PATTERSON v. WASTE CONNECTIONS OF LOUISIANA INC (2025)

Relators, Waste Connections Bayou, Inc., ACE American Insurance Co., and Dorian Lovely (collectively “defendants”), seek review of the trial court's October 2, 2024 judgment which denied their peremptory exception of prescription. For the following reasons, we deny the writ application.

FACTS AND PROCEDURAL BACKGROUND

This personal injury case arises from a motor vehicle accident that occurred on September 17, 2020. Plaintiff, Rayven Patterson, contends that she was prudently traveling westbound on 11th Street in Harvey, Jefferson Parish, Louisiana, when a garbage truck, owned by Waste Connections Bayou, Inc. and operated by Dorian Lovely, backed out of a driveway and struck her vehicle. Ms. Patterson filed this lawsuit against defendants on October 25, 2021, seeking damages.¹ She filed an amended petition for damages on September 11, 2024.

On July 30, 2024, defendants filed an exception of prescription, arguing that Ms. Patterson's claims had prescribed, because her petition for damages was filed more than one year after the accident and no suspension or interruption of prescription had occurred. Ms. Patterson responded that her claims had not prescribed, because prescription was interrupted by acknowledgment of the debt, pursuant to La. C.C. art. 3464, when defendant, Ace American Insurance Co., paid her $7,340.00 for her property damages and expenses. She further asserted that her petition was timely filed, because prescription was suspended for 30 days by an August 31, 2021 Order of the Louisiana Supreme Court, and, pursuant to La. C.C. art. 3472.1(B), she had an additional 60 days after the 30-day suspension period to file her petition.

The exception of prescription came for hearing before the trial court on September 25, 2024. At the conclusion of the hearing, the trial court denied the exception of prescription, finding Ms. Patterson's claims were timely filed pursuant to La. C.C. art. 3472.1(B). The trial court signed a written judgment denying the exception of prescription on October 2, 2024.

ANALYSIS

The party raising an exception of prescription ordinarily bears the burden of proof. Desi v. Thomas Jefferson Constr. Corp., 19-502 (La. App. 5 Cir. 10/5/20), 304 So.3d 1068, 1071-72. However, when prescription is evident on the face of the pleadings, the burden shifts to the party opposing prescription to show the action has not prescribed. Id.; Carter v. Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261, 1267.

In the present case, the accident occurred on September 17, 2020. At the time of the accident, La. C.C. art. 3492 provided that delictual actions were subject to a liberative prescription of one year, commencing from the day the injury or damage was sustained.² Therefore, Ms. Patterson's petition for damages, which was filed on October 25, 2021, was prescribed on its face, and Ms. Patterson had the burden of proving her case had not prescribed.

In this writ application, defendants assert the trial court's denial of their exception of prescription was erroneous, because Ms. Patterson has not shown that: (1) an acknowledgment occurred to interrupt prescription; or (2) prescription was suspended for the length of time necessary to find her petition was timely.

Acknowledgment

Ms. Patterson contends that on October 27, 2020, ESIS, the claims administrator for Ace Insurance, issued a check in the amount of $7,340.00 for the total loss of her vehicle and rental expenses. She claims this was an unconditional payment that constituted an acknowledgment sufficient to interrupt prescription. In support of her position, Ms. Patterson cites Young v. Gremillion, 05-802 (La. App. 5 Cir. 3/14/06), 924 So.2d 1285, 1288, writ denied, 06-1066 (La. 12/15/06), 944 So.2d 1270, in which this Court found that when there is an unconditional payment of damages, as opposed to a settlement, the payment constitutes an admission of liability or tacit acknowledgment that interrupts prescription.

Defendants counter that Ms. Patterson has failed to show that prescription was interrupted by the payment of property damages. They argue the payment was not an admission of liability or a tacit acknowledgment, because there is nothing to indicate it was an unconditional payment, and defendants explicitly denied liability before prescription accrued.

