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La. Supreme Court Rules 10-year Contract Prescription Applies to 1st Party Claims Against Insurer
In a first-party action obtained by assignment for excess liability against an insurer, the Louisiana Supreme Court in Smith v. Citadel Insurance,19-00052 (La. 10/22/19) ruled that the claim against the carrier is subject to the 10-year contract prescription period under La. law, stating:
“For the above reasons, we hold an insurer’s duty of good faith owed to its insured under La. R.S. 22:1973 does not exist separate and apart from an insurer’s contractual obligations. The duty of good faith is codified in La. R.S. 22:1973, but this duty is an outgrowth of the contractual and fiduciary relationship between the insured and the insurer, and the duty of good faith and fair dealing emanates from the contract between the parties. Thus, first-party bad faith claims against an insurer are governed by the ten-year prescriptive period set forth in La. C.C. art. 3499. Consequently, Ms. Smith’s first-party bad faith claim against GoAuto, brought pursuant to an assignment of rights from the insured, was subject to a 10-year prescriptive period and is not prescribed.”
The concurring justice noted that it was not necessary to engage in the protracted discussion concerning the duties of insurers relative to first-party claims. Nevertheless, the court offered an in-depth discussion of these duties.
Attorney
Contracts
Insurance
Insurer
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Coronavirus and Workers Compensation in Louisiana
In Louisiana, workers compensation benefits can beowed if an employee sustains an accident or develops an occupational diseasearising out of and occurring during the course and scope of theiremployment. The definitions and burdens of proof differ for each.
An accident is defined by La. R.S. 23:1021 as:
(1) “Accident” means an unexpected or unforeseen actual, identifiable,precipitous event happening suddenly or violently, with or without human fault,and directly producing at the time objective findings of an injury which ismore than simply a gradual deterioration or progressive degeneration.
An occupational disease is defined by La. R.S.23:1031.1 as:
B. An occupational disease means only that disease or illnesswhich is due to causes and conditions characteristic of and peculiar to theparticular trade, occupation, process, or employment in which the employee isexposed to such disease. Occupational disease shall include injuries due towork-related carpal tunnel syndrome. Degenerative disc disease, spinalstenosis, arthritis of any type, mental illness, and heart-related or perivasculardisease are specifically excluded from the classification of an occupationaldisease for the purpose of this Section.
C. Notwithstanding the limitations of Subsection B hereof, everylaboratory technician who is disabled because of the contraction of anydisease, diseased condition, or poisoning which disease, diseased condition, orpoisoning is a result, whether directly or indirectly, of the nature of thework performed, or the dependent of a laboratory technician whose death is theresult of a disease, diseased condition, or poisoning, whether directly orindirectly, of the nature of the work performed shall be entitled to thecompensation provided in this Chapter the same as if said laboratory technicianreceived personal injury by accident arising out of and in the course of hisemployment.
As used herein, the phrase “laboratory technician” shall mean anyperson who, because of his skills in the technical details of his work, isemployed in a place devoted to experimental study in any branch of the naturalor applied sciences; to the application of scientific principles ofexamination, testing, or analysis by instruments, apparatus, chemical orbiological reactions or other scientific processes for the purposes of thenatural or applied sciences; to the preparation, usually on a small scale, ofdrugs, chemicals, explosives, or other products or substances for experimentalor analytical purposes; or in any other similar place of employment.
Except as otherwise provided in this Subsection, any disabilityor death claim arising under the provisions of this Subsection shall be handledin the same manner and considered the same as disability or death claimsarising due to occupational diseases.
In general, if an employee can prove that they were exposed toCoronavirus at work, and that the particular exposure caused them to contractCoronavirus disease, they may be able to prove a compensable accident. The burden of proof is a tough one, of course, because it would seem to benearly impossible for an employee who contracts the Coronavirus to prove thecontraction resulted from work as opposed to exposure in some otherenvironment. However, it is important to note that one Louisiana courtdid find that a claimant was able to meet that burden when he contracted theWest Nile Virus by proving to the satisfaction of the Workers CompensationJudge, rather incredibly, that a particular mosquito bite occurring at work wasthe cause. Allen v. Graphic Packaging, 51,080 (La.App. 2nd Cir. 1/11/17), 211 So.3d 1219. If a claimant isable to prove the occurrence of an accident, then the usual workerscompensation medical and indemnity benefits would be payable depending onmedical needs, disability status, or even death benefits if the employeeexpired as the result of such an accident.
