Inez R. Strahan v. Sabine Retirement & Rehabilitation Center, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1607

INEZ R. STRAHAN

VERSUS

SABINE RETIREMENT & REHABILITATION CENTER, INC.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 59,825C
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
James T. Genovese, Judges.

AFFIRMED.

Donald G. Kelly
137 St. Denis Street
Natchitoches, LA 71458-0756
Telephone: (318) 352-2353
COUNSEL FOR:
Plaintiff/Appellant - Inez R. Strahan

James Rex Fair, Jr.
714 Third Street
Natchitoches, LA 71457
Telephone: (318) 238-3247
COUNSEL FOR:
Plaintiff/Appellant - Inez R. Strahan

Joseph G. Glass
Jaime M. Cambre
Duplass, Zwain, Bourgeois, Morton, Pfister & Weinstock
Suite 2900 - Lakeway III
3838 N. Causeway Boulevard
Metairie, LA 70002
Telephone: (504) 832-3700
COUNSEL FOR:
Defendant/Appellee - Sabine Retirement & Rehabilitation Center,
Inc.

THIBODEAUX, Chief Judge.

The plaintiff-appellant, Inez R. Strahan, a resident of Sabine Retirement

and Rehabilitation Center (SRRC), was injured in a motor vehicle accident while

being transported in an SRRC vehicle to a doctor’s appointment. Ms. Strahan sued

SRRC for damages after the expiration of one year from the date of the accident. The

trial court sustained SRRC’s exceptions of prescription and prematurity. Ms. Strahan

has appealed the judgment sustaining the exception of prescription, claiming that her

suit seeks damages for breach of contract and is subject to a ten-year prescriptive

period, as opposed to the one-year prescriptive period applied to her action by the

trial court. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

1. Does this nursing home resident’s petition for
damages for the injuries she suffered in the nursing
home’s vehicle while being transported to a doctor’s
appointment assert a delictual and/or contractual
cause of action?

2. Is the plaintiff’s petition prescribed since it was filed
more than one year after the date of the accident that
resulted in her injuries?

II.

FACTUAL BACKGROUND

Ms. Strahan signed a contract with SRRC for her admission into its

facility on April 11, 2005. The contract states that SRRC will provide maintenance,

room, board, linens, bedding, nursing care, and certain other personal services to her.

On January 13, 2006, while Ms. Strahan was being transported to a regularly

scheduled doctor’s visit in an SRRC van by an SRRC employee, the vehicle was

involved in an accident. Ms. Strahan suffered multiple bruises and abrasions, a

broken left arm, a sprained left ankle, aggravation to a previously existing lumbar

spine fracture, and a concussion.

On April 17, 2007, approximately one year and four months after the

accident occurred, Ms. Strahan filed a lawsuit against SRRC titled “Suit for Breach

of Contract and for Damages.” In that suit, she alleged that she was entitled to

damages for the breach of the specific contract provision requiring SRRC to provide

transportation for her to a hospital when such was ordered by a physician. According

to Ms. Strahan, the following actions and/or omissions constituted breaches of that

contractual obligation: failure to properly prepare her for travel to and from the

location of her doctor’s appointment; failure and refusal to adhere to the contract’s

requirements regarding work that is to be performed, resulting in a failure to provide

adequate care to her, a patient; violation of the express and implied warranties of

fitness in regard to the specifications and services to be provided under the contract;

and violations of the implied covenants of good faith and fair dealing. She requested

damages for her resulting physical injuries, pain and suffering, mental anguish,

economic duress, and medical costs.

SRRC filed exceptions of prematurity and prescription in response to the

suit. The trial court sustained both exceptions; however, its ruling on the exception

of prescription is the only issue before us on appeal.

The trial court agreed with SRRC’s argument that Ms. Strahan’s suit was

prescribed. First, the trial court analyzed the suit to determine whether her claims

arose out of tortious conduct or were contractually based, or both. In doing so, the

trial court relied on the premise that the nature of the duty breached is the determining

factor regarding whether an action is delictual or contractual. Roger v. Dufrene, 613

So.2d 947 (La.1993). Considering this, the court stated that Ms. Strahan’s claims, “at

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their core, are based on alleged delictual actions or omissions of [SRRC], not

contractual breach.” SRRC’s actions, according to the trial court, did not stem from

a breach of its contractual promise “[t]o coordinate transportation for the resident to

the hospital when ordered by a physician,” as asserted by Ms. Strahan. Instead, its

actions constituted a delictual violation of SRRC’s general duty of care owed to all

persons when operating its vehicles. Having found that Ms. Strahan’s action was

delictual in nature, the trial court stated, “As such, the liberative prescription period

is one (1) year pursuant to all applicable prescriptive periods, be it La.[Civ.Code] art.