La. C.C. art. 3464 provides, “[p]rescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” An acknowledgment involves an admission of liability, either through an express recognition of a debt owed or through the actions of the debtor that constitute a tacit acknowledgment. Perez v. Sholar, 22-169 (La. App. 5 Cir. 12/14/22), 362 So.3d 874, writ denied, 23-188 (La. 4/12/23), 359 So.3d 25. An acknowledgment sufficient to interrupt prescription may be made verbally, in writing, or by partial payment, or it may be implicit or inferred from the facts and circumstances. Id. To find a tacit acknowledgment, it is necessary to determine that the alleged facts imply a definite admission of liability. Id.; Reynolds v. Walgreen Co., 21-1049 (La. App. 1 Cir. 6/2/22), 342 So.3d 975, 984, writ denied, 22-1036 (La. 10/12/22), 348 So.3d 79.

Evidence may be introduced to support or controvert an exception of prescription. La. C.C.P. art. 931; Desi, 304 So.3d at 1072. When evidence is introduced at a trial on an exception of prescription, the trial court's findings of fact are reviewed under the manifest error or clearly wrong standard. Id.; Lomont v. Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620, 627. However, when no evidence is introduced, appellate courts review judgments on an exception of prescription de novo, accepting the facts alleged in the petition as true. Desi, 304 So.3d at 1072; Henry v. Southwest Airlines, 23-522 (La. App. 5 Cir. 7/31/24), 392 So.3d 1176, 1180, writ denied, 24-1081 (La. 11/20/24), 396 So.3d 68.

Any evidence in support of or in opposition to an exception of prescription must be formally introduced and admitted in the trial court. Desi, 304 So.3d at 1072. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appellate review. Id.

Ms. Patterson had the burden to prove that prescription was interrupted or suspended. However, at the hearing on the exception of prescription, she did not introduce any evidence in support of her claim that prescription was interrupted by an acknowledgment. In her memorandum in opposition to this writ application, Ms. Patterson refers to portions of her deposition, the police report, and discovery responses. However, these documents were not introduced at the hearing or attached to the petition for damages. Therefore, we cannot consider such evidence in our review. Likewise, we cannot consider defendants’ exhibits attached to the exception of prescription, because they were not introduced at the hearing.

Because no factual evidence was introduced at the hearing on the exception of prescription, we review this matter de novo, accepting the allegations of the petition as true.³ See Stevenson v. Progressive Security Insurance Company, 19-637 (La. 4/3/20), 341 So.3d 1202.

The jurisprudence provides that an unconditional offer or payment constitutes a tacit acknowledgment sufficient to interrupt prescription. See Mallett v. McNeal, 05-2289 (La. 10/17/06), 939 So.2d 1254; Young, 924 So.2d at 1288; Demma v. Automobile Club Inter-Insurance Exchange, 08-2810 (La. 6/26/09), 15 So.3d 95, 105; Perez, supra.

In her petition, Ms. Patterson alleges that prescription was interrupted under La. C.C. 3464 because “on or around October 27, 2020, Ace American issued a check for 75% of the total loss value of Petitioner's property damages.” However, the petition does not specify the terms of the payment, if any, and neither party introduced any evidence regarding whether this was a settlement or unconditional payment. Ms. Patterson had the burden of proof. However, accepting the allegations of the petition as true, we find she failed to prove an acknowledgment here. Accordingly, we agree with the trial court's conclusion that Ms. Patterson did not meet her burden of proving an interruption of prescription by acknowledgement, and thus conclude that the trial court did not err in this regard.

Suspension

The version of La. C.C. art. 3472.1 ⁴ in effect at the time of the accident in question provides as follows:

A. Notwithstanding any other provisions of the law, in the event the governor declares a state of emergency or disaster pursuant to R.S. 29:721 through 772, the Supreme Court of Louisiana may enter an order or series of orders as deemed necessary and appropriate to suspend all prescriptive and peremptive periods for a period of time not to exceed ninety days. Thereafter, should the need for continuing suspension be necessary to preserve access to the courts, the governor may issue executive orders as deemed appropriate. The period of suspension authorized by the provisions of this Article shall terminate upon the earlier of an order of the Supreme Court of Louisiana or upon termination of the declared state of disaster or emergency. Nothing in this Article limits the authority of the governor or the legislature to act in accordance with its authority.

B. The right to file any pleading subject to the suspension as provided by Paragraph A of this Article shall terminate sixty days after the termination of the suspension as provided by Paragraph A of this Article.

