Insight

UM Claim in Amended Petition Prescribed When Original Petition Did Not Give Sufficient Notice of Claim

Published on: February 11, 2025

In Madden v. Fairburn, the plaintiff amended her petition to assert a UM claim against an insurer based upon the alleged negligence of a new defendant not named in the original petition. The amended petition asserted a new theory of liability but sought the same recovery under the same UM policy.

The issue presented to the Louisiana Court of Appeal for the First Circuit was whether the original petition interrupted prescription for the claim brought against the UM insurer. Because the insurer did not receive notice in the original petition that it could be liable for damages based upon the new defendant’s fault, the court found prescription could not be interrupted.

Madden was a passenger in a vehicle driven by John Seibert that collided with Steven Ray Fairburn. Madden timely filed suit against Fairburn and Capitol Specialty Insurance Corporation (Capitol Specialty), claiming uninsured motorist (UM) coverage under its policy. The Trial Court later dismissed Madden’s claims against Fairburn. While the appeal of that ruling was pending, and over five years after the accident, Madden amended her petition to allege Seibert was at fault and sought the same UM coverage any damages he caused. Capitol Specialty argued the claim brought against it in the amended petition had prescribed.

At the time of the accident, claims for torts/delictual actions had a one-year prescriptive period that commenced from the date of the injury or damage sustained* Claims to recover damages under a UM policy are subject to a prescription period of two years.^ Madden argued her original claim against Capitol Specialty interrupted prescription because her amended claim arose from the same accident and sought to recover damages under the same UM policy.

La. C.C. art. 3462 states that prescription is interrupted when an obligee (Madden) commences an action against an obligor (Capitol Specialty) in a court of competent jurisdiction and venue. However, in Kling v. Hebert, the Louisiana Supreme Court has clarified that the “essence of interruption of prescription by suit is notice to the defendant of the legal proceedings based on the claim involved.” The Kling judges emphasized that prescription serves to protect defendants from unexpected liability years after an event, particularly when a new legal theory or a different alleged tortfeasor is introduced.

The court also considered Trahan v. Liberty Mutual Insurance Company, which held that a claim against an insurer based on one party’s negligence does not interrupt prescription for a later claim against the same insurer based on another party’s negligence. Because Madden’s original suit was based on Fairburn’s negligence, Capitol Specialty did not receive timely notice that she would later seek UM coverage based on Seibert’s alleged fault. Thus, the appellate court ruled in favor of the insurer, affirming the prescription of the plaintiff’s claims.

References:

Madden v. Fairburn, 2024-0513 (La. App. 1 Cir. 12/27/24), --- So.3d ---, 2024 WL 5232995.

Kling v. Hebert, 23- 00257, p. 4 (La. 1/ 26/24), 378 So. 3d 54.

Trahan v. Liberty Mutual Insurance Company, 314 So. 2d 350 (La. 1975).

*La. C.C. art. 3492. See As of July 1, 2024, delictual actions are subject to a two-year liberative prescriptive period, applying to delictual actions that arose or after the effective date.

^ La. R.S. 9:5629.

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Insight

Louisiana Changes Prescriptive Periods for Survival and Wrongful Death Actions

Pursuant to House Bill 291, Louisiana modified the prescriptive dates for wrongful death and survival actions. Survival actions are brought to recover damages a deceased person suffered before his or her death. For survival actions, La. Civil Code Article 2315.1 (A) now provides as follows:

If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased or two years from the day that injury or damage is sustained, whichever is longer.

A wrongful death claim can compensate the surviving family members for their own suffering following someone’s death. Similar amendments were made for the wrongful death statute. La. Civil Code Article 2315.2(B) now provides that the right of action for wrongful death prescribes one year from the death of the deceased or two years from the day that injury or damage is sustained, whichever is longer.

The changes to these articles went into effect August 1, 2025.

Insight

Court Finds Signing of Waiver Form Does Not Extend Prescriptive Period

Until recently, tort claims in Louisiana were subject to a one-year prescriptive period.* In Carollo v. Tulane Univ., the plaintiff’s claim was subject to that one-year prescriptive period, but she filed her suit more than one year after she was injured. Thus, the plaintiff’s claim was dismissed as prescribed. In so holding, the court rejected the plaintiff’s claim that her execution of a waiver form prevented her from timely filing suit for her alleged injuries.

