Opinion
2018 CA 1619 2018 CW 1110
06-13-2019
KIMBERLY IRVING v. KATIE SANTO, INC., PETITTO FAMILY, LLC, and FARM BUREAU INSURANCE COMPANY
Dennis W. Hallack William H. Hallack, Jr. West Monroe, Louisiana Attorneys for Appellant, Petitto Family, LLC Andrew L. Plauché, Jr. Mark T. Assad New Orleans, Louisiana Attorneys for Appellees, Robert Dean Cooper, Jr. and Liberty Insurance Underwriters, Inc.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
Docket No. 2015-0001248 Honorable Robert H. Morrison, III, Judge Presiding Dennis W. Hallack
William H. Hallack, Jr.
West Monroe, Louisiana Attorneys for Appellant,
Petitto Family, LLC Andrew L. Plauché, Jr.
Mark T. Assad
New Orleans, Louisiana Attorneys for Appellees,
Robert Dean Cooper, Jr. and
Liberty Insurance Underwriters, Inc. BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
Appellant, Petitto Family, LLC (Petitto Family), appeals from a summary judgment dismissing its third-party fraud claims against third-party defendants, Robert Dean Cooper, Jr. and Liberty Insurance Underwriters, Inc. (collectively "third-party defendants"). Additionally, the Petitto Family seeks supervisory review of the trial court's judgment granting the third-party defendants' peremptory exceptions raising the objection of prescription/peremption as to all claims, excluding those of fraud, and dismissing those claims with prejudice. For the reasons that follow, we grant the writ application and reverse the trial court's granting of summary judgment.
FACTS AND PROCEDURAL HISTORY
This matter originally began as a suit for personal injuries sustained by a tenant, Kimberly Irving, as a result of allegedly defective conditions in rental property owned by the Petitto Family in Hammond, Louisiana (the Property). Irving filed a petition for damages on April 27, 2015, naming Katie Santo, Inc., the Petitto Family, and Louisiana Farm Bureau Mutual Insurance Company (Louisiana Farm Bureau), as the insurer of the Property. Louisiana Farm Bureau answered the suit on June 15, 2015, denying that it issued a policy of insurance for the Property, and was dismissed without prejudice on April 21, 2016, along with Katie Santo, Inc.
Louisiana Farm Bureau Mutual Insurance Company was erroneously designated as "Farm Bureau Insurance Company" in the petition.
On May 8, 2017, the Petitto Family filed a third-party demand against Robert Dean Cooper, Jr., its insurance agent, and Liberty Insurance Underwriters, Inc., Cooper's errors and omissions insurer, as third-party defendants. The Petitto Family alleged that Cooper breached his legal duty to secure insurance, including liability insurance for the Property where Irving was injured, despite being requested to do so on or about January 1, 2012. The third-party defendants filed an exception of prescription/peremption on June 29, 2017, arguing that the Petitto Family's third-party demand was untimely pursuant to La. R.S. 9:5606.
On April 18, 2018, prior to the hearing on the exception of prescription/peremption, the Petitto Family filed a first amended supplemental answer and third-party demand ("amended third-party demand"), alleging that Cooper committed fraud by, among other things, misrepresenting and suppressing the truth with the intent to obtain an unjust advantage for himself, causing loss and inconvenience to the Petitto Family. The third-party defendants responded by filing a supplemental exception of prescription/peremption pursuant to La. R.S. 9:5606 to the amended third-party claims.
The trial court held a hearing on the exception of prescription/peremption and supplemental exception on May 21, 2018, and granted the exception of prescription/peremption in part. The trial court specifically denied the exception of prescription/peremption as to the Petitto Family's fraud claims alleged in the amended third-party demand; all other claims asserted in the original third-party demand were dismissed with prejudice. A judgment was signed on the same day as the hearing (exception judgment). On June 4, 2018, the Petitto Family filed a notice of intention to apply for writs of review, certiorari, and mandamus, pertaining to the exception judgment.
The transcript from the hearing on the exceptions is not contained in the record before us, but is contained in the writ application.
