Northern Insurance Company of New York v. Dan Gabus

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-153
Consolidated with
04-152 &04-154

NORTHERN INSURANCE COMPANY OF NEW YORK

VERSUS

DAN GABUS D/B/A MARTIAL ARTS ACADEMY AND/OR BAYOU
CRANE PRODUCTIONS AND ABC INSURANCE COMPANY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NUMBER 20024987
HONORABLE BYRON HEBERT, DISTRICT JUDGE

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BILLIE COLOMBARO WOODARD
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billie Colombaro
Woodard, and Marc T. Amy, Judges.

REVERSED AND REMANDED.
Gregory J. McDonald Henry Provosty
Bienvenu, Foster, Ryan & O’Bannon Edgar D. Gankendorff
1010 Common Street, Suite 2200 Christophe B. Szapary
New Orleans, Louisiana 70112 Provosty, Salder, deLaunay, Fiorenza
(504) 310-1544 & Sobel
COUNSEL FOR 650 Poydras Street, Suite 2700
PLAINTIFF/APPELLANT: New Orleans, Louisiana 70130
Assurance Company of America (504) 410-2795
COUNSEL FOR
DEFENDANTS/APPELLEES:
Dan Gabus d/b/a Martial Arts
Academy and Bay o u Crane
Productions and Certain Underwriters
at Lloyd’s London

Kraig Thomas Strenge Robert L. Ellender
Post office Drawer 52292 Voorhies & Labbe
Lafayette, Louisiana 70502-2292 Post Office Box 3527
(337) 261-9722 Lafayette, Louisiana 70502-3527
COUNSEL FOR (337) 232-9700
PLAINTIFF/APPELLEE: COUNSEL FOR
Styles Fashion Outlets, Inc. DEFENDANT/APPELLE:
Lafayette Insurance Co. Domengeaux & Foreman d/b/a
La Promenade Mall, et al.
William M. Blackston
Hoffman, Siegel, Seydel, et al.
2100 Poydras Center
New Orleans, Louisiana 70130
(504) 523-1385
COUNSEL FOR
PLAINTIFF/APPELLE:
Allstate Insurance Co.

2

WOODARD, Judge.

Assurance appeals the trial court’s dismissal of its action against Gabus on an
exception of prescription. We reverse the trial court’s ruling and remand the matter
for further proceedings.

*****

On September 30, 2001, there was a fire in La Promenade Mall (Promenade)
in Lafayette, Louisiana. Allegedly, defective wiring and installation caused the fire
and incited several lawsuits against the Defendant, Dan Gabus, individually and doing
business as Martial Arts Academy and Bayou Crane Productions (Gabus), and his
insurers, certain underwriters at Lloyd’s London (Lloyd’s), for damages the fire
caused. The trial court consolidated the cases against Gabus, only two of which are
the subject of this appeal. Subway of Acadiana (Subway) and It’s the Hair, Inc. (Hair)
leased space and operated their respective businesses in Promenade. Both businesses
suffered property damages and interruption of their businesses due to the fire. On
September 24, 2002, Northern Insurance Company of New York (Northern), a
subsidiary of Zurich Insurance Company (Zurich), filed a claim against Gabus, stating
that it insured both businesses and had compensated them for damages the fire caused
and, therefore, was subrogated to Subway’s and Hair’s rights.
Subsequently, Northern realized that another of Zurich’s subsidiaries,
Assurance Company of America (Assurance), was actually Hair’s insurer; Northern
only insured Subway. Counsel for Northern and Assurance filed a supplemental and
amending petition, adding Assurance as a party plaintiff. The trial court dismissed
Assurance’s claim on an exception of prescription. Assurance appeals.

*****

TImeliness of Supplemental and Amending Petition
Assurance urges that the amended petition simply substituted it for Northern as
Hair’s insurer and, therefore, relates back to the date of the original petition. On the
contrary, Gabus urges that it does not relate back because, in substance, it is a new
claim.

1

Notwithstanding, we need not address this issue, as the record demonstrates that
Assurance filed its claim within the one-year prescriptive period and does not need the
benefit of the “relating back” principle.1
The instant action is a delictual one which La.Civ.Code art. 3492 governs,
imposing a one year prescriptive period. The fire occurred on September 30, 2001,
making September 30, 2002 the last day of the prescriptive period.
Northern/Assurance faxed the supplemental and amending petition to the Clerk of
Court in Lafayette Parish on September 30, 2002.
Louisiana Revised Statute 13:850 allows parties to validly file pleadings via
facsimile as long as they comply with the statute’s requirements, which are:

Within five days, exclusive of legal holidays, after the clerk of
court has received the transmission, the party filing the document shall
forward the following to the clerk:

(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.