For an employee to be able to prove that theircontraction of Coronavirus disease fits within the definition of anoccupational disease, they would have to prove that it was “due to causes andconditions characteristic of and peculiar to” their employment. Somehealthcare workers and others in related fields who become infected would seemto have an easier time proving their cases than others whose work would notcustomarily lead to such exposures. The definition above includeslaboratory technicians (which could be an expansive list as defined) whocontract a disease as the result exposure to something that they are workingon/with. The statute also provides some timing elements for claim filingand causation presumption, most of which would not seem to apply because ofnovel nature of the current Coronavirus outbreak. As with claims assertedas accidents, the usual medical and indemnity benefits would be payabledepending on the circumstances of the individual worker.
For additional details on the Allencase, please review Keogh Cox blog “One Particular Mosquito: West Nile Virus Foundto be a Compensable Workers’ Compensation Claim” by clicking here: https://keoghcox.com/one-particular-mosquito-west-nile-virus-found-compensable-workers-compensation-claim/.
Louisiana
Medical
Workers' Compensation
Insight
Google Earth Images Ruled Admissible
Recently, a Louisiana appellate court found that images fromGoogle Earth images were admissible. In Walker v. S.G.B.C., LLC,2019-506 (La.App. 3Cir. 2/5/20); --- So.3d ---, 2020 WL 563818, theLouisiana Third Circuit rejected a challenge to the use of the images on thebasis that they were not properly authenticated.
In this case, the plaintiff sought recognition of ahistorical servitude of passage from his landlocked property. During the trial,the plaintiff offered Google Earth images of the property to show a gravelpathway on the alleged right of way. The images were dated January 2004,November 2005, and December 2017. Multiple witnesses identified the pathon the images. Thereafter, the trial court admitted the images into evidenceover the defendant’s objections.
On appeal, the defendant argued that the images were notproperly authenticated under La. C.E. art. 901 because the plaintiff did not:(1) have the creator of the images testify to their authenticity; (2) get acertification from Google that the images were what they purported to be; and(3) have an expert testify that the images were accurate depictions of whatthey claimed to be.
The Walker court affirmed the trial court ruling thatthese images were admissible. Louisiana Code of Evidence Article 901(B)(1)provides the testimony of a witness with personal knowledge may supply theauthentication of evidence required for its admission. Because the plaintiffidentified various landmarks on each image, and each image was subsequentlyrecognized by multiple witnesses (including the defendant’s witnesses), theCourt concluded there was sufficient support for finding the images authentic.
In Walker, the precise dates the photographs were taken were not critical. Under different facts, courts may choose to apply the authentication rules of Article 901 more stringently.
Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.
Evidence
Louisiana
Trial Court
Property
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Is Timing Everything Where Workers Compensation Benefits are Forfeited Based on Fraud? It Depends…
In Moran v. Rouse's Enterprises, LLC, 19-2392019(La. App.5Cir. 12/26/19)- - - So. 3d - - -, the Louisiana Fifth Circuit held that thereis a forfeiture of all benefits when a worker’s compensation claimant commitsfraud, regardless of when the fraudulent conduct occurs. The court declined tofollow opinions from the First and Third Circuits concluding otherwise.
In Moran, the claimant obtained treatment for injuries toher back, right knee, and right shoulder after a slip and fall at work forRouses supermarket. In her deposition, the claimant Moran testified that sheexperienced knee pain only once before her fall; it was “years ago” and not“serious.” Moran also claimed that she experienced no prior shoulder or backpain. However, medical records established:
• Complaintsof knee pain on at least 8 separate occasions between 2012 and the job injury;
• Complaintsof right knee, right wrist, and back pain after a slip and fall in 2013; and
• A rightshoulder impingement diagnosis 2 months before the on-the-job accident.
Rouses and its workers compensation carrier affirmativelyalleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraudstatute, following the claimant’s deposition. Paragraphs “A” and “E” of section1208 provide in pertinent part:
A. It shallbe unlawful for any person… to willfully make a false statement orrepresentation… for the purpose of obtaining or defeating any benefit orpayment under…this Chapter.
***
E. Anyemployee violating this Section shall… forfeit any right to compensationbenefits under this Chapter.
As part of their fraud defense, the defendants specificallydenied responsibility for all worker’s compensation benefits, i.e. benefitsthat that might have otherwise been due both before and after the fraudulentdeposition testimony.
