Hannah Keiger Versus Ngm Insurance Company

HANNAH KEIGER NO. 24-CA-94

VERSUS FIFTH CIRCUIT

NGM INSURANCE COMPANY COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 838-565, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

October 30, 2024

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Jude G. Gravois,
John J. Molaison, Jr., and Scott U. Schlegel

AFFIRMED
JJM
JGG
SUS

COUNSEL FOR PLAINTIFF/APPELLANT,
HANNAH KEIGER
Bradley Egenberg
Benjamin Berman
Emily Padgett

COUNSEL FOR DEFENDANT/APPELLEE,
NGM INSURANCE COMPANY
H. Carter Marshall
Kevin R. Tully

MOLAISON, J.

The appellant/plaintiff in this civil matter seeks review of the trial court’s

dismissal of a claim against her uninsured motorist carrier without prejudice. We

affirm.

FACTS AND PROCEDURAL HISTORY

On March 10, 2023, plaintiff/appellant Hannah Keiger filed a petition at the

Twenty-Fourth Judicial District Court in Jefferson Parish alleging that her vehicle

was struck in a hit-and-run accident within Jefferson Parish on December 24, 2020.

Ms. Keiger named NGM Insurance Company (“NGM”)1 as the sole defendant in

its capacity as the insurer who provided UM coverage for her vehicle.2 The

petition alleged that NGM failed to tender an amount for damages within 30 days

after Ms. Keiger had presented it with proof of loss.

On May 16, 2023, NGM answered the petition before filing a peremptory

exception of prescription on September 22, 2023. The trial court heard the

exception on November 9, 2023, and dismissed Ms. Keiger’s claims against NGM

without prejudice in an order dated November 17, 2023. Ms. Keiger timely sought

this devolutive appeal.

LAW AND ANALYSIS

Ms. Keiger alleges in her one assignment of error that the trial court erred in

dismissing her claim without prejudice based upon applying Louisiana’s two-year

prescriptive period for filing an action against an uninsured motorist carrier instead

of Massachusetts’ six-year statute of limitations.

As a preliminary matter, we first address evidentiary issues related to the

appeal, determining the scope of this Court’s review. In a peremptory exception of

1
The petition simply identifies NGM as a “foreign insurance company” with no additional
details. In its exception, NGM does not provide information either on its corporate domicile or which
state’s law may govern the UM policy.
2
It does not appear that the driver of the other vehicle was ever identified.

24-CA-94 1

prescription, the burden of proof is ordinarily on the party pleading prescription.

Carter v. Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261, 1267. However, when

the prescription is evident on the face of the pleadings, the burden shifts to the

plaintiff to show the action is not prescribed. Id. At the hearing on an exception of

prescription, “evidence may be introduced to support or controvert any of the

objections pleaded, when the grounds thereof do not appear from the petition.” La.

C.C.P. art. 931. The standard of review of a trial court’s ruling on a peremptory

exception of prescription turns on whether evidence is introduced. DeFelice v.

Federated National Insurance Company, 18-374 (La. App. 5 Cir. 7/9/19), 279

So.3d 422, 426. When no evidence is introduced, appellate courts review

judgments sustaining an exception of prescription de novo, accepting the facts

alleged in the petition as true. Id. We review the trial court’s findings of fact

under the manifest error standard when evidence is introduced at a hearing. Meggs

v. Davis Mortuary Serv., Inc., 19-432 (La. App. 5 Cir. 8/5/20), 301 So.3d 1208,

1212.

However, the Louisiana Supreme Court has explained that absent the formal

introduction of exhibits at a hearing on an exception of prescription, those exhibits

merely contained in the record or attached to a memorandum in support of an

exception of prescription are not to be considered. See, Denoux v. Vessel Mgmt.

