Alfred Theriot v. Dwight W. Andrus Insurance, Inc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-431

ALFRED THERIOT

VERSUS

DWIGHT W. ANDRUS INSURANCE, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20197458
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Elizabeth A. Pickett, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

REVERSED AND REMANDED.

William H. Eckert
Daniel G. Collarini
ECKERT & TARLETON, L.L.C.
201 St. Charles Ave. Suite 250
New Orleans, LA 70170
(504) 513-3266
COUNSEL FOR DEFENDANT/APPELLEE:
Westport Insurance Corporation
Dwight W. Andrus Insurance, Inc,
David Hebert

Kaliste Joseph Saloom, IV
Andrew J. Quackenbos
DOMENGEAUX, WRIGHT, ROY & EDWARDS, LLC
556 Jefferson Street, Ste 500
Lafayette, LA 70501
(337) 233-3033
COUNSEL FOR PLAINTIFF/APPELLANT:
Alfred Theriot

WILSON, Judge.

Plaintiff, Alfred Theriot, appeals the judgment of the district court

granting the defendants’ motion for summary judgment and dismissing Mr.

Theriot’s claims as untimely, with prejudice. For the following reasons, we reverse

the district court’s judgment.

I.

ISSUES

We must decide whether the district court erred in dismissing Mr.

Theriot’s claims as perempted.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Theriot had a decades long history of using David Hebert,

employed by Dwight W. Andrus Insurance Inc., as his insurance agent. In December

2016, Mr. Theriot purchased the subject vessel, the MISS REGAL, for $125,000.

An additional $75,000 was spent on updates and renovations. Mr. Theriot requested

that Mr. Hebert procure insurance coverage for the vessel. In February 2017,

insurance was procured with $200,000 of hull coverage on a one-year term via XL

Specialty Insurance Company policy number UM00055752MA18A (XL policy).

On July 29, 2017, MISS REGAL sustained a mechanical engine failure

which required significant repairs. The resulting loss was covered by the XL policy.

After the failure, Mr. Theriot undertook intensive renovations and upgrades to the

vessel, including installing new engines worth approximately $165,000.

In January or February 2018, Mr. Theriot discussed the enhanced value

of the MISS REGAL with Mr. Hebert. A plan was made to renew the existing

policy, set to expire in February, to allow time to secure increased coverage of the

vessel. On April 11, 2018, Mr. Theriot received a copy of the $200,000 renewal

policy. On November 27, 2018, the MISS REGAL sank while docked and suffered

catastrophic damage.

On November 26, 2019, Mr. Theriot filed a petition for damages

alleging that Mr. Hebert was negligent in failing to procure additional coverage on

the MISS REGAL. Named as defendants in the lawsuit were David Hebert, his

employer, Dwight W. Andrus Insurance Inc. (Andrus), and their insurer, Westport

Insurance Corporation. On August 24, 2020, the defendants filed a motion for

summary judgment asserting that Mr. Theriot will not be able to prove that

Defendants breached a legal duty, and that his claim was perempted under La.R.S.

9:5606. On January 12, 2021, Defendants filed an additional motion for partial

summary judgment seeking to have Mr. Theriot’s damages capped at $200,000.

On April 12, 2021, a hearing was held on the motions. The district

court found that genuine issues of fact existed as to the duty breached and cap on

damages and denied the motions on those grounds. However, the district court found

that Mr. Theriot’s claims were perempted, granted the motion for summary

judgment, and dismissed the claims with prejudice. Mr. Theriot now appeals the

judgment of the district court.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, applying the

same criteria that govern the trial court’s determination of whether summary

judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591

So.2d 342 (La.1991). A motion for summary judgment shall only be granted when

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there are no genuine issues of material fact, and the mover is entitled to judgement

as a matter of law. La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover’s burden on the motion does not
require him to negate all essential elements of the adverse
party’s claim, action, or defense, but rather to point out to
the court the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or
defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1).

IV.

