JOHNSON, Justice.
We granted this writ application to determine whether the Plaintiffs' lawsuit, seeking damages from the Louisiana Citizens Property Insurance Corporation, that
On August 29, 2005, Hurricane Katrina completely devastated parts of New Orleans, Louisiana and the surrounding areas, and for the purpose of this case, the home of Sherry Coleman Taranto, Dean Coleman, and William S. Coleman, Sr. (hereinafter referred to as "Plaintiffs"), located at 25259 Chef Menteur Highway. In response to the extraordinary circumstances associated with Hurricanes Katrina and Rita, the Louisiana Legislature enacted House Bill 1289 and House Bill 1302, known as Acts 2006, Nos. 739
In response, LCPIC filed an Exception of Prescription, arguing that the suit was not filed within one year of loss and that the extended period of prescription provided by legislation had also expired. The trial court granted the Defendant's Exception of Prescription and dismissed the Plaintiffs' claims with prejudice, finding that the Plaintiffs failed to timely file their suit despite the legislative enactment that extended the time to file. The trial court found that the Plaintiffs could not rely on LCPIC's operating manual because it contained a "typographical error indicating ten years to file litigation." The trial court held that the Plaintiffs could not have had a "meeting of the minds" regarding a ten-year suit limitation period when the Plaintiffs undisputably were not aware of the internal manual until they received it in discovery. Specifically, the trial court ruled that
The court of appeal reversed the trial court's ruling, holding that the prescriptive period was interrupted by the timely filing of a class action against LCPIC in which the Plaintiffs were putative class members. In Pitts v. Louisiana Citizens Property Ins. Corp., 08-1024 (La.App. 4 Cir. 1/7/09), 4 So.3d 107, writ denied, 09-286 (La.4/3/09), 6 So.3d 772, the Fourth Circuit held that under LSA-C.C.P. art. 596, the filing of class action suits against LCPIC, i.e., Buxton v. LCPIC, 06-8341, Civil District Court, Orleans Parish and Chalona v. LCPIC, 08-0257 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, suspended or interrupted the running of prescription against Ms. Pitts' property damage claims since Ms. Pitts was found to be a putative class member when the original class action petitions were filed. In summary, that court determined that prescription was interrupted on August 25, 2006, as to all putative class members, including Ms. Pitts, who had not opted-out of the class.
LCPIC filed a writ of certiorari, and this Court granted the writ application. Taranto v. Louisiana Citizens Property Ins. Corp., 10-105 (La.4/16/10), 31 So.3d 1068.
The issue before this Court is whether the Plaintiffs' lawsuit had prescribed when it was filed after the expiration of the suit limitation period provided in the policy of insurance and after the expiration of the extended deadline enacted by the Louisiana
In reviewing a peremptory exception of prescription, the standard of review requires an appellate court to determine whether the trial court's finding of fact was manifestly erroneous. Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. Jurisprudence provides that statutes involving prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268, 1275. On the issue of prescription, the mover bears the burden of proving prescription. Pitts, supra. However, if the petition is prescribed on its face, then the burden of proof shifts to the Plaintiff to negate the presumption by establishing a suspension or interruption. Bailey, 891 So.2d at 1275.
There are two procedural devices used in Louisiana to bar valid substantive claims which have not been timely filed, namely prescription and peremption. Dozier v. Ingram Barge Co., 96-1370 (La. App. 4 Cir. 1/28/98), 706 So.2d 1064, 1066. According to our civilian tradition, prescription is defined as a means of acquiring real rights or of losing certain rights as the result of the passage of time. Marjorie Nieset Neufeld, Prescription and Peremption—The 1982 Revision of the Louisiana Civil Code, 58 Tul. L.Rev. 593 (November 1983) (citing to Baudry-Lacantinerie & Tissier as well as Aubry & Rau).
Id. at 594-595.
In Cichirillo v. Avondale Industries, Inc., 04-C-2894, 04-C-2918 (La.11/29/05), 917 So.2d 424, this Court determined that the fundamental purpose of the prescription statutes is "to afford a defendant economic and psychological security if no claim is made timely and to protect the defendant from stale claims and from the loss or non-preservation of relevant proof." According to the Louisiana Civil Code, there are only three forms of prescription: acquisitive, liberative, and prescription of nonuse. See LSA-C.C. art. 3445. This Court defines the term "liberative prescription" as a "period of time fixed by law for the exercise of a right." State ex. rel. Div. of Admin. v. McInnis Bros. Constr., 97-0742 (La.10/21/97), 701 So.2d 937, 939. The Civil Code states that "there is no prescription other than that established by legislation" and "prescription runs against all persons" unless an exception is established by legislation. LSA-C.C. arts. 3457, 3467.
