Opinion
NO. 2023-CA-0232
01-18-2024
Tommy KEATING and Lisa Keating v. Lee MILLER and Family Security Insurance Company
Jason R. Bell, SWLA INJURY ATTORNEYS, LLC, 949 Ryan Street, Ste. 130, Lake Charles, LA 70601, COUNSEL FOR PLAINTIFF/APPELLANT Jacquelyn D. Cook, James H. Gibson, GIBSON LAW PARTNERS, LLC, 2448 Johnston Street, Lafayette, LA 70503, COUNSEL FOR DEFENDANT/APPELLEE
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2021-09129, DIVISION "B", Honorable Richard G. Perque, Judge
Jason R. Bell, SWLA INJURY ATTORNEYS, LLC, 949 Ryan Street, Ste. 130, Lake Charles, LA 70601, COUNSEL FOR PLAINTIFF/APPELLANT
Jacquelyn D. Cook, James H. Gibson, GIBSON LAW PARTNERS, LLC, 2448 Johnston Street, Lafayette, LA 70503, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase)
JUDGE SANDRA CABRINA JENKINS
1Tommy and Lisa Keating ("the Keatings") appeal the trial court’s January 31, 2023 judgment granting Lee Miller and Family Security Insurance Company’s ("Lee Miller") peremptory exception of prescription. For the reasons assigned, we affirm the trial court’s judgment.
FACTS AND PROCEDURAL BACKGROUND
This action arises from the alleged malpractice of an insurance agent, which was discovered by the Keatings on October 14, 2020. On August 26, 2021, Governor John Bel Edwards declared a state of emergency due to Hurricane Ida. The Supreme Court, acting under the authority of La. C.C. art. 3472.1 and La. C.C.P. art. 562, issued an order that provided "[a]ll prescriptive and peremptive periods are hereby suspended statewide for a period of thirty days commencing from the Governor’s August 26, 2021 declaration of state of emergency."
On November 9, 2021, the Keatings filed a petition for damages against Lee Miller, alleging Hurricane Laura caused extensive damage to their fence and that Lee Miller breached his duties by failing to obtain the requested coverage on the 2fence. Thereafter, Lee Miller filed a peremptory exception of prescription, arguing that the suit is barred by La. R.S. 9:5606.
La. R.S. 9:5606(A) provides in pertinent pail "[n]o action for damages against any insurance agent…or other similar licensee under this state, whether based upon tort, or breach of contract… arising out of an engagement to provide insurance services shall be brought unless filed… . 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. 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."
The 30-day period ended on Saturday, November 13, By operation of law, the peremption period is extended to the next non-holiday as defined by La. C. C. P. art. 5059.
On January 20, 2023, the trial court held a hearing on the exception. On January 31, 2023, the trial court signed the judgment granting the exception of prescription and dismissing the Keatings’ claims with prejudice. On February 9, 2023, the Keatings filed a motion for suspensive appeal. This appeal follows.
DISCUSSION
Standard of Review
[1, 2] An appellate court’s standard of review of a trial court’s ruling on a peremptory exception of prescriptions turns on whether evidence is introduced. Wells Fargo Fin. Louisiana, Inc. v. Galloway, 2017-0413, p. 7 (La. App. 4 Cir. 11/15/17), 231 So.3d 793, 800 (citing State v. Thompson, 2016-0409, p. 18 (La. App. 4 Cir. 11/23/16), 204 So.3d 1019, 1031). When no evidence is introduced, a de novo standard applies to determine whether the trial court’s decision was legally correct. Wright v. State on Behalf of Alleyn, 2019-0499, p. 3 (La. App. 4 Cir. 8/5/20), 364 So. 3d 312, 315 (citing Wells Fargo Fin. Louisiana, Inc., 2017-0413, p. 8, 231 So.3d at 800). "[I]n this context, ‘the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true.’ " Conversely, when evidence is introduced, manifestly erroneous standard of review applies. Id.
3 Prescription and the Governor’s Suspension Order
[3] The Keatings argue that the trial court erred by failing to strictly construe the language of La. C.C. art 3472.1 in favor of a timely claim when their suit was suspended for thirty days, filed prior to acciaiai and filed within the sixty-day deadline set by the article. In the alternative, the Keatings argue that the trial court erred in retroactively applying the revisions of La. C.C. art. 3472.1, effective August 1, 2022, to the case.