Servs., Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88-89. Documents attached to

memoranda are not evidence or considered as such on appeal. Meaux v. Miller, 08-

712 (La. App. 3 Cir. 12/10/08), 999 So.2d 281, 284-85. We have reviewed the

November 9, 2023 transcript of the hearing on NGM’s exception of prescription

that indicates Ms. Keiger did not formally offer evidence into the record. However,

she had attached documents to her memorandum opposing the exception.3 As a

3
The transcript of the hearing shows that the parties met with the trial judge in chambers, and off
the record, before returning to the courtroom. At that time, the parties stipulated that the matter would be

24-CA-94 2

result, the documents attached to Ms. Keiger’s opposition are not considered on

appeal. Similarly, the arguments of counsel in appellate briefs and references to

facts and issues not currently before the court are not record evidence. See, Thomas

v. Connolly, 31,447 (La. App. 2 Cir. 1/20/99), 726 So.2d 1052, 1054. This court

has no authority to consider on appeal facts referred to in appellate briefs if those

facts are not in the record on appeal. Tranum v. Hebert, 581 So.2d 1023, 1026 (La.

App. 1 Cir.), writ denied, 584 So.2d 1169 (La. 1991).

In the absence of evidence, we decide the exception of prescription on the

facts alleged in the petition, which are accepted as true. Baker v. Louisiana

Citizens Property Ins. Corp., 12-480 (La. App. 5 Cir. 5/16/13), 119 So.3d 69, 72.

Here, Ms. Keiger’s petition states that she is a resident of Massachusetts. She

alleged that NGM was a foreign insurer that provided uninsured motorist coverage

for her vehicle at the time of the December 24, 2020 accident. Ms. Keiger asserted

her uninsured motorist claims under two Louisiana statutes, La. R.S. 22:1892 and

R.S. 22:1973. Accepting the accident date as accurate, the petition is prescribed on

its face when filed more than two years after the accident date.4 Based solely on

the petition, the trial court may have properly dismissed Ms. Keiger’s petition with

prejudice.

Is the trial court’s dismissing Ms. Keiger’s petition without prejudice

correct? A trial judge is granted broad discretion as to dismissal without prejudice

after the defendant has appeared, and his determination will be set aside for a clear

abuse of that discretion. Martinez v. Dow Chem. Co., 97-289 (La. App. 5 Cir.

9/30/97), 700 So.2d 1096, 1098. As discussed above, no evidence was introduced

submitted on briefs. The trial court stated that it would dismiss the case without prejudice after he “read
the briefs and …looked at the documents.”
4
La .R.S. 9:5629 states:

Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to
uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years
reckoning from the date of the accident in which the damage was sustained.

24-CA-94 3

into the record upon which this Court can reach the merits of Ms. Keiger’s choice

of law claim. However, the trial court’s judgment indicates that the matter was

dismissed without prejudice so that Ms. Keiger could bring her claim against NGM

to another state’s court. In these circumstances, present in the case before us,

where we have neither a detailed transcript, properly introduced evidence, nor an

agreed-upon narrative in the record, there is nothing for the appellate court to

review, and the trial court’s ruling is presumed correct. Barrois v. Wal-Mart

Stores, Inc., 97-636 (La. App. 5 Cir. 11/25/97), 703 So.2d 798, 800. Thus, we find

no abuse of discretion in the trial court’s dismissal of Ms. Keiger’s petition without

prejudice.

CONCLUSION

We affirm the judgment of the trial court for the reasons stated.

AFFIRMED

24-CA-94 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 30, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-94
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
BENJAMIN BERMAN (APPELLANT) H. CARTER MARSHALL (APPELLEE)

MAILED
KEVIN R. TULLY (APPELLEE) BRADLEY EGENBERG (APPELLANT) EMILY PADGETT (APPELLANT)
ATTORNEY AT LAW ATTORNEYS AT LAW ATTORNEYS AT LAW
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NEW ORLEANS, LA 70130 NEW ORLEANS, LA 70130 NEW ORLEANS, LA 70130