Louisiana jurisprudence recognizes three theories upon which a Plaintiff may rely to establish that prescription has not run: suspension, interruption, and renunciation.
Cichirillo, 917 So.2d at 430.
Generally, the statutes (or the policy of insurance) provide a time period within which a particular cause of action must be filed, or be forever barred. See Lee R. Russ and Thomas F. Segalla, 16 Couch on Insurance 3d, § 234:1 (2005), p. 234-7. In an insurance lawsuit, the time period that a Plaintiff has to bring this action may be derived from either the general statutes of limitations or the terms of the particular insurance policy. Id. at 234-9. The purpose of the limitations of action is to "insure that claims are asserted within a reasonable time, . . . . [and] to insure that notice of claims are given to adverse parties in order to prevent fraudulent and stale claims from springing up at great distances of time and surprising the other party." Id. at 234-12.
Typically, prescription begins to run from the date of the loss. LSA-C.C. art. 3454. In this case, the Plaintiffs asserted that the insurance policy is a contract under LSA-C.C. art. 1906,
The Plaintiffs' policy of insurance includes the following provision:
Despite the general language which allows for ten (10) years to bring suit for breach of contract, the plain language of this policy indicates that the action expired one year after the date of loss.
Our courts have held in a claim for breach of contract, the insurance contract is limited by the clear and unambiguous terms of the policy. Louisiana Joint Underwriters of Audubon Ins. Co. v. Johnson, 2009-0336 (La.App. 4 Cir. 9/2/09), 20 So.3d 528, 531. In that case, the contract stated: "No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss." Louisiana Civil Code Article 2047 provides that "[t]he words of a contract must be given their generally prevailing meaning." Insurers, like other individuals, are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 630 So.2d 759, 763 (La. 1994). In the
In the present case, LCPIC argued that Louisiana Civil Code of Procedure Article 596 does not apply to the "contractual limitations" period at issue in this matter because it only applies to "liberative prescription." In support, LCPIC relied on Katz v. Allstate Insurance Co., 04-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, which held that the filing of a class action does not alter a valid contractual prescriptive period. Because a contractual limitation period is not fixed by law or established by legislation, Article 596 is inapplicable. Katz, 917 So.2d at 447. According to Lila, Inc. v. Underwriters At Lloyd's, London, 08-0681 (La.App. 4 Cir. 9/10/08), 994 So.2d 139, 147, the limitation cited in the insured's insurance policy is not subject to interruption or suspension, but rather is merely a contractual agreement not to toll prescription if the insured institutes legal action within the two year time frame.
LCPIC also argued that the passage of La. Acts 2006, No. 802 ("Act 802") did not change the contractual nature of the suit limitation provision in the Plaintiffs' policy. This is clearly set forth in Act 802, which states that "any suit not instituted within [the specified] time and any claims relating thereto shall be forever barred unless a contract or the parties thereto provide for a later time." LCPIC reasoned that if "Act 802 somehow converted the contractual limitation period into a new legislatively-established deadline, this deadline would be peremptive and not subject to suspension under the Civil Code." LCPIC proposed that if there is a conflict between Act 802 and LSA-C.C.P. art. 596, it must be resolved in favor of applying Act 802 as the statute is specifically directed to the matter at issue.
LCPIC, and several amici who filed briefs in support of their position, argue that there are strong policy reasons supporting
Jurisprudence suggests that prescription may be suspended by the filing of a class action suit. Eastin v. Entergy Corp., 07-212, p. 12 (La.App. 5 Cir. 10/16/07), 971 So.2d 374, 381. In American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the United States Supreme Court held that the filing of a class action suit "suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." The Louisiana legislature codified the holding in Utah through LSA-C.C.P. 596, which provides:
LSA-C.C.P. art. 596. (Emphasis added).
Article 596 is "a special provision that prevents prescription from accruing against the claims of members of a putative class action until the propriety of the class action or the member's participation in the action is determinated." Galjour v. Bank One Equity Investors-Bidco, Inc., 05-1360, p. 4 (La.App. 4 Cir. 6/21/06), 935 So.2d 716, 721, quoting 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 4:12 (2008) ("Maraist & Lemmon").
Additionally, this Court has held that "since the class action is brought on behalf of all members of the class, its filing interrupts prescription as to the claims of all members of the class, whether they are noticed before or after the prescriptive delay has terminated." Williams v. State, 350 So.2d 131, 137 (La.1977). This Court noted that
Id. at 138.
Jurisprudence has provided that the interruption or suspension of the statute of limitations ceases as soon as the district court denies class certification. Bordelon v. City of Alexandria, 02-48 (La.App. 3 Cir. 7/10/02), 822 So.2d 223, 227-228. At that point, class members have the choice to file an independent suit against the defendants. Id. at 228.
