Atain Speciality Insurance Co. v. Premier Performance Marine, LLC

193 So. 3d 187, 2015 La.App. 1 Cir. 1128, 2016 WL 1394642, 2016 La. App. LEXIS 666
Louisiana Court of Appeal·Decided April 8, 2016·No. Nos. 2015 CA 1128, 2015 CA 1129·Published·Cited by 11 cases

Opinions

CRAIN, J.

^Premier Performance Marine, L.L.C. appeals a judgment sustaining an exception of peremption and dismissing its claims against Bourg Insurance Agency, Inc. We reverse and remand.

FACTS

According to the pleadings filed in these consolidated proceedings, Premier leased a building from William and Rosa Cambre that was severely damaged in a storm on or about December 10, 2012. The building was insured by a policy issued by Atain Specialty Insurance Company to Premier, as the named insured. Pursuant to that policy, Atain paid Premier $65,000.00 for damage to the building. Atain later learned that Premier was not the owner of the building and filed suit against Premier on December 11, 2013, seeking recovery of the insurance proceeds. The Cambres filed a separate suit against Premier on December 9, 2013, alleging that Premier received the insurance proceeds but never remitted the funds to the Cambres.

Premier denied any liability to Atain or the Cambres and further alleged that any misrepresentations or misinformation provided to Atain was due to the neglect or fault of Bourg, Premier’s insurance agent. On February 7, 2014, Premier filed a third-party demand against Bourg in the proceeding instituted by Atain; and on June 4, 2014, Premier filed a cross-claim against Bourg in the Cambre proceeding. In both incidental demands, Premier sought recovery from Bourg for any liability that Premier may have to Atain or the Cambres, respectively.

After the two proceedings were consolidated, Bourg filed an exception of peremp[189] tion and alternatively, a motion for summary judgment contending that Premier’s claims were perempted under Louisiana Revised Statute 9:5606, which sets forth one-year and three-year peremptive periods for claims against insurance |4 agents arising out of an engagement to provide insurance services. Bourg maintained that the first policy application that incorrectly identified Premier as the building owner was executed by a representative of Premier on or about March 25, 2011, more than three years prior to the filing of the cross-claim. Bourg further argued that Premier should have discovered the alleged misrepresentation when its representative signed the application; therefore, both incidental demands, which were filed more than one year thereafter, were per-empted under Section 9:5606.

Premier disputed that it had constructive knowledge of the mistake as early as March 25, 2011, and asserted that the 2011 application was completed by Bourg’s employee and was not read by Premier’s representative when he signed it. Premier further argued that the three-year per-emptive period, which commences from the date of the alleged negligent act, did not begin until March of 2012 when a second application containing the same mistake was completed. Thus, according to Premier, the incidental demands filed on February 7, 2014, and June 4, 2014, were timely under Section 9:5606.

The trial court held a hearing on the exception and the alternative motion for summary judgment on March 9, 2015. Although exhibits were attached to the mem-oranda filed by the parties, no evidence was introduced at the hearing in support of the exception of peremption. After taking the matter under advisement, the trial court issued a judgment with incorporated reasons finding in favor of Bourg, sustaining the exception of peremption, and dismissing Premier’s third-party demand and cross claim at Premier’s cost.1 Premier appeals and assigns as error the trial court’s application of Section 9:5606 and its determination of the accrual date for the calculation of the peremptive period.

^DISCUSSION '

Section 9:5606 A sets forth the following one-year and three-year time limitations applicable to . suits against insurance agents:

No actioii for damages against any insurance agent ,.. 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.

These one-year and three-year periods of limitation are peremptive periods. See La. R.S. 9:5606 D; Green Trails, LLC v. Stewart Title of Louisiana, Inc., 12-0133 (La. App. 1 Cir. 9/21/12), 111 So.3d 14, 17, writ denied, 12-2295 (La.12/14/12), 104 So.3d 443.2

[190] Peremption is a' period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period, La. Giv.Code art. 3458. Peremption may not be renounced, interrupted, or suspended. La. Civ.Code art. 3461. Peremption may be raised by a peremptory exception. See La.Code Civ. Pro. art. 927 A(2); Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065, 1082.

At the hearing on the exception of peremption, evidence may be introduced to support or controvert the exception. See La.Code Civ. Pro. art. 931. As previously recognized, the parties in the present proceeding did not introduce any evidence at the hearing in support of or in opposition to the exception of Rperemption. Although both parties attached numerous exhibits to their respective memoranda, those exhibits were not introduced into evidence. Unless properly offered and introduced into ' evidence, documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. See Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84, 88; Union Planters Bank v. Commercial Capital Holding Corporation, 04-0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130;3

In the absence of evidence, an exception of peremption must be decided based upon the facts alleged m the petition with all of the allegations accepted as true. See Cichirillo v. Avondale Industries, Inc., 04-2894 (La.11/29/05), 917 So.2d 424, 428; Williams v. Genuine Parts Company, 14-0857, 2015 WL 127974, p. 4 (La.App. 1 Cir. 1/8/15). If no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court’s role is to determine whether the trial court’s ruling was legally correct.- See MSF Trust I v. Stewart, 13-1975, 2015 WL 2185000, p, 4 (La.App. 1 Cir. 5/11/15), writ denied, 15-1132 (La.9/18/15), 178 So.3d 147; Onstott v. Certified Capital Corporation, 05-2548 (La.App. 1 Cir. 11/3/06), 950 So.2d 744, 746.

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Atain Speciality Insurance Co. v. Premier Performance Marine, LLC, 193 So. 3d 187, 2015 La.App. 1 Cir. 1128, 2016 WL 1394642, 2016 La. App. LEXIS 666 (La. Ct. App. 2016).

193 So. 3d 187 (Atain Speciality Insurance Co. v. Premier Performance Marine, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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