Assurance maintains that it mailed the original document on the same day it
transmitted the fax. However, the Clerk of Court stamped the document October 8,
2002. This court has yet to expressly hold, but has implied, that we would follow
other circuits’ interpretation that a party who takes advantage of La.R.S. 13:850 does
not receive the benefit of the “mailbox rule” as well.2 In other words, placing the
document and fees in the mail does not satisfy “shall forward” under the statute;
rather, the party must “deliver” the document and fees to the Clerk of Court within the
five day period.3 Nor does the case at bar present a situation requiring us to expressly
hold that the “mailbox rule” is inapplicable under La.R.S. 13:850, because we find
that the Clerk received the pleading and fees within the five day period.

1
See La.Code Civ.P. art. 1153.
2
See Antoine v. McDonald's Restaurant, 98-1736 (La.App. 3 Cir.1999, 734
So.2d 1257, 1998-1736 (La.App. 3 Cir. 5/5/99).
3
See Id. (citing Martin v. Kroger Co., 29,915 (La.App. 2 Cir. 10/29/97), 702
So.2d 347, writ denied, 98-0033 (La.3/13/98), 712 So.2d 881).

2

Under normal circumstances, October 8, 2002 would be beyond the five day
period. Nonetheless, Hurricane Lili compelled the Fifteenth Judicial District Court
in Lafayette Parish to close at noon on Wednesday, October 2, 2002. It did not reopen
until Tuesday, October 8, 2002. After the trial court heard the matter and granted
Gabus’ exception of prescription, Assurance realized that it did not need the benefit
of “relating back” to Northern’s original petition because it filed the supplemental and
amending petition within the one year prescriptive period.
As a general rule, if a party fails to raise an issue in the trial court, we will not
entertain it on appeal. However, when extraordinary circumstances require it, we will
exercise our authority under La.Code of Civ.P. art. 2164 to reach a just result. In this
instance, the courthouse’s emergency closing constitutes such extraordinary
circumstances, and the record clearly reveals that Assurance’s claim is not prescribed.
Furthermore, we need not remand the case for the parties to present the issue
to the trial court because proof of the timely filing is apparent from the evidence
already in the record.4 Namely, the record includes a copy of the emergency order
closing the court. Also, the facsimile of the supplemental and amending petition,
dated September 30, 2002, is in the record, as well as a copy of the receipt that the
Clerk faxed to Assurance’s counsel on October 1, 2002, documenting that he received
the supplemental and amending petition via fax on September 30, 2002 at 2:11 p.m.
While La.R.S. 13:850 deems filing completed when “the facsimile transmission
is received and a receipt of transmission has been transmitted to the sender by the
clerk of court,” this court has held that

5

Moreover, La.Code Civ.P. art. 253 requires the Clerk to endorse the fact and
date of filing “upon receipt of the pleadings or documents by the clerk.” (Emphasis
added.) Thus, even though the Clerk did not fax a receipt until October 1, 2002, the

4
See Salley v. Salley, 94-418 (La.App. 3 Cir. 11/23/94), 647 So.2d 1164.
5
Antoine v. McDonald's Restaurant, 98-1736 (La.App. 3 Cir.1999, 734 So.2d
1257, 1998-1736 (La.App. 3 Cir. 5/5/99).

3

receipt proves that the Clerk received the document on September 30, 2002.
Consequently, if the Clerk received the original document and fees within five days,
exclusive of holidays, then the facsimile has the same force and effect as the original,
which results in a timely filing on September 30, 2002.
The Fifteenth Judicial District Court’s closure on October 2, 2002 through
October 7, 2002 constitute legal holidays for the purpose of calculating La.R.S.
13:850’s five day period.6 Accordingly, the clerk’s receipt of the original document
on October 8, 2002 was within the five day period. Because Assurance complied with
La.R.S. 13:850’s requirements, the Clerk’s stamp should have reflected September 30,
2002 as the filing date.
Accordingly, the trial court erred in granting Gabus’s exception of prescription.
We reverse its ruling and remand the case to the trial court for further proceedings.

CONCLUSION

We find that Assurance complied with La.R.S. 13:850 and, therefore, filed its
supplemental and amending petition within the one year prescriptive period for
delictual actions. This pretermits a decision of whether the supplemental and
amending petition constitutes a new claim as opposed to a substitution of parties. We
reverse the trial court’s judgment and remand the matter for further proceedings.
Accordingly, we cast the costs of this appeal on Gabus and its insurers.

REVERSED AND REMANDED.

6
See La.R.S. 1:55(E)(3); La.Code Civ.P. art. 5059.

4