In Katz, supra, the Fourth Circuit court of appeal considered whether prescription on an insured's claim was suspended due to a class action lawsuit arising out of a hail storm. Allstate argued that Mr. Katz should not be able to claim the benefit of a class action "in which he never intended to participate" and that the insured's reliance upon LSA-C.C. art. 596 was "misplaced because the article makes no reference to limitations periods imposed as a matter of contract." The court concluded, without analysis, that "the filing of the class action did not alter the contractual prescriptive period that this court has heretofore held to be valid." Id., at 447. The rationale behind this ruling was stated in Judge Murray's concurrence, in which she wrote "a plaintiff who files an independent action before a determination on class certification has been made cannot benefit from the tolling of prescription applicable to putative class members." Judge Murray maintained that when Mr. Katz filed his suit before the determination on the class certification, he "effectively opted out of the class action." Id.
In Lila, supra, the court held that Ms. Lila's claim as a result of Hurricane Katrina, which was filed on October 8, 2007, had prescribed on it face as it was filed more than two years from the date of loss, as provided by the insurance policy and after both statutory extensions of time to file claims had expired. Thus, the court correctly held that the unconditional payment of a first party property claim did not constitute acknowledgment sufficient to interrupt prescription. Unlike the present case, there is no mention of a pending class action lawsuit by which Lila was a putative member, which was timely filed and may have suspended prescription.
In Woman's Hospital Foundation of Baton Rouge v. Billie Bolton, 05-2357 (La. App. 1 Cir. 12/28/06), 951 So.2d 1110, the court determined that when the patient, who was a putative member of the class action suit brought against the hospital, was dismissed from the class, the suspended prescriptive period began to run on her claim within thirty days of receiving notice of the dismissal pursuant to LSA-C.C.P. art. 596(A)(3). Upon receiving notice of the judgment of dismissal on July 24, 2001, Ms. Bolton failed to file suit until June 9, 2003. For this reason, the court correctly held that her suit was prescribed.
In Pitts, supra, Ms. Pitts' property was destroyed by Hurricane Katrina, and she filed suit claiming LCPIC's payments were "grossly inadequate." Prior to filing her petition for damages, she asserted her interest as a putative member of the class action suits timely filed on August 25, 2006, i.e., the Buxton and Chalona class action suits. The following events occurred in the above-mentioned class action lawsuits: on August 9, 2007, the trial court denied Buxton class certification due to a lack of demonstrated commonality; on January 25, 2008, the court restricted the Chalona class to exclude those whose
In analyzing whether the Plaintiffs in this case timely filed their claims, we must consider the two class actions, Buxton and Chalona, which were timely filed on August 25, 2006, and whether the Plaintiffs are putative members of either class. The Buxton case sought a class definition as follows:
In the present case, the Plaintiffs' claims fall within the defined class.
On August 9, 2007, class certification was denied in Buxton, but there was no order entered requiring notice to the putative class. On January 25, 2008, the trial court restricted the Chalona class to exclude those "whose claims were insufficiently paid" and ordered on April 24, 2008, that notice be provided to all putative plaintiffs.
Pursuant to LSA-C.C.P. art. 596, the liberative prescription that was suspended with the filing of the class action petition, commenced to run again thirty (30) days after publication of notice of the class restriction in Chalona, or on May 24, 2008. Once the prescriptive period began to run again, the Plaintiffs had only the time remaining under the applicable prescriptive period within which to file suit. LSA-C.C.
Given this timetable, LCPIC's claim that applying LSA-C.C.P. art. 596 would expose it to an indefinite period of liability on hurricane claims is exaggerated. There is a definite cut-off point to exposure. That point occurs after the prescriptive period pursuant to LSA-C.C.P. art. 596 begins to run anew and the Plaintiffs' remaining time under the applicable prescriptive period within which to file suit has expired.
We disagree with LCPIC's argument that the one year period in the insurance policy is a "contractual limitations" period and not a liberative prescriptive period subject to the suspension principles of LSA-C.C.P. art. 596. This holding would prevent all insureds from filing class actions against their insureds for breach of the insurance contract, unless the class action can be filed and a class certified, all within the one year limitations period, which is very unlikely. This ruling would have a limiting effect on the pending class actions involving Hurricane Katrina claims. Arguably, only the claims of the named plaintiffs in those class actions would be preserved because only actions by those named plaintiffs would have been "started within one year of the date of loss." Any other parties who relied upon the filing of the class actions to preserve their claims, instead of filing separate claims, would be subject to exceptions of prescription.