3492 (negligence),1 La.R.S. 9:5628 ([medical] malpractice),2 or La.R.S.

40:2010.9(C)3 (nursing home bill of rights).” (Footnotes added). Consequently, the

trial court held that Ms. Strahan’s suit was prescribed since it was filed more than one

year from the date of the accident at issue.

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Civil Code Article 3492 states:

3492. Delictual actions

Delictual actions are subject to a liberative prescription of one year. This
prescription commences to run from the day injury or damage is sustained. It does not run
against minors or interdicts in actions involving permanent disability and brought pursuant
to the Louisiana Products Liability Act or state law governing product liability actions in
effect at the time of the injury or damage.
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Revised Statutes 9:5628(A) states:

A. No action for damages for injury or death against any physician, chiropractor,
nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing
home duly licensed under the laws of this state, or community blood center or tissue bank
as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or
otherwise, arising out of patient care shall be brought unless filed within one year from the
date of the alleged act, omission, or neglect, or within one year from the date of discovery
of the alleged act, omission, or neglect; however, even as to claims filed within one year
from the date of such discovery, in all events such claims shall be filed at the latest within
a period of three years from the date of the alleged act, omission, or neglect.
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Revised Statutes 40:2010.9(C) states:

C. Any claim brought pursuant to R.S. 40:2010.8 et seq. shall be filed in a court of
competent jurisdiction within one year from the date of the alleged act, omission or neglect,
or within one year from the date of discovery of the alleged act, omission or neglect;
however, even as to claims filed within one year from the date of such discovery, in all
events such claims shall be filed at the latest within a period of three years from the date of
the alleged act, omission or neglect. The provisions of this Section shall apply to all persons
whether or not infirm or under disability of any kind and including, but not limited to,
minors, interdicts and all persons adjudicated to be incompetent of handling their own
affairs.

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In Ms. Strahan’s appeal, she claims that the trial court improperly

disregarded the existence of the explicit contractual duty SRRC owed to her as set

forth in their agreement—to “coordinate transportation for [her] to the hospital when

ordered by a physician”—and erroneously focused instead on SRRC’s general duty

to third parties to conclude that her claim had prescribed. Because breach of contract

actions are personal actions that are subject to a liberative prescriptive period of ten

years, pursuant to La.Civ.Code art. 3499,4 she asserts that her lawsuit constitutes a

timely filed action that was erroneously dismissed.

III.

LAW AND DISCUSSION

The standard of review applied to a ruling on an exception of

prescription is as follows:

In reviewing a peremptory exception of prescription,
an appellate court will review the entire record to
determine whether the trial court’s finding of fact was
manifestly erroneous. Morrison v. C.A. Guidry Produce,
03-307 (La.App. 3 Cir. 10/1/03), 856 So.2d 1222. Further,
“the standard controlling review of a peremptory exception
of prescription requires that this court strictly construe the
statutes ‘against prescription and in favor of the claim that
is said to be extinguished.’” Security Ctr. Prot. Servs., Inc.
v. All-Pro Security, Inc., 94-1317, 94-1318, p. 12 (La.App.
4 Cir. 2/23/95), 650 So.2d 1206, 1214 (quoting La. Health
Serv. v. Tarver, 635 So.2d 1090, 1098 (La.1994)).

Hall v. Reber, 03-1482, p. 3 (La.App. 3 Cir. 3/31/04), 870 So.2d 424, 426.

The “character of an action given by a plaintiff in his pleadings

determines the prescription applicable to it.” Duer & Taylor v. Blanchard, Walker,

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Civil Code Article 3499 states:

Art. 3499. Personal action

Unless otherwise provided by legislation, a personal action is subject to a liberative
prescription of ten years.

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O’Quin & Roberts, 354 So.2d 192, 194 (La.1978) (citations omitted). This

determination can be made by ascertaining the nature of the duty that has been

allegedly breached. Roger, 613 So.2d 947. “It is the nature of the duty breached that

should determine whether the action is in tort or in contract.” Id. at 948 (citing

Sciacca v. Polizzi, 403 So.2d 728 (La.1981)). In this case, the nature of the duty

breached is disputed. The trial court found that Ms. Strahan’s claim for damages is

delictual in nature, arising out of a violation of a general duty of care to all persons,

as opposed to a breach of any contractual obligation imposed upon SRRC. Based on

our review of the record, we agree.

