Worker’s Comp Death Benefits Claim Survives Dismissal

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.

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.

The Louisiana Supreme Court in Petit- Blanc vs. Charles and State Farm, 2021-CC-00094 (La. 4/20/21), ____ So. 3d ______ reaffirmed a strict reading of La. R.S. 13:850. This statute allows the filing of pleadings with a Clerk of Court by facsimile transmission. As currently drafted, the statute provides that the parties shall “deliver” the original document to the clerk within 7 days of the facsimile transmission. In Petit-Blanc, the Supreme Court considered what happens when the original pleading is sent through the mail but not received by the clerk within the 7-day period. Under the facts of the case, the plaintiff’s suit would be prescribed if the act of mailing was insufficient delivery.

Citing Black’s Law Dictionary, the Court found that “delivery” is defined as “the act by which the res or substance thereof is placed within the actual or constructive possession or control of another.” The Court concluded that “merely transmitting an original document within the deadline is insufficient; rather, a litigant must establish the document was delivered to the clerk within the deadline.”

The Court noted that, while the plaintiff established she sent her original petition to the clerk’s office well within the 7-day deadline, “she cannot establish the petition was placed in the actual or constructive possession of the clerk’s office” in a timely manner. As such, the Court found that the “facsimile filing is without force and effect and could not serve to interrupt the prescriptive period.” Accordingly, the Supreme Court granted the writ filed by the defendants, maintained their peremptory exception of prescription, and dismissed the plaintiff’s lawsuit with prejudice.