Safeco Insurance Co. v. Norcold, Inc.

113 So. 3d 1104, 2012 La.App. 1 Cir. 0755, 2013 WL 663695, 2013 La. App. LEXIS 294
CourtLouisiana Court of Appeal
DecidedFebruary 25, 2013
DocketNo. 2012 CA 0755
StatusPublished
Cited by6 cases

This text of 113 So. 3d 1104 (Safeco Insurance Co. v. Norcold, Inc.) 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
Safeco Insurance Co. v. Norcold, Inc., 113 So. 3d 1104, 2012 La.App. 1 Cir. 0755, 2013 WL 663695, 2013 La. App. LEXIS 294 (La. Ct. App. 2013).

Opinion

HUGHES, J.

| .This is an appeal of a judgment sustaining the exception of prescription raised by defendant/appellee, Norcold Incorporated (Norcold), and dismissing the claims of the plaintiff'appellant, Safeco Insurance Company (Safeco). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit arose from a fire that erupted on May 16, 2009, inside a Monaco Coach recreational vehicle (RV). The RV was parked inside a storage garage at the time of the fire, and both were damaged in the flames. The RV was insured by a policy of insurance issued by Safeco; the garage was insured by a policy of insurance issued by Hanover Insurance Company (Hanover). Because Safeco alleged that the fire began as a result of faulty parts in the RV\s refrigerator, which was distributed by Norcold, Safeco contended that Norcold was liable to it for reimbursement of the damages it had paid under its policy.1

Safeco and Norcold both hired experts to inspect the damaged RV and its contents. Communications between Safeco and Norcold took place; however, Norcold did not make any payments or offers of settlement to Safeco. On June 1, 2010, more than a year after the fire, Safeco filed suit against Norcold for reimbursement. Norcold responded with an exception raising the objection of prescription. Safeco twice filed discovery requests. Norcold responded to the original requests, but did not respond to Safeco’s supplemental discovery, and Safeco filed a motion to compel.

The hearing on Norcold’s exception and Safeway’s motion was held on November 14, 2011. The trial court rendered judgment sustaining the exception and dismissing Safeco’s claims as prescribed. Because, the suit |Rwas dismissed, the court determined that Safeco’s motion to compel was moot and it was also dismissed. Safe-co appeals and assigns as error both the sustaining of the exception and the dismissal of its motion to compel.

LAW AND ANALYSIS

Safeco first alleges error in the trial court’s ruling on the exception of prescription. Normally, the exceptor bears the burden of proof regarding his exception; however, if the exception of prescription is raised and prescription is evident on the face of the pleadings, the burden shifts to the adverse party to show suspension, interruption, or renunciation. SS v. State ex rel. Dept of Social Services, 2002-0831 (La.12/4/02), 831 So.2d 926, 931 (citing Lima v. Schmidt, 595 So.2d 624, 628 (La.1992)).

Safeco alleges that Norcold is liable to it for the damages that resulted from a fire caused by defective parts in Norcold’s product. The fire occurred on May 16, 2009; Safeco filed a petition for damages against Norcold on June 1, 2010, more than one year from the time the cause of action arose. As such, on the face of the pleadings, the action appears to have prescribed. Therefore, the burden shifted to Safeco to show suspension, interruption, or renunciation of the prescriptive period. Safeco contends that its cause of action against Norcold had not prescribed at the time the suit was filed, because the one-year prescriptive period was interrupted by acknowledgement, pursuant to LSA-C.C. art. 3464, which states, “[prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.”

[1107]*1107Acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest, by pledge, or in other ways; or it may be implicit or inferred from the facts and | circumstances. Lima, 595 So.2d at 632. The essence of acknowledgment is not its form, but the debtor’s recognition of the creditor’s right to the debt claimed by him. Lima, 595 So.2d at 632; see Comment, Interruption of Prescription by Acknowledgment in Louisiana, 14 Tul. L, Rev. 430, 435 (1940). If the acknowledgement is tacit, it is necessary to ascertain that the alleged facts imply a definite admission of liability. Lima, 595 So.2d at 634. The supreme court has held the following with regard to tacit acknowl-edgement:

A tacit acknowledgement occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute ac-knowledgements. These generalizations are reflected in the host of cases addressing the issue of what constitutes a tacit acknowledgment. Our courts have added to the above generalizations other criteria that evidence an acknowledgment, including undisputed liability, repeated and open-ended reassurances of payment, and continuous and frequent contact with the creditor throughout the prescriptive period. Conversely, our courts have recognized that mere recognition of a disputed claim, conditional payments, and settlement or compromise offers or negotiations do not evidence an acknowledgement. (Footnotes omitted.)

Lima, 595 So.2d at 634.

Safeco contends that an acknowledgment is evidenced through email correspondence between its employee and an agent for Gallagher-Bassett Services, Inc. (GB), Norcold’s third-party administrator. In an effort to carry its burden, Safeco introduced the emails at the hearing, along with an affidavit of its employee, which stated as follows:

1. I am an employee of Safeco Insurance Company as a Subrogation Specialist.
2. I make this affidavit from my personal knowledge of the facts stated herein or upon information and facts available to me as a duly authorized employee of Safeco Insurance Company.
|fi3. On July 28, 2009, an e-mail was forwarded to me for review from Defendant’s claim representative, Patti Hileman White with Gallagher Bas-sett Services, Inc.
4. Said e-mail indicated that Defendant required supports for the claim and once received would negotiate a settlement and issue checks.
5. On September 29, 2009,1 had a telephone conversation with Ms. Hileman White who indicated that reimbursement from Defendant was pending a meeting of Defendant.
6. On November 2, 2009 and again on December 2, 2009 correspondence from Gallagher Bassett advised that the reimbursement was being held up because Defendant was waiting for supports from Hanover Insurance on a related claim.
7. Throughout the course of these exchanges, I believed based upon the correspondence and conversations with Gallagher Bassett that the claim was acknowledged, settlement was pending and Defendant intended to pay the claim.
[1108]*11088. No denial of Safeco Insurance Company’s claim was ever presented to or received by me.
s/Christina Freund, Subrogation Specialist
Safeco Insurance Company

The emails are summarized below, as follows:

1. 7/28/09 — email from GB to Safeco and Hanover advising that GB is the claims representative for Norcold and that Norcold is self-insured. GB advised that it would need to obtain all of the necessary information for the claim and then “go to [Norcold] for authority on the file.

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113 So. 3d 1104, 2012 La.App. 1 Cir. 0755, 2013 WL 663695, 2013 La. App. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safeco-insurance-co-v-norcold-inc-lactapp-2013.