Opinion
No. 08-1268.
April 1, 2009. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 229,931 HONORABLE DONALD THADDEUS JOHNSON, DISTRICT JUDGE.
Mary McCrory Hamilton, Voorhies Labbe, Lafayette, LA, Counsel for Defendant /Appellee: ICT Insurance Agency, Inc. a/k/a Regions Insurance.
Mark Reese Pharr, III Galloway, Johnson, et al, Lafayette, LA, Counsel for Defendant/ Appellee: GuideOne Mutual Insurance Co.
Mark Felipe Vilar, Aaron L. Green, Vilar Elliott, Alexandria, LA, Counsel for Plaintiff/ Appellant: Good Hope Baptist Church.
Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
This case involves a church filing suit against its insurance agency. The church had an existing policy of insurance through the agency when it was given a building adjacent to its church. The church requested that the donated building be added onto its existing policy on May 7, 2003. The insurance agency did as the church requested and had the building added to the church's existing policy of insurance.
The building was vandalized and some items were stolen from the building on September 9, 2006. The church filed a claim with the insurer for its losses. The insurer denied the claim due to a vacancy provision that was included in the policy.
In response, the church filed suit against both the insurer and the insurance agency. The insurance agency filed a peremptory exception of peremption under La.R.S. 9:5606.
The trial court granted this exception and dismissed the church's claims against the insurance agency. The church appealed this judgment. We affirm.
FACTS AND PROCEDURAL HISTORY:
Good Hope Baptist Church (Good Hope) is located in Pineville, Louisiana. Its property consists of a sanctuary, Sunday school classrooms, and the Fellowship Hall. These properties are insured by GuideOne Mutual Insurance Company (GuideOne). Good Hope acquired the Fellowship Hall via donation in May of 2003. Thereafter, Good Hope contacted ICT Insurance Agency, Inc. (ICT) in order to add the hall to its existing insurance policy. GuideOne, with ICT acting as insurance agent, did so on May 7, 2003.
On September 9, 2006, the Fellowship Hall was broken into, vandalized, and numerous items were stolen. As a result, Good Hope, through ICT, filed a claim based upon its insurance policy. GuideOne denied the claim, asserting that its policy contained a vacancy provision that precluded coverage for these types of damages. The vacancy provision, as contained in the denial letter from GuideOne to Good Hope, provided as follows:
b. Vacancy Provisions
If the building where loss or damage occurs has been vacant for more than sixty consecutive days before that loss or damage occurs; (1) we will not pay for loss or damage caused by any of the following even if they are covered causes of loss:
a. vandalism;
b. sprinkler leakage, unless you have protected the system against freezing;
c. building glass breakage;
d. water damage;
e. theft; or
f. attempted theft.
On November 30, 2007, Good Hope filed suit against ICT only, as it mistakenly thought that ICT was an insurance company. When Good Hope was made aware that its insurer was GuideOne and that ICT was its insurance agent, it amended its petition and asserted claims against GuideOne and ICT, but the allegations against ICT were only in the capacity of an insurance company. Thereafter, ICT moved for summary judgment on the basis that it was not the insurer of Good Hope. The motion was heard, and the court allowed Good Hope additional time for discovery and amendment of its petition. Good Hope then amended its petition a second time, asserting allegations against ICT as an insurance agency.
In response, ICT filed a peremptory exception of peremption based on La.R.S. 9:5606. The trial court heard the exception on August 11, 2008, and, after taking evidence, rendered an oral judgment granting ICT's exception. Good Hope timely filed this appeal, raising one assignment of error.
DISCUSSION OF THE MERITS:
Good Hope contends that the trial court committed legal error when it sustained ICT's peremptory exception of peremption without any analysis of the applicable time periods, when the time periods may have commenced, or factual allegations of fraud. We find these contentions to be without merit.
When evidence is introduced and evaluated regarding an exception of peremption, the applicable standard of review is that of manifest error. Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242.
Louisiana Revised Statutes 9:5606 states:
A. 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.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
"Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. "La.Civ. Code art. 3458. Under a peremptive statute, when the action is not timely on the face of the petition, the burden shifts to the party bringing that action to prove that it is not perempted. Dauterive Contractors, Inc., 811 So.2d 1242.
In the case before us, Good Hope added the Fellowship Hall to its existing insurance policy on May 7, 2003. The loss occurred on September 9, 2006, and, after being denied coverage by GuideOne, Good Hope filed suit against ICT on November 30, 2007. It is clear that more than three years transpired between November 30, 2007, and May 7, 2003. Thus, at the trial court level, the burden was on Good Hope to prove that its action against ICT was not perempted. After a hearing where the trial court heard evidence, it determined that Good Hope had not carried that burden. As such, in order for this court to disturb the judgment of the trial court, Good Hope must show that the trial court was manifestly erroneous or clearly wrong in its findings.
After reviewing the record thoroughly, we find that Good Hope has failed to display how the trial court's determination was clearly wrong. Good Hope first argues that the trial court did not address the issues relevant to ICT's exception. This argument is baseless. The judgment made by the trial court is clearly based on peremption because it stated, "I'm going to rule, on the basis of Peremption, that ICT is out of this."
Another argument made by Good Hope is that ICT failed to meet its burden of proving the facts necessary to sustain its exception. Good Hope's argument misstates the law as to which party has the burden of proof. It is clear that the petition was perempted on its face. As such, it is equally clear that the burden of proof shifted to Good Hope to show how its claims against ICT were not perempted. As such, this argument has no merit.
