Beverly Blake v. Americas Insurance Company, Inc. and Louisiana Guaranty Insurance Association

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

25-458

BEVERLY BLAKE

VERSUS

AMERICAN INSURANCE COMPANY INC., ET AL.

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ORTEGO, J., dissents and assigns written reasons.

I respectfully disagree with the decision of my fellow panelists to grant

Louisiana Insurance Guaranty Association’s (“LIGA”), application for supervisory

writs, making it peremptory by reversing the judgment of the trial court denying its

motion for summary judgment, and rendering judgment granting summary judgment

in favor of LIGA, dismissing the claims against it by plaintiff with prejudice.

Defendant-Relator, LIGA, seeks supervisory review of the trial court’s denial

of its summary judgment. The issue is whether the Plaintiff-Respondent, Beverly

Blake (“Blake”), had covered claims under La.R.S. 22:2058(A)(1)(c)(i). For the

following reasons, I would grant the writ, deny the relief, and affirm the trial court’s

ruling.

ANALYSIS

LIGA’s argument to the trial court, and to this court, was that it did not receive

notice of Blake’s claim until November 8, 2022, after the claims bar deadline of

October 23, 2022, set forth in AIC’s insolvency order. Blake responded by citing

Bryan v. Louisiana Citizens Property Insurance Corp., 24-694 (La.App. 4 Cir.

3/11/25), 414 So.3d 768 (“Bryan I”).

In my opinion the latest supreme court case, Bryan v. Louisiana Citizens

Property Insurance Corporate, et al, 25-433 (La. 3/6/26), 429 So.3d 249 (“Bryan

II”), is right on point as to this critical issue. In Bryan II, the supreme court, on

other grounds, affirmed the trial court decision denying the exception. However, it

rejected the fourth circuit’s holding that a new two-year prescriptive period against

LIGA begins from the date of insolvency. Bryan II established that the deadline to

file suit against LIGA is the same as the deadline to sue the insolvent insurer.

Specifically, it clarified the law regarding suits against LIGA in a way that directly

impacts this case and directs us to affirm the trial court’s ruling denying LIGA’s

motion for summary judgment.

In Bryan II, the supreme court noted that LIGA was added after the policy’s

two-year prescriptive deadline. It was untimely as to LIGA, but only because the

initial suit was against the wrong insurer. The supreme court states that the timely

service on an insolvent insurer is to be considered a “covered claim” pursuant

La.R.S. 22:2058(A)(1)(c)(i) as to LIGA, who was added later as a party defendant.

Specifically, the supreme court states (page 4, footnote 4) (emphasis added):

“As LIGA concedes, if the proper plaintiffs had timely sued the
insolvent carrier, LIGA could be subsequently added, and the
amendment would relate back and interrupt prescription against LIGA
as of the date of its original filing.”

Here, on June 23, 2022, the Nineteenth Judicial District Court declared AIC

insolvent. On August 26, 2022, Blake filed suit against AIC seeking coverage under

the policy, statutory penalties, and attorney fees. LIGA received a copy of the

petition on November 8, 2022, all within 2 years of their original loss (both this AIC

policy and La. R.S. 22:2058(B) provides for 2 years period from date of loss). Blake

later amended her petition to add LIGA as a defendant. Blake timely sued the

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insolvent insurer and later added LIGA. Therefore, and quite simply, plaintiffs’

proper and timely service upon the original insolvent insurer, AIC, along with the

addition of LIGA, relates back to her timely suit against the “insolvent carrier.”

Thus, pursuant to Bryant II, this timely service upon AIC must be considered by this

court as a “covered claim” as to LIGA, and therefore not prescribed.

Additionally, after an insurer is declared insolvent, La. R.S. 22:2068(A)

provides for a six-month stay of all proceedings pending in Louisiana in which

the insolvent insurer is a party or is obligated to defend a party. This provision

does not provide for suspension of prescription of potential, unfiled suits

against an insolvent insurer, nor does it prohibit the filing of suit against LIGA

or the insolvent insurer. On the contrary, the statute merely provides for a stay

of all pending causes of action, preserving the rights of the insured of an

insolvent insurer and LIGA in such action after an insurer is declared

insolvent. See: Stephanie B. Laborde, Jame E. Moore & Heather Landry, The

DEF’s of LIGA: AN UPDATE TO THE ABC’S OF LIGA, 77 La. L. Rev. 997,

1014-15 (2017).

Finally, it is noted that LIGA abandoned this same theory/argument presented

in this writ application in its Bryant II brief to the supreme court, stating:

The main reason for the majority opinion’s finding - its concerns
about a “theoretical plaintiff” who waits until the eve of the anniversary
of the date of loss to bring a claim against his or her insurance carrier
and sues the carrier not knowing that the carrier was recently declared
insolvent, and that LIGA had become the proper party-defendant - are
allayed by the availability of a relation back theory per La. C.C.P. art.
1153 and Ray v. Alexandria Mall, Through St. Paul Prop. & Liability
Ins., 434 So.2d 1083 (La.1983), which the majority did not consider,
but should have. Such relation back, however, would not have been
available to the instant Bryan plaintiffs because they originally sued an
entirely wrong party, LCPIC, and would not have satisfied the Ray v.
Alexandria Mall relation back test.

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In summary, LIGA’s motion for summary judgment, and its sole assignment

of error, is based on Blake not timely submitting a “covered claim” under La.R.S.

22:2508(A)(1)(c)(i). However, Bryan II instructs that plaintiff’s timely-filed suit

against AIC is to be recognized as a timely “covered claim” against LIGA, upon the

insolvency of AIC and LIGA being added as a defendant to this suit.

For the foregoing reasons, and in my view, LIGA’s application for

supervisory writs should be granted, the requested relief denied, and the judgment

of the trial court denying the motion for summary judgment affirmed.

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