No party sought supervisory review of the denial of the exception of prescription/peremption as to the fraud claims. Therefore, the issue of whether the fraud claims were prescribed or preempted is not before this court.
After the writ application was filed, third-party defendants filed an exception of no cause of action and, alternatively, a motion for summary judgment as to the remaining fraud claims. A hearing was held on the exception of no cause of action and motion for summary judgment on July 23, 2018. At the conclusion, the trial court denied the exception of no cause of action, but granted the motion for summary judgment. The trial court signed a judgment on August 20, 2018, in accordance with its oral ruling, dismissing the fraud claims of the Petitto Family (MSJ judgment). The Petitto Family sought an appeal of the MSJ judgment.
The third-party defendants filed a motion to dismiss the writ application stemming from the exception judgment, which this court denied. Another panel of this court referred the writ application to the appeal panel. Therefore, we address both the writ application pertaining to the exception judgment and the appeal pertaining to the MSJ judgment.
ASSIGNMENTS OF ERROR
The Petitto Family's first two assignments of error pertain to the trial court's interpretation of La. R.S. 9:5606(A) and (C) regarding the third-party defendants' exception of prescription/peremption in conjunction with the Petitto Family's allegations of malpractice. The third assignment of error alleges that the trial court erred in granting the motion for summary judgment with regard to the fraud claims as there existed genuine issues of material fact. We first address the third assignment of error as to the granting of the motion for summary judgment.
SUMMARY JUDGMENT
After adequate discovery, a motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). The mover bears the burden of proving that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. La. C.C.P. art. 966(D)(1). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1); Holmes v. Lea, 2017-1268 (La. App. 1 Cir. 5/18/18), 250 So. 3d 1004, 1009.
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Holmes, 250 So. 3d at 1009.
A genuine issue is a triable issue, which means that an issue is genuine if reasonable persons could disagree; if on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Kasem v. State Farm Fire & Cas. Co., 2016-0217 (La. App. 1 Cir. 2/10/17), 212 So. 3d 6, 13.
LAW AND DISCUSSION
In the amended third-party demand, the Petitto Family alleges that Cooper committed fraudulent actions; that he misrepresented and suppressed the truth with an intent to obtain an unjust advantage; that he had a duty to speak regarding his failure to procure liability insurance; that he repeatedly assured the Petitto Family that he had procured liability insurance; that he made post-suit assurances that he had procured liability insurance with the intent to defraud the Petitto Family; and that the Petitto Family's delay in filing suit against Cooper was a direct result of the fraud committed by Cooper in an attempt to conceal his malpractice.
The third-party defendants filed a motion for summary judgment, claiming an absence of evidence of fraud. In support thereof, the third-party defendants attached an excerpt of the deposition of Cooper in which he stated that after receiving notice of the Petitto Family claim, he conducted research to determine coverage and that he did not give an immediate response. Cooper was unaware of the time frame of the response, but he testified that there was no coverage. Cooper also submitted an affidavit stating that Salvadore Santo Petitto, Jr. (Sal Petitto) instructed Cooper in 2006 to procure only fire, wind, and hail coverage on the Property; that Sal Petitto notified him of a claim on the Property in March or April of 2015; that Cooper advised Sal Petitto that he would research the policy in place on the Property and advise regarding the status of coverage; and that Cooper conducted an investigation into the various policies issued to the Petitto Family. Cooper denied telling Sal Petitto that liability coverage existed on the Property. He also denied that he misrepresented or falsified the status of coverage, intended to deceive or cause harm to the Petitto Family, or sought to gain an unfair advantage. Cooper also submitted an excerpt of the deposition of Sal Petitto, wherein Sal Petitto admitted he had no information that indicated Cooper intended to cause a delay.