Following trial, the workers compensation judge determinedthat Moran carried her burden of proving the occurrence of on-the-job injuryand disability. Nevertheless, the trial court also ruled that the claimant madefalse statements for the purpose of obtaining workers compensation benefits inviolation of section 1208, thereby forfeiting the right to both the pre andpost-deposition benefits that she was claiming.
On appeal, Moran argued that the forfeiture requirement ofsection 1208 applies prospectively only. Moran cited opinions from theLouisiana First and Third Circuits. After addressing the statute and the caselaw, the Moran court affirmed the decision of the workers compensation judgefinding that the forfeiture of benefits provided for in of Section 1208 isclear and unambiguous. The opinion states that “…if the legislature hadintended to limit the application … it would have clearly expressed that in thestatute.”
There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.
Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.
Fraud
Injury
Liability
Workers' Compensation
Insight
Limitation of Liability under the LPLA: Can Internet Retailers be Manufacturers?
The Louisiana Products Liability Act (“LPLA”) contains the exclusivetheories of recovery against a manufacturer for damages caused by its product.The term “manufacturer” within the LPLA includes “the seller of a product whoexercises control over or influences a characteristic of the design,construction, or quality of the product that causes damage.” The rapid growthof e-commerce raises a unique question – how do we classify internet retailers?
Internet retailers generally act as a middleman for third partymanufacturers and online consumers. In this respect, they are not technically“sellers” as defined by the LPLA because they typically do not have controlover the design or construction of the products they sell. Nevertheless, theproper categorization of internet retailers may become important when someoneis injured by a product, as was the case in State Farm Fire and CasualtyCompany v. Amazon.com, Inc., 2019 WL 5616708 (Miss. N.D. 10/31/19) ---F.Supp.3d ---.
In State Farm Fire and Casualty Company v. Amazon.com, Inc., two hoverboards purchased through Amazon caught fire inside a Mississippi home and the home was destroyed. In considering Amazon’s possible liability, the Mississippi Court asked whether Amazon was a “service provider” or a “marketplace.” In Mississippi, a finding that Amazon was a “service provider” would insulate it from the claim. However, if Amazon acted as a “marketplace,” it could be exposed by the common law to a negligent failure-to-warn claim. The Mississippi Court held that, because Amazon operated as a marketplace, the claim against it could go forward.
If similar facts arose in Louisiana, could Amazon or similar retailers be exposed under the LPLA? If an internet retailer established policies that forced a “true” manufacturer to negatively alter product quality, would the LPLA provide a remedy? For example, if an internet retailer sets a price ceiling, this artificial figure, especially if unreasonably low, might pressure a manufacturer to lower product safety. Is setting a price range the exercise of enough control or influence over the “design, construction, or quality of a product” to render internet retailers subject to suit under the LPLA? That is a question likely to be answered in cases to come.
Louisiana
Injury
Insight
A Matter of Control of a Bike Results in No Liability under the LPLA
A Louisiana man logged onto eBay. To save some money, hebought a used racing bicycle. While riding this bike through his neighborhood,he noticed an unlevel section of the roadway and attempted a “bunny hop” overthe gap in the pavement. The front wheel disconnected when he landed. Thecyclist lost control and flipped over the handlebars, sustaining seriousinjuries. He later filed suit against Specialized, the manufacturer of thebicycle, under the Louisiana Products Liability Act (“LPLA”). See Delahoussaye v. Boelter, --- So.3d---,2019-0026 (La. App. 1 Cir. 11/15/19).
The evidence in Delahoussaye showed that the bike wasmissing its “secondary retention device,” which keeps the wheel fromdisengaging if the “quick release” on clamp on the front fork is not engagedproperly. Also, no warnings were found on the bike. Based upon this evidence,the cyclist claimed Specialized should be liable because the bike wasdefective; unreasonably dangerous in its design, construction, and manufacture;and inadequate in its instructions and warnings.
To recover from a manufacturer under the LPLA, a plaintiffmust show that the product (here, the bike) was unreasonably dangerous atthe time it left the manufacturer’s control. Photographs of the bike showeda light, silver spot on the bike where the secondary retention device had beenlocated. This confirmed that the secondary retention device was removed afterit originally was manufactured. Evidence also showed that warning stickersoriginally on the bike had been removed.
