Enrico Bunyog v. Berkley Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-488

ENRICO BUNYOG, ET AL.

VERSUS

BERKLEY INS. CO., ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 258,686
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret,
Judges.

REVERSED AND REMANDED.

Conery, J., concurs in the result and assigns reasons.

Jerold Edward Knoll
The Knoll Law Firm, LLC
P. O. Box 426
Marksville, La 71351
(318) 253-6200
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Enrico Bunyog
Vanessa Bunyog
Arielle Hope Bunyog

Michael Thomas Johnson
Jeffrey S. Ingram
Johnson, Siebeneicher, & Ingram, Inc.
P. O. Box 7598
Alexandria, LA 71306
(318) 484-3911
COUNSEL FOR DEFENDANTS/APPELLEES:
Rapides Parish School Board
Berkley Insurance Co.

Jennifer Jones Thomas
Deborah Johnson Juneau
Kean Miller LLP
P. O. Box 3513
Baton Rouge, LA 70821-3513
(225) 387-0999
COUNSEL FOR DEFENDANT/APPELLEE:
Cenla Area Agency on Aging, Inc.

PERRET, Judge.

Plaintiffs-Appellants Enrico Bunyog and Vanessa Bunyog, individually and

on behalf of their minor daughter, Arielle Hope Bunyog, (“the Bunyogs”), appeal

the trial court’s judgment granting an exception of prescription in favor of

Defendant-Appellee, Cenla Area Agency on Aging, Inc. (“Cenla”), and dismissing

Plaintiffs’ claims against it. For the following reasons, we reverse the judgment of

the trial court.

FACTUAL AND PROCEDURAL BACKGROUND:

On October 4, 2016, Arielle Hope Bunyog (“Hope”), was a five-year-old

severely autistic student enrolled in the “pre-K ESCE-Autism” class at L.S. Rugg

Elementary School (“L.S. Rugg”). When Mrs. Bunyog picked up Hope from school,

she was informed that Hope had been found on the playground disoriented and

unable to walk. L.S. Rugg staff was unable to explain what had happened to Hope.

Mr. and Mrs. Bunyog later took Hope to Rapides Regional Medical Center

Emergency Room where it was discovered that Hope had a right transverse femur

fracture and a concussion.

On April 21, 2017, the Bunyogs filed suit against L.S. Rugg and Rapides

Parish School Board (“RPSB”). The Bunyogs alleged that Defendants were liable

in solido to them for the injuries Hope sustained. A First Amended and

Supplemental Petition for Damages, filed on May 30, 2017, added RPSB’s insurer,

Berkley Insurance Company (“Berkley”), as a defendant and deleted L.S. Rugg as a

defendant. The Bunyogs propounded discovery to L.S. Rugg and RPSB with the

original petition, but responses were not received until June 27, 2017. RPSB’s

responses indicated that Delgado/Delucas 1 was a “Foster grandparent at Rugg

Elementary” who was present when Hope was on the playground. No further

information was provided on Delgado/Delucas.

On October 30, 2017, the Bunyogs filed a Second Supplemental and

Amending Petition for Damages adding Mary Delgado (“Delgado/Delucas”), Cenla,

and XYZ Insurance, Co. as Defendants, which was served on Cenla on November

7, 2017. In their Second Supplemental and Amending Petition the Bunyogs further

assert that Defendants are “justly and truly indebted and liable in solido to plaintiffs”

for all damages arising from this incident and argue that the petition is timely as it

“arises out of the same transaction or occurrence as stated in the original Petition for

Damages[,]” thus allowing it to relate back to the original petition. Several

allegations regarding Delgado/Delucas, her relationship with Cenla, and her alleged

role in Hope’s injury were also added. On a later date, during discussions between

counsel after RPSB’s discovery responses were returned to Plaintiffs, the Bunyogs

learned that a “Foster grandparent” was not simply the grandparent of a foster child,

but, instead, a volunteer with the Foster Grandparent Program related to Cenla’s

agency that worked with RPSB.

In response to the Bunyogs’ Second Supplemental and Amending Petition,

Cenla filed an exception of prescription asserting that it is a “wholly new and

unrelated defendant[,]” who was unaware of the incident and, therefore, the claim

against Cenla is “tantamount to a new cause of action which already prescribed[.]”

In their opposition to prescription, the Bunyogs allege that it was not until June 27,

2017, in RPSB’s discovery responses that they learned that one of the two adults

1
Mary Delgado was named as a Defendant in the pleadings, however in RPSB’s discovery
responses, the name “Mary Delucas” is used as the foster grandparent.