The Keatings assert two assignments of error: 1) the trial court committed legal error by failing to apply the plain language of La. C.C. art. 3472.1, which must be strictly construed in favor of a timely claim, when plaintiffs’ suit was suspended for thirty days, filed before accrual, and filed within the sixty-day deadline plainly set by the article; and 2) the trial court erred in retroactively applying the revisions to Article 3472.1 to the case, when the legislature intended for the revisions to apply prospectively, and a retroactive application divests the plaintiffs of a vested right in violation of the constitution.
As noted by the majority, the Keatings filed their petition on November 9, 2021.
La. C.C. art. 3472.1, effective June 25, 2020 to July 31, 2022 provides:
A. Notwithstanding any other provisions of the law, in the event the governor declares a state of emergency or disaster pursuant to R.S. 29:721 through 772, the Supreme Court of Louisiana may enter an order or series of orders as deemed necessary and appropriate to suspend all prescriptive and peremptive periods for a period of time not to exceed ninety days. Thereafter, should the need for continuing suspension be necessary to preserve access to the courts, the governor may issue executive orders as deemed appropriate. The period of suspension authorized by the provisions of this Article shall terminate upon the earlier of an order of the Supreme Court of Louisiana or upon termination of the declared state of disaster or emergency. Nothing in this Article limits the authority of the governor or the legislature to act in accordance with its authority.
B. The right to file any pleading subject to the suspension as provided by Paragraph A of this Article shall terminate sixty days after the termination of the suspension as provided by Paragraph A of this Article.
In Peralez v. HDI Glob. Specialty SE, 2022-343, (La. App. 3 Cir. 11/9/22), 353 So.3d 235, the Third Circuit analyzed La. C.C. art. 3472.1:
The article permits the [S]upreme [C]ourt to suspend prescriptive and peremptive periods up to ninety days following a state of emergency or disaster declaration. The right to file pursuant to this suspension, 4however, terminates sixty days after the suspension. Paragraph B clearly limits the effect of the power set forth in Paragraph A. Article 3472.1 does not attach additional time to Plaintiff's running of prescription…
Id. at p. 14, 353 So.3d at 243.
In Robinson v. State Farm Mut. Aut. Ins. Co., 2022-0726 (La. App. 4 Cir. 6/20/23), 368 So.3d 1143, this Court addressed a similar prescription matter. The Robinson plaintiff filed a petition on May 18, 2022, alleging damages from an automobile accident that occurred on April 26, 2021. Robinson, 2022-0726, p. 1, 368 So.3d at 1144. The defendants filed a peremptory exception of prescription, and the Robinson plaintiff opposed, arguing that the Supreme Court suspended prescription as a result of the Governor’s emergency order. The trial court granted the peremptory exception of prescription.
In reviewing La. C.C art. 3472.1 and the Supreme Court Order, this Court explained:
[T]he Supreme Court Order provided that all prescriptive and peremptive periods were suspended for a period of thirty days commencing from the Governor’s August 26, 2021 declaration of state of emergency, which would be until September 24, 2021. The right to file any pleading pursuant to the suspension terminated on November 24, 2021.
…the Supreme Court Order did not preserve [Plaintiff's] claims nor did it add time to her prescriptive period. [Plaintiff's] claims prescribed on April 26, 2022; and she filed her petition on May 18, 2022, more than one year after the alleged accident. Therefore, we do not find that the trial court erred in granting the defendants’ exception of prescription and dismissing [Plaintiff's] claims with prejudice.
Executive Proclamation Order 170 JBE 2021, dated September 6, 2021, amended Executive Proclamation Order 165 JBE 2021.
U.S. Const. art. I, § 9, cl. 3; La. C. C. art. 6.
Robinson, 2022-0726, pp.7-8, 368 So.3d at 1148.
In the instant matter, the Keatings’ claims did not prescribe within the thirty-day emergency suspension period that commenced on August 26, 2021. The 5Keatings’ claims prescribed on October 14, 2021, and their petition was filed on November 9, 2021. We find that the emergency suspension order did not attach additional time to the Keatings’ running of prescription on their claim. Accordingly, the trial court did not err in granting the exception of prescription and dismissing the Keatings’ claims with prejudice.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s January 31, 2023 judgment granting the peremptory exception of prescription, and dismissing the Keatings’ claims with prejudice.
AFFIRMED
BELSOME, J., DISSENTS WITH REASONS
1I disagree with the majority’s opinion and would reverse the trial court’s judgment granting the exception.