Louisiana Civil Code article 1953 defines fraud as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction." With regard to the burden of proving fraud, La. Civ. Code art. 1957 provides that "[f]raud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence." Meyer & Assocs., Inc. v. Coushatta Tribe of Louisiana, 2014-1109 (La. App. 3 Cir. 1/27/16), 185 So. 3d 222, 242, writ denied, 2016-00369 (La. 4/22/16), 191 So. 3d 1048. Circumstantial evidence, including highly suspicious facts and circumstances, may be considered in determining whether fraud has been committed. Lomont v. Bennett, 2014-2483 (La. 6/30/15), 172 So. 3d 620, 629, cert. denied, ___ U.S. ___, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016). To be successful in obtaining summary judgment relief from the Petitto Family's allegations of fraud, the third-party defendants were required "to point out to the court the absence of factual support for one or more" of the elements required to be proven. La. C.C.P. art. 966(D)(1).
Third-party defendants rely upon Riedel v. Fenasci, 2018-0539 (La. App. 1 Cir. 12/28/18), ___ So. 3d ___, 2018 WL 6839564, at *5, which determined that because plaintiff would have the burden of proof at trial of proving that information was concealed or misrepresented, the defendants needed only to point to the absence of factual support for this element of plaintiff's claims in support of their motion for summary judgment. The burden then shifted to the plaintiff to produce factual support sufficient to establish the existence of a genuine issue of fact as to whether the defendants concealed or misrepresented such information. La. C.C.P. art. 966(D)(1); see Louisiana Pigment Co., L.P. v. Scott Const. Co., Inc., 2006-1026 (La. App. 3 Cir. 12/20/06), 945 So. 2d 980, 985 (insofar as the defendants would not bear the burden of proof at trial, the court had to determine whether they, as the moving parties, had shown the absence of one or more elements essential to plaintiff's fraud claim).
In opposing the motion for summary judgment, the Petitto Family refers to the allegations made in the amended third-party demand. Furthermore, the Petitto Family directed the trial court's attention to a paragraph contained in the amended third-party demand, which indicated certain information that Sal Petitto intended to testify to at the hearing on the exception of prescription/peremption. We note that no testimony was taken at the hearing on the exception of prescription/peremption. We find no affidavit in the record with the information contained in the amended third-party demand. Therefore, the allegations made in the amended third-party demand are merely allegations and do not constitute evidence. See also, La. C.C.P. art. 967(B) (stating in pertinent part that "an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial").
The opposition filed by the Petitto Family was to the exception of no cause of action and, alternatively, to the motion for summary judgment. The Petitto Family appears to rely on the factual allegations made in the amended third-party demand in opposing both the exception of no cause of action and the motion for summary judgment.
The Petitto Family also opposed the motion for summary judgment, relying on excerpts of Cooper's deposition and Sal Petitto's affidavit. Cooper testified that when he received notice of the claim, he had to research whether there was coverage. He ultimately learned that there was no coverage. Cooper could not recall when he told Sal Petitto that there was no coverage. He could not recall exactly when he determined that there was no coverage. Sal Petitto testified by affidavit that he notified Cooper of the claim involving the Property in March or April of 2015, and Cooper responded he would research the status of coverage. Sal Petitto stated that between that date and March 2017, Cooper told him that he was investigating various policies for the numerous properties owned by the Petitto Family regarding coverage for the Property. Sal Petitto also testified that Cooper informed him that there was liability coverage on the Property both before and after Irving's suit was filed. Sal Petitto testified that Cooper advised him that research was necessary to determine the coverage for the Property. He further stated that Cooper misrepresented and falsified the status of liability coverage with the intent to deceive the Petitto Family regarding the status of liability coverage on the Property in order to gain an unjust advantage.
In their reply memorandum, the third-party defendants assert that the Petitto Family relies on conclusory facts and that unsupported conclusions cannot support the fraud claim. Ultimate or conclusory facts or conclusions of law are not to be utilized on a summary judgment motion. Labarre v. Occidental Chem. Co., 2017-1370 (La. App. 1 Cir. 6/4/18), 251 So. 3d 1092, 1102, writ denied, 2018-1380 (La. 12/3/18), 257 So. 3d 196 (citing Thompson v. South Central Bell Tel. Co., 411 So. 2d 26, 28 (La. 1982)). We find that the affidavits offered both in support of and in opposition to the motion for summary judgment include statements as to ultimate or conclusory facts or conclusions of law with regard to Cooper's intent to deceive. These statements cannot be used to support or defeat summary judgment.