2

supervising Hope was not a RPSB employee. The Bunyogs argue that their claims

against Cenla and Ms. Delagado/Delucas not only relate back to their original

petition, but also that prescription was interrupted because Defendants are all joint

and/or solidary tortfeasors, and that prescription was tolled under the doctrine of

contra non valentem. RPSB’s discovery responses were attached as an exhibit to

the opposition. Lastly, the Bunyogs argue in their opposition to prescription that

there is an identity of interest between RPSB and Cenla which would infer notice of

the suit and would support the finding that the Second Supplemental and Amending

Petition relates back to the original timely filed petition.

A hearing was held on the exception on February 5, 2018. The trial court

granted judgment in favor of Cenla finding that the Bunyogs could not meet the

factors set forth in Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). Prior to the

signing of judgment, RPSB requested a re-hearing as it was not served with the

hearing notice. RPSB also filed a memorandum in opposition to the exception,

echoing the Bunyog’s assertions of relation back and interruption of prescription.

RPSB alleges, as did the Bunyogs, that it was not until discussions between counsel

after RPSB’s discovery responses were sent that the Bunyogs learned a “Foster

grandparent” was not simply the grandparent of a foster child, but was, instead, a

volunteer with the Foster Grandparent Program administered by Cenla.

The re-hearing was held on April 9, 2018. For a second time, the trial court

granted judgment in favor of Cenla based on the Bunyogs’ inability to meet the Ray

factors. The Bunyogs now appeal this judgment alleging the following assignments

of error:

1. The [t]rial [c]ourt erred in not finding that prescription was
interrupted against [Cenla] and [Delgado/Delucas] by the timely filing
of the Petition for Damages against RPSB pursuant to Louisiana Civil
Code article 2324(C).

3

2. The [t]rial [c]ourt erred in not finding that the equitable doctrine
of contra non valentum applied to toll prescription against [Cenla] and
[Delgado/Delucas] until their identity could be discerned through
discovery.

3. The [t]rial [c]ourt erred by only considering the relation back
doctrine in granting the Peremptory Exception of Prescription filed by
[Cenla].

Additionally, although not listed as an assignment of error, the Bunyogs assert

as Issue Presented for Review, and discuss in their brief, the argument that the grant

of Cenla’s motion was premature given the limited facts adduced through discovery

regarding the relationship between RPSB, Cenla, and Delgado/Delucas.

STANDARD OF REVIEW:

“When prescription is raised by peremptory exception, with evidence being

introduced at the hearing on the exception, the trial court’s findings of fact on the

issue of prescription are subject to the manifest error-clearly wrong standard of

review.” Specialized Loan Servicing LLC v. January, 12-2668, pp. 3-4 (La. 6/28/13),

119 So.3d 582, 584 (citations omitted). “[F]actual findings . . . such as the date on

which prescription begins to run, are reviewed under the manifest error-clearly

wrong standard of review.” Roberts v. USAA Cas. Ins. Co., 14-384, p. 4 (La.App. 1

Cir. 11/7/14), 168 So.3d 418, 420. However, “the proper application and

interpretation of a statute or article is a question of law.” Id.

DISCUSSION:

It is well established that “[p]rescriptive statutes are strictly construed in favor

of maintaining a plaintiff’s cause of action; absent clear, contrary legislative intent[.]”

Williams v. Jackson Par. Hosp., 00-3170, p. 13 (La. 10/16/01), 798 So.2d 921, 930.

The trial court applied La.Code Civ.P. art. 1153, and not La.Civ.Code art. 2324 or

the doctrine of contra non valentem. Louisiana Code of Civil Procedure Article

1153 permits an amended petition to relate back to the original petition for purposes

4

of prescription when “the action or defense asserted in the amended petition . . .

arises out of the conduct, transaction, or occurrence set forth or attempted to be set

forth in the original[.]” The supreme court in Ray, 434 So.2d at 1087, set forth

factors for determining whether Article 1153 permits an amendment to relate back:

(1) The amended claim must arise out of the same transaction or
occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of
the institution of the action such that he will not be prejudiced in
maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have
known that but for a mistake concerning the identity of the proper
party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or
unrelated defendant, since this would be tantamount to assertion
of a new cause of action which would have otherwise prescribed.

However, the supreme court has also found that “LSA-C.C.P. art. 1153 is

inapplicable to the situation where a plaintiff has timely sued and correctly named

at least one solidary obligor, or when articles of the Civil Code are applicable.”

Etienne v. Nat’l Auto. Ins. Co., 99-2610, p. 7 (La. 4/25/00), 759 So.2d 51, 56-7.

Thus, as discussed below, under the facts of this case we find that La.Code Civ.P.

art. 1153 does not apply here.