These changes were made after Specialized lost control of the bike. Because the bike was not defective when the product left Specialized’s control, Specialized, as the bike’s manufacturer, could not be liable under the LPLA for injuries the plaintiff sustained when he lost control of the bike. In short, this case came down to a matter of control.
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.
Injury
Liability
Insight
Throw Me Something Mister? Liability for Mardi Gras Krewes
As part of the unique aura that surrounds Mardi Gras inSouth Louisiana, the expression “Laissez les bons temps rouler” is foreverlinked to the spirit of the season. The Cajun French phrase meaning “Let thegood times roll” captures the eccentric soul of Carnival. However, it might bedifficult to let the good times roll after being struck by a bag of beadshurled from the second deck of float. If the spectator suffers a severe injuryas a result, who is liable? Does the injured party have any recourse againstthe person who threw the beads? Against the Mardi Gras krewe organizers?
The Fourth Circuit Court of Appeal held that spectatorsassume the risk of injury when attending a parade. Citron v. Gentilly CarnivalClub, Inc., 14-1096 (La. App. 4 Cir. 4/15/15), 165 So.3d 304. The foundation ofthe decision was based on the Mardi Gras Immunity Statute, La. R.S. 9:2796,which has two parts: (1) creates broad immunity for krewes which sponsorparades; and (2) states that anyone who attends such a parade “assumes the riskof being struck by any missile whatsoever which has been traditionally thrown,tosses or hurled by members,” which include, but are not limited to: beads,cups, doubloons, and many other things.
To impose liability on a krewe, there must be evidence ofthe krewe’s—as opposed to its member’s—gross negligence. Palmer v. Zulu Soc.Aid & Pleasure Club, Inc., 09–0751 (La. App. 4 Cir. 3/1/10), 63 So.3d 131(emphasis added). Furthermore, a carnival krewe or organization may not bevicariously liable for its members' acts. To the contrary, Louisianajurisprudence has rejected the argument that a krewe is vicariously liable forits members' acts. Kibble v. B.P.O. Elks Lodge No. 30, 640 So.2d 267, 269 (La.App. 4th Cir. 1993).
The Mardi Gras Immunity Statute imposes an extremely high burden of proving the “loss or damage was caused by the deliberate and wanton act or gross negligence” of the krewe or organization. Gross negligence has been defined as the “entire absence of care” and an “extreme departure from ordinary care or the want of even scant care.” Ambrose v. New Orleans Police Department Ambulance Service, 93–3099 (La. 7/5/94), 639 So.2d 216. In calculating whether an act was grossly negligent in the context of Mardi Gras Immunity Statute, the Citron court considered several factors: (1) the weight of the object thrown, (2) the distance the object was throw, and (3) the manner in which the object was thrown. Citron, 165 So.3d at 317.
Ultimately, the statute absolves krewes from liability for injuries caused by objects thrown to parade spectators, except in extreme and unusual circumstances. Therefore, be alert during parades this Mardi Gras season and Laissez les bons temps rouler.
Cole Frazier joined Keogh Cox as an associate in 2019 after working at the firm as a law clerk during law school. He earned his J.D. and Diploma in Comparative Law from Louisiana State University, Paul M. Hebert Law Center. During his time at LSU Law, he also studied comparative law at Jean Moulin Lyon 3 University in Lyon, France. Cole received his Bachelor’s degree in Business Administration with a concentration in Pre-law from Nicholls State University in 2015. He was elected to the Southland Conference all-academic team twice as a member of the Nicholls State football program.
Injury
Liability
Louisiana
News
2020 Super Lawyers
Congratulations to Chris Jones for being honored in the 2020 list of Louisiana Super Lawyers. Chris was selected for Class Action/Mass Torts. This selection is based on an evaluation of 12 indicators including peer recognition and professional achievement in legal practice. The Super Lawyers list recognizes no more than 5 percent of attorneys in each state.
Congratulations to Tori Bowling, Reynolds LeBlanc, Jenny McLin, and Richard Wolff for being honored in the 2020 list of Louisiana Super Lawyers Rising Stars. Tori Bowling was selected for Civil Litigation: Defense. Reynolds LeBlanc was selected for Appellate. Jenny McLin was selected for Workers’ Compensation. Richard Wolff was selected for Civil Litigation: Defense. The Rising Stars list recognizes no more than 2.5 percent of attorneys in each state.
