutes, is strictly construed against prescription and in favor of maintaining the cause of action. Martin v. Decker, 07-1838 (La.App. 1st Cir. 3/26/08), 985 So.2d 752, 755, writ denied, 08- 1405 (La. 10/3/08), 992 So.2d 1014. The accident giving rise to the instant suit occurred on December 13, 2016; therefore, the Stevensons' petition, filed on December 14, 2017, was prescribed on its face. Accordingly, the plaintiffs bore the burden of proof to show that the action was not prescribed. Hanley v. Allstate Ins. Co., 18- 0433 (La.App. 1st Cir. 11/28/18), ___So.3d___ 2018 WL 6204949, *2.

         ASSIGNMENTS OF ERROR ONE AND THREE: Attempt to File ...

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