Luca Paul Orsot v. Acadian Ambulance Service, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-863

LUCAS PAUL ORSOT

VERSUS

ACADIAN AMBULANCE SERVICE, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2018-4784
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and Jonathan W.
Perry, Judges.

AFFIRMED.

Rex D. Townsley
Jordan Z. Taylor
Jordyn A. Goody
The Townsley Law Firm
3102 Enterprise Boulevard
Lake Charles, Louisiana 70601
(337) 478-1400
Counsel for Plaintiff/Appellee:
Lucas Paul Orsot

E. Trent McCarthy
The McCarthy Law Firm
7922 Picardy Avenue
Baton Rouge, Louisiana 70809
(225) 767-9055
Counsel for Defendant/Appellant:
Acadian Ambulance Service, Inc.

KEATY, Judge.

Defendant/Appellant, Acadian Ambulance Service, Inc., appeals the trial

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

Plaintiff/Appellee, Lucas Paul Orsot. For the following reasons, the trial court’s

judgment is affirmed.

FACTS & PROCEDURAL HISTORY

This appeal from a judgment granting an exception of prescription in a claim

for an unpaid balance on an open account arises from medical transportation

services rendered following a motor vehicle accident in Lake Charles, Louisiana.

The motor vehicle accident occurred on June 7, 2015, when Lucas Paul Orsot

collided with an eighteen-wheeler that was attempting to cross the highway. Orsot,

who was twenty-two years old at the time, sustained serious injuries. Following

the accident, Acadian Ambulance Service, Inc. transported Orsot to the hospital via

helicopter. The invoice for Acadian’s services rendered on June 7, 2015, totaled

$23,090.00.

Acadian submitted a claim to Cigna, the alleged health insurer of Orsot’s

father, for payment. On August 11, 2015, Cigna submitted a partial payment of

$13,017.64. On October 15, 2015, Acadian billed Orsot for the remaining balance

of $10,072.36. Orsot did not pay the remaining balance. During the spring of

2018, a settlement was reached between Orsot and the alleged tortfeasor in the

motor vehicle accident.

The instant appeal, however, arises from the Petition for Concursus and

Exception of Prescription that Orsot filed against Acadian on November 9, 2018.

Therein, Orsot alleged that Acadian’s right to collect the unpaid debt had

prescribed pursuant to La.Civ.Code arts. 3495 and 3277 because three years had

elapsed without interruption from the date Acadian rendered its services on June 7,

2015. In conjunction with the concursus proceeding, Orsot deposited $10,072.36

into the registry of the court. A hearing on Orsot’s exception occurred on February

28, 2019. At the hearing, Orsot’s counsel was allegedly blindsided when

Acadian’s counsel produced a petition for suit on open account that Acadian had

previously filed against Orsot on August 8, 2018, in Lake Charles City Court.

Orsot’s appellate brief claims that defense counsel neither included Orsot’s counsel

as an agent for service nor provided a courtesy copy of the petition. As a result,

the trial court continued the hearing on the exception after stating the following:

I don’t understand why this might not have been shared before
the hearing or something today, . . . It almost appears to be a . . . trial
by ambush. I’m not certain I understand what I think this is suppose
[sic] to connote. But, I don’t know that the movers are in a proper
position to reply to it without maybe reviewing the entirety of that
record[.]

Orsot’s counsel subsequently filed a Motion for Sanctions, alleging that the

withholding of evidence necessitated a continuance of the hearing and incurred

needless additional time and expense.

The second hearing on the exception occurred on June 5, 2019. After

receiving evidence and hearing oral arguments from both sides, the trial court ruled

that payment was exigible from the time Acadian rendered services to Orsot on

June 7, 2015. Thus, the trial court held that the debt had prescribed before the city

court suit was filed. According to its written judgment rendered one day later, the

trial court granted Orsot’s exception, dismissed with prejudice Acadian’s lien

against Orsot, ordered the funds deposited into the registry of the court, including

interest, be released to Orsot, and assessed Acadian with court costs.

Acadian appeals the trial court’s judgment. In its sole assignment of error,

Acadian contends that “[t]he [t]rial [c]ourt erred in finding that Acadian’s claim for

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recovery against Orsot on open account became exigible on June 7, 2015, despite

all evidence proving that the claim became exigible on or after August 11, 2015.”

STANDARD OF REVIEW

This court has previously discussed the applicable standard of review

regarding an exception of prescription:

The exception of prescription is governed by La.Code Civ.P. art.
927. The standard of review of a grant of an exception of prescription
is determined by whether evidence was adduced at the hearing of the
exception. If evidence was adduced, the standard of review is
manifest error; if no evidence was adduced, the judgment is reviewed
simply to determine whether the trial court’s decision was legally
correct. Allain v. Tripple B Holding, LLC, 13-673 (La.App. 3 Cir.
12/11/13), 128 So.3d 1278. The party pleading the exception of
prescription bears the burden of proof unless it is apparent on the face
of the pleadings that the claim is prescribed, in which case the
plaintiff must prove that it is not. Id.

Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128,

writ denied, 15-1065 (La. 9/11/15), 176 So.3d 1043.

In this case, evidence was adduced at the hearing such that manifest error

governs. Under the manifest error standard of review, a factual finding cannot be

set aside unless the appellate court finds that it is manifestly erroneous or clearly

wrong. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

“The date on which prescription begins to run is a factual issue to be determined by

the trier of fact.” Oracle Oil, LLC v. EPI Consultants, 11-151, p. 7 (La.App. 1 Cir.

9/14/11), 77 So.3d 64, 69, writ denied, 11-2248 (La. 11/23/11), 76 So.3d 1157. In

order to reverse a fact finder’s determinations, there are two requirements that must

be met: “1) The appellate court must find from the record that a reasonable factual

basis does not exist for the finding of the trial court, and 2) the appellate court must

further determine that the record establishes that the finding is clearly wrong

(manifestly erroneous).” Stobart, 617 So.2d at 882. In this case, it is apparent on

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the face of the pleadings that the claim has prescribed. As such, it was Acadian’s

burden to prove that the claim had not prescribed.

DISCUSSION

In its sole assignment of error, Acadian contends the trial court erred in

finding that its claim for recovery against Orsot became exigible on June 7, 2015.

Rather, Acadian maintains the claim became exigible on August 11, 2015, when

Cigna submitted partial payment to Acadian. Acadian argues that prescription was

interrupted when it filed its suit on open account against Orsot in city court on

August 8, 2018, because it was filed within three years of August 11, 2015.

Alternatively, Acadian maintains that Cigna’s partial payment interrupted

prescription.

In opposition, Orsot maintains the trial court did not err in granting his

exception because Acadian failed to sustain its burden of proving that its right to

recovery had not prescribed. Orsot argues that payment became exigible on June 7,

2015, i.e., the date Acadian rendered services. He further maintains that Cigna’s

partial payment did not interrupt prescription.

In Louisiana, an action on an open account is subject to a liberative

prescription of three years. La.Civ.Code art. 3494(4). “This prescription

commences to run from the day payment is exigible. It accrues as to past due

payments even if there is a continuation of labor, supplies, or other services.”

La.Civ.Code art. 3495. “After liberative prescription has commenced to run but

before it accrues, an obligor may by juridical act extend the prescriptive period.

An obligor may grant successive extensions. The duration of each extension may

not exceed one year.” La.Civ.Code art. 3505. “An extension of liberative

prescription must be express and in writing.” La.Civ.Code art. 3505.1.

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“Prescription may be interrupted or suspended during the period of extension.”

La.Civ.Code art. 3505.4.

The supreme court in Ledoux v. City of Baton Rouge, 99-2061, p. 5 (La.

2/29/00), 755 So.2d 877, 879-80, explained the meaning of exigible as follows:

Black’s Law Dictionary defines an “exigible” debt as a liquidated and
demandable debt; a mature claim. Comment (b) to article 3495 states:

On principle, liberative prescription commences to
run from the day a cause of action arises and its judicial
enforcement is possible. See 2 M. Planiol, Traite
elementaire de droit civil 3 Pt. 2, at 358 (Louisiana State
Law Institute trans. 1959):

Liberative prescription begins to run as soon as the
action accrues, or, as Pothier said “the day on which the
creditor could institute his demand.” It cannot
commence sooner, because the time given for
prescription should be a time during which the action can
be exercised, and one cannot reproach the creditor for not
having acted at a time when he did not have the right to
do so. Otherwise, it could happen that the right would be
lost before it could be exercised, which would be as
unjust as absurd (Cass. Civ., 11 Dec. 1918, D.1923.1.96,
P. and S.1921.1.161).

Based upon the foregoing articles, and after hearing arguments from both

sides along with the testimony and documentary evidence presented at the hearing,

the trial court found that payment became exigible on June 7, 2015. Thus, we must

determine whether the trial court manifestly erred in finding that payment became

exigible on June 7, 2015.

In that regard, Acadian argued at the hearing that payment became exigible

on August 11, 2015, the date it received partial payment from Cigna. In support, it

presented Acadian’s invoice for services rendered to Orsot on June 7, 2015. The

invoice reveals the amount charged to Orsot for services rendered on June 7, 2015,

totaled $23,090.00. It further reveals that Cigna submitted a partial payment of

$13,017.64 on August 11, 2015. In further support, Acadian offered into evidence

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the live testimony of Thomas Leonards. Leonards, who is employed by Acadian as

a manager of contracts and ancillary services, testified regarding Acadian’s

traditional billing practices.

If we know there’s third-party insurance, we will bill that third-
party insurance, traditionally prior to sending any statement or bill to
the patient. So, we will bill fully to the third-party insurance until it’s
adjudicated by that insurance in full, and then, subsequently, we may
appeal if full payment has not been received from the third party. We
will either appeal that primary insurance or continue on to the
secondary insurance.

Leonards confirmed Acadian does not pursue a patient prior to disposition of an

insurance resolution. Thus, Acadian’s position is that it could not have made a

claim prior to receiving the insurance payment from Cigna because it did not know

the amount of Orsot’s responsibility, if any, until after the insurance claim with

Cigna resolved.

