Keotha Robinson v. State Farm Mutual Automobile Insurance Company & Nelwyn Thibodeaux

KEOTHA ROBINSON * NO. 2022-CA-0726

VERSUS * COURT OF APPEAL

STATE FARM MUTUAL * FOURTH CIRCUIT
AUTOMOBILE INSURANCE
COMPANY & NELWYN * STATE OF LOUISIANA
THIBODEAUX
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-04413, DIVISION “F-14”
Honorable Jennifer M Medley,
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge
Nakisha Ervin-Knott)

Dwayne A. Burrell
THE BURRELL FIRM, LLC
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170

COUNSEL FOR PLAINTIFF/APPELLANT

Stephen C. Resor
Amy Dunn Hotard
Stephannie M. England
Gregory J. Sauzer
Carlina C. Eiselen
Jordan T. LaCoste
SALLEY HITE MERCER & RESOR, LLC
365 Canal Street
Suite 1710
New Orleans, LA 70130

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED
JUNE 20, 2023

SCJ
RML
NEK

Keotha Robinson appeals the trial court’s September 15, 2022 judgment

granting Newlyn Thibodeaux and State Farm Mutual Automobile Insurance

Company’s (“State Farm”) peremptory exception of prescription. For the reasons

assigned, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

This suit arises from a motor vehicle accident that occurred on April 26,

2021. Between April 28, 2021 and April 26, 2022, Ms. Robinson’s counsel

corresponded in writing and over the telephone with State Farm adjusters regarding

the alleged accident. Thereafter, State Farm paid Ms. Robinson’s property damage

claim. On May 18, 2022, Ms. Robinson filed a petition for damages, naming as

defendants, Newlyn Thibodeaux and State Farm. Subsequently, on June 28, 2022,

the defendants filed a peremptory exception of prescription.

On September 9, 2022, the trial court held a hearing on the exception. On

September 15, 2022, the trial court signed the judgment granting the peremptory

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exception of prescription and dismissing Ms. Robinson’s claims against the

defendants with prejudice. On September 26, 2022, Ms. Robinson filed a motion

for devolutive appeal. This appeal follows.

STANDARD OF REVIEW

Our Court has summarized the standard of review of a trial court’s

judgment on an exception of prescription as follows:

When no evidence is introduced, the judgment is reviewed simply to
determine whether the trial court's decision was legally correct. A de
novo standard of review applies. In this context, the exception of
prescription must be decided on the facts alleged in the petition, which
are accepted as true.

When evidence is introduced, the trial court's factual findings on the
issue of prescription generally are reviewed under the manifestly
erroneous-clearly wrong standard of review. When evidence is
introduced but the case involves no dispute regarding material facts,
only the determination of a legal issue, an appellate court must review
the issue de novo, giving no deference to the trial court's legal
determination. ...

Ordinarily, the defendant—the party asserting a peremptory exception
of prescription—bears the burden of proof. When the plaintiff’s claim
is prescribed on the face of the petition, however, the burden shifts to
the plaintiff to establish that his or her claim has not prescribed.

Wright v. Touro Infirmary, 2021-0324, p. 4 (La. App. 4 Cir. 7/7/21), 324 So.3d

699, 702 (citing Wells Fargo Fin. Louisiana, Inc. v. Galloway, 2017-0413, pp. 8-9

(La. App. 4 Cir. 11/15/17), 231 So. 3d 793, 800).

DISCUSSION

Ms. Robinson argues that the trial court misapplied the law relative to the

issue of “acknowledgment of a claim,” and the trial court erred in sustaining the

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defendants’ exception of prescription by failing to give effect to the Governor’s

suspension order.1

Acknowledgment of Claim

Ms. Robinson argues that prescription was interrupted when State Farm

acknowledged her claim by issuing a property damage payment.

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

C.C. art. 3492. La. C.C. art. 3464 provides that “[p]rescription is interrupted when

one acknowledges the right of the person against whom he had commenced to

prescribe.”

