Kelvin Wells v. Farm Bureau Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0940

KELVIN WELLS

VERSUS

FARM BUREAU INSURANCE COMPANY

Judgment Rendered: FEB 2 6 2020

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APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
11"
DOCKET NUMBER C678713, DIVISION

HONORABLE R. MICHAEL CALDWELL, JUDGE

Kelvin Wells Plaintiff/Appellant
Baton Rouge, Louisiana Pro -Se

R. Heath Savant Attorneys for Defendant/ Appellee
Mark T. Assad Louisiana Farm Bureau Casualty
Christopher J. Matulis Insurance Company
Baton Rouge, Louisiana

BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

McDonald, J.

This is an appeal from a judgment sustaining an exception of prescription

and dismissing plaintiff' s suit. After review, we affirm.

FACT AND PROCEDURAL HISTORY

This suit arose out of an accident on January 23, 2018, wherein the plaintiff,

Kelvin Wells, alleged he was injured after being struck by a car driven by his wife,

Kelda Price.' Mr. Wells fax filed a copy of his petition for damages on January 22,

2019, with the East Baton Rouge Parish Clerk of Court' s Office. He named as

defendant Ms. Price' s insurer, Louisiana Farm Bureau Casualty Insurance

Company ( Farm Bureau). The original petition was filed fourteen days later, on

February 5, 2019. Farm Bureau filed an answer and raised exceptions of

prescription, nonconformity of the petition with La. C. C. P. art. 891, vagueness, and

ambiguity. The matter was heard on May 6, 2019. No evidence was introduced at

the hearing. The district court granted the exception of prescription and dismissed

the suit with prejudice. The judgment was signed on May 28, 2019. Mr. Wells has

appealed that judgment.

STANDARD OF REVIEW

Ordinarily, the party pleading prescription bears the burden of proving the

claim has prescribed. When the face of the petition reveals that the plaintiffs claim

has prescribed, the burden shifts to the plaintiff to demonstrate that the running of

prescription was suspended or interrupted. Johnson v. Shafor, 2008- 2145 ( La.

App. 1 Cir. 7/ 29/ 09), 22 So. 3d 935, 938- 39, writ denied, 2009- 1921 ( La. 11/ 20/ 09),

25 So. 3d 812.

1 While the petition alleges that the accident occurred on January 23, 2017, other documents in the record
confirm that the accident occurred on January 23, 2018, as acknowledged by Farm Bureau.
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If no evidence is introduced to support or controvert the exception, the

manifest error standard of review does not apply, and the appellate court' s role is

to determine whether the trial court' s ruling was legally correct. Harris v. Breaud,

2017- 0421 ( La. App. 1 Cir. 2/ 27/ 18), 243 So. 3d 572, 578- 79.

THE STATUTE

Louisiana Revised Statutes 13: 850 provides:

A. Any document in a civil action may be filed with the clerk of court
by facsimile transmission. All clerks of court shall make available for
their use equipment to accommodate facsimile filing in civil actions.
Filing shall be deemed complete at the time the facsimile transmission
is received by the clerk of court. No later than on the first business
day after receiving a facsimile filing, the clerk of court shall transmit
to the filing party via facsimile a confirmation of receipt and include a
statement of the fees for the facsimile filing and filing of the original
document. The facsimile filing fee and transmission fee are incurred
upon receipt of the facsimile filing by the clerk of court and payable
as provided in Subsection B of this Section. The facsimile filing shall
have the same force and effect as filing the original document, if the
filing party complies with Subsection B of this Section.

B. Within seven days, exclusive of legal holidays, after the clerk of
court receives the facsimile filing, all of the following shall be
delivered to the clerk of court:

1)The original document identical to the facsimile filing in number
of pages and in content of each page including any attachments,
exhibits, and orders. A document not identical to the facsimile filing
or which includes pages not included in the facsimile filing shall not
be considered the original document.

2) The fees for the facsimile filing and filing of the original document
stated on the confirmation of receipt, if any.

3) A transmission fee of five dollars.

C. If the filing party fails to comply with any of the requirements of
Subsection B of this Section, the facsimile filing shall have no force
or effect. The various district courts may provide by court rule for
other matters related to filings by facsimile transmission.

D. The clerk may purchase equipment and supplies necessary to
accommodate facsimile filings out of the clerk' s salary fund.
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ANALYSIS

Louisiana Revised Statutes 13: 850 was amended by Acts 2016, No. 109, § 1,

effective August 1, 2016. The amendment changed the requirement that the

original document shall be " forwarded" to the clerk of court within seven days to a

requirement that the original document shall be " delivered" to the clerk of court

within seven days.

When a law is clear and unambiguous and its application does not lead to

absurd consequences, the law shall be applied as written and no further

interpretation may be made in search of the intent of the legislature. La. C. C. art.

9. The words of a law must be given their generally prevailing meaning ( except

that words of art and technical terms must be given their technical meaning when

the law involves a technical matter). La. C. C. art. 11.

Because Mr. Wells' claim was prescribed on its face, Mr. Wells, as the party

asserting a suspension or interruption of prescription, bears the burden of proof.

See Harris, 243 So. 3d at 578. The only evidence to show the date the original

petition was delivered to the East Baton Rouge Parish Clerk of Court is the date

stamp of February 5, 2019.

As the record shows that the original document was not delivered to the

Clerk of Court' s office until fourteen days after the fax filing, a period containing

only four legal holidays, Mr. Wells failed to comply with the requirement that the

original identical document be delivered to the Clerk of Court within seven days,

exclusive of legal holidays. Therefore, the fax filing has no force or effect. La.

R.S. 15: 850B & C.

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Delictual actions are subject to a liberative prescription of one year. La.

C. C. art. 3492. Thus, the petition filed on February 5, 2019, was filed past the one-

year time period for filing suit for an accident occurring on January 23, 2018, and

the trial court was legally correct in finding that Mr. Wells' suit was prescribed.

DECREE

Therefore, for the foregoing reasons, the trial court judgment, sustaining the

exception of prescription and dismissing the suit with prejudice, is affirmed. Costs

of this appeal are assessed against Kelvin Wells.

AFFIRMED.

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