Opinion
2011 CA 1621-R
2013-09-13
OLIN LORY, JR. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY
Al J. Robert, Jr. New Orleans, Louisiana Attorney for Plaintiff/Appellant Olin Lory, Jr. Andrew L. Plauche, Jr. James K. Ordeneaux Scott H. Mason New Orleans, Louisiana Attorneys for Defendant/Appellee Louisiana Farm Bureau Mutual Insurance Company
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 2008-16829, DIVISION "J"
HONORABLE WILLIAM J. KNIGHT, JUDGE
Al J. Robert, Jr.
New Orleans, Louisiana
Attorney for Plaintiff/Appellant
Olin Lory, Jr.
Andrew L. Plauche, Jr.
James K. Ordeneaux
Scott H. Mason
New Orleans, Louisiana
Attorneys for Defendant/Appellee
Louisiana Farm Bureau Mutual
Insurance Company
BEFORE: McDONALD, THERIOT, AND DRAKE, JJ.
McDONALD, J.
The plaintiff, Olin Lory, Jr., appealed the trial court's judgment sustaining an exception raising the objection of prescription filed by the defendant, Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau), and dismissing his claims. In Lory v. Louisiana Farm Bureau Mut. Ins. Co., 2011-1621 (La. App. 1 Cir. 3/23/12) (unpublished), this court affirmed that judgment. A writ was granted by the Louisiana Supreme Court and the matter was remanded to us for reconsideration in light of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 2011-2835 (La. 11/2/12), ___ So.3d ____, and Qurnn v. Louisiana Citizens Property Ins. Corp., 2012-0152 (La. 11/2/12), _So.3d_. See Lory v. Louisiana Farm Bureau Mut. Ins. Co., 2012-1229 (La. 4/5/13), 110 So.3d 1077.
The facts of the case are set out in our previous decision. Mr. Lory filed a claim with his homeowner's insurer, Farm Bureau, asserting that his home in Slidell sustained significant damage on August 29, 2005, due to Hurricane Katrina. Mr. Lory was not satisfied with Farm E3ureau's resulting payment on his claim, and he thereafter joined in a mass-joinder complaint, Rafael & Dioigna Acevedo, et al. v. AAA Insurance, et al., docket number 07-5199, filed in the United States District Court for the Eastern District of Louisiana on August 29, 2007, against a number of insurers, including Farm Bureau. The Acevedo case was later dismissed.
Mr. Lory is a Louisiana resident and Farm Bureau is a Louisiana business entity doing business solely in the state of Louisiana; thus, Acevedo was dismissed because it was filed in a court of incompetent jurisdiction.
Mr. Lory filed a petition for damages against Farm Bureau on January 5, 2009. He asserted that prescription in his suit had been suspended by the filing of the mass-joinder cases in Abram, et al. v. AAA Insurance, et al., docket number 07-5205, and Acevedo, in the United States District Court for the Eastern District of Louisiana, on August 29, 2007, both cases in which he was a putative class member. Mr. Lory asserted that Farm Bureau had made only a partial payment for his damages and owed him additional policy benefits.
Farm Bureau filed peremptory exceptions of prescription, peremption, and no cause of action, as well as affirmative defenses. Farm Bureau asserted that the lawsuit was untimely as it was filed well after August 30, 2007, the date all claims under insurance policies for damages caused by Hurricane Katrina were barred by special legislation. 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 prescription period to file such claims.
After a hearing, the district court sustained Farm Bureau's peremptory exception of prescription, and dismissed Mr. Lory's claims with prejudice. Farm Bureau's exceptions of peremption and no cause of action were rendered moot. This court affirmed that judgment.
Subsequent to the Louisiana Supreme Court's remand of this matter to this court, the parties filed a joint motion to (1) vacate the trial court's judgment sustaining the peremptory exception raising the objection of prescription, and (2) remand for further proceedings. In their joint pleading the parties aver that the trial court record, as presently developed, is insufficient for this court to fully resolve the issues raised in this appeal in light of Duckworth and Quinn. They collectively urge that it is in the interest of judicial efficiency and expediency for this court to vacate the trial court's judgment and remand the matter to complete the record. See e.g., Ansardi v. Louisiana Citizens Property Ins. Corp., 2.011-1717 (La. App. 4th Cir. 3/1/13), 111 So.3d 460, 484-85, writs denied, 2013-0697, 0698 (La. 5/17/13).
Accordingly, we grant the parties' joint motion. The trial court's judgment, sustaining the exception of prescription and dismissing Mr. Lory's claims, is vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion. Appeal costs are assessed one-half to Mr. Lory and one-half to Louisiana Farm Bureau Mutual Insurance Company.
JOINT MOTION GRANTED; VACATED AND REMANDED.