Opinion
NO. 2016 CW 0470
08-01-2016
TINA MARIE BERNOS, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF TYLER BERNOS v. SUZUKI MOTOR OF AMERICA, INC. AND CHAMPION CYCLE OF LOUISIANA, LLC AND CHAMPION CYCLE
In Re: Suzuki Motor of America, Inc., applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 2015-14096. BEFORE: DRAKE, HOLDRIDGE AND CHUTZ, JJ.
WRIT GRANTED WITH ORDER. Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So.2d 1261, 1267. We find that the plaintiff's petition is prescribed on its face, as it was filed more than one year after the date the injury or damages were sustained. See La. Civ. Code art. 3942. We further find that plaintiff has not met her burden of showing that the action has not prescribed as the petition does not allege sufficient facts to establish prescription was suspended under the doctrine of contra non valentem. See Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La. 1987); Williams v. The Library, 2012-0220 (La. App. 1st Cir. 11/2/12), 111 So.3d 356, 359, writ not considered, 2013-0155 (La. 3/8/13), 109 So.3d 352. Accordingly, the writ is granted and the district court's February 26, 2016 judgment denying Suzuki Motor of America, Inc.'s peremptory exception of prescription is reversed. The exception of prescription is sustained and this matter is remanded with instructions that the district court shall allow plaintiff the opportunity to amend her pleading in order to attempt to remove the grounds of the objection raised herein. See La. Code Civ. P. art. 934.
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WRC
COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT