In Louisiana, what most states refer to as the “statute of limitations” is called a “prescriptive period.” Just like a statute of limitations, this is the period in which a party has the opportunity to file a lawsuit or lose the right forever. A couple of cases handed down by Louisiana’s First Circuit Court of Appeal this year—Gibson v. Jalou Cash’s, LLC, 2019 CA 1308 (La. App. 1 Cir. 7/17/20) and Sanders v. Petrin, LLC a/k/a Petrin Corporation, 2019 CA 1625 (La. App. 1 Cir. 7/24/2020)—provided some interesting insight in unusual situations.
Gibson v. Jalou Cash’s, LLC
In Gibson, Plaintiff filed a lawsuit alleging that he was a guest at a truck stop/casino on or about August 19, 2016, when a speaker fell from the ceiling, impacting Plaintiff’s head. He sought damages based on injuries allegedly received. The lawsuit was filed on August 18, 2017, one day short of the alleged one-year anniversary of the accident. Note that the prescriptive period for a tort in Louisiana is one year. See La. CC art. 3492.
Defendants in the suit filed an exception and motion for summary judgment claiming that the prescriptive period had already run when suit was filed. They provided evidence in the form of three accident reports showing that the accident had in fact occurred on August 13, 2016. Correspondence among counsel for the Plaintiff and the casino and its insurer’s adjusters all referenced the date of loss as August 19, 2016, the date claimed in Plaintiff’s Petition.
Plaintiff’s counsel objected to summary judgment, claiming that many facts were in dispute, including whether or not Plaintiff had been provided with sufficient information from defendants to show the correct date of loss; whether the defendants had provided relevant evidence to the insurer’s adjuster; and whether defendants concealed information from Plaintiff’s counsel, among other issues.
Plaintiff’s counsel asked the court to apply the doctrine of contra non valentem. This doctrine essentially holds that prescription should not toll against a Plaintiff who did not willingly file his lawsuit late, but rather did so unwillingly because of actions by Defendants. Plaintiff argued he would have timely filed suit if the correct accident information had been provided to him.
Based on the uncontroverted evidence before it, the trial court granted defendants’ exception and motion for summary judgment.
The appellate court affirmed the trial court ruling. The court noted that the Defendants had introduced evidence for the actual date of loss: August 16. This evidence was uncontroverted by Plaintiff. Given this evidence, it was Mr. Gibson’s burden to demonstrate that prescription had otherwise been interrupted.
The court found that Plaintiff had failed to demonstrate the application of contra non valentem. Plaintiff urged the doctrine on two of the four available grounds: 1) that defendant had performed some act disallowing Plaintiff to avail himself of the courts and 2) that the cause of action was not reasonably knowable by the Plaintiff, even though his ignorance was not induced by the Defendant. Noting that contra non valentemis only applied in exceptional circumstances, the Court did not find that Plaintiff met his burden under either scenario.
Gibson needed to demonstrate that he could not have learned of the true date of occurrence, and that such ignorance was not attributable to his own negligence or willfulness. Although he may have been temporarily dazed by the speaker falling on his head, Plaintiff had been aware of the accident at occurrence and had acquaintances with him at the casino. Furthermore, the evidence did not demonstrate that 1) defendants engaged in conduct rising to the level of concealment, misrepresentation, fraud, or ill practices; 2) defendants’ practices prevented Plaintiff from pursuing his cause of action; or 3) Plaintiff was reasonable in his inaction.
Much of this case turned on the fact that the date of August 19, relied upon by the insurance adjuster in later correspondence, came from Plaintiff’s counsel’s initial letter of representation. Essentially, the first error in reporting of the accident date was from the Plaintiff’s side—for whatever reason. The Court might have decided this differently if the adjuster had advised of the initial accident date incorrectly, and Plaintiff had relied upon that representation. In that instance, fraud or ill practices may have come into play.
Sanders v. Petrin, LLC a/k/a Petrin Corporation
In Sanders, the Plaintiff fax-filed a Petition on May 19, 2017, claiming damages from his employer due to its intentional actions on or about May 16, 2016. Plaintiff later provided deposition testimony that the injury occurred on or before March 29, 2016—more than one year before suit was filed. The employer-defendant thereafter filed an exception for prescription, including as evidence the deposition testimony and medical records with a treatment date of March 29, 2016. The exception was granted by the trial court.
Plaintiff argued that the trial court should have considered his injury as an ongoing tort lasting past the March 29, 2016 date of initial loss. On March 29, Plaintiff developed injury to his hands when wet cement came through holes in his work gloves. He was diagnosed with chemical dermatitis on March 29, 2016, in the ER. The appellate court noted that there was no evidence of subsequent injury after the date of March 29, 2016. Therefore, the trial court judgment was upheld.
Plaintiff’s claims to have suffered an ongoing tort seemed specious at best in this case. There may have been some underlying facts which had not been presented to the court or which Mr. Sanders believed should have led to his victory—but which his counsel knew was irrelevant or could not be introduced. This case would almost seem to be of no relevance to anyone, as Plaintiff’s claims to a continuing tort are simply bizarre. However, this case has now been cited in Louisiana’s Civil Law Treatise Series.
Conclusion: The Plaintiff Needs to Keep His Dates Straight
In the end, these two rather strange cases simply highlight the need for a Plaintiff to keep his dates straight. Furthermore, they demonstrate a best practice for civil defendants. Dig through all paperwork and evidence in files to ascertain correct dates and to explore other potential dates in discovery. Do not take any allegations for granted. Finding out that Plaintiff’s Petition or pre-accident claims are incorrect can yield a complete escape from liability.