The timeline of events pertaining to this matter is as follows:

1. The subject motor vehicle accident occurred on September 17, 2020.

2. Plaintiff filed suit against defendants on October 21, 2021 seeking damages allegedly arising from the subject motor vehicle accident.

3. On August 26, 2021, Governor John Bel Edwards issued Proclamation No. 165 JBE 2021 declaring a state of emergency due to Hurricane Ida.

4. On August 31, 2021, the Louisiana Supreme Court, acting under the authority of La. C.C. art. 3472.1, issued an order that provided “[a]ll prescriptive and peremptive periods are hereby suspended statewide for a period of thirty days commencing from the Governor's August 26, 2021 declaration of state of emergency.” As such, this Order suspended prescriptive and peremption periods for thirty days, or from August 26, 2021 until September 27, 2021.

5. On July 30, 2024, defendants filed an exception of prescription, alleging that the case was filed more than one year after the accident and no suspension or interruption of prescription had occurred.

6. In her opposition to the exception of prescription, plaintiff asserted that her claims had not prescribed, first because prescription was interrupted by acknowledgment of the debt, and second because prescription was suspended for 30 days by the August 31, 2021 Order of the Louisiana Supreme Court, and she filed her petition for damages during the additional 60-day period after the 30-day Supreme Court suspension period provided pursuant to La. C.C. art. 3472.1(B).

7. A hearing was conducted on the exception of prescription on September 25, 2024. At the conclusion of the hearing, the trial court orally denied the exception of prescription, finding that plaintiff's claims were timely filed pursuant to La. C.C. art. 3472.1(B). No written reasons for judgment were issued.

8. A written judgment denying the exception of prescription was signed by the trial court on October 2, 2024.

In opposition to the exception of prescription, plaintiff argues that La. C.C. art. 3472.1(B) granted her an additional 60 days after the Supreme Court ordered 30-day suspension period ended within which to file her petition for damages, which was accomplished by her filing her petition for damages on October 21, 2021, well within said 60-day extension period.

The issue presented in this writ application is the proper interpretation of La. C.C. art. 3472.1.

Statutory interpretation is a question of law subject to de novo review. Porche v. Porche, 23-471 (La. App. 5 Cir. 4/24/24), 386 So.3d 695, 702.

The starting point in the interpretation of any statute is the language of the statute itself. Red Stick Studio Development., L.L.C. v. State ex rel. Dept. of Economic. Development, 10-0193 (La. 1/19/11), 56 So.3d 181, 187-88. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Id.; La. C.C. art. 9; ABL Management, Inc. v. Board of Supervisors of Southern University, 00-0798 (La. 11/28/00), 773 So.2d 131, 135. The rules of statutory construction require that, in examining codal articles, a court must read the language, words, and phrases used in context and accord them their generally prevailing meaning. La. C.C. arts. 11-12; La. R.S. 1:3; and In re Succession of LeBouef, 13-0209 (La. App. 1 Cir. 9/9/14), 153 So.3d 527, 532.

The fundamental question in cases of statutory interpretation is legislative intent. McLane Southern, Inc. v. Bridges, 11-1141 (La. 1/24/12), 84 So.3d 479, 483. The language of La. C.C. art. 3472.1(A) clearly allowed the Louisiana Supreme Court to suspend all prescriptive and peremptive periods for up to 90 days in the event the governor declared a state of emergency. This provision was designed to preserve access to the courts in accordance with La. Const. Art. I, § 22, in the event of an emergency or disaster.

It appears that the issue of interpretation of La. C.C. art. 3472.1 is res nova in this Court. However, the opinions rendered in Peralez v. HDI Global Specialty SE, 22-343 (La. App. 3 Cir. 11/9/22), 353 So.3d 235, and Robinson v. State Farm Mutual Auto. Ins. Co., 22-0726 (La. App. 4 Cir. 6/20/23), 368 So.3d 1143, are instructive, although these cases distinguishable on the facts from the instant case. A close analysis of these opinions is required.

