STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CW 09-426
CLARENCE HENRY, ET AL.
VERSUS
SBA SHIPYARD, INC., ET AL.
**********
ON REMAND FROM THE SUPREME COURT
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-55-98 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
EN BANC
ELIZABETH A. PICKETT JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, James T. Genovese, and Shannon J. Gremillion, Judges.
WRIT GRANTED AND MADE PEREMPTORY.
Cooks, J., dissents and assigns written reasons. Saunders, J., dissents and assigns written reasons. Gremillion, J., dissents and assigns written reasons. Scott R. Bickford Regina O. Matthews Lawrence J. Centola, III Martzell & Bickford 338 Lafayette St. New Orleans, LA 70130 (504) 581-9065 Counsel for Plaintiff-Respondent: Henry Wise
Darrell Keith Cherry Deutsch, Kerrigan & Stiles 755 Magazine St. New Orleans, LA 70130-3672 (504) 581-5141 Counsel for Defendant-Applicant: Pulmosan Safety Equipment Co. PICKETT, Judge.
Pulmosan Safety Equipment Company (Pulmosan) seeks supervisory writs
from the judgment of the trial court which denied Pulmosan’s motion to dismiss on
the grounds of abandonment.
STATEMENT OF THE CASE
Eight plaintiffs filed suit alleging that they sustained injuries as a result of
having been exposed to asbestos and silica while working at SBA Shipyard, Inc.
Pulmosan was named as one of the numerous defendants. Several supplemental and
amending petitions were filed, including the Sixth Supplemental and Amending
Petition wherein Mississippi Valley Silica Company, Inc. (Mississippi Valley), was
added as a defendant on December 4, 2002. On March 28, 2003, Mississippi Valley
filed its answer to the suit. No further action was taken in this case until December
4, 2006, when Plaintiff propounded discovery to one of the defendants, U.S. Silica
of Louisiana, Inc. (U.S. Silica ).
Before Pulmosan was served as a party in this case, its co-defendants, U.S.
Silica and Mississippi Valley, filed motions to have plaintiffs’ case dismissed for
abandonment. After the trial court denied these motions, Pulmosan became involved
in the lawsuit and also moved to have the plaintiffs’ claims dismissed for
abandonment. The trial court denied the motion, and Pulmosan sought review of that
ruling. This court denied the application for supervisory writs in an unpublished writ
disposition on June 2, 2009. On July 9, 2009, the supreme court remanded the case
to this court for an en banc hearing. In its remand, the supreme court instructed this
court to “address the apparent internal conflict in the circuit concerning whether Act
361 of 2007, which amended La.Code Civ.P. art. 561, can be applied retroactively.”
1 DISCUSSION
The abandonment of a civil action is governed by La.Code Civ.P. art. 561,
which provides in pertinent part:
A.(1)An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years . . . .
....
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years . . . .
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.
Act 361 of 2007 added the language in subsections A(2) and A(6) to the code
article regarding the extension of the time period before an action is deemed
abandoned and the sunset date of that language. The amendment became effective
on July 9, 2007. The question presented to this court is whether that language should
be given retroactive effect to those cases in which the three-year period had not run
2 on August 26, 2005, but had tolled before the July 9, 2007 effective date of the
amendment.
This court has addressed this question twice. In Duplechian v. SBA Network
Services, Inc., an unpublished opinion bearing docket number 07-1554 (La.App. 3
Cir. 5/7/2008)(Saunders, J., writing; Genovese, J., concurs in the result; Sullivan, J.,
concurs with written reasons.), this court found that Act 361 was procedural in nature
and should be given retroactive effect. In Duplechian, the last step taken in the
prosecution of the case was a deposition of the plaintiff on March 2, 2004. On May
1, 2007, the defendant filed a motion to dismiss the suit as abandoned. The trial court
granted the motion and signed a judgment dismissing the suit with prejudice as
abandoned on May 7, 2007. The plaintiff filed a motion to set aside the judgment on
June 4, 2007, and the trial court signed a judgment dismissing the plaintiff’s suit
without prejudice on August 13, 2007. In his written concurrence, Judge Sullivan
explained that he would not reach the issue of retroactivity:
I concur in the result. However, my review of the facts of this case indicate that the amendment to La.Code Civ.P. art. 561 became effective on July 9, 2007, before the hearing to set aside the dismissal on July 16, 2007, the reasons for judgment signed on July 18, 2007, and the formal judgment of dismissal signed on August 13, 2007. Accordingly, I submit that the article, as amended, was applicable to this case and that the issue of retroactivity need not be addressed.
