Opinion
2011 CA 2176 R
2013-09-16
RAFAEL AND DIOIGNA ACEVEDO v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY
Al J. Robert, Jr. New Orleans, Louisiana Counsel for Plaintiffs-Appellants Rafael and Dioigna Acevedo Andrew L. Pauche, Jr. James K. Ordeneaux Scott H. Mason New Orleans, Louisiana Counsel for Defendant-Appellee Louisiana Farm Bureau Mutual Insurance Company
NOT DESIGNATED FOR PUBLICATION
ON REMAND FROM THE SUPREME COURT
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 2008-16821, DIV. B, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
HONORABLE AUGUST J. HAND, JUDGE
Al J. Robert, Jr.
New Orleans, Louisiana
Counsel for Plaintiffs-Appellants
Rafael and Dioigna Acevedo
Andrew L. Pauche, Jr.
James K. Ordeneaux
Scott H. Mason
New Orleans, Louisiana
Counsel for Defendant-Appellee
Louisiana Farm Bureau Mutual
Insurance Company
BEFORE: WHIPPLE, KUHN, AND GUIDRY, JJ.
Disposition: JOINT MOTION GRANTED: VACATED AND REMANDED.
KUHN, J.
Plaintiffs, Rafael and Dioigna Acevedo, appealed the trial court's judgment, sustaining a peremptory exception raising the objection of prescription filed by defendant, Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau) and dismissing their claims. This court affirmed. See Acevedo v. Louisiana Farm Bureau Mut. Ins. Co., 2011-2176 (La. App. 1st Cir. 7/2/2012) (an unpublished opinion). Plaintiffs' writ for supervisory review was granted by the Louisiana Supreme Court and the matter was remanded to us for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 2011-2835 (La. 11/2/12), --- So.3d ----, 2012 WL 5374248 and Quinn v. Louisiana Citizens Property Ins. Corp., 2012-0152 (La. 11/2/12), --- So.3d ----, 2012 WL 5374255. See Acevedo v. Louisiana Farm Bureau Mut. Ins. Co., 2012-1790 (La. 4/19/13), 111 So.3d 1025.
As noted in our previous decision, the Acevedos filed this lawsuit on January 5, 2009, against their homeowner insurer, Farm Bureau, averring that on August 29, 2005, as a result of the wind and wind-driven rains of Hurricane Katrina, their home, located in Slidell, Louisiana, sustained damage to the roof and interior including the contents. The Acevedos alleged that their home had been rendered uninhabitable for an extended period of time and was a total loss. According to the petition's allegations, Farm Bureau made a partial payment, but declined to pay the full amount of loss. The Acevedos sought the difference between the partial payment and the policy limits as well as penalties and attorney's fees.
Farm Bureau filed a peremptory exception of prescription, claiming that the Acevedo's lawsuit was untimely since it had been filed well after August 30, 2007, the date all claims under insurance policies for damages caused by Hurricane Katrina were barred by special legislation. See Act 802 of the 2006 Louisiana Regular Session. Although the Acevedos urged that because they were putative class members in actions for which the courts had not yet ruled on the propriety of class certification and, therefore, under La. C.C.P. art. 596 they were entitled to suspension of prescription, the trial court, and subsequently this court, ruled to the contrary, and their claims were dismissed.
Subsequent to the Louisiana Supreme Court's remand of the matter to this court, the parties filed a joint motion to (1) vacate the trial court's judgment, sustaining the peremptory exception raising the objection of prescription, and (2) remand for further proceedings. In their joint pleading, the parties aver that the trial court record, as presently developed, is insufficient for this court to fully resolve the issues raised in this appeal in light of Duckworth and Quinn. They collectively urge that it is in the interest of judicial efficiency and expediency for this court to vacate the trial court's judgment and remand to complete the record. See e.g., Ansardi v. Louisiana Citizens Property Ins. Corp., 2011-1717 (La. App. 4th Cir. 3/1/13), 111 So.3d 460, 484-85, writs denied, 2013-0697 (La. 5/17/13), 2013 WL 3499794, 2013-0698 (La. 5/17/13), 2013 WL 3499780.
Although at oral arguments and in its brief, Farm Bureau suggested entitlement to relief different from that stated in the joint motion, the insurer may be judicially estopped from taking a contrary position at this juncture. See
DECREE
Accordingly, we grant the parties' joint motion. The trial court's judgment, sustaining the exception of prescription and dismissing the Acevedos' claims, is vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion. Appeal costs are assessed one-half to the Acevedos and one-half to Louisiana Farm Bureau Mutual Insurance Company.
JOINT MOTION GRANTED: VACATED AND REMANDED.
Lowman v. Merrick, 2006-0921 (La. App. 1st Cir. 3/23/07), 960 So.2d 84, 92 (the doctrine of judicial estoppel prohibits parties from deliberately changing positions according to the exigencies of the moment. The doctrine is intended to prevent the perversion of the judicial process and prevents playing fast and loose with the courts).