Opinion
No. 2023-C-00132.
04-25-2023
Dewayne Douglas DOWD, Sr., Individually and as Administrator of The Estate of Cora Lee Dowd (Deceased) v. HELENA EMERGENCY PHYSICIANS, PLLC, et al.
Writ application granted in part; denied in part. See per curiam.
Crain, J., dissents relative to prescription.
PER CURIAM.
Writ denied in part, granted in part. Delictual actions in Louisiana are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. LSA-C.C. Art. 3492. Jurisprudence has interpreted this rule to mean that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Intracoastal Seafood Co., Inc. v. Scott, 556 So.2d 974, 976 (La. App. 3 Cir. 1990). Under the discovery rule, prescription begins "when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort." Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502. Constructive knowledge is "whatever notice is enough to excite attention and put the injured person on guard and call for inquiry". Id.; Jenkins v. Starns, 11-1170 (La. 1/24/12), 85 So.3d 612. Constructive knowledge or notice sufficient to commence the running of prescription requires more than a mere apprehension that something might be wrong; prescription will commence only when plaintiff knew or should have known by exercising reasonable diligence that tortious conduct occurred and that certain parties are responsible. Intracoastal Seafood Co., 556 So. 2d at 977.
In his petition, applicant stated a cause of action for fraud against defendants, alleging that respondents took specific actions to render Oceanus insolvent and unable to satisfy its obligations with the intent of avoiding the Levy judgment and defrauding applicant. Based on the allegations of the petition, both lower courts agreed that the petition was not prescribed on its face. Thus, respondents bore the burden of proof in this case to prove that the applicant's fraud claims had prescribed. The lower courts found that the applicant was on notice that Oceanus was insolvent "as of October 4, 2017," the date the applicant filed his claim in Oceanus's insolvency litigation. The lower courts, however, fail to explain how the filing of a proof of claim in Oceanus's liquidation imparted knowledge to the applicant of respondents' fraudulent acts. The lower courts erred insofar as they found that applicant's knowledge of Oceanus's insolvency should have put him on notice of possible fraud by respondents. The judgment sustaining the exception of prescription and dismissing applicant's claims is reversed and this matter is remanded for further proceedings. In all other respects, the writ is denied.