In sum, LCPIC claims the time limitation is contractual, not prescriptive, in nature and, therefore, not subject to the rules of prescription, i.e., suspension or interruption. Their position is flawed, however, in that, although parties to an insurance contract may by legislative pronouncement, limit the prescriptive period to one year, they may not, as a matter of law, contractually "opt out" of prescription, abrogate the prescriptive periods established by law, or divest said time limitations of their prescriptive nature. Therefore, as a one-year prescriptive period prescribed by law, the time limitation set forth in the policy is subject to the procedural rules of suspension of prescription.
Under Louisiana Civil Code article 3457, "[t]here is no prescription other than that established by legislation." LSA-C.C. art. 3471 provides: "[a] juridical act purporting to exclude prescription, to specify a longer period than that established by law, or to make the requirements of prescription more onerous, is null." This provision is directed to the protection of interests vital to public order, i.e., the extinction of the charge against the debtor as a result of the creditor's inactivity, the prevention of litigation brought long after memories have dimmed and evidence has been lost, and sets forth an imperative rule, which, by law, "private individuals cannot set aside . . . by private agreement." See E.L. Burns Co., Inc. v. Cashio, 302 So.2d 297, 300 (La.1974); see also, LSA-C.C. art. 7 ("Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such
The decision in E.L. Burns is vitally important to an understanding of our principles of prescription as they stand today, because it is in this decision that a majority of this Court, lead by Justice Marcus, examines and strikes down a contractual limitation, or rather expansion of prescription, as violative of our codal provisions prohibiting the anticipatory renunciation of prescription. 302 So.2d at 301-302. In E.L. Burns, this Court analyzed whether the one-year prescriptive period of actions on the contractor's bond under the public contracts law may be extended by a surety bond contract. LSA-R.S. 38:2247 (1950)
Id. at 301 [Citations omitted.]
This Court held that the stipulation in the surety bond that suit may be brought within two years, "in contravention of the one-year prescription set forth in LSA-R.S. 38:2247, constitutes an anticipatory renunciation of prescription . . . and cannot be given effect." In a well-reasoned and well-supported dissent, Justice Tate, joined by Justice Calogero, advocated the freedom of contract and warned of the danger of "classifying any agreement limiting the time within which to sue under a contract as an agreement either to renounce prescription or somehow to limit it." 302 So.2d at 303.
In determining whether the contractual limitation/prescriptive period is one subject to the general statutory rules of interruption, suspension, we disagree with LCPIC's argument that in this case, the suit limitation period is determined by contract and not mandated by statute, and that the statutory rules for interruption and suspension of prescription are not applicable. In Tracy v. Queen City Fire Ins. Co., 132 La. 610, 614, 61 So. 687, 688 (1913), this Court noted that:
In this case, the Louisiana Civil Code provides that an action on a contract is a personal action, subject to a liberative prescription of ten years. LSA-C.C. art. 3499. On the effective date of the policy at issue in this case, LSA-R.S. 22:629(A)(3) provided that no insurance contract issued for delivery in this state shall contain any stipulation: "[l]imiting right of action against the insurer to a period of less than twelve months next after the inception of the loss. . . ." In accordance with this provision, the insurance policy contains the following stipulation: "No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss."
Based upon Tracy, we hold that the contractual stipulation in the LCPIC policy is actually one imposed by law, and not contract, and thus the laws with respect to interruption and suspension apply, including LSA-C.C.P. art. 596. This analysis equally applies to the one year extension of the limitations period LCPIC insists it "voluntarily" afforded to its policy holders. Such a conclusion is not inconsistent with former pronouncements of this Court. Indeed, in rejecting a contracts clause challenge to Acts 739 and 802, this Court specifically noted that the Louisiana insurance industry is pervasively regulated, and because the "minimum prescriptive period was already set by statute in the former R.S. 22:629 . . . . a change in the prescriptive period was a legal possibility." State v. All Property and Casualty Ins. Carriers, 06-2030 at p. 16, 937 So.2d at 325. This language supports our conclusion that the limitations period in the LCPIC policy is at least indirectly, if not directly, mandated by law. Therefore, it is
Finally, we must resolve whether Acts 739 and 802, in extending the statutory and contractual prescriptive periods of insurance contracts in the wake of Hurricanes Katrina and Rita, are peremptive, and therefore not subject to interruption and suspension. LCPIC's argument on this point is not persuasive. There are two distinctions between prescription and peremption: (1) the tolling of peremption extinguishes the right sought to be exercised, whereas prescription merely limits the time within which one may exercise the right; and (2) peremption is not subject to renunciation, suspension or interruption, while prescription may be renounced, suspended or interrupted. See LSA-C.C. arts. 3458 and 3461; Naghi v. Brener, 08-2527 (La.6/26/09), 17 So.3d 919. "Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period." LSA-C.C. art. 3458. "Statutes of peremption destroy the cause of action." Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899, 901 (La.1900). In Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (1900), this Court held that the three-month period allowed for the filing of a suit to contest the validity of a property tax election was peremptive in nature:
Act 802 declares that it "establishes an additional, limited exception to the running of prescription and, as such, prevents the running of prescription for one year on any claim seeking to recover for loss or damage to property against an insurer . . . ." (emphasis added). There is no conflict between Article 596, providing for suspension of prescription upon the filing of a class action, and Act 802, requiring suits on Hurricane Katrina insurance claims "to be filed on or before August 30, 2007 or be forever barred," so long as the class action suits were timely filed on or before August 30, 2007. The application of Article 596 to suspend the running of prescription against Katrina insurance claims timely asserted in class actions does not impair the obligations of any insurance contracts because the insurer has timely notice of the magnitude of all putative claims. Moreover, it provides that "any suit not instituted within that time and any claims relating thereto shall be forever barred unless a contract or the parties thereto provide for a later date." (emphasis added). We reiterate that a peremptive period cannot be renounced, interrupted or suspended. Therefore, by definition, a time period that may be altered by contract or agreement of the parties cannot be a peremptive period.