In Mallett v. McNeal, the Supreme Court resolved a split among the courts

of appeal on whether an unconditional payment of a third-party claim for property

damage constitutes an acknowledgment sufficient to interrupt prescription. 2005-

2289, p. 9 (La. 10/17/06), 939 So.2d 1254, 1260. The plaintiff in Mallett was

involved in an automobile accident on January 8, 2004 and suffered damages. In

November 2004, the plaintiff was issued a check for property damage from the

defendant’s insurer, United States Automobile Association (“USAA”). Thereafter,

USAA submitted an additional check to the plaintiff after receiving a supplemental

estimate. On February 17, 2005, more than a year after the accident, the plaintiff

1 Ms. Robinson asserts three assignments of error: 1) The trial court erred in maintaining the

defendants’ exception of prescription and dismissing plaintiff’s suit by failing to give effect to
the Governor’s suspension, which added a minimum of ninety days to plaintiff’s one-year period
to file suit timely; 2) even if the Governor’s suspension order or its enabling statute, La. C.C. art.
3472.1 is ambiguous, the trial court erred in maintaining the defendants’ exception of
prescription and dismissing the plaintiff’s suit by interpreting La. C.C. art. 3472.1 in favor of
finding prescription; and 3) the trial court misapplied the law relative to the issue of
“acknowledgment of a claim,” thereby warranting a reversal upon de novo review.

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filed suit. USAA filed an exception of prescription and the trial court denied it. Id.

at pp. 2-3, 939 So.2d at 1256.

The Mallett Court explained that:

[T]his court has previously held that an unconditional payment or
tender may constitute an acknowledgment sufficient to interrupt
abandonment, a species of prescription. Moreover, this court has
reiterated that a tacit acknowledgment is defined as an act of
reparation or indemnity, an unconditional offer or payment, or actions
which lull the creditor into believing he will not contest liability. Lima
[v. Schmidt], 595 So.2d [624] at 634 [(La.1992)]. Relying on this
definition, an unconditional payment constitutes an acknowledgment
sufficient to interrupt prescription. Although we are mindful that some
decisions by the lower courts have held that payment of a property
damage claim was insufficient to constitute an acknowledgment, these
decisions have ignored our definition of tacit acknowledgment. . .

Id. at p. 8, 939 So.2d 1259.

The Mallett Court noted that USAA issued a check to the plaintiff, a third-

party claimant for his property damage and issued a subsequent check for

additional property damages. The Court further noted that the property damage

claim was not “settled by the issuance of the first check, because otherwise there

would be no reason to issue a second check in recompense for property damage,

and likewise there is no evidence that the claim was settled after the second check

was issued.” Mallett, 2005-2289, p. 15, 939 So.2d at 1263. The Court held that the

unconditional payment constituted a tacit acknowledgement sufficient to interrupt

prescription, providing that the there was no evidence that the plaintiff accepted the

checks subject to any conditions, released USAA from further obligations, or

signed a document evidencing a settlement. Id. at pp. 14-15, 939 So.2d at 1263.

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Here, similar to Mallett, State Farm submitted a settlement offer to Ms.

Robinson, a third-party claimant, in the amount of $11,500.00 for property

damage. However, the particular circumstances presented in Mallett are

distinguishable from the matter before us because State Farm’s offer provided that

the settlement offer was inclusive of all damages, known and unknown, and any

liens, assignments or statutory rights of recovery. While Ms. Robinson argues that

State Farm issued a check directly to her, and also issued a subsequent check, the

record is devoid of this evidence.2

“Mere settlement offers or conditional payments, humanitarian or charitable

gestures, and recognition of disputed claims will not constitute

acknowledgements.” Marseilles Homeowners Condo. Ass’n, Inc. v. Broadmoor,

L.L.C., 2012-1233, p. 6 (La. App. 4 Cir. 2/27/13), 111 So.3d 1099, 1104-05

(quoting Lima v. Schmidt, 595 So.2d 624, 634 (La.1992)). Therefore, we do not

find that Ms. Robinson met her burden of proving that State Farm’s settlement

offer was an unconditional offer that reaches the criteria of a tacit acknowledgment

sufficient to interrupt prescription. This assignment of error is without merit.

Governor’s Suspension Order

2 Ms. Robinson provides that she offered evidence at the September 9, 2022 hearing, but the trial

court denied it despite there being no objection by the defendants. However, it is well settled that
“evidence not properly and officially offered and introduced cannot be considered, even if
physically placed in the record.” When the trial judge rules the evidence inadmissible, a proffer
(offer of proof) can be made. La. C.C.P. art. 1636. It is incumbent upon the party who contends
his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot
contend such exclusion is error. Williams v. Par. of St. Bernard, 2015-1105, p. 27 (La. App. 4
Cir. 12/2/16), 206 So.3d 259, 277 (quoting Ritter v. Exxon Mobile Corporation, 2008–1404, p. 9
(La. App. 4 Cir. 9/9/09), 20 So.3d 540, 546).