In Morgan v. Louisiana Department of Public Safety and Corrections, 08-750
(La.App. 3 Cir. 12/10/08), ___ So.2d ___, rehearing granted and additional briefing
ordered by the court on 2/4/09 (Painter, J., writing for a unanimous panel including
Saunders and Ezell, JJ.), this court found that Act 361 was substantive and therefore
could not be given retroactive effect. In Morgan, this court found that the last step
in the prosecution of the case was on either March 31, 2003, when the plaintiff filed
3 an amending petition, or December 18, 2003, when the court issued a judgment
transferring the case to another venue. Thus, the court found that at the latest, the suit
was abandoned on December 18, 2006. On November 13, 2007, the defendants filed
a motion for dismissal on the ground of abandonment, which the trial court granted.
The opinion notes that abandonment is a species of prescription, and the
abandonment period is self-executing. As such, the amendment to La.Code Civ.P.
art. 561 did nothing to revive suits that had already been abandoned on July 7, 2007.
We find that these cases do provide conflicting answers to the question
presented to us in this writ application.
The plaintiff, Henry Wise, has filed an opposition to the instant writ application
arguing that the trial court properly denied Pulmosan’s motion to dismiss for
abandonment. Wise points out that the July 9, 2007 amendment to La.Code Civ.P.
art. 561 extends the abandonment period from three to five years for those cases in
which a plaintiff can prove that his failure to take steps in the prosecution of his claim
was caused by Hurricane Katrina or Hurricane Rita. Because at the time when Wise
propounded discovery to U.S. Silica on December 4, 2006, more than three years had
passed since an answer was filed by Mississippi Valley on March 28, 2003, it
appeared that the plaintiff’s claim was abandoned pursuant to the three-year
abandonment period set forth in La.Code Civ.P. art. 561(A)(1). However, Wise
asserts that the five-year abandonment period set forth in La.Code Civ.P. art.
561(A)(2) is applicable to this case. In that regard, the plaintiff has presented
evidence in the form of affidavits and live testimony demonstrating how Hurricane
Katrina has had a negative impact on the usual operations of the law firm representing
Wise. After having considered this evidence, the trial court concluded that the
4 hardship experienced by the firm and its employees was the exact type of situation
which the legislature had envisioned when it amended Article 561. As such, the trial
court found that the five-year abandonment provision applies to this case.
In its writ application, Pulmosan asserts that the trial court erred in
retroactively applying the five-year abandonment period provided for in the 2007
amendment to La.Code Civ.P. art. 561(A)(2). Pulmosan points out that La.Civ.Code
art. 6 permits retroactive application of a law if it is procedural or interpretive in
nature, rather than substantive. However, Pulmosan maintains that even procedural
or interpretive rights may not be retroactively applied if they effect a substantive
change in the law or disturb vested rights. Pulmosan cites Stelly v. Overhead Door
Co. of Baton Rouge, 94-0569, p. 7 (La. 12/8/94), 646 So.2d 905, 912 (citation
omitted), for the proposition that “no law can be applied retroactively so as to divest
a party of a vested right.” In the instant case, Pulmosan contends that Wise’s failure
to take a step in the prosecution of his case for more than three years created a vested
right for Pulmosan to have Wise’s claim dismissed for abandonment, because
pursuant to La.Code Civ.P. art. 561(A)(3), abandonment occurs by operation of law.
According to Pulmosan, because this vested right was acquired March 28, 2006, prior
to the July 9, 2007 effective date for the amendment to the abandonment statute, the
amendment cannot be retroactively applied to revive Plaintiff’s claim. In support of
this position, Pulmosan cites Morgan, ___ So.2d ___.