For the foregoing reasons, we conclude that filing of a lawsuit designated as a class action pursuant to LSA-C.C.P. art. 591, suspends prescription for all members of the putative class until the district court has ruled on the motion to certify the class. When notice is given, pursuant to LSA-C.C.P. art. 596, the suspended prescription period begins to run again. Thus, we affirm the ruling of the court of appeal.
KNOLL, J., additionally concurs and assigns reasons.
WEIMER, J., concurs and assigns reasons.
GUIDRY, J., dissents and assigns reasons.
CLARK, J., concurs for reasons assigned by WEIMER, J.
VICTORY, J., dissenting.
I dissent from the majority's holding that the filing of a class action lawsuit suspended the contractual limitations period imposed by Louisiana Citizens Property Insurance Corporation's ("Citizens") insurance policy. In my view, La. C.C.P. art. 596 does not apply to a contractual limitations period because it expressly operates to only suspend "liberative prescription." The majority errs in holding otherwise for several reasons.
First, La. C.C. art. 3471 provides that "[a] juridical act purporting to exclude prescription, to specify a longer period than that established by law, or to make the requirements of prescription more onerous, is null." The converse of that is that a contractual limitations period which does not do any of the above is enforceable. This Court has long recognized that concept. See Blanks v. Hibernia Ins. Co., 36 La. Ann. 602 (La.1884) ("[t]he validity and legality of stipulations in policies of insurance limiting the time within which actions for claims thereunder may be brought, have been affirmed by the [Louisiana Supreme] Court and by the Supreme Court of the United States") (citing Edson v. Merchants' Mut. Ins. Co., 35 La. Ann. 353 (La.1883); Riddlesbarger v. Hartford Insurance Co., 74 U.S. 386, 7 Wall. 386, 19 L.Ed. 257 (1868)). Further in State of Louisiana v. All Property and Casualty Ins. Carriers, 06-2030 (La.8/25/06), 937 So.2d 313, this Court recognized it was the time limitation in the insurance contracts at issue which governed the time period in which claimants must file suit (and thus we had to determine whether Acts 739 and 802 unconstitutionally violated these contractual time limitations). In addition, the relevant statutes recognize that parties to an insurance contract can set their own time periods for filing suit so long as the periods fall within a certain window. At the time of Katrina, Louisiana law prohibited insurers from including suit limitations periods shorter than 12 months, (La. R.S. 22:629(A)(3)(2005)), and prohibited parties from agreeing to a limitations period longer than the 10-year liberative prescription period. La. C.C. arts. 3471, 3499. La. R.S. 22:658.3 (now renumbered La. R.S. 22:1894) extended the period to September 1, 2007 unless a greater time period was otherwise provided by law or by contract. Here, Citizens extended the deadline to September 4, 2007, longer than the minimum period proscribed by law and shorter than the maximum period proscribed by law. In my view, where, as here, the contractual limitations period falls anywhere within the allowed window, i.e., between September 1, 2007 and the 10-year outer limit, it is valid under La. C.C. art. 3471 and enforceable as a contractual limitations period. See Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845 (1961) (where a contract fixes the length of a servitude within the time allowed by law, "no question of prescription arises because the servitude would expire by the terms of the contract before it could ever be lost by the 10-year prescription for non-user").
In addition, the majority errs in relying on All Property to support its holding. The main issue in All Property was a contracts clause violation wherein this
In this case, the Court is being asked to apply a pre-existing general provision of the Code of Civil Procedure dealing with class actions to interrupt the time period an insurance company has validly included in its contract. Further, this provision would provide an even longer period of time for the legal prosecution of claims against insurance companies than the legislature provided in Acts 739 and 802. In addition, the suspension based on Article 596 is uncertain and would be applicable only on an individual, case-by-case basis, the two things the Court in All Property sought to avoid. All Property recognized that the legislature's desire for finality in stating these claims would be "forever barred" unless brought within the extended one-year period. Acts 739 and 802 were a special solution to a unique problem, and not meant to provide a new rule that contractual limitations could be suspended by Article 596.
