Dewayne Douglas Dowd, Sr., Individually And As Administrator Of The Estate Of Cora Lee Dowd (deceased) v. Helena Emergency Physicians, Pllc, Et Al.

Supreme Court of Louisiana
April 25, 2023
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
DEWAYNE DOUGLAS DOWD, SR.,
INDIVIDUALLY AND AS ADMINISTRATOR
OF THE ESTATE OF CORA LEE DOWD
(DECEASED)
VS.
HELENA EMERGENCY PHYSICIANS, PLLC,
ET AL.
No. 2023-C-00132
_ _ _ _
_ _
IN R
E: Dewayne Douglas Dowd, Sr., individually and as administrator of the estate
of Cora Lee Dowd (Deceased) - Applicant Plaintiff; Applying For Writ Of
Certiorari, Parish of Lafayette, 15th Judicial District Court Number(s) 2021- 2719,
Court of Appeal, Third Circuit, Number(s) 22-349;
_ _ _ _ _ _
April 25, 2023
Writ application granted in part; denied in part. See per curiam.
Crain, J., dissents relative to prescription.
JTG
JLW
JDH
SJC
JBM
PDG
04/25/2023 "See News Release 020 for any Concurrences and/or Dissents."

S
UPREME COURT OF LOUISIANA
No
. 2023-C-00132
DE
WAYNE DOUGLAS DOWD, SR., INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF CORA LEE DOWD
(DECEASED)
VS.
HELENA EMERGENCY PHYSICIANS, PLLC, ET AL.
O
n Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Lafayette
PE
R CURIAM
Writ denied in part, granted in part. Delictual actions in Louisiana are subject
to a liberative prescription of one year, which commences to run from the day injury
or damage is sustained. LSA –C.C. Art. 3492. Ju risprudence has interpreted this
rule to mean that prescription commences on the date the injured party discovers or
should have discovered the facts upon which his cause of action is based.
Intracoastal Seafood Co., Inc. v. Scott, 556 So. 2d 974, 976 (La. App. 3 Cir. 1990).
Under the discovery rule, prescription begins “when a plaintiff obtains actual or
constructive knowledge of facts indicating to a reasonable person that he or she is
the victim of a tort.” Campo v. Correa, 01 -2707 (La. 6/21/02), 828 S o. 2d 502.
Constructive knowledge is “whatever notice is enough to excite attention and put the
injured person on guard and call for inquiry”. Id.; Jenkins v. Starns, 11-1170 (La.
1/24/12), 85 So. 3d 612. Constructive knowledge or notice sufficient to commence
the running of prescription requires more than a mere apprehension that something
might be wrong; prescription will commence only when plaintiff knew or should
have known by exercising reasonable diligence that tortious conduct occurred and
that certain parties are responsible. Intracoastal Seafood Co., 556 So. 2d at 823.
In his petition, applicant stated a cause of action for fraud against defendants,
alleging that respondents took specific actions to render Oceanus insolvent and
04/25/23

unable to satisfy its obligations with the intent of avoiding the Levy judgment and
defrauding applicant. Based on the allegations of the petition, both lower courts
agreed that the petition was not prescribed on its face. Thus, respondents bore the
burden of proof in this case to prove that the applicant’s fraud claims had prescribed.
The lower courts found that the applicant was on notice that Oceanus was insolvent
“as of October 4, 2017,” the date the applicant filed his claim in Oceanus’s
insolvency litigation. The lower courts, however, fail to explain how the filing of a
proof of claim in Oceanus’s liquidation imparted knowledge to the applicant of
respondents’ fraudulent acts. The lower courts erred insofar as they found that
applicant’s knowledge of Oceanus’s insolvency should have put him on notice of
possible fraud by respondents. The judgment sustaining the exception of
prescription and dismissing applicant’s claims is reversed and this matter is
remanded for further proceedings. In all other respects, the writ is denied.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.