Contractual damages arise out of the breach of a special obligation

contractually assumed, and delictual damages arise out of the violation of a duty

owed to all persons. Washington Nat’l Ins. Co., v. Arnaud, 96-134 (La.App. 3 Cir.

6/26/96), 676 So.2d 1130, writ denied, 96-1918 (La. 11/1/96), 681 So.2d 1263 (citing

Davis v. LeBlanc, 149 So.2d 252 (La.App. 3 Cir. 1963)). The facts alleged are that

Ms. Strahan was injured while being transported to a regularly scheduled doctor’s

appointment in the nursing home’s van. The contract calls for SRRC to provide

general services of care and maintenance to her as a resident of the facility and also

contains a specific requirement that she be transported by the nursing home to a

hospital when ordered by a physician. Although the record is void of any evidence

explaining the meaning of this latter provision and its intended implication, it is

apparently conceded by SRRC that it was transporting Ms. Strahan under this

provision or other applicable terms of her contract. Nevertheless, the ultimate

resolution of the issue before us depends on whether the occurrence of the motor

vehicle accident while en route to Ms. Strahan’s medical appointment constituted a

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breach of the nursing home agreement, entitling Ms. Strahan to contractually-based

damages.

“It is well settled that the same acts or omissions may constitute breaches

of both general duties and contractual duties and may give rise to both actions in tort

and actions in contract.” Dubin v. Dubin, 25,996, p. 5 (La.App. 2 Cir. 8/17/94), 641

So.2d 1036, 1039 (citing Free v. Franklin Guest Home, Inc., 397 So.2d 47 (La.App.

2 Cir.), writ denied, 401 So.2d 975 (La.1981); Franklin v. Able Moving & Storage

Co., Inc., 439 So.2d 489 (La.App. 1 Cir. 1983)). A plaintiff may assert both causes

of action and is not required to plead the theory of his case. Id. Breaches of contract

are distinguished as follows:

Generally, where a person neglects to do what he is
obligated to do under a contract, he has committed a
passive breach of the contract. If he negligently performs
a contractual obligation, he has committed active
negligence and thus an active breach of the contract.
Huggs, Inc. v. LPC Energy, Inc., 889 F.2d 649 (5th Cir.
1989); Hennessy v. South Central Bell Telephone
Company, 382 So.2d 1044 (La.App. 2d Cir.1980). A
passive breach of contract warrants only an action for
breach of contract; an active breach of contract, on the
other hand, may also support an action in tort under
LSA-C.C. Art. 2315. Huggs, supra.

Id. at 1040.

We find that the nature of the duty breached here is based in negligence,

which is delictual in nature. SRRC commenced the performance of its obligation to

provide transportation to Ms. Strahan to her medical appointment. However, the

claim giving rise to the injuries and resulting damages to Ms. Strahan is rooted in the

issue of whether she was being transported negligently. SRRC owed a general duty

of care to all passengers riding in its motor vehicles and to the motoring public when

its vehicles were in use. This particular duty, which it owed to Ms. Strahan as well,

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did not arise solely when the nursing home agreement was entered into. Considering

this, we find no manifest error in the trial court’s finding in this regard.

We further recognize that the prescriptive period set forth in the Nursing

Home Bill of Rights law provides that regardless of whether the claim is based in tort

or breach of contract, no action for damages or injury may be brought more than one-

year from the date of discovery of the alleged act or omission. La.R.S. 40:2010.9(C).

The one-year prescriptive period began to run in this case when the injury to Ms.

Strahan had manifested itself with certainty—the date of the accident. It is

undisputed that the accident occurred on January 13, 2006, although Ms. Strahan filed

her suit for damages on April 17, 2007, more than one year after the accrual of her

cause of action. Accordingly, we find no manifest error in the trial court’s finding

that Ms. Strahan’s action is prescribed.

IV.

CONCLUSION

The judgment of the trial court, sustaining Sabine Retirement and

Rehabilitation Center’s exception of prescription, is affirmed. Costs of this appeal

are assessed to the plaintiff-appellant, Inez Strahan.

AFFIRMED.

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