See Paragraphs 13-15 of Cooper's affidavit and the last three paragraphs of Sal Petitto's affidavit.
The Petitto Family avers that Cooper fraudulently concealed that there was no insurance coverage in order to lull the Petitto Family into inaction. "Concealment of malpractice to avoid a malpractice claim" constitutes fraud. Lomont, 172 So. 3d at 628. Two elements must be proven to establish fraud: an intent to defraud and resulting damage. See Lomont, 172 So. 3d at 629. "Louisiana law recognizes that the refusal to speak, in the face of an obligation to do so, is not merely unfair but is fraudulent." Lomont, 172 So. 3d at 629 (quoting Bunge Corporation v. GATX Corporation, 557 So. 2d 1376, 1383 (La. 1990)). In Lomont, the Louisiana Supreme Court found that the defendant intended to defraud the plaintiff by lulling her into inaction. Lomont, 172 So. 3d at 634.
The third-party defendants assert that the following deposition testimony of Sal Petitto precludes the Petitto Family's claim of fraud:
Q. ... Okay. Do you have any information that indicates Bob Cooper intended to cause a delay?
A. I have no idea.The lack of direct evidence of fraud, however, is not dispositive. Fraud may be proven through circumstantial evidence. See Lomont, 172 So. 3d at 629.
Summary judgment is seldom appropriate for determinations based on subjective facts of intent, motive, malice, good faith, or knowledge. Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So. 2d 1002, 1006. These subjective facts call for credibility evaluations and the weighing of testimony. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072 (La. App. 2 Cir. 4/4/07), 954 So. 2d 883, 891, writ denied, 2007-1146 (La. 9/14/07), 963 So. 2d 1001. "[E]ven though granting a summary judgment based on an intent issue may be rare, it can be done when there is no issue of material fact concerning the pertinent intent." Carter v. BRMAP, 591 So. 2d 1184, 1189 (La. App. 1 Cir. 1991). However, given that circumstantial evidence, including highly suspicious facts and circumstances, may be considered in determining whether fraud has been committed, we find that there is sufficient evidence to find that a genuine issue of material fact does exist as to whether Cooper committed fraud in order to conceal his malpractice. See Lomont, 172 So. 3d at 629. Cooper's intent in his conversations with Sal Petitto, allegedly to conceal his malpractice, is at the heart of the Petitto Family's fraud claim.
We find that the evidence presented on summary judgment and in opposition to summary judgment as to the occurrence of events regarding concealment of malpractice is conflicting. Resolution of these conflicting versions of the facts would require the weighing of conflicting evidence and determination of credibility, which are inappropriate in summary judgment proceedings. The law is well settled that the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence in making a decision whether to grant or deny a motion for summary judgment. Pumphrey v. Harris, 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So. 3d 86, 91. If reasonable minds could differ as to an issue of material fact, summary judgment is improper. Woodland Properties, L.L.C. v. New Orleans Sewerage and Water Bd., 2010-0331 (La. App. 4 Cir. 9/29/10), 49 So. 3d 443, 445. We find there is conflicting testimony as to Cooper's intent and reasonable minds could differ as to whether Cooper made any assurances to Sal Petitto regarding coverage with an intent to lull the Petitto Family into inaction. Although the evidence put forth by the Petitto Family may be insufficient proof of fraud at a trial on the merits, it is sufficient to defeat summary judgment. See Charles v. Moore Petroleum, Inc., 2017-0909 (La. App. 1 Cir. 1/23/18), 241 So. 3d 1022, 1027, writ denied, 2018-0456 (La. 5/11/18), 242 So. 3d 567. Accordingly, based on our de novo review, we are unable to find that the third-party defendants satisfied the required burden of demonstrating that no genuine issues of material fact remain.