Attorney
News
Christopher K. Jones as President-Elect of the Baton Rouge Bar Association
Partner Chris Jones was installed as the President-Elect of the Baton Rouge Bar Association at a ceremony at the Russell B. Long Federal Building and United States Courthouse. Chief U.S. District Judge Shelley D. Dick presided over the installation ceremony. The BRBA has served the legal profession and public for more than 80 years in the Baton Rouge area, and has a voluntary membership of over 2,400 lawyers.
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Insight
An Insurer's Duty: To Defend or Not To Defend
Primary insurance policies include the duty to defend aninsured in connection with a covered loss. The insurer is sometimes presentedwith the question of whether a defense is owed when many of the allegations arenot apparently covered by a particular policy. In this circumstance, how doesan insurer determine its obligation? The law provides the answer: the “eightcorners” rule—do the four corners of the policy unambiguously exclude coveragein all respects when viewed within the context of the four corners of thepetition? If the answer is “no,” the duty to defend arises. Mossy Motors,Inc. v. Cameras America, 2004-0726 (La. App. 4 Cir. 3/2/05), 898 So.2d 602,606.
Courts generally hold that the duty to defend the caseextends to ALL claims, not just the covered claims. This duty can often provequite costly, especially when non-covered claims are high-value or involveextensive factual development or testimony to defend. In some instances, theanswer under the eight corners analysis is not so clear. The safe choice forthe insurer is to provide a defense and hire separate counsel to handle thecoverage side of the case.
In this scenario, where an insurer has serious coveragedefenses, but agrees to provide the defense, when does the duty to defend terminate?The Louisiana First Circuit Court of Appeal recently ruled on this issue againin Ponchartrain Natural Gas System, K/D/S Promix, L.L.C. and Acadian GasPipeline System v. Texas Brine Company, L.L.C., No. 2018 CA 0254 (La. App.12/12/19), stating:
“Our previous decisions in the related sinkhole appeals clearly set out the well-established rule of law that an insurer' s duty to defend terminates once the undisputed facts establish, or a judicial determination is made, that the claims asserted are not covered under the policy. See Florida Gas, 272 So. 3d at 551; Pontchartrain, 264 So.3d at 553- 54; Crosstex, 240 So.3d at 1032.”
So, the duty to defend ends when undisputed facts establishOR a judicial determination is made that the asserted claims are not covered.Of course, who is to say that the facts are “undisputed” without a judicialdetermination that confirms this conclusion. An insurer couldunilaterally determine that facts are undisputed and terminate the defensebefore a judicial determination, but if the court does not agree, the insurermay have issues. Accordingly, the safe course is to await a judicialdetermination before an insurer terminates the defense.
It is important to distinguish the duty of an excess carrierbecause such policies generally do not provide an obligation to defend.Instead, the excess carrier may exercise its “right to defend.”
Insurance
Louisiana
Insight
Torts: “Loss of Chance”: Claim Limited to Medical Malpractice
InNiang v. Dryades YMCA School of Commerce, Inc., 19-0425 (La. App. 4 Cir.12/4/19), - - - So.3d - - -, the Fourth Circuit declined to expand the “loss ofchance of survival” cause of action to non-medical defendants. Despite astatute which arguably supported such a cause of action under case facts, theFourth Circuit felt constrained to reject the claim.
OnMarch 7, 2017, Mouhamadou Niang collapsed while playing basketball at aYMCA. Mrs. Niang was certified in cardiac life support, and requested anautomated external defibrillator (“AED”) to attempt to resuscitation. Mrs. Niang was advised that an AED machine was not available. Thereafter,Mr. Niang was transported to University Medical Center where he died on March11, 2017 secondary to cardiac arrest.
Mrs.Niang sued the YMCA for failing to have an AED machine on premises and assertedmultiple claims including a loss of chance of survival claim. Shecontended that the lack of the defibrillator contributed to her husband’sdeath. Under La. R. S. 40:1137.3, all “physical fitness facilities” suchas the YMCA are required to have an AED available.
TheYMCA filed a Motion for Partial Summary Judgment which was granted. Inits reasons, the trial court held that the “loss of chance” cause of action waslimited to claims raised in a medical malpractice context. The FourthCircuit affirmed.