Next, Good Hope contends that La.R.S. 9:5606 does not apply to this case because of ICT's potentially fraudulent conduct. Louisiana Civil Code Article 1953 states: "Fraud is 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."
Good Hope claims that ICT intentionally gained the advantage of collecting a percentage of its premiums paid to GuideOne by misrepresenting or suppressing the truth that the Fellowship Hall might not be covered under certain circumstances according to the language of the policy that GuideOne sold to them. This claim is not supported by the record.
While ICT did benefit from collecting a percentage of the premiums that Good Hope paid to GuideOne, ICT would have equally benefitted from GuideOne selling a different policy to Good Hope that did not have the vacancy provision. There is no evidence to suggest that Good Hope had any intention of not using ICT as its agent or that ICT hid anything from Good Hope in order to procure Good Hope's business. The necessary intent element for fraud clearly does not exist in this case. Additionally, it is GuideOne that would have to pay any claims made by Good Hope, not ICT. As such, it would be GuideOne's net profits that could potentially benefit from the vacancy provision in the policy, not ICT's. Thus, the contention that ICT benefitted from any misrepresentation or suppression is baseless.
Moreover, it is clear from the record that ICT did exactly as Good Hope requested. Good Hope asked ICT to add the Fellowship Hall to its policy so as to cover the Fellowship Hall under the same terms as the other buildings covered in the policy. This is exactly what ICT did. Accordingly, despite Good Hope's contention otherwise, we find that La.R.S. 9:5606 does apply to the case before us, as there is no basis in the record that ICT acted in a fraudulent manner.
Good Hope next argues that the one-year period in La.R.S. 9:5606 did not begin to run until February 1, 2007. As such, Good Hope contends that the date it filed suit, November 30, 2007, was within that one-year period. This argument is not relevant.
Even assuming that Good Hope is correct that the one-year period did not begin to run until February 1, 2007, the fact remains that it did not file suit until after three years from the alleged act on May 7, 2003. The last sentence of La.R.S. 9:5606(A) states, "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." In its petition, Good Hope only asserts claims against ICT for acts that occurred on or prior to May 7, 2003. As such, regardless of when the one-year time period began to run, the three-year period prevents Good Hope from maintaining this action.
The next argument Good Hope makes is that the three-year period has not run on all of its claims against ICT because its cause of action against ICT involves numerous individual acts. As such, Good Hope asserts that each individual act starts a new peremptive time period running for that individual act.
Generally, subsequent renewals of insurance policies "do not operate to restart peremption." However, renewals can be the basis of separate torts, if the complained of conduct constitutes separate and distinct acts, which give rise to immediately apparent damages. The inquiry is whether the actions of the insurance agent at the time of renewal can be construed to constitute an act separate from the initial policy procurement.
Branton v. Maddox, 42,853, p. 3 (La.App. 2 Cir. 1/9/08), 974 So.2d 190, 192-93 (quoting White v. Allstate Ins. Co., 513 F.Supp.2d 674 (E.D.La. 2007)(citationsomitted.)
While Good Hope alleges that there were many separate and distinct acts by ICT, it fails to point out any evidence in the record of those acts. Moreover, there is evidence in the record that Good Hope simply paid its premiums and did nothing more. The following excerpt of the deposition testimony of Kevin Dorn, a trustee/board member of Good Hope, is an example:
Q Was it any part of the responsibilities of the board of trustees to review insurance policies for the church?
A Well, that would come into play if it was time to change insurance or do something that was different or up coverage or what have you, but we hadn't been in that predicament in years.
Generally, if you look at it — and I don't know how familiar you are with the insurance company that we're with, but from my understanding I can't remember doing anything else other than paying premiums.
The jurisprudence is clear. Simply renewing a policy of insurance and paying premiums is not "construed to constitute an act separate from the initial policy procurement." Branton, 974 So.2d at 193. Consequently, this argument by Good Hope is without merit.
Finally, Good Hope puts forth the argument that, at minimum, questions of fact exist in the case that preclude ICT from satisfying its burden of proof. As stated above, it is Good Hope that has the burden of proof, not ICT. Thus, again, Good Hope's argument on this issue is misguided.
Good Hope then protests that ICT did not make any person available for deposition and that ICT cut discovery short by prematurely filing a motion for summary judgment after Good Hope filed its first amended petition.
With regard to the issue of ICT's actions for discovery purposes, Good Hope did not raise this issue at the trial court level. "The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." La. Code Civ.P. art. 2164. As such, we cannot consider this issue for the first time on appeal. See Uniform Rules — Courts of Appeal, Rule 1-3 which provides that "[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise."
Moreover, Good Hope was given more time by the trial court after its first amended petition for discovery, and it had ample opportunity to take advantage of that time. There are procedural devices that Good Hope could have used to take the depositions it desired or to get more time to conduct discovery. It failed to use any of those devices.
Therefore, we find no manifest error in the trial court's granting of ICT's exception of peremption. Good Hope failed to meet its burden of proof that its claims against ICT were not perempted. As such, we affirm the trial court's judgment.
CONCLUSION:
Good Hope raised one assignment of error. It argued that the trial court erred when it sustained ICT's peremptory exception of peremption without any analysis of the applicable time periods, when the time periods may have commenced, or factual allegations of fraud. All of these assertions by Good Hope are without merit. Costs of this proceeding are assessed to Good Hope.