We further note that although resolution of conflicting issues may be entirely proper when ruling on an exception of prescription/peremption, they are inappropriate when made in the context of a motion for summary judgment. See M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov't, 2015-0860 (La. App. 4 Cir. 12/2/15), 182 So. 3d 312, 324.
EXCEPTION OF PRESCRIPTION/PEREMPTION
Having decided that genuine issues of material fact exist regarding the Petitto Family's claims of fraud, we must now determine if the trial court erred in granting the exception of prescription/peremption on the underlying malpractice claims. The Petitto Family's first two assignments of error pertain to whether the trial court erred in granting the exception as to the claims made in the original third-party demand, while denying the exception as to fraud.
Peremption may be raised by a peremptory exception. See La. C.C.P. art. 927(A)(2). At the hearing on the exception of peremption, evidence may be introduced to support or controvert the exception. See La. C.C.P. art. 931. If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc., 2008-1163 (La. 5/22/09), 16 So. 3d 1065, 1082. In the absence of evidence, an exception of peremption must be decided based upon the facts alleged in the petition with all of the allegations accepted as true. 1900 Highway 190, L.L.C. v. City of Slidell, 2015-1755 (La. App. 1 Cir. 6/3/16), 196 So. 3d 693, 696. If no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court's role is to determine whether the trial court's ruling was legally correct. Harris v. Breaud, 2017-0421 (La. App. 1 Cir. 2/27/18), 243 So. 3d 572, 578-79. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception of peremption. See Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So. 2d 1261, 1267. However, if peremption is evident on the face of the pleadings, then the burden shifts to the other party to show that the claim is not perempted. Rando, 16 So. 3d at 1082.
Louisiana Revised Statute 9:5606(A) provides:
No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
The plain language of La. R.S. 9:5606(C), however, is that the "peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953." Louisiana Civil Code article 1953 defines fraud as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other."
The Petitto Family argues that the "fraud" referenced in La. R.S. 9:5606(C) bars the application of the peremption provided for in La. R.S. 9:5606(A). The third-party defendants argue that once Louisiana Farm Bureau filed its answer denying coverage on June 15, 2015, and at the latest when Louisiana Farm Bureau was dismissed on April 21, 2016, the Petitto Family should have discovered the alleged "act, omission, or neglect" by Cooper. Accordingly, they claim that the third-party demand, which was filed more than one-year after either of those discovery dates, was prescribed. The third-party defendants assert that regardless of the date of discovery, La. R.S. 9:5606(A) requires that claims must be filed within three years of the act, omission, or neglect.
The Petitto Family filed its third-party demand and amended third-party demand over three years after the January 1, 2012 alleged act, omission, or neglect. However, the Petitto Family alleged that Cooper committed fraud, which it first discovered in March 2017. Furthermore, the Petitto Family alleged that it had reason to believe that Cooper was attempting to locate liability coverage with insurance companies other than Louisiana Farm Bureau up until Cooper admitted he had not procured liability coverage on the Property in March 2017.
From the transcript of the May 21, 2018 hearing on the exception, it is evident that no witness testified and no evidence was received. Consequently, this court must determine if the trial court's ruling on the exception was legally correct, and the manifest error standard of review does not apply. See Harris, 243 So. 3d at 578-79. Furthermore, as no evidence was introduced on the exception of prescription/peremption, this court must accept the facts alleged in the amended third-party demand as true. See 1900 Highway 190, L.L.C., 196 So. 3d at 696. Taking the allegations of the amended third-party demand as true, on the face of the pleadings, the third-party demand filed on May 8, 2017, does not appear to be prescribed and/or preempted.
In Lomont, the Louisiana Supreme Court determined that concealment of malpractice to avoid a malpractice claim conforms to the definition of fraud, and the Court recognized the absurdity of interpreting the statute to permit attorneys to engage in concealment of malpractice until the three-year peremptive period expired. Lomont, 172 So. 3d at 628-29. The Louisiana Supreme Court overruled the decisions of several lower circuits "to the extent [those] cases [held] an attorney's post-malpractice actions consisting of fraudulent concealment cannot amount to fraud within the meaning of Subsection (E)" of La. R.S. 9:5605. Lomont, 172 So. 2d at 628.
