Harrison v. Horace Mann Insurance Co.

112 So. 3d 1054, 12 La.App. 5 Cir. 753, 2013 WL 1442578, 2013 La. App. LEXIS 709
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 12-CA-753
StatusPublished
Cited by1 cases

This text of 112 So. 3d 1054 (Harrison v. Horace Mann Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison v. Horace Mann Insurance Co., 112 So. 3d 1054, 12 La.App. 5 Cir. 753, 2013 WL 1442578, 2013 La. App. LEXIS 709 (La. Ct. App. 2013).

Opinion

ROBERT A. CHAISSON, Judge.

bln this action, Angela Harrison has sued her homeowners’ insurer, Teachers Insurance Company (“Teachers”), for claims arising from Hurricane Katrina. Ms. Harrison appeals from a judgment of the trial court sustaining Teachers’ exception of prescription. For the following reasons, we reverse the judgment of the trial court and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 29, 2005, Hurricane Katrina struck the Gulf Coast causing extensive damage and destruction to the region. Subsequently, numerous lawsuits proposing class certification were filed in Louisiana. Some of these class actions have been resolved, and some of them are still pending in various procedural postures in various courts. At least two of these class actions named Teachers as a defendant.

On July 22, 2009, Angela Harrison filed this lawsuit against her homeowners’ insurer, Teachers, alleging that it had failed to timely initiate adjustment of her Hurricane Katrina damage claim and to tender the amounts due to her pursuant to her policy. In her petition, Ms. Harrison alleged that she was a putative class member of several class actions against Teachers, and as such, her | Sclaims were timely asserted. On March 29, 2012, Teaehers filed an exception of prescription, contend[1056]*1056ing that Ms. Harrison filed this lawsuit subsequent to September 1, 2007, the extended filing deadline established by the Louisiana Legislature in Act 802 of 2006 for Hurricane Katrina claims. In her opposition to Teachers’ exception of prescription, Ms. Harrison claimed to be a putative class member of two timely filed class actions that served to suspend the running of liberative prescription on her claim. She specifically identified the two class actions as: In Re: Katrina Canal Breaches Consolidated Litigation, No. 05-4182 of the Eastern District of Louisiana (the “Master Consolidated” litigation); and The State of Louisiana v. AAA Ins., No. 07-5528 of the Eastern District of Louisiana (the “Road Home” litigation). Additionally, Ms. Harrison contended that the filing of the “Road Home” litigation by the State of Louisiana, as partial subrogee to her rights as a recipient of a “Road Home” grant, interrupted prescription as to her claim.

After a hearing on June 4, 2012, the trial court rendered judgment sustaining Teachers’ exception of prescription. It is from this judgment that Ms. Harrison now appeals.

LAW AND ANALYSIS

Through 2006 La. Acts 739 and 802, the Louisiana legislature extended the prescriptive period on Hurricane Katrina-related claims until September 1, 2007. Ms. Harrison’s claim, asserted almost two years after this date, would at first glance appear to be prescribed. However, Ms. Harrison’s petition additionally alleges that Teachers is a defendant in several pending class actions of which she is a putative member.

In Louisiana, class actions are governed by La. C.C.P. art. 591 et seq. These statutory provisions provide special rules regarding the suspension of liberative | prescription on claims arising out of the same transactions or occurrences as those brought in a class action proceeding. Article 596 provides, in pertinent part:

A. Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

La. C.C.P. art. 596 is a special provision, the purpose of which is to prevent prescription from accruing against the claims of members of a putative class action until such point as the propriety of the class action or the member’s participation in the class action is determined. Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 11-2835, p. 14 (La.11/02/12), - So.3d -, 2012 WL 5374248. According to the plain language of La. C.C.P. art. 596, a petition brought [1057]*1057on behalf of a class suspends prescription as to “all members” of the class “as described or defined therein.” Id.

Generally, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105, p. 5 (La.3/15/11), 62 So.3d 721, 726. Although evidence may be introduced to support or controvert any objection of prescription |fipleaded, in the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Duckworth, 11-2835 at 26, — So.3d -, citing Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p. 5 (La.11/29/05), 917 So.2d 424, 428.

Ms. Harrison’s petition alleges that Teachers is a defendant in several pending class actions of which she is a putative member. Ordinarily, such allegations would be sufficient to allow this Court to conclude that Ms. Harrison’s petition was not prescribed on its face and, therefore, it was Teachers’ burden to prove that Ms. Harrison’s claims are prescribed. Although Ms. Harrison’s petition does not specifically identify these class actions, she identifies them in her opposition to Teachers’ exception of prescription as the “Master Consolidated” litigation and the “Road Home” litigation, both of which were pending in federal district court at the time that Ms. Harrison filed her petition.1 Teachers argues, therefore, that because Louisiana courts do not allow “cross-jurisdictional tolling,” Ms. Harrison is not enti-tied to the benefit of suspension of prescription pursuant to La. C.C.P. art. 596.

In the recent case of Quinn v. Louisiana Citizens Property Insurance Corporation, 12-0152 (La.11/02/12), — So.3d -, 2012 WL 5374255, the Louisiana Supreme Court, finding that the legislature has rejected “cross-jurisdictional tolling” in class action proceedings, held that the provisions of La. C.C.P. art. 596 do not extend to suspend prescription on claims asserted in a putative class action filed in a federal court. Therefore, under the holding in Quinn, the “Master Consolidated” litigation relied on by Ms. Harrison, which was | fiOriginally filed in federal court, clearly did not serve to suspend the running of prescription on her claim.

Ms. Harrison, however, invites this Court to distinguish the “Road Home” litigation from the “Master Consolidated” litigation on the basis that the “Road Home” litigation was originally filed

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112 So. 3d 1054, 12 La.App. 5 Cir. 753, 2013 WL 1442578, 2013 La. App. LEXIS 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-horace-mann-insurance-co-lactapp-2013.