In response to Wise’s assertion that the wording of La.Code Civ.P. art. 561(B)
manifests the legislature’s intent to provide a five-year abandonment period for cases
that had not been abandoned as of August 26, 2005, Pulmosan argues that the
legislature did not have the power to violate Pulmosan’s constitutional due process
5 rights by retroactively applying the amendment and depriving Pulmosan of its already
vested right of repose. Citing Clark v. State Farm Mutual Automobile Insurance Co.,
00-3010 (La. 5/15/01), 785 So.2d 779, Pulmosan contends that the right of repose
flowing from abandonment is the same as that of prescription. According to
Pulmosan, not only did the legislature lack the authority to divest Pulmosan of its
substantive right of repose, but the legislature also did not expressly state that it
intended to include already abandoned acts in the amendment.
While Pulmosan relies on this court’s decision in the Morgan case to support
its argument that the plaintiff’s claim was abandoned prior to the effective date of the
amendment to La.Code Civ.P. art. 561, Wise relies on this court’s unpublished
decision in Duplechian. In Duplechian, this court found that the only reasonable
interpretation of La.Code Civ.P. art. 561(B) is that the legislature intended to extend
the abandonment period to five years for cases which were filed before but not
abandoned by August 26, 2005. This court noted that the abandonment statute is to
be liberally construed in favor of maintaining the suit, and it found that the
amendment to Article 561should be retroactively applied because it is a procedural
rule. The case was remanded to the trial court for an evidentiary hearing on the issue
of whether Hurricane Rita affected the plaintiff’s ability to take a step in the
prosecution of her claim. Because the Duplechian case focused on the facts
supporting an abandonment dismissal, Pulmosan herein asserts that that case is
distinguishable from the instant case. Also, Pulmosan points out that the issue of
vested rights was not raised and addressed by this court in Duplechian.
However, Wise contends that the court in Duplechian correctly interpreted the
amendment to La.Code Civ.P. art. 561, and correctly found that the amendment
6 should be applied retroactively. Additionally, Wise contends that the law of the case
doctrine precludes Pulmosan from raising its vested rights argument. In that regard,
the plaintiff points out that before Pulmosan was served as a defendant, his co-
defendants had filed motions to dismiss which were denied by the trial court.
According to Plaintiff, when Pulmosan joined the lawsuit and put forth its own
motion to have the case dismissed for abandonment, this amounted to a “do-over” in
violation of the law of the case doctrine and of the laws of solidarity.
For those plaintiffs prevented from taking steps in the prosecution of their
claims due to the effect of Hurricanes Rita and Katrina, La.Code Civ.P. art. 561(B)
extends that abandonment period from three to five years for “an action originally
initiated by the filing of a pleading prior to August 26, 2005, which has not
previously been abandoned . . . .” What is at issue in the instant case is whether the
phrase “which has not previously been abandoned” refers to cases which were not
abandoned before August 26, 2005, or to cases which were not abandoned before the
amendment became effective on July 9, 2007. In the instant case, under the original
abandonment rule, Wise’s claim would have been considered abandoned for failure
to take a step in the prosecution of his claim for more than three years by March 28,
2006. As such, the claim would have been abandoned before the 2007 effective date
of the amendment to Article 561, but not before August 26, 2005. In the Duplechian
case, this court determined that the extended abandonment period applied to cases
which had not been abandoned before August 26, 2005. However, in the Morgan
case, the court determined that the extended abandonment period could only apply
to those cases which had not abandoned before the amendment to Article 561took
effect on July 9, 2007.
7 The Louisiana Supreme Court has held that when the legislature intends for a
new law to be applied retroactively to revive an already prescribed claim, the
legislature should give “at the very least, a clear and unequivocal expression of intent
by the legislature for such an ‘extreme exercise of legislative power.’” Chance v.
American Honda Motor Co., Inc., 93-2582, p. 2 (La. 4/11/94), 635 So.2d 177, 178.
Pulmosan in the instant case accurately points out that the rights associated with
abandonment are similar to those associated with prescription. As such, there is
merit to Pulmosan’s argument that there are constitutional problems with retroactively
taking away a defendant’s right to have a case dismissed for abandonment once he
has acquired that right. Also, the statute does not expressly state any legislative intent
to revive claims which were abandoned between August 26, 2005, and the
amendment’s 2007 effective date.
For these reasons, we find that the trial court erred in denying Pulmosan’s
motion to dismiss the plaintiff’s claims for abandonment. Accordingly, we hereby
reverse and set aside the trial court’s ruling denying Pulmosan’s motion to dismiss
and render judgment in favor of Pulmosan, dismissing all claims against Pulmosan
with prejudice at the plaintiffs’ cost. The writ application is therefore granted and
made peremptory.