Further, the majority opinion ignores the clear language of La. C.C.P. art. 596, which states "[l]iberative prescription" is suspended upon the filing of a class action in certain circumstances. It is well settled that "liberative prescription" is a "period of time fixed by law for the exercise of a right" and a contractual limitations period is not a time period fixed by law, it is fixed by agreement between the parties. Before this case and Pitts v. Louisiana Citizens Property Insurance Co., 08-1024 (La.App. 4 Cir. 1/7/09), 4 So.3d 107, the Fourth Circuit had correctly held that the limitations period provided in an insurance policy is not a prescriptive period suspended by the provisions of Article 596. Katz v. Allstate Insurance Co., 04-1133 (La. App. 4 Cir. 2/2/05), 917 So.2d 443; see also Lila, Inc. v. Underwriters At Lloyd's, London, 08-0681 (La.App. 4 Cir. 9/10/08), 994 So.2d 139 (holding that a contractual limitations period is not a prescriptive period subject to interruption or suspension). Similarly, in a well-reasoned opinion by Judge Feldman of the Eastern District of Louisiana, the federal court held that the filing of a class action Katrina lawsuit does not extend the contractual limitations period in an insurance policy. Dixey v. Allstate Ins. Co., 681 F.Supp.2d 740 (E.D.La.1/8/10). The court stated its belief that this Court would likely limit the All Property decision to its narrow facts because to do otherwise would violate the clear language of Article 596 and "add a dimension that might detract from the certainty of [that] decision . . ." 681
For the foregoing reasons, I respectfully dissent.
KNOLL, Justice, additionally concurring.
I am additionally concurring to further explain why I find the limitation provision at issue is prescriptive. I further concur addressing Citizens' contractual limitation under the Insurance Code and find the purported prescription shortening provision in the parties' contract did not meet the strict requirements of the Insurance Code, thus, Citizens cannot prevail under its contract theory.
Finding plaintiffs' lawsuit was timely filed because prescription
On June 27, 2008, plaintiffs filed their petition for damages against Citizens, alleging that, on August 29, 2005, the winds of Hurricane Katrina "completely destroyed" their home located at 25259 Chef Menteur Highway in New Orleans. Plaintiffs further alleged that Citizens insured the property and that they provided proof of loss to Citizens and made demand for payment, but "to no avail." In response, Citizens filed an "Exception of Prescription," citing the provision of the parties' insurance policy, which provided: "No action can be brought unless . . . the action is started within one year after the date of loss." Citizens also cited La.Rev.Stat. 22:658.3,
In so arguing, Citizens asserts the limitation provision at issue is contractual in
Under our Civil Code as revised in 1982,
At issue in this case is liberative prescription, which, by definition, "is a mode of barring of actions as a result of inaction for a period of time"—"a mode of extinguishing claims." La. Civ.Code art. 3447; La. Civ.Code art. 3447, Revision Comments—1982, Cmt. (b). A personal action, such as one arising out of a contract, is subject to a liberative prescription of ten years in the absence of a legislative provision that either establishes a shorter or longer period or declares the action to be imprescriptible. La. Civ.Code art. 3499; see also La. Civ.Code Ann. art. 3499, Revision Comments-1983, Cmt. (b). Note, only a legislative provision can allow for the shortening or extending of a prescribed period because "[t]here is no prescription other than that established by legislation."
The Insurance Code allows for the limiting/shortening of the applicable ten-year prescriptive period to no less than a one-year prescriptive period, specifically providing at the time of the issuance of the contract in issue:
La.Rev.Stat. § 22:629 (West 2005).
The insurance contract contained the following stipulation:
This contractual limitation of the ten-year liberative prescriptive period to a one-year liberative prescriptive period does not and cannot destroy the prescriptive nature of the time limitation because a juridical act cannot exclude prescription, and it is only by legislative directive that the parties can contractually limit the prescribed period.