Assignment of Error Number One:

In their first assignment of error, the Bunyogs assert prescription was

interrupted as to Cenla due to their timely filing against joint tortfeasors. “[I]f on

the face of the petition it appears that prescription has run, . . . the burden shifts to

the plaintiff to prove a suspension or interruption of the prescriptive period.”

Younger v. Marshall Indus., Inc., 618 So.2d 866, 869 (La.1993). Louisiana Civil

Code Article 2324 provides that “[i]nterruption of prescription against one joint

tortfeasor is effective against all joint tortfeasors.” When the plaintiffs’ basis for

claiming interruption of prescription is La.Civ.Code art. 2324, the plaintiffs bear the

5

burden of proving that solidary or joint tortfeasor status. Younger, 618 So.2d 866;

see also Rizer v. Am. Sur. & Fid. Ins. Co., 95-1200 (La. 3/8/96), 669 So.2d 387. But,

“[a]bsent solidarity between the entities, the interruption of prescription as to the

claims asserted . . . may still occur by virtue of La.Code Civ.P. art. 1153.” Hunt v.

La. Mun. Risk Mgmt. Agency, 14-456 (La.App. 3 Cir. 4/22/15), 176 So.3d 1110,

1113, writ denied, 15-949 (La. 8/28/15), 176 So.3d 404.

Tort actions are subject to a liberative prescriptive period of one year, which

begins to run on the day of the injury or damage. La.Civ.Code art. 3492. Cenla and

Delgado/Delucas were added as Defendants in the Bunyogs’ Second Supplemental

and Amending Petition, filed more than one year after the incident. Therefore, the

claims against Cenla were prescribed on the face of the petition and the Bunyogs

had the burden of proving joint or solidary liability status between Cenla, RPSB,

Berkley, and Delgado/Delucus.

Cenla argues that the Bunyogs’ Second Supplemental and Amending Petition

only alleges solidary liability among Defendants and, furthermore, that the Bunyogs

have not carried their burden in proving solidary liability or joint liability.

Although the Bunyogs argued in their pleadings and in the trial court that the

joint and solidary relationship of Defendants interrupted prescription, the trial court

was silent regarding whether the Bunyogs carried their burden of proving that status.

Instead, the trial court only discussed the Bunyogs’ failure to prove relation back.

The trial court stated at the first hearing on the issue: “The Court has reviewed the

Ray[, 434 So.2d 1083] case. And based upon those factors, if they cannot be met, it

will be prescribed. So the Court’s going to grant the Exception of Prescription.”

The trial court then stated at the rehearing: “The Court will maintain the

Exception of Prescription. And based upon the factors in Ray, as the Court went

6

through before, that the factors cannot be met. So the Court will maintain the

Exception of Prescription.” Finally, the judgment states: “Considering the

pleadings, memoranda on file, argument of counsel, and for oral reasons assigned:

IT IS ORDERED that the Exception of Prescription filed on behalf of Cenla Area

Agency on Aging, Inc. be and is hereby GRANTED[.]”

“The jurisprudence is settled that all of the issues presented by the pleadings

upon which evidence has been offered will be considered as having been disposed

of by final judgment in the cause, and any demand passed over in silence will be

considered as having been rejected by the trial court.” Maricle v. Casablanca

Convertors, Inc., 546 So.2d 275, 277 (La.App. 3 Cir. 1989). Therefore, we can

surmise that the trial court rejected the Bunyogs’ argument of interruption and

suspension of prescription, then considered whether the petition related back under

the Ray factors to fully determine whether the Bunyogs’ claim against Cenla could

be maintained under any article or doctrine.

Thus, we first must determine whether the trial court was manifestly

erroneous in determining that the Bunyogs failed to sufficiently plead joint or

solidary liability between Defendants in order to interrupt the running of prescription

against Cenla.

Louisiana Civil Code Article 2324 states:

A. He who conspires with another person to commit an
intentional or willful act is answerable, in solido, with that person, for
the damage caused by such an act.

B. If liability is not solidary pursuant to Paragraph A, then
liability for damages caused by two or more persons shall be a joint and
divisible obligation. . . .

C. Interruption of prescription against one joint tortfeasor is
effective against all joint tortfeasors.

7

The Bunyogs only alleged in their petition that Defendants were solidary

tortfeasors, specifically, and did not use the phrase “joint tortfeasor” or “jointly”

liable in the Second Supplemental and Amending Petition. However, “Louisiana is

a fact pleading state that values substance over form . . . . When legally permissible,

a petition should be maintained against a peremptory exception to afford a party his

day in court.” Wheat v. Nievar, 07-680, p. 5 (La.App. 1 Cir. 2/8/08), 984 So.2d 773,

776; see also Teachers’ Ret. Sys. of La. v. La. State Emp. Ret. Sys., 456 So.2d 594

(La.1984).