8 STATE OF LOUISIANA
COURT OF APPEAL THIRD CIRCUIT
09-426
CLARENCE HENRY, ET AL
SHIPYARD, INC. ET AL
COOKS, J. DISSENTS
The language used in 561(A)(2) clearly expresses the legislature’s intent
to apply the abandonment extension retroactively. NUMBER 09-426
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
V.
Saunders, J., dissents and assigns written reasons.
I agree with the forceful reasoning contained in Judge Gremillion’s studied and
moving dissent. Thus, I dissent. The text of amended La.Code Civ.P art. 561
Paragraph A(2) now states that the five-year abandonment period applies to “an
action originally initiated by the filing of a pleading prior to August 26, 2005, which
has not previously been abandoned in accordance with the provisions of
Subparagraph (1) of this Paragraph . . . .” Chief Justice Calogero, in his written
reasons explains why he would grant a rehearing in Harris v. Stogner, 07-1451, p. 2
(La. 1/11/08), 972 So.2d 326, 327, stated, “[f]rom a practical and logical point of
view, the word ‘previously’ in [La.Code Civ.P. art. 561, Paragraph A(2)] must have
been intended by the Legislature to refer to actions not abandoned prior to August 26,
2005. No other interpretation of the amendment is reasonable.” I agree with Chief
Justice Calogero.
Chief Justice Calogero, in Harris, goes on to aptly state:
I believe interpreting the 2007 amendment to La.C.C.P. art. 561 to apply only to those cases that become abandoned after the effective day of July 9, 2007, would essentially cancel the exact benefits the amendment was adopted to address. If the amendments do not apply until July 9, 2007, none of the cases pending at the time of Hurricanes Katrina and Rita that would have been abandoned between August 25, 2005, and July 9, 2007, would be given the benefits of the amendment. And, I would suggest that the cases that would otherwise be abandoned
Page 1 of 2 during that period are the exact cases the amendment was designed to address since they are the only cases in which the party seeking [to] avoid a finding of abandonment would likely be able to prove that his failure to prosecute or defend within the three-year period “was caused by or was a direct result of” either Hurricane Katrina or Hurricane Rita. As everyone involved in the legal community knows, it was only during those days and months immediately following the storms that legal activity in the State of Louisiana was stymied by the various circumstances caused by the storm.
Harris, 972 So.2d at 327.
Pulsoman argues that it had a vested right to have Wise’s claim dismissed for
abandonment and cites Stelly, 646 So.2d 912 for the proposition that “no law can be
applied retroactively so as to divest a party of a vested right.” Regarding
La.Civ.Code 6 and vested rights, it is clear that a majority of this court feels
differently than I regarding whether La.Code Civ.P art. 561 is procedural as I wrote
in Duplechian. However, regardless of whether the amendment is procedural or
substantive, it is clear that our legislature was faced with a crisis of unprecedented
proportion. I feel such a crisis provided justification for our legislature to use an
“extreme exercise of legislative power.” Chance, 635 So.2d at 178.
Surely the victims of Hurricanes Katrina and Rita have endured enough so as
be spared the dire legal ramifications that the majority’s opinion imposes upon them.
In my view, those victims have a vested right in their pending legal matters that
existed prior to, and is greater than, those of the persons attempting to now hide
behind an illogical interpretation of the letter of the law. We are instructed by our
supreme court, in Clark, 785 So.2d at 785, to interpret Article 561“liberally. . . in
favor of maintaining a plaintiff’s suit.” I feel that we are failing to do by granting
this writ. I respectfully dissent.
Page 2 of 2 09-426
CLARENCE HENRY
SBA SHIPYARD
GREMILLION, Judge, dissenting.
The majority opinion chooses to answer only one of two relevant questions
here. That question is whether the legislature intended to revive claims that died by
virtue of abandonment between August 26, 2005 and July 9, 2007. Respectfully, it
is my position that the majority incorrectly answered that threshold question. In so
doing, it leaves the second, and much more important question unanswered: Can the
legislature revive those dead and abandoned claims? I will address both questions,
in turn.