The Louisiana Supreme Court in Lomont interpreted La. R.S. 9:5605(A) and (E), which pertain to attorney malpractice. At issue in this matter are La. R.S. 9:5606(A) and (C), which pertain to insurance agent malpractice and correlate with the provisions of La. R.S. 9:5605(A) and (E).
In Lomont, once fraud was established, the Louisiana Supreme Court stated:
Because all of the time periods in La. R.S. 9:5605 are peremptive in nature, the clear wording of Subsection (E) mandates that none of the time periods in the statute can be applied to legal malpractice claims once fraud had been established. After de novo review we interpret the statute to provide that once fraud is established, no peremptive period set forth in the statute is applicable.Lomont, 172 So. 3d at 636 (emphasis in original). Thus, the Louisiana Supreme Court held that in cases where fraud is established pursuant to La. R.S. 9:5605(E), a legal malpractice claim is governed by the one-year prescriptive period set forth in La. C.C. art. 3492.
Applying the ordinary principles of prescription, Lomont also held that the jurisprudential doctrine of contra non valentem prevents the running of prescription "where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action." Lomont, 172 So. 3d at 637. The Court observed that the defendant's actions, which were undertaken with the intent to lull the plaintiff into inaction and prevent her from asserting a malpractice claim, were the cause of plaintiff's delay in bringing her action. Lomont, 172 So. 3d at 637. Therefore, the Louisiana Supreme Court found that the application of contra non valentem applied and that the plaintiff timely filed suit within one year of discovering defendant's malpractice. Lomont, 172 So. 3d at 639. After the Louisiana Supreme Court remanded the matter to the appellate court, that court noted that the underlying malpractice claim was still viable and had not yet been decided. Lomont v. Myer-Bennett, 2016-436 (La. App. 5 Cir. 12/14/16), 210 So. 3d 435, 441 n.3, writ denied, 2018-0088 (La. 2/24/17), 216 So. 3d 59.
The Petitto Family alleged in its third-party demand that it was lulled into inaction by the fraudulent actions of Cooper. Specifically, the Petitto Family alleged that post suit, Cooper continued to reassure Sal Petitto that he had procured liability coverage on the Property and was looking for the insurer. The Petitto Family believed Cooper's actions to be reasonable, since Cooper sometimes procures policies from insurers other than Louisiana Farm Bureau. The Petitto Family further alleged that Cooper did not admit that he failed to procure liability coverage until March 2017, approximately two months before the third-party demand was filed.
Because the claims against the third-party defendants are not preempted on the face of the pleadings, the burden was on third-party defendants to prove the facts to support its exception of prescription/peremption. See Rando, 16 So. 3d at 1082. No evidence was introduced at the hearing and, on the face of the record before us, the third-party defendants failed to carry that burden. Since the burden of proof was on the third-party defendants, and they presented no evidence, the trial court legally erred in granting the exception of prescription/peremption. See Atain Speciality Ins. Co. v. Premier Performance Marine, LLC, 2015-1128 (La. App. 1 Cir. 4/8/16), 193 So. 3d 187, 191. Taking the allegations of the pleadings as true, the Petitto Family alleged that it did not discover the fraud of Cooper until March 2017. The malpractice suit was filed on May 8, 2017, and is therefore timely.
CONCLUSION
For the above and foregoing reasons, we reverse the August 20, 2018 judgment granting summary judgment to Robert Dean Cooper, Jr. and Liberty Insurance Underwriters, Inc. against the Petitto Family, LLC and dismissing all its claims. We grant the writ application of the Petitto Family, LLC concerning the judgment rendered May 21, 2018, and hereby reverse that judgment. All costs of this appeal are assessed against to Robert Dean Cooper, Jr. and Liberty Insurance Underwriters, Inc.
AUGUST 20, 2018 JUDGMENT REVERSED; WRIT GRANTED AND MAY 21, 2018 JUDGMENT REVERSED.