Joint liability is present where the negligence of two or more persons

combines to cause injury to a third person. La.Civ.Code art. 2324. “The term ‘joint

tortfeasor’ may be applied both to the situation where two or more persons are acting

in concert, or where ‘[t]he negligence of concurrent tortfeasors . . . occurs or

coalesces contemporaneously,’ to produce an injury.” Milbert v. Answering Bureau,

Inc., 13-22, (La. 6/28/13), 120 So.3d 678, 688.

The Bunyogs’ original petition alleged:

XIV.
HOPE’s femur fracture is the type and nature that is caused by a
traumatic fall or bending injury. It does not typically occur absent
trauma, and was further accompanied by a concussion.

XV.
L.S. RUGG employees negligently failed to been [sic]
adequately supervise [sic] HOPE on the playground, resulting in the
aforesaid injuries. Therefore, HOPE’s injuries were caused by the acts
or omissions of L.S. RUGG’s employees

XVI.
HOPE is non-verbal; L.S. RUGG staff were not supervising
HOPE when she was injured; thus there is no eye-witness account of
what exactly happened.

In their Second Supplemental and Amending Petition for Damages, the

Bunyogs further alleged:

8

VI(a).
On October 4, 2016, defendant, MARY DELGADO . . . was a
“Foster Grandparent” with the defendants, CENLA AREA AGENCY
on AGING, INC. . . . in its “Foster Grandparent Program” assigned to
assist in supervising the children at L.S. Rugg Elementary School, all
with the permission and consent of defendant, RPSB.

....

VI(b).
Defendant, DELGADO, was one of two adults on the playground
supervising the Pre-K Autism Class at L.S. Rugg Elementary on the
afternoon of October 4, 2016 when ARIELLE HOPE BUNYOG . . .
was injured.

....

XV
L.S. Rugg employees, as well as DELGADO, failed to
adequately supervise HOPE on the playground resulting in the
aforesaid injuries. HOPE’s injuries were caused by the acts or
omissions of L.S. Rugg employees and/or DELGADO, Foster
Grandparent, while in the course and scope of her employment/duties
with CENLA.

The facts pled in the Second Supplemental and Amending Petition

demonstrate, at a minimum, some fault on the part of Delgado/Delucas while in the

course and scope of her employment/duties with Cenla and, thus, allegations of joint

liability with RPSB. Therefore, we find merit to the Bunyogs’ first assignment of

error and find that the trial court was manifestly erroneous in determining the

Bunyogs did not carry their burden in proving joint liability at this stage in the

proceedings.

Cenla further asserts that the Ray factors must still be met where joint liability

is alleged. As stated above, we find no merit to the argument that the Ray factors

apply to this case. Our supreme court has determined La.Code Civ.P. art. 1153 is

inapplicable where the argument against prescription is interruption based on

solidary or joint liability. Etienne, 759 So.2d at 56-7; see also Wheat, 984 So.2d at

776 (“Once a plaintiff establishes that a joint or solidary tortfeasor has been timely

9

sued, consideration of the concept of relating back to interrupt prescription is not

necessary.”). At the first hearing on the exception, Cenla argued that this court

recently decided a similar case based on the Ray factors, Hunt, 176 So.3d 1110.

However, in Hunt, this court specifically noted that there was no solidarity between

the defendants. We find no merit to this argument.

Assignment of Error Number Two:

In their second assignment of error, the Bunyogs argue that the doctrine of

contra non valentem applies and suspended prescription as to Cenla. As with the

issue of joint liability, the trial court was silent regarding this theory in its oral

reasons and judgment. Therefore, we will assume the trial court rejected the

Bunyogs’ argument.

The doctrine of contra non valentem applies as an exception to
the statutory prescriptive period where in fact and for good cause a
plaintiff is unable to exercise his cause of action when it accrues. The
Court has recognized four instances where contra non valentem can
apply: (1) where there was some legal cause which prevented the courts
or their officers from taking cognizance of or acting on the plaintiff’s
actions; (2) where there was some condition coupled with a contract or
connected with the proceedings which prevented the creditor from
suing or acting; (3) where the debtor himself has done some act
effectively to prevent the creditor from availing himself of his cause of
action; or (4) where some cause of action is not known or reasonably
knowable by the plaintiff, even though his ignorance is not induced by
the defendant.