LAW AND DISCUSSION

At the core of this appeal, Mr. Theriot contends that the district court

erred in finding that his claims were perempted under La.R.S. 9:5606. Louisiana

Revised Statutes 9:5606 provides:

No action for damages against any insurance agent,
broker, solicitor, or other similar licensee under this state,
whether based upon tort, or breach of contract, or
otherwise, arising out of an engagement to provide
insurance services shall be brought unless filed in a court
of competent jurisdiction and proper venue within one
year from the date of the alleged act, omission, or neglect,
or within one year from the date that the alleged act,
omission, or neglect is discovered or should have been
discovered. However, even as to actions filed within one
year from the date of such discovery, in all events such
actions shall be filed at the latest within three years from
the date of the alleged act, omission, or neglect.

Thus, the key to determining whether Mr. Theriot’s claims are perempted depends

on when the one-year clock began to run.

“Peremption has been likened to prescription; namely, it is
prescription that is not subject to interruption or

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suspension.” Rando v. Anco Insulations, Inc., 08-1163
(La.5/22/09), 16 So.3d 1065, 1082. Thus, the rules
governing the burden of proof as to prescription also apply
to peremption. Id. Ordinarily, the exceptor bears the
burden of proof at the trial of the peremptory exception.
Id. But, if prescription is evident on the face of the
pleadings, the burden shifts to the plaintiff to show the
action has not prescribed.

Lomont v. Bennett, 14-2483, p. 7 (La. 6/30/15), 172 So.3d 620, 626-27.

Mr. Theriot’s petition for damages was filed November 26, 2019.

Therefore, the defendants bore the burden of proving that the alleged act or omission

occurred, and Mr. Theriot discovered such act or omission, prior to November 26,

2018, for the claim to be perempted. Mr. Theriot claims that Mr. Hebert was

negligent in his failure to procure additional coverage for the MISS REGAL. Hence,

the clock began to run from the moment Mr. Theriot knew or should have known

that Mr. Hebert failed to procure such coverage.

The defendants asserted that peremption began to run on April 11,

2018, the day that Mr. Theriot received notice that the XL policy had been renewed

for $200,000. They argue that Mr. Theriot knew or should have known of Mr.

Hebert’s failure upon receiving notice that the policy was renewed for only

$200,000. We disagree. According to the deposition testimony of both Mr. Theriot

and Mr. Hebert, the renewal of the existing $200,000 policy was always a part of the

larger plan of increasing coverage. Both men understood that several steps were

required to procure additional coverage and the renewal policy was to act as a

stopgap against a loss in coverage while those steps were taken. Consequently,

receiving notice that the policy was renewed for $200,000 would not have placed

Mr. Theriot on notice that Mr. Hebert had failed to procure additional coverage. In

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fact, this letter would have led Mr. Theriot to believe that the plan was moving

forward.

The district court also found that the April 11, 2018, renewal letter did

not start the running of the clock. However, the district court failed to assert a

specific date on which the clock did begin. Instead, the district court held that Mr.

Theriot should have known of the failure within a couple months of the April

renewal letter and before the November 2018 sinking. After reviewing the record

and resolving all doubts in favor of the non-moving party, we find that there was no

triggering event prior to the sinking of the vessel which would have alerted Mr.

Theriot of Mr. Hebert’s failure to take steps to procure additional coverage. After

determining that the April 2018 letter was not sufficient to start the running of the

clock, the only other date on which peremption could have begun to run was the date

the vessel sank on November 27, 2018.

Mr. Theriot contends that peremption began to run following the

sinking of the vessel and peremption would have accrued on November 27, 2019.

Since the petition was filed before this date, the claims were not perempted. In his

first assignment of error, Mr. Theriot asserts that peremption could not have started

prior to the sinking of the vessel because he had no cause of action prior to that time.

In support of this argument, Mr. Theriot cites Teague v. St. Paul Fire & Marine Ins.

Co., 07-1384 (La. 2/1/08), 974 So.2d 1266, for the proposition that a plaintiff must

suffer a loss before peremption will begin to run. We disagree.

