Mid City Tower, LLC v. Certain Underwriters At Lloyd's, London, Subscribing To Policy No. LA135205, Lloyd's, London Syndicate No. 2987, Lloyd's, London Syndicate No. 0510, Lloyd's, London Syndicate No. 2623, Lloyd's, London Syndicate No. 1886, Lloyd's, London Syndicate No. 2015

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COURT OF APPEAL,, FIRST CIRCUIT

MID CITY TOWER, LLC NO. 2024 CW 0887
PAGE 1 OF 2)
VERSUS

CERTAIN UNDERWRITERS AT LLOYD' S LONDON,
SUBSCRIBING TO POLICY NO. LA135205,
LLOYD' S, LONDON SYNDICATE NO. 2987,,
LLOYD' S, LONDON SYNDICATE NO. 0510,
LLOYD' S, LONDON SYNDICATE NO. 2623,,
LLOYD' S, LONDON SYNDICATE NO. 1886,
LLOYD' S, LONDON SYNDICATE NO. 2015,
LLOYD' S, LONDON, SYNDICATE NO. 5678,
LLOYD' S, LONDON SYNDICATE NO. 0623,
LLOYD' S, LONDON SYNDICATE NO. 4444,
LLOYD' S, LONDON SYNDICATE NO. 0318,
LLOYD' S, LONDON SYNDICATE NO. 5000,,
LLOYD' S, LONDON SYNDICATE NO. 2001,
LLOYD' S, LONDON SYNDICATE NO. 1225,,
AND LLOYD' S, LONDON SYNDICATE NO. 0033 NOVEMBER 12, 2024

In Re: Certain Underwriters at Lloyd' s,
London Subscribing to
Policy No. 135205, applying for supervisory writs, 19th
Judicial District Court, Parish of East Baton Rouge, No.
740, 732.

BEFORE: McCLENDON, WELCH, LANIER, GREENE, AND STROMBERG, JJ.

WRIT GRANTED. The district court' s August 16, 2024 judgment,
which denied the exception of prescription filed by defendant,
Certain Underwriters at Lloyd' s London Subscribing to Policy No.
LA 135205 (" Underwriters"), is reversed. The parties do not

dispute that any claims between them arising from the policy of
insurance issued by Underwriters to Mid City Tower, LLC, (" Mid
City") are governed by the two- year prescriptive period found in
the policy. See La. R. S. 22: 868( B); Wilson v. Louisiana Citizens
Prop. Ins. Corp., 2023- 01320 ( La. 1/ 10/ 24), 375 So. 3d 961, 962.
Moreover, any extra -contractual claims such as bad faith are also
governed by the two- year period. See Wilson, 375 So. 3d at 962.
Mid City' s cause of action arises from incidents that occurred on
August 7, 2019 and on August 14, 2019. Mid filed
City the
underlying suit in the 19th Judicial. District Court for the Parish
of East Baton Rouge on November 16, 2023. As such, the suit is
untimely unless Mid City can show that the two- year prescriptive
period was interrupted. Mid City contends that a prior suit it
filed against Underwriters in federal court interrupted the
prescriptive period. In this regard, Louisiana Civil Code art.
3462 provides that prescription is interrupted when the obligee
commences action against the obligor in a court of competent
jurisdiction and venue, and if the action is commenced in an
incompetent court, prescription is interrupted as to
only a
defendant served by process within the prescriptive period.
Underwriters filed suit in the Middle District of Louisiana on

July 30, 2021 in the matter
captioned Mid City Tower, LLC v.

Certain Underwriter' s at Lloyd' s, London, Subscribing to Policy
No. La. 135205. However, Underwriters was not served with the
federal suit until September 29, 2021, more than two years after

NO. 2024 CW 0887
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both dates of loss occurred. Thereafter, the federal court

dismissed the suit on the basis of lack of subject jurisdiction.
Accordingly, because suit was not filed within a court of competent
jurisdiction and venue and because Underwriters was not served

with process within the prescriptive period, the federal suit did
not interrupt the prescriptive period. See Harrell -Bijou v.

Guarino, 2023- 0425 ( La. App. lst Cir. 11/ 16/ 23), 379 So. 3d 698,
704. Moreover, although the parties litigated in federal court,
participated in settlement negotiations, and perhaps even settled

portions of their dispute while the federal suit was pending, Mid

City has not shown that Underwriters renounced prescription.

Renunciation must be " clear, direct, and absolute and manifested

by words or actions" and " requires a new promise to pay the
debt[.]" Lima v. Schmidt, 595 So. 2d 624, 631 ( La. 1992) Further,
Louisiana jurisprudence recognizes that "[ a] fter a claim has
prescribed,
one may acknowledge a debt, and even pay part of it,
without renouncing the prescription acquired on it." Neese V.

Papa John' s Pizza, 2010- 15 ( La. App. 5th Cir. 6/ 29/ 10), 44 So. 3d
321, 329. Additionally, we cannot conclude that Underwriters'
actions during the course of the federal proceedings waived its
right to plead the two- year prescriptive period found in its
policy. See Steptore v. Masco Const. Co., Inc., 93- 2064 ( La.
8/ 18/ 94) 643 So. 2d 1213, 1216. Nor do we find that Mid City met
its burden to show that a timely suit was filed against a party
with whom Underwriters was
solidarily liable. See Younger v.

Marshall, 618 So. 2d 866, 869 ( La. 1993). Accordingly, the
exception of prescription is granted, and Mid City Tower, LLC' s
claims against the defendant, Certain Underwriters at Lloyd' s

London Subscribing to Policy No. LA 135205, are dismissed.

PMC
WIL
TPS

Welch and Greene, JJ., dissent and would deny the writ

application. Shortly after the federal action was instituted,
the federal district court placed Certain Underwriters at Lloyd' s
London Subscribing to Policy No. LA 135205 (" Underwriters") on

notice that subject matter jurisdiction was an issue. Despite
knowledge of the jurisdictional issue and despite being charged
with knowledge that its policy contained a two- year prescriptive
period for the claims at issue herein, see Steptore v. Masco Const.
Co., Inc., 93- 2064 ( La. 8/ 18/ 94), 643 So. 2d 1213, 1216,
Underwriters filed a motion to stay with the federal court and
agreed to participate in the appraisal process pursuant to the
provisions of its policy with Mid City Tower, LLC. Moreover,
Underwriters agreed to three separate motions to extend the stay
so that the parties could complete the appraisal process.
Regardless of whether any payments were issued in connection
therewith, based the
on
foregoing, we cannot conclude that the

district court erred in finding that Underwriters' actions waived

the two- year prescriptive period found in its policy.
URT OF PPEAL, FIRST CIRCUIT

D PUTY CLERK OF COURT
FOR THE COURT