With respect to Leonard’s testimony, Orsot maintains that the mere fact

Acadian chose not to directly pursue him because of the alleged existence of third-

party insurance, when it had the right and the ability to do so from the time

services were rendered on June 7, 2015, cannot enlarge the prescription statute in

its favor. In support, Orsot cites Mid-South Analytical Labs, Inc. v. Jones, Odom,

Spruill & Davis, LLP, 40,089, pp. 5-6 (La.App. 2 Cir. 9/23/05), 912 So.2d 101,

105, writ denied, 05-2487 (La. 4/17/06), 926 So.2d 513, wherein the appellate

court noted: “In a classic open account arrangement, payment for goods and

services is generally exigible or payable upon delivery or performance.”

Orsot further maintains that neither the presence of, nor payments by, the

health insurer affected the prescriptive period applicable to the charges remaining

on the open account. In support, he cites Freeman, Gyer, Hemelt & Associates v.

Estate of McKnight, 578 So.2d 996 (La.App. 4 Cir. 1991), wherein the plaintiff

argued that payments made by the decedent’s health insurer were
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acknowledgments of the debt, thereby interrupting prescription under La.Civ.Code

art. 3464. In disagreeing with the plaintiff, the appellate court explained that “[a]

payment on an open account which is imputed to a specific charge included therein

does not interrupt the prescriptive period as to the balance of the account. Farlee

Drug Center v. Belle Meade Pharmacy, Inc., 464 So.2d 802 (La.App. 5 Cir.1985).”

Id. at 998. The fourth circuit concluded: “Because of the odd amounts paid by the

insurer and the known fact that insurance payments are always made for specific

charges[,] the payments cannot be construed as general payments on the account so

as to interrupt prescription.” Id.

Orsot also cites Dear v. Mabile, 93-1188 (La.App. 1 Cir. 5/20/94), 637

So.2d 745, wherein a chiropractor brought suit against his former patient for

payment for services rendered. The services were rendered from October 8, 1987

through December 4, 1987, and resumed again from May 27, 1988 through July 6,

1988. On July 19, 1988, two partial payments were made on the account by the

defendant’s health insurance company. The ledger card submitted by the plaintiff

established that the two payments were posted as credits against the latter charges

for services rendered May 27, 1988 through July 19, 1988. No other payments

were made on the account. The plaintiff filed suit on June 14, 1991 for the

remaining balance, after which the defendant filed a peremptory exception of

prescription. Following the arguments at the hearing on the exception, the trial

court determined that the payments made were for particular services rendered and,

therefore, did not serve to interrupt prescription as to the entire account. The trial

court granted the defendant’s exception, finding that the portion of the plaintiff’s

claim for payment for services rendered on or before May 27, 1988, had prescribed.

On appeal, the first circuit affirmed the trial court’s judgment and held that the

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payments made by a third-party payor for specific services rendered did not

interrupt prescription as to the entire account. Specifically, the first circuit held:

Because of the odd payment amounts by the insurer, which constitute
the 80% paid by the insurer for the charges incurred on and after May
27, 1988, and because of the known fact that insurance payments are
always made for specific charges, the two payments by Mr. Mabile’s
insurer cannot be construed as general payments on the account so as
to interrupt prescription.

Id. at 748.

With respect to the instant matter, the trial court found that Dear, 637 So.2d

745, was analogous and applicable to the facts of this case. Although the trial

court noted that Dear was not specifically on point, it explained that Dear revealed

“the distinction between a payment having a finite date, as well as others.” The

trial court again noted that “the intent of prescription is to set a firm and finite date

for things to run.” The trial court examined the word “exigible” found in

La.Civ.Code art. 3494 and stated that “[e]xigible means requireable.” The trial

court pointed to the additional language in La.Civ.Code art. 3495 which provides

that prescription applies to the “accrual as to past due payments even if there is a

continuation of labor, supplies, or other services.” With respect to the additional

statutory language, the trial court noted that there were other services which were

“collecting from the insurance company first, which [was] a decision made by

Acadian.” This language shows that the trial court determined Acadian’s business

decision to collect from Cigna prior to collecting from Orsot did not enlarge the

prescription statute. The trial court reasoned that “the statute intended . . . to go

back to the date of service being the June 7th date.”

Based upon our review of the record, we find a reasonable factual basis

exists for the trial court’s finding that Acadian’s claim for recovery against Orsot

became exigible on June 7, 2015. We, likewise, find that the record establishes the

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trial court’s finding of exigibility is not clearly wrong or manifestly erroneous.

Accordingly, the trial court’s judgment granting Orsot’s exception of prescription

is affirmed.

DECREE

For the foregoing reasons, the trial court’s judgment granting the exception

of prescription in favor of Plaintiff/Appellee, Lucas Paul Orsot, is affirmed. All

costs associated with this appeal are assessed to Defendant/Appellant, Acadian

Ambulance Service, Inc.

AFFIRMED.

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