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Next, Ms. Robinson argues that the Supreme Court suspended prescription

as a result of the Governor’s emergency order, which gave her an additional thirty

days to file her suit. We disagree.

La. C.C. art. 3472 provides that “[t]he period of suspension is not counted

toward accrual of prescription. Prescription commences to run again upon the

termination of the period of suspension.”

La. C.C. art. 3472.1, effective June 25, 2020 to July 31, 2022 provides:

A. Notwithstanding any other provisions of the law, in the event the
governor declares a state of emergency or disaster pursuant to R.S.
29:721 through 772, the Supreme Court of Louisiana may enter an
order or series of orders as deemed necessary and appropriate to
suspend all prescriptive and peremptive periods for a period of time
not to exceed ninety days. Thereafter, should the need for continuing
suspension be necessary to preserve access to the courts, the governor
may issue executive orders as deemed appropriate. The period of
suspension authorized by the provisions of this Article shall terminate
upon the earlier of an order of the Supreme Court of Louisiana or
upon termination of the declared state of disaster or emergency.
Nothing in this Article limits the authority of the governor or the
legislature to act in accordance with its authority.

B. The right to file any pleading subject to the suspension as provided
by Paragraph A of this Article shall terminate sixty days after the
termination of the suspension as provided by Paragraph A of this
Article.

In Peralez v. HDI Global Specialty SE, 2022-343 (La. App. 3 Cir. 11/9/22),

353 So.3d 235, the Third Circuit addressed a similar matter. The Peralez plaintiff

filed a petition July 26, 2021, alleging that an accident with injury occurred on July

9, 2020. Peralez, 2022-343, p. 1, 353 So.3d at 236-37. The defendants filed an

exception of prescription. The plaintiff opposed the exception, arguing that her suit

was timely filed because prescription was suspended by the Supreme Court on

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August 28, 2020 as a result of the Governor’s emergency declaration for Hurricane

Laura. Id. at p. 1, 353 So.3d at 237. The defendants argued that the suspension was

a limited suspension and had no effect on the case as the plaintiff’s claims did not

prescribe within the thirty-day suspension period of August 21, 2020 through

September 20, 2020. The trial court granted the peremptory exception of

prescription.

Affirming the trial court, the Third Circuit explained that La. C.C. art.

3472.1:

The article permits the [S]upreme [C]ourt to suspend prescriptive and
peremptive periods up to ninety days following a state of emergency
or disaster declaration. The right to file pursuant to this suspension,
however, terminates sixty days after the suspension. Paragraph B
clearly limits the effect of the power set forth in Paragraph A. Article
3472.1 does not attach additional time to Plaintiff’s running of
prescription on her claim.

Pursuant to La.Civ.Code art. 3472.1(A), the [S]upreme [C]ourt Order
at issue suspended prescription and peremption for only thirty days
following August 21, 2020, which would be until September 20, 2020.
Thus, according to La.Civ.Code art. 3472.1(B), the right to file any
pleading pursuant to the suspension terminated sixty days later. As in
De La Rosa [v. King, No. CV 21-164, 2022 WL 1524332 (E.D. La.
May 13, 2022], Plaintiff filed her claim “more than sixty days after
termination of the suspension. Therefore, the Louisiana Supreme
Court Order did not preserve” Plaintiff’s claim.

Peralez, 2022-343, p. 14, 353 So.3d at 243.

In the present matter, the Supreme Court Order provided that all prescriptive

and peremptive periods were suspended for a period of thirty days commencing

from the Governor’s August 26, 2021 declaration of state of emergency, which

would be until September 25, 2021. The right to file any pleading pursuant to the

suspension terminated on November 24, 2021.

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Similar to Peralez, the Supreme Court Order did not preserve Ms.

Robinson’s claims nor did it add time to her prescriptive period. Ms. Robinson’s

claims prescribed on April 26, 2022; and she filed her petition on May 18, 2022,

more than one year after the alleged accident. Therefore, we do not find that the

trial court erred in granting the defendants’ exception of prescription and

dismissing Ms. Robinson’s claims with prejudice.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s September 15, 2022

judgment granting defendants’ peremptory exception of prescription, and

dismissing Ms. Robinson’s claims with prejudice.

AFFIRMED

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