The plaintiff was a member of Tulane’s Swim and Dive Team. As a team member, she signed Tulane’s Concussion Education Form, which concluded with the following statement: “I understand that this release means that, among other things, I am giving up my right to sue the institution for any such losses, damages, injury, or costs that I may incur.” Plaintiff sustained a concussion during practice on January 9, 2021. In her Petition, she alleged she discovered the full extent of her injuries on August 5, 2021. However, she did not file suit until February 17, 2023, which was beyond the one-year prescription period.

When a claim is prescribed on the face of the petition, the burden shifts to the plaintiff to prove her claim is not prescribed. Carollo first argued (1) the Concussion Education Form was a contract, (2) her claim arose from that contract, and (3) personal claims under contracts should be subject to a ten-year prescriptive period under La. C.C. art. 3499. The court rejected this argument because the concussion form did not meet the requirements for a valid contract under Louisiana law.

The plaintiff then argued that the doctrine of contra non valentem should apply. This doctrine provides “prescription does not run against one who is ignorant of the facts upon which their cause of action is based and applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.”

Contra non valentem can apply when there is some condition coupled with a contract that prevented the plaintiff from filing suit. The court rejected the plaintiff’s arguments asserting this theory. Even if Carollo could establish a contract with Tulane under the concussion form, she could not point to any physical, mental, or procedural condition that prevented her from investigating her tort claims and filing suit against it.

Contra non valentem can also apply when the defendant does some act effectually to prevent the plaintiff from availing herself from her cause of action. The plaintiff argued that she was forced to sign the concussion form as a member of the Swim and Dive Team and that the form prevented her from filing suit within the prescriptive period. The court also rejected this argument, holding the plaintiff “knew about her concussion related injuries but did not perform her due diligence within the prescriptive period to determine whether she could file suit.”

Accordingly, the plaintiff’s execution of a waiver form stating she agreed not to sue the defendant for injuries could not interrupt prescription for the plaintiff’s claim.

*La. C.C. art. 3493.1, which went into effect on July 1, 2024, now provides delictual actions/tort claims are subject to a liberative prescription of two years.

References:

Carollo v. Tulane Univ., 2024-0038 (La. App. 4 Cir. 1/9/25), --- So.3d ---, 2025 WL 52557.

Insight

Interrupted by Silence: Medical Malpractice Prescription

By C. Reynolds LeBlanc

La. R.S. 9:5628 provides that a patient/medical malpractice plaintiff must assert his or her claim within one year of the alleged negligent act or from when that act is discovered. If a claim is not raised within this time frame, it is “prescribed,” i.e., untimely. The statute also declares that all claims must be asserted within three years of the alleged negligent act, even if the patient was unaware of the malpractice. However, there are exceptions.

Under the doctrine of contra non valentem,prescription does not run if the defendant has done something to prevent theplaintiff from filing within the prescriptive period. In In re MedicalReview Panel of Gerard Lindquist, 18-444 (La. App. 5 Cir. 5/23/19), 274So.3d 750, the Louisiana Fifth Circuit considered whether a decision not totell a patient about malpractice exempted from prescription a claim which wasnot filed within three years of the alleged malpractice.

In the case, Lindquist had spinal surgery on August 22,2013. He returned on August 24, 2013 with complaints of pain. Although an x-rayshowed a metal artifact in the operative site of his back, he was not informedand was discharged. He returned the next day with continued complaints of painand an MRI was ordered. Like the x-ray, the MRI showed the metal artifact.Again, the plaintiff was not informed.

Lindquist continued to experience pain for years. When another MRI was performed on May 25, 2017, Lindquist was first informed of the metal object in his back. Within months, he filed a claim against the doctor who performed the 2013 surgery. In response, the doctor argued that the claim was prescribed under La. R.S. 9:5628 because it was filed more than three years after the surgery.

Contra non valentem applies where a plaintiff has been lulled into inaction because of concealment or fraudulent conduct by the defendant. The doctor argued that this standard was not met simply because the doctor was silent about the patient’s condition. However, the Lindquist court held that a doctor possesses an affirmative duty to advise a patient of pertinent medical information such as the presence of a metal artifact near the spine. Therefore, if the doctor, as alleged in Lindquist, failed to disclose a metal foreign object, this would constitute a fraudulent act which prevented the plaintiff from filing his claim timely. In Lindquist, prescription was interrupted by silence and the plaintiff/patient was allowed to pursue his claim.

Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.