JACOB STEVENSON, JESSE STEVENSON, INDIVIDUALLY AND ON BEHALF OF HIS MINOR SON, LOGAN STEVENSON
PROGRESSIVE SECURITY INSURANCE COMPANY AND ANTHONY J. LEBLANC
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.
Catharina Vastbinder Nicholas J. Zeringue Thibodaux,
Louisiana Counsel for Plaintiffs/ Appellants Jacob Stevenson,
Jesse Stevenson, individually and on behalf of his minor son,
J. Erny, III Counsel for Defendants/ Appellees Metairie,
Louisiana Progressive Security Insurance Company and Anthony
BEFORE: WHIPPLE, C.3., McCLENDON, AND HIGGINBOTHAM, JJ.
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.
AND PROCEDURAL HISTORY
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.
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.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.
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. 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
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.
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
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).
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.
OF ERROR ONE AND THREE: Attempt to File ...