Specialized Loan Serv., 119 So.3d at 585. Only the fourth category may apply in

the current case. Prescription may be suspended “where some cause of action is not

known or reasonably knowable by the plaintiff, even though his ignorance is not

induced by the defendant.” Id. However, the doctrine of contra non valentem only

applies in ‘exceptional circumstances.’” Id. (quoting La.Civ.Code art. 3467 cmt.

(d)).

10

“For the fourth category to apply, the plaintiff’s ignorance of his cause of

action cannot be attributable to his own willfulness or neglect, as a plaintiff is

deemed to know what he could have learned by reasonable diligence.” Edwards v.

Alexander, 42,000, p. 21 (La.App. 2 Cir. 6/6/07), 960 So.2d 336, 348, writ denied,

07-1317 (La. 9/28/07), 964 So.2d 371. However:

[s]imply because these facts may have been obtained at a particular
place or in a particular manner, and the plaintiffs did not happen to
make a search in that particular place and especially since they had
never been put on notice and were wholly ignorant of the existence in
any place of the facts upon which to base an action, this Court does not
think their ignorance is wilful nor the result of any negligence on their
part.

Walter v. Caffall, 192 La. 447, 467, 188 So. 137, 143 (1939).

In the current case, Hope’s injuries occurred at school. The Bunyogs were

reasonable in believing those in charge of her supervision were school employees.

It was not until RPSB answered discovery that the Bunyogs learned one of the

supervisors was not an RPSB employee, but Delgado/Delucas, a “Foster parent.”

The discovery sought the name, address, and employer/employment title of

any person with knowledge of the incident. The Bunyogs also sought any

investigative reports related to the incident. RPSB’s responses only identify “Mary

Delucas[,] Foster grandparent at Rugg Elementary” without additional employment

or contact information. Statements provided by RPSB indicated Delgado/Delucas

was with or around Hope when the incident happened, but they did not provide

further information regarding who Delgado/Delucas was, or that she was working

or volunteering through Cenla.

Cenla argues that a simple search of the Foster Grandparent Program in

Rapides Parish would lead the Bunyogs to discover Cenla. However, it is not

reasonable to assume “Foster grandparent” would lead the Bunyogs to conclude

11

anything more than the fact that this person was present as a child’s foster

grandparent, let alone that there is an agency or program similarly titled providing

volunteer services to schools in the parish.

Once further conversations with RPSB’s counsel ensued and the Bunyogs

learned of Delgado/Delucas, Cenla, and the Foster Grandparent Program, they added

Delgado/Delucas and Cenla as Defendants. We find the failure to discover

Delgado/Delucas’ identity, the Foster Grandparent Program, and, thus, Cenla’s

idenity was not attributable to the Bunyogs’ own willfulness, neglect, or failure to

follow through with reasonable diligence. Thus, under the facts of this case, we find

the trial court was manifestly erroneous in not applying the doctrine of contra non

valentem.

Assignment of Error Number Three and Issue Number Four:

In their third assignment of error and fourth Issue Presented for Review, the

Bunyogs allege that the trial court erred by only considering the relation back

doctrine and that the granting of the exception was premature. Based on our findings

above, the third assignment of error has already been addressed and the fourth issue

is rendered moot.

CONCLUSION:

For the reasons discussed above, we reverse the judgment of the trial court

and remand the case to the trial court for further proceedings. All costs of these

proceedings are taxed to Cenla Area Agency on Aging, Inc.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

12

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-488

ENRICO BUNYOG, ET AL.

VERSUS

BERKLEY INS. CO., ET AL.

Conery, J., concurs in the result and assigns reasons.

I join in the majority’s reversal of the trial court’s ruling in this matter.

However, I do not find this case warrants application of contra non valentem.

Notably, several months before prescription ran in October 2017, the plaintiffs

received a full accident report with the names of persons present on the day of the

accident. That information, coupled with the fact that the plaintiffs’ daughter

attended the school, permitted further inquiry into the names and contact information

of those the plaintiffs allege to have failed to supervise their daughter. And, that

time period was adequate to permit counsel to depose—or take witness statements

of—those involved. Despite such opportunity, the plaintiffs have not further

amended their petition to state with particularity whether Cenla and

Delgado/Delucas had a duty to supervise and/or how they may have breached that

duty.

I do, however, recognize that the face of the supplemental petition at least

thinly alleges facts regarding the identity of interest between RPSB and Cenla and/or

Delgado/Delucas. While the indication of connexity is slight, I concur in the result

reached by the majority as I would leave consideration of the parties’ status for future

proceedings. Importantly, an exception of prescription may be re-urged at any time

as described within the confines of La.Code Civ.P. arts. 927 and 928(B).

For these reasons, I concur in the result.