TheFourth Circuit found that, although styled as a Motion for Partial SummaryJudgment, the YMCA had actually raised an Exception of No Cause of Action andtherefore analyzed the issue as a pure question of law. The FourthCircuit reviewed prior Louisiana Supreme Court decisions providing a right torecover damages for a loss of chance of survival in the medical malpracticecontext including the decision in Hastings v. Baton Rouge Gen. Hosp., 498So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Courtidentified a cause of action where a stab wound victim with weak vital signswas transferred from the hospital after the patient lacked insurance. The Hastingscourt commented on the reduced burden of proof in such cases:
“The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”
TheFourth Circuit identified no cases directly “on point” when the defendant wasnot a medical practitioner. Therefore, the Fourth Circuit gaveconsideration to a noted Oklahoma decision in Hardy v. Southwestern BellTel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue. Thecourt in Hardy considered the public policy implications associated withexpanding the loss of chance of survival claim to non-medical cases andreasoned that the policy concerns which justify a reduced burden of causationin medical malpractice claims do not transfer to ordinary negligencecases. The cause of action against medical providers is supported by the“special relationship” of the physician and the patient. No suchrelationship exists in a non-medical setting.
Citingto Hardy, the Niang court determined that allowing a loss ofchance of survival claim with general negligence would allow for improperspeculation as to a person’s chance of survival. Identifying nocontrolling cases and the lack of any statute creating a cause of action innon-medical malpractice cases, the Niang court concluded that loss ofchance of survival claims are not supported outside of the medical context.
Collin is a Keogh Cox partner who litigates injury,commercial, and legal malpractice disputes. He lives in nearby Zachary,Louisiana with his wife Melissa and three all too active children. He is anoutdoorsman, a league tennis player, a cook, and a hobbyist writer.
Legal Malpractice
Medical
Torts
Insight
An Update on Prescription – The Most Important Issue
“Prescription” is the timeperiod in which a litigant must file suit, or the action is barred. Oneof the first lessons a Louisiana law student learns is the importance ofdetermining the prescriptive period of a cause of action. Filing a causeof action too late is fatal. A recent decision from the Louisiana FifthCircuit Court of Appeal reads like a law school exam and illustrates thatdetermining which prescriptive period applies is sometimes the key to the case.
In DeFelice v. FederatedNat'l Ins. Co., 18-374 (La. App. 5 Cir. 7/9/19), mold was discovered inplaintiff’s home on June 10, 2016. Plaintiffs notified their insurancecompany, who hired a mold remediation company to inspect the home. Whenthe home was inspected on June 22, 2016, the inspector verbally informedplaintiffs that the home was safe. On the same day, a separate moldinspector collected samples. The second mold inspector issued a report on June23, 2016 advising that mold remediation may be necessary. This reportspecifically stated that “certain mold and mold spores in buildings and housingcan result in mild to severe health effects in humans and can deteriorate thestructure of the dwelling resulting in content or structure damage.” Thesecond report was provided to the plaintiffs.
Plaintiffs continued to live inthe home. In August of 2016, plaintiffs’ infant son was born. Shortly thereafter, the infant began to experience breathing issues and wasdiagnosed with a lung condition by December of 2016. Plaintiffs vacatedthe premises in January of 2017.
More than one year after receiptof the second mold report, plaintiffs filed suit on July 24, 2017 against theirinsurer and the inspector who advised that the home had no mold problems. Plaintiffs raised claims for property damage, damage to the health of theparents, damage to the health of the minor child, and consortium claims onbehalf of the parents for the damage to the minor child.
The DeFelice court foundthat prescription began to run on June 23, 2016 with regard to the parents’individual and property damage claims. Because suit was not filed withina year of the second mold report advising of possible health and propertydamages, the parents’ individual health claims and the claims for propertydamage were prescribed under the one-year period set by Civil Code article3492.
The minor child was not bornwhen the report was issued on June 23, 2016. Plaintiffs argued that thoseclaims were brought within a year of the child’s birth, and were thereforetimely. The DeFelice court agreed and held that prescription could notbegan to run until the child was born. While Louisiana law provides that a childis a “person” upon conception, this “legal fiction” applies only to protect theinterests of the child. The court reasoned that a finding that prescriptioncommenced prior to birth would not “protect the interests” of the child. While the parent’s claims were prescribed, the claim filed on behalf of theinfant, and any claims that the parents had related to their infant’s healthcondition, were timely.
The court's analysis inDeFelice reminds that determining which prescriptive period applies to whichclaim is often the most important issue.
Prescription