The majority rests its opinion on the precedential value of Robinson v. State Farm Mut. Aut. Ins. Co., 2022-0726 (La. App. 4 Cir. 6/20/23), 368 So.3d 1143. While I agree with the decision in Robinson, I disagree with its application to this case. Robinson is distinguishable from the instant case. The argument in Robinson and in the case at bar both rely on interpretation of our Supreme Court’s order suspending prescription and peremption. It is appropriate to review the timeline of events in these two very similar cases.
The Supreme Court’s order suspended peremption for thirty days. La. C. C. Art. 3472 instructs us on the effect of suspension of prescription as follows: "The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension." The emergency order suspended the Keatings’ peremption date from October 14, 2021 until November 15, 2021.1a
2La. C. C. art. 3472.1(B) provided the Keatings, "the right to file any pleading subject to the suspension … sixty days after the termination of the suspension … That sixty-day period ended on November 18, 2021.2a
In Robinson, the literal reading of the Supreme Court’s order would have added thirty days to the date on which prescription tolled. However, the order was of no value to that plaintiff because her lawsuit was filed on May 18, 2022, more than seven months after the last day of the suspension period and more than five months after the sixty-day "right to file" period of La. C. C. art. 3472.1(B). Clearly, the filing in Robinson was not timely.
The peremptive period for the Keatings claim was also suspended for thirty days. Critically, however, the Keatings did file their claim within the sixty-day period permitted for filing by La. C. C. art. 3472.1(B).
The Supreme Court order should be interpreted in the same manner as a statute. It is a well-accepted rule of statutory interpretation that when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of its intent. La. C. C. art. 9; La. R. S. 1:4. In both Robinson and in the Keating’s case, the emergency order does not lead to any absurd consequence. As written, all peremptive periods throughout the state were suspended by thirty days. However, only those claims filed within the sixty days after the end of the suspension period would benefit by the emergency order. This makes perfect sense.
The following hypothetical demonstrates why the emergency order as written creates a more equitable and reasonable result than appellee’s interpretation: If A has a claim that would have expired on the last day of the 30-day suspension period, then he has effectively gotten an 89-day extension of prescription. If B has a claim that falls one day later, it might be said that he has 3been deprived of a much needed "extension" even though he was equally affected by the post-hurricane chaos. Post-Laura (and after other significant hurricanes), many courthouses and law offices were closed due to lack of electricity and / or damage to buildings.
I also disagree with the trial court’s application of the revision of La. C. C. art. 3472.1 to this case. First, the amended verbiage is not a revision of the article that existed at the time that the Keatings’ claim arose. The 2020 version of the article granted power to the Supreme Court to suspend prescription. The 2022 version granted power to the governor. The executive and judicial are constitutionally disparate branches of government. That is a significantly different assignment of powers. In addition, any change in a prescriptive period is necessarily a change in substantive law in that it may wholly deprive a litigant of a claim that it might otherwise have had. The 2022 amendment cannot be applied retroactively because to do so would violate constitutional grants of rights under the United States Constitution and Louisiana law.3a
For the reasons above, I would reverse the trial court’s judgment and deny the exception.
JUDGE SANDRA CABRINA JENKINS
1We grant Tommy and Lisa Keating’s ("the Keatings") application for rehearing for the limited purpose of addressing their argument that the majority opinion conflicts with La. C.C. art. 3472.1, Robinson v. State Farm Mut. Auto. Ins. Co., 2022-0726 (La. App. 4 Cir. 6/20/23), 368 So.3d 1143, and Peralez v. HDI Glob. Specialty SE, 2022-343 (La. App. 3 Cir. 11/9/22), 353 So.3d 235.
[4] Following this Court’s December 8, 2023 decision, the Keatings’ filed an application for rehearing, seeking reconsideration of our decision. On rehearing, the Keatings re-urged them original argument that their suit was timely filed. The Keatings further argued that the majority opinion fails to examine whether the Keatings’ claim was filed within sixty days of the termination of the suspension.
However, the Keatings fail to consider that their petition for damages was filed on November 9, 2021 when the claim prescribed on October 14, 2021. Further, the emergency suspension period that commenced on August 26, 2021 applied to claims that were prescribing within the thirty-day period. In light of the 2emergency suspension period not applying to the Keatings’ claim nor attaching additional time to the Keatings’ limning prescription, their claim is time-barred.
For these reasons, we grant a rehearing, deny relief, and affirm our original opinion.
APPLICATION FOR REHEARING GRANTED; RELIEF DENIED; ORIGINAL OPINION AFFIRMED
BELSOME, J., CONCURS IN PART AND DISSENTS IN PART
1I agree that the rehearing should be granted, but I would also grant the relief requested for the reasons set forth in my dissent.