Opinion
2012 CA 0108-R
2013-09-16
COREY COOPER, ET AL v. LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY
Joseph M. Bruno Melissa A. DeBarbieris New Orleans, Louisiana Attorneys for Plaintiff/Appellant Corey Cooper Charles M. Hughes, Jr. Rachael P. Catalanotto Ryan G. Davis Mandeville, Louisiana and John W. Waters, Jr. Kristin Mosely Jones New Orleans, Louisiana Attorneys for Defendant/Appellee Louisiana Citizens Property Insurance Corporation
NOT DESIGNATED FOR PUBLICATION
ON REMAND FROM THE SUPREME COURT
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 2010-15824, DIVISION "F"
HONORABLE MARTIN E. COADY, JUDGE
Joseph M. Bruno
Melissa A. DeBarbieris
New Orleans, Louisiana
Attorneys for Plaintiff/Appellant
Corey Cooper
Charles M. Hughes, Jr.
Rachael P. Catalanotto
Ryan G. Davis
Mandeville, Louisiana
and
John W. Waters, Jr.
Kristin Mosely Jones
New Orleans, Louisiana
Attorneys for Defendant/Appellee
Louisiana Citizens Property Insurance
Corporation
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
McDONALD, J.
The plaintiff, Corey Cooper, appealed the district court's judgment sustaining an exception raising the objection of prescription, filed by the defendant, Louisiana Citizens Property Insurance Corporation (Louisiana Citizens), and dismissing her claims. In Cooper v. Louisiana Citizens Property Ins. Co., 2012-0108 (La. App. 1 Cir. 9/21/12) (unpublished), this court affirmed that judgment. Plaintiff's application for a 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__, and Quinn v. Louisiana Citizens Property Ins. Corp., 2012-0152 (La. 11/2/12), __So.3d__. See Cooper v. Louisiana Citizens Property Ins. Co., 2012-2276 (La. 4/19/13),111 So.3d 1026.
The facts of the case are set out in our previous decision. On September 17, 2010, Ms. Cooper filed suit for damages against Louisiana Citizens for a Hurricane Katrina claim. Ms. Cooper asserted that she owned immovable property with improvements and personal property in St. Tammany Parish, that she had homeowner's insurance with Louisiana Citizens, and that after Hurricane Katrina she presented her claims for damages in a timely fashion but that Louisiana Citizens failed to pay the amount due under her policy and violated its duties of good faith and fair dealing. Ms. Cooper asserted that Louisiana Citizens was a defendant in eight putative class actions, and as a result of those filings, prescription had been interrupted as to Louisiana Citizens. Ms. Cooper further noted that as no notice had been published pursuant to La. C.C.P. art 596 regarding filings on the issue of class certification, prescription had been suspended on her claims.
Act 802 of the 2006 Regular Session of the Louisiana Legislature allowed the filing of Hurricane Katrina-related claims for damages on or before August 30, 2007, effectively extending the regular prescriptive period to file such claims. Ms. Cooper's petition was filed more than three years after the legislative prescriptive period of Act 802 had ended.
Louisiana Citizens filed an answer to the petition and a peremptory exception raising the objection of prescription, asserting that Ms. Cooper's claims were prescribed. After a hearing, the district court ruled in favor of Louisiana Citizens, sustaining the prescription exception and dismissing Ms. Cooper's claims with prejudice. The district court found that Ms. Cooper's petition was prescribed on its face; that she failed to prove she was a member of any of the class actions; that she could not show that prescription was suspended because of her membership in a class action; and that she opted out of pending class actions by filing an individual lawsuit before class certification was determined. This court affirmed that judgment.
On remand to this court, Ms. Cooper urges that the suit should be remanded to the district court to allow her the opportunity to supplement and amend her petition. Ms. Cooper cites Wyman v. Dupepe Const., 2009-0817 (La. 12/1/09), 24 So.3d 848, 849, wherein the supreme court reiterated that "when a court sustains an exception of prescription, it should permit amendment of the plaintiff's pleadings if the new allegations which the plaintiff proposes raise the possibility the claim is not prescribed, even if the ultimate outcome of the prescription issue, once the petition is amended, is uncertain."
In their brief, Louisiana Citizens maintains that while Ms. Cooper alleged that her claim was interrupted by eight class actions naming Louisiana Citizens as a defendant, she did not allege that she was a member of any of these actions or that these actions assert the same claims that she is asserting. Louisiana Citizens notes that in Quinn, the Louisiana Supreme Court held that cross-jurisdictional tolling did not apply in Louisiana, and thus Ms. Cooper cannot rely on a class action pending in federal court to suspend prescription for her Louisiana claims. Quinn, __So.3d at__.
Louisiana Citizens concedes that the Louisiana Supreme Court in Duckworth held that a putative class member who files an individual lawsuit before certification does not opt out of the class action. Duckworth, __So.3d at __. However, Louisiana Citizens maintains that Duckworth and Quinn also held that after a court rules on class certification, that court's ruling is res judicata and binds all members of the class who do not timely opt out. Louisiana Citizens then goes on to discuss the status of the four state court class actions listed by Ms. Cooper in her petition.
The record in this case lacks the requisite evidence of the facts of Ms. Cooper's case and the status of the state class actions Ms. Cooper relies upon to determine whether Ms. Cooper's case is prescribed. Even though the district court properly determined that this case was prescribed on its face, and Ms. Cooper failed to carry her burden of proof to show otherwise, nevertheless the district court erred when it failed to allow Ms. Cooper an opportunity to amend her petition.
Thus, in accordance with Wyraan, and after our reconsideration of this matter in light of Duckworth and Quinn, we affirm the district court's judgment, but we amend the judgment to remand the matter to the district court to allow Ms. Cooper to amend her petition, if she can, within the delay allowed by the district court, to allege facts that would show her claim is not prescribed. See Wyman, 24 So.3d at 849. The matter is remanded to the district court for further proceedings consistent with this opinion.
Costs of the appeal in the amount of $709.13 are assessed one-half against Corey Cooper and one-half against Louisiana Citizens Property Insurance Corporation.
AFFIRMED, AS AMENDED, AND REMANDED.