In Teague, the court examined the identical language of the legal

malpractice statute and held that,

The “date of discovery” from which prescription or
peremption begins to run is the date on which a reasonable
man in the position of the plaintiff has, or should have,

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either actual or constructive knowledge of the damage, the
delict, and the relationship between them sufficient to
indicate to a reasonable person he is the victim of a tort
and to state a cause of action against the defendant.

Id. at 1275. Here, Mr. Theriot is alleging that his insurance agent failed to procure

additional coverage.

Jurisprudence has suggested that an insured has a valid
claim against the agent when the insured demonstrates
that: “1) the insurance agent agreed to procure the
insurance; 2) the agent failed to use ‘reasonable diligence’
in attempting to procure the insurance and failed to notify
the client promptly that the agent did not obtain insurance
and 3) the agent acted in such a way that the client could
assume he was insured.”

Isidore Newman Sch. v. J. Everett Eaves, Inc., 09-2161, p. 7 (La. 7/6/10), 42 So.3d

352, 356-57 (citing Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728

(La.1973)). Suffering a loss has not been deemed necessary to state a claim against

an insurance agent for failing to procure coverage, and therefore we do not find that

a loss must be suffered before the peremptive period can commence.

In his second assignment of error, Mr. Theriot asserts that peremption

could not begin running until the last date of Mr. Hebert’s omission i.e., the date the

MISS REGAL sank. In support of this position, Mr. Theriot cites to Graham v.

Conque, 626 So.2d 870 (La.App. 3 Cir. 1993), writ denied, 634 So.2d 383 (La.1994).

That case involved a legal malpractice action for failing to timely file suit against

certain defendants following an accident. The court held that peremption began to

run one year from the date of the accident which was “the last possible date of

omission[.]” Id. at 873. This reasoning was followed in A3M Vacuum Servs., L.L.C.

v. Hub Int'l Midwest, Ltd., 17 F.Supp.3d 554 (E.D. La.2014) which involved an

insurance agent’s negligent failure to notify plaintiff’s excess carrier about a claim.

There the court held that because the case involved “an omission or failure to act on

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a timely basis[,]” peremption began to run on the “last possible date of omission.

Id.at 559-60.

Similarly, Mr. Theriot’s claim involves a failure to timely procure

additional coverage. It was Mr. Theriot’s belief that Mr. Hebert was in the process

of procuring the additional coverage, and it was not until after the vessel sank that

Mr. Theriot learned that Mr. Hebert had not taken any action to procure the coverage.

Construing all inferences in favor of Mr. Theriot, the non-moving party, Mr. Hebert

could have taken steps to procure the coverage at any time prior to the date the vessel

sank making this the last possible date of omission. Thus, we find that the

peremptive period did not commence until November 27, 2018, when the vessel

sank. As the claims were filed within one year of this date, the district court erred

in granting the motion for summary judgment on the basis of peremption.

Additionally, the court in A3M held that the date of the last possible

omission was unknown from the record and because the moving party had failed to

establish that this date fell more than three years from the date the claim was filed,

the party had not satisfied its burden on summary judgment. We find that the

defendants in the instant case also failed to meet their burden on summary judgment.

The only date put forward by the defendants was the date of the April 11, 2018,

renewal letter. As previously stated, given the circumstances, this renewal of the

existing $200,000 policy was not sufficient to signal to Mr. Theriot that Mr. Hebert

had not and would not procure the additional coverage according to their plan. Thus,

the defendants failed to establish that the omission occurred more than a year prior

to the filing of the petition and did not satisfy their burden on summary judgment.

V.

CONCLUSION

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For the foregoing reasons, we find that the district court erred in ruling

that Mr. Theriot’s claims were perempted under La.R.S. 9:5606 and dismissing his

claims as untimely, with prejudice. Accordingly, we reverse the ruling of the district

court granting the motion for summary judgment and remand for further

proceedings. Costs of this appeal are assessed to the appellees.

REVERSED AND REMANDED.

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