In summary, under the clear and explicit language of our Civil Code, parties to a contract cannot exclude prescription, nor can they extend or shorten a prescribed period in the absence of a legislative provision directly allowing for such. Suits on contracts are subject to a ten-year prescriptive period, which the Insurance Code allows to be shorten to no less than a one-year
La.Code Civ. Proc. art. 596 specifically provides that liberative prescription is suspended on the filing of the "petition brought on behalf of a class ... as to all members of the class as defined or described therein." Relevant herein, the filing of the class action petitions in Buxton and Chalona
Pertinently, Buxton was denied class certification on August 9, 2007, but no order to notify the class was issued. The Chalona class was restricted to exclude those members "whose claims were insufficiently paid," i.e., plaintiffs herein, on January 25, 2008, but the order to notify all putative plaintiffs was not issued until April 24, 2008. Therefore, suspension continued as to the plaintiffs herein until May 24, 2008, at which time prescription commenced to run again. La.Code Civ. Proc. art. 596; La. Civ.Code art. 3472 ("The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.") At that point in time, plaintiffs had the number of days or time
I also agree with the opinion in holding Act 802 does not set forth a peremptive period. Regarding this issue, Citizens argues "should this Court concluded that Act 802 did not extend the contractual limitations period, but somehow converted the contractual limitations period into a legislatively-established
However, the ability of the parties to contract to a later date renders the provision non-peremptive because peremption— the period of time fixed by law for the existence of a right—may not be renounced, interrupted, or suspended. La. Civ.Code arts. 3458 and 3461. "Unless timely exercised, the right is extinguished upon the expiration of the peremptive period." La. Civ.Code art. 3458. Because the parties could extend the existence of the right and time period for filing suit by contract, which they did in this case, the time period set forth by the Legislature in Act 802 cannot, therefore, be peremptive.
In the alternative, I find Citizens cannot prevail because the purported prescription-shortening provision in the parties' contract does not meet the strict requirements of the Insurance Code.
Former La.Rev.Stat. § 22:629(A)(3)
La.Rev.Stat. § 22:629(B) provides that any attempt to limit prescription in violation of this rule shall be absolutely void: "Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract."
Section 22:629(A)(3) describes two classes of insurance policies—for those types of policies listed in La.Rev.Stat. § 22:6(10), (11), (12), or (13), the shortest permissible prescriptive period is "twelve months next after the inception of the loss." For any other type of policy, the shortest permissible prescriptive period is "one year from the time when the cause of action accrues." (Emphases added). Although this distinction may seem arcane, it is entirely crucial to the outcome of this case.
The disputed policy provision states:
(Emphasis added).
This clause satisfies the requirements set forth in the first part of La.Rev.Stat.
The relevant question is whether this policy of insurance is among those types listed in La.Rev.Stat. § 22:6(10), (11), (12), or (13): fire and extended coverage; steam boiler and sprinkler leakage insurance; crop and live stock insurance; and marine and transportation insurance.
Plaintiffs' claim arises in part out of La.Rev.Stat. § 22:1220,
Plaintiffs, by law, must have one year from the date the cause of action accrues to file suit. Under defendant's policy, plaintiffs would have at most ten months from the date the cause of action accrues to file suit. This purported prescription limitation provision is therefore void under La.Rev.Stat. § 22:629(B), and plaintiffs' suit was timely.
WEIMER, J., concurring
I concur in the result and write separately to explain why I believe that result is correct.
In support of its argument, Louisiana Citizens cites a line of cases, dating from Edson v. Merchants' Mutual Ins. Co., 35 La. Ann. 353 (1883), which uphold the validity of stipulations in insurance policies which limit the time period in which actions for claims thereunder may be brought. Among the cases cited is Tracy v. Queen City Fire Ins. Co., 132 La. 610, 61 So. 687 (1913), a case which is particularly instructive with respect to the issue presented here.
In Tracy, the court was confronted with a policy of fire insurance which contained the following stipulation: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law ... unless commenced within twelve months next after the fire." Tracy, 132 La. at 611, 61 So. at 687. A suit on the policy was filed within four months of the fire, but was dismissed on an exception of jurisdiction ratione personae. More than one year after the fire, a second suit was filed. The defendant insurer filed an exception of prescription, arguing that because the prescriptive period was contractual and not statutory, the statutory rule allowing for interruption of prescription did not apply and, thus, prescription was not interrupted by the earlier filed suit.
The court, citing Edson and the U.S. Supreme Court case on which Edson relied, Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 19 L.Ed. 257, 7 Wall. 386 (1868), decreed as "settled" law the proposition that (1) stipulations in insurance policies limiting the time within which actions for claims thereunder may be filed are both valid and legal; (2) such stipulations are the law which the parties have made for themselves and by which their rights and obligations must be measured; and (3) since the rights of the parties flow from the contract, and not statute, the laws that apply to statutory limitations have no application. Tracy, 132 La. at 611-12, 61 So. at 687. Nevertheless, the court pointed out that an exception to this "settled" law arises when the limitation period in the contract is one prescribed by law. Tracy, 132 La. at 613, 61 So. at 687. Drawing from Hamilton v. Royal Ins. Company of Liverpool, 156 N.Y. 327, 50 N.E. 863 (1898), the Tracy court held that because Louisiana has a statute requiring all fire insurance policies written in this state to conform to the New York standard
Tracy, 132 La. at 614, 61 So. at 687.