LEGISLATIVE INTENT
When Hurricane Katrina entered the Gulf of Mexico at 5:00 a.m. on August 26,
2005, it brought with it a level of chaos, destruction, and misery that Louisiana had
never seen before. It resulted in the death of 2,057 people1 and 81.2 billion dollars
in storm damage.2 When Hurricane Rita hit just a few days later, it increased the
combined economic losses for both hurricanes to well over 90 billion dollars.3 By
comparison, the great San Francisco earthquake of 1906 killed 700.4 Following the
1 Http://www.americanheritage.com/articles/web/20060905-natural-disasters.shtml. 2 Knabb, Richard D; Rhome, Jamie R.; Brown, Daniel P (December 20, 2005; updated August 10, 2006). “Tropical Cyclone Report: Hurricane Katrina: 23-30 August 2005" (PDF). National Hurricane Center. Http://www.docstoc.com/docs/2922116/Tropical-Cyclone-Report-Hurricane- Katrina-August-Richard-D-Knabb-Jamie. 3 Knabb, Richard D; Brown, Daniel P.; Rhome, Jamie R. (March 17, 2006; updated August 14, 2006). “Tropical Cyclone Report: Hurricane Rita: 18-26 September 2005" (PDF). National Hurricane Center. Http://www.nhc.noaa.gov/pdf/TCR-AL182005_Rita.pdf. 4 Http://www.americanheritage.com/articles/web/20060905-natural-disasters.shtml
1 1992 landfall of Hurricane Andrew, 40.7 billion dollars worth of damages ensued.5
For purposes of this analysis, it is important to note that all of the
aforementioned death and destruction occurred in the days, weeks, and months that
followed August 26, 2005. None of it occurred in the days, weeks, and months that
followed July 9, 2007. It is for that reason that I am persuaded by the rationale
provided by former Chief Justice Calogero in Harris v. Stogner, 07-1451 (La.
1/11/08), 972 So.2d 326. Therein he stated that “[f]rom a practical and logical point
of view [the operative language of the amendment in question] must have been
intended by the Legislature to refer to actions not abandoned prior to August 26,
2005. No other interpretation of the amendment is reasonable.” Id. at 327. Justice
Calogero went on to state that using the 2007 effective date of the amendment “would
essentially cancel the exact benefits the amendment was adopted to address.” Id.
Thus, I respectfully disagree with the view of the majority. The legislature
clearly and unequivocally intended that the amendment be given retroactive effect to
those cases in which the three-year period had not run on August 26, 2005. No other
interpretation of the amendment is reasonable.
LEGISLATIVE AUTHORITY
Had the majority concluded that the legislature did, in fact, intend to revive a
class of claims abandoned between August 26, 2005 and July 9, 2007, they would
have had to address the far more challenging question of whether our legislature
actually has the power to do such a thing. The current State of Louisiana
jurisprudence answers that question with an unequivocal “no.” Estate of Williams v.
Louisiana Office of Risk Management, 93-3944 (La.App. 3 Cir. 3/30/94),634 So.2d
260, writ denied, 94-0793 (La. 5/6/94), 637 So.2d 1054, and Southern Silica of
5 Rappaport, Ed (1993). “Hurricane Andrew Preliminary Report.” National Hurricane Center. Http://www.nhc.noaa.gov/1992andrew.html.
2 Louisiana, Inc. v. Louisiana Insurance Guaranty Association, 07-1680 (La. 4/8/08),
979 So.2d 460.
I submit, however, that the current State of Louisiana’s law in this area exists
precisely because the ruination caused by Hurricanes Katrina and Rita is unique in
our history. Such destruction and upheaval have been seen before in other parts of
our country. In places where such misery has previously been wrought, the law is
different. In those places, “[t]he law seems fairly well-settled that the legislature may
under certain circumstances, enact a Statute of Limitations which has the effect of
reviving a cause of action barred under a previously applicable Standard of
Limitations.” Hintz v. State Tax Commission, 55 Misc.2nd 474, 285 N.Y.S.2nd 482,
485 (1966). Historical examples of calamities that rival Katrina/Rita are few, but they
are unforgettable.
