Damien Knockum v. Vaughan Industries LLC, Brad Perkins and Gallagher Bassett Insurance

DAMIEN KNOCKUM NO. 2024 CW 1130

VERSUS

VAUGHAN INDUSTRIES, LLC, JANUARY 13, 2025
BRAD PERKINS AND GALLAGHER
BASSETT INSURANCE

In Re: Vaughan Industries, LLC, Brad Perkins, Gallagher Bassett

Insurance and Hartford Fire Insurance, applying for

supervisory writs, 19th Judicial District Court, Parish

of East Baton Rouge, No. 749301.

BEFORE: THERIOT, HESTER, AND EDWARDS, JJ.

WRIT GRANTED. The trial court' s September 30, 2024 ruling,
defendants', Vaughan Industries, LLC, Brad Perkins,
denying
Gallagher Bassett Insurance and Hartford Fire Insurance,

peremptory exception of prescription, is reversed. Ordinarily, the
exceptor bears the burden of proof at the trial of the peremptory
exception, however, if the action is prescribed on its face, the

plaintiff bears the burden of showing that the action has not

prescribed.
Cawley v. Nat' l Fire & Marine Ins. Co., 2010- 2095,
La. App. lst Cir. 5/ 6/ 11), 65 So. 3d 235, 237. Plaintiff, Damien

Knockum, filed his petition on June 7, 2024, alleging he sustained
injuries in a vehicular accident on May 24, 2023. Therefore, on

its face plaintiff' s action is prescribed and plaintiff bears the
burden of showing that the action has not prescribed under La.
Civ. Code art. 3492. Plaintiff asserted that the property damage
payment from Gallagher Bassett Insurance to Progressive Insurance

Company, plaintiff' s insurer, was an unconditional tender that
interrupted prescription pursuant to La. Civ. Code art. 3464, and

not a settlement payment under La. R. S. 22: 1290. We find that

defendant' s payments for property damage to Progressive Insurance
Company constituted a settlement under La. R. S. 22: 1290, which did
not interrupt prescription under La. Civ. Code art. 3464. The two

insurers agreed to
the property damage
split claim on an 80/ 20%
split, and following a partial payment, there was a further offer
for the final amount, which was paid. Therefore, we find the
payments were made based on this agreement that the payments would
settle the property damage claim. Accordingly, defendants'

peremptory exception of prescription is sustained and plaintiff' s
claims against defendants, Vaughan Industries, LLC, Brad Perkins,
Gallagher Bassett Insurance and Hartford Fire Insurance, are

dismissed.

URT OF APPEAL, FIRST CIRCUIT

DETY CLERK OF COURT
FOR THE COURT