I believe the logic and rule of the Tracy decision applies to the instant case. On the effective date of the policy at issue, two provisions of law set the perimeters of the applicable prescriptive period: La. C.C. art. 3499, which provides that an action on a contract is a personal one, subject to a liberative prescription of ten years; and La. R.S. 22:629(A)(3) which, at the time, provided that no insurance contract issued for delivery in this state shall contain any stipulation limiting the right of action against an insurer to a period of less than twelve months after the inception of the loss.
Further, to the extent Louisiana Citizens attempts to assert the contractual nature of its agreement to circumvent the application of the general codal and statutory rules of prescription, it runs afoul of La. C.C. art. 3471. That article clearly circumscribes the limits of any contractual agreement attempting to incorporate a limitation period different from that established by law. Louisiana C.C. art. 3471 states:
In this case, Louisiana Citizens argues that its contractual limitation period is not,
As to Louisiana Citizens' alternative argument, that to the extent 2006 La. Acts, Nos. 739 and 802 can be construed to have converted the contractual limitation period of the policy into a statutorily imposed liberative prescription, the Acts establish and impose upon the insurance contract a peremptive period, not subject to interruption or suspension, I find the majority's resolution of this argument persuasive. Because both Acts contain provisions which allow the time limitations in the Acts to be extended by contract,
GUIDRY, Justice, dissents and assigns reasons.
For the following reasons, I conclude that the institution of the class action suits in Buxton v. Louisiana Citizens Property Ins. Co, 06-8341, Civil District Court, Parish of Orleans and Chalona v. Louisiana Citizens Property Insurance Corporation, 08-0257 (La.App. 4 Cir. 6/11/08), 3 So.3d 494 did not interrupt or suspend the contractual limitation for the filing of the plaintiffs' suit.
La. C.C.P. art. 596 clearly provides the filing of a class action suit operates only to suspend liberative prescription, which is a period of time fixed by law for the exercise of a right. State, through Dept. of Corrections v. McInnis Bros. Constr., 97-0742, p. 2 (La.10/21/97), 701 So.2d 939, 940. The liberative prescriptive period for a contract action is ten years. La. C.C. art. 3499. Nonetheless, the law permits the parties to contractually agree to a shorter period of time of not less than twelve months to institute suit. La. R.S. 22:629(A)(3) (2005), re-codified in 2009 as La. R.S. 22:868. In the instant insurance matter, the parties contracted for a one-year limitation for the filing of suit. It is undisputed a contractual limitation is peremptive in nature and thereby not susceptible to suspension or interruption. Hebert v. Doctors Memorial Hosp., 486 So.2d 717, 723 (La.1986) ("[N]othing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation."). Since La. C.C.P. art. 596 does not reference the suspension of contractual limitations, it becomes inapplicable under the facts.
Moreover, the agreed term for a one-year deadline for the institution of suit was
Accordingly, I respectfully dissent.
CLARK, Justice, concurring for reasons assigned by Justice Weimer.
I concur in the result for the reasons assigned by Justice Weimer.
Act 739 was signed by the Governor on June 29, 2006, and became effective on that date.
Id. at 321. Act 802 was signed by the Governor on June 30, 2006, and became effective on that date.
In other words, at the time of Hurricane Katrina, Louisiana law prohibited insurers from including suit limitations periods shorter than 12 months, LSA-R.S. 22:629(A)(3)(2005), and prohibited parties from agreeing to a limitations period longer than the ten (10) year liberative prescriptive period. LSA-C.C. arts. 3471-3499. LSA-R.S. 22:658.3 (now renumbered LSA-R.S. 22:1894) extended the period to September 1, 2007 unless a greater time period was otherwise provided by law or by contract.
Unfortunately, earlier cases rendered by this Court upholding "contractual prescriptive" periods, Blanks v. Hibernia Insurance Company, 36 La.Ann. 599 (1884); Edson v. Merchants' Mutual Insurance Company, 35 La. Ann. 353 (1883); and Carraway v. Merchants' Mutual Insurance Company, 26 La. Ann. 298 (1874), cannot, therefore, stand as a matter of law under the revision. So too must fall Justice Tate's well-reasoned and well-supported position in his dissent in E.L. Burns, joined by Justice Calogero, advocating the freedom of contract and warning of the danger of "classifying any agreement limiting the time within which to sue under a contract as an agreement either to renounce prescription or somehow to limit it." 302 So.2d at 303.
Pursuant to 2006 La. Acts, No. 802, Hurricane Katrina claimants are required to institute claims "on or before August 30, 2007, and any suit not instituted within that time and any claims relating thereto shall be forever barred unless a contract or the parties thereto provide for a later date." (Emphasis added.)