A WORLD WAR
After World War II, the New York State legislature determined that it was
unjust to allow a statute of limitations to toll against a plaintiff when that plaintiff’s
failure to prosecute his claim resulted from hardships related to the war. In Gallewski
v. H. Hentz & Co., 301 N.Y. 164, 93 N.E.2nd 620 (1950), the injured party was
arrested and deported to a concentration camp in Czechoslovakia, then occupied by
the German army, and there detained. He was never heard from again. In Von
Hofmannsthal v. Wolfe, 276 A.D.223, 93 N.Y.S.2nd 550 (1949), the aggrieved party
spent the war in Austria, which was also occupied by the German army. The statute
of limitations ran on both of these claims during or shortly after the war which
officially ended on May 8, 1945.
Though these claims were both dead, the New York legislature revived them
by statutory amendments made in 1948 and 1949. Even back then, New York’s
3 highest court acknowledged that “most states hold that it is beyond the power of the
legislature to revive causes of action after the limitation period has expired.”
Gallewski, 301 N.Y. 164, 171, 93 N.E.2d 620, 623. However, it relied on even older
case law to conclude that “‘this rule is not absolute and does not invalidate legislation
lifting the bar where the circumstances are such as to indicate the presence of a strong
moral obligation to do so.’” Id. citing Huffman v. Alderson’s Administrator, 9 W.Va.
616.
Thus, the high court concluded that “World War II was an upheaval of
unparalleled magnitude.” Id. at 174, 674. Accordingly, “[t]o permit the Statute of
Limitations to run against their claims during the continuance of such inability would
not accord with elementary notions of justice and fairness.” Id. at 175, 625.
A GREAT DEPRESSION
The value of the property owned by many Americans plummeted in the
Depression. Even worse: many of those same Americans lost their ability to pay their
mortgages. Consequently, banks stepped in to assert their contractual rights to sell
off the deeply undervalued properties in foreclosure sales.
The Minnesota legislature passed a law that extended the “period of
redemption” from these foreclosure sales. The United States Supreme Court
considered the question of whether this new Minnesota law could be enforced in
Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231 (1934).
Though the Supreme Court clearly recognized what it called the “constitutional
prohibition” against a state stripping a party of its rights under a contract, it went on
to find as follows:
It cannot be maintained that the constitutional prohibition should be so construed as to prevent limited and temporary interpositions with respect to the enforcement of contracts if made necessary by a great public calamity such as fire, flood, or earthquake.
4 Id. at 439.
Interestingly, the Blaisdell Court annunciated a five-part test of the
permissibility of the emergency exercise of legislative power. Those five criteria can
be boiled down to two. First, the emergency giving rise to the police power must be
extreme, and second, the legislative fix must be reasonable, narrowly-tailored, and
temporary. Id. The Louisiana legislature’s temporary extension of the abandonment
period from three years to five years is limited to only those cases where a
Katrina/Rita related hardship can be proven. It also has a “sunset provision” of
precisely five years after the legislature intended it to take effect. Consequently, it
meets with the requirements of the Blaisdell test.
A CIVIL WAR
Plaintiffs found it difficult to prosecute their cases during the American Civil
War. As a consequence, the West Virginia legislature allowed these aggrieved
plaintiffs to take an “oath” stating exactly how long they had been obstructed by war,
insurrection, or rebellion. Then, the time during which such obstruction continued
was not to be computed in determining when the matter would be time-barred. The
supreme court of that state not only ruled that the statute was valid, but that it applied
both to suits pending and to suits brought after its passage. Huffman v. Alderson’s
Admin. 9 W.Va. 616. (W.Va. 1876). Thus, the amendment was said to be retroactive
and was used to revive dead claims.
CONCLUSION
There is no question that the legislature enacted a statute that was intended to
actually help Katrina and Rita victims. The question should not even be whether
Louisiana has ever allowed its legislature to revive time-barred claims. Clearly, it
never before has done so. Rather, the real question that the majority should have
5 answered is whether the misery wrought by Katrina/Rita rises to the level of a World
War or a Great Depression or a Civil War. Because the answer is “yes,” the statute
should be given retroactive effect, and the defendant’s writ should be denied. As it
has been written:
[I]n some cases, the right to interpose a bar to a right of action constitutes in effect a property right which the Legislature may not take away, but at the other extreme are cases where both instinct and reason revolt at the proposition that redress for a wrong must be denied because the legislature may not remove a statutory bar which has conferred an immunity which is contrary to all prevailing ideas of justice.
Robinson v. Robins Dry Dock and Repair Co., 238 N.Y. 271, 274, 144 N.E.
579 (N.Y. 1924).