In Peralez, the plaintiff was allegedly injured on July 9, 2020, but did not properly file her petition for damages until July 26, 2021. She argued that her claim was not prescribed because the Supreme Court's Order suspending prescription as a result of Hurricane Laura provided her with an extra 30 days within which to file her petition, and thus her petition was timely filed. The Third Circuit found, correctly in our opinion, that the plaintiff's claim was prescribed because she filed her petition for damages “more than sixty days after termination of the suspension” provided according to La. C.C. art. 3472.1(B), to wit:

Pursuant to La. Civ. Code art. 3472.1(A), the supreme court Order at issue suspended prescription and peremption for only thirty days following August 21, 2020, which would be until September 20, 2020. Thus, according to La. Civ. Code art. 3472.1(B), the right to file any pleading pursuant to the suspension terminated sixty days later. As in De La Rosa, Plaintiff filed her claim “more than sixty days after termination of the suspension. Therefore, the Louisiana Supreme Court Order did not preserve” Plaintiff's claim. De La Rosa[v. King], 2022 WL 1524332 at p. 5 [(E.D. La. May 13, 2022)].

353 So.3d at 243. Peralez is distinguishable from the instant case because in Peralez, the prescription date fell well outside of both the Supreme Court's 30-day Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A) and the additional 60-day period provided under Article 3472.1(B); whereas, the prescription date in the instant case falls within the Supreme Court's 30-day Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A).

Likewise, in Robinson, the plaintiff was allegedly injured in an automobile accident that occurred on April 26, 2021, but did not properly file her petition for damages until May 18, 2022. She argued that her claim was not prescribed because the Supreme Court's Order suspending prescription as a result of Hurricane Ida provided her with an extra 30 days within which to file her petition, and thus her petition was timely filed. Relying on and following Peralez, the Fourth Circuit found, also correctly in our opinion, that the plaintiff's claim was prescribed because pursuant to La. C.C. art. 3472.1(B), “[t]he right to file any pleading pursuant to the suspension terminated on November 24, 2021,” and her petition was not filed until May 18, 2022, well after the November 24, 2021 deadline to file “any pleading subject to the suspension as provided by Paragraph A” of Article 3472.1, to wit:

In the present matter, the Supreme Court Order provided that all prescriptive and peremptive periods were suspended for a period of thirty days commencing from the Governor's August 26, 2021 declaration of state of emergency, which would be until September 25, 2021. The right to file any pleading pursuant to the suspension terminated on November 24, 2021.

Similar to Peralez, the Supreme Court Order did not preserve Ms. Robinson's claims nor did it add time to her prescriptive period. Ms. Robinson's claims prescribed on April 26, 2022; and she filed her petition on May 18, 2022, more than one year after the alleged accident. Therefore, we do not find that the trial court erred in granting the defendants’ exception of prescription and dismissing Ms. Robinson's claims with prejudice.

368 So.3d at 1148. As with Peralez, Robinson is distinguishable from the instant case because in Robinson, the prescription date also fell well outside of both the Supreme Court's 30-day Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A) and the additional 60-day period provided under Article 3472.1(B); whereas, the prescription date in the instant case falls within the Supreme Court's 30-day Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A).

More on point is the Fourth Circuit's recent decision in Keating v. Miller, 23-0232 (La. App. 4 Cir. 12/8/23), 382 So.3d 335, aff'd on reh'g (Jan. 18, 2024). In Keating, the plaintiffs were allegedly damaged as a result of malpractice of an insurance agent, which was discovered by the plaintiffs on October 14, 2020. The plaintiffs did not file a petition for damages against the agent until November 9, 2021. They argued that their claim was not prescribed because the Supreme Court's Order suspending prescription as a result of Hurricane Ida provided them with an extra 30 days within which to file their petition, and since they filed their petition for damages within the additional 60-day period provided under La. C.C. art. 3472.1(B), their claim was timely filed. On rehearing, the majority found that the plaintiffs’ claim was time-barred, to wit:

However, the Keatings fail to consider that their petition for damages was filed on November 9, 2021 when the claim prescribed on October 14, 2021. Further, the emergency suspension period that commenced on August 26, 2021 applied to claims that were prescribing within the thirty-day period. In light of the emergency suspension period not applying to the Keatings’ claim nor attaching additional time to the Keatings’ running prescription, their claim is time-barred.

382 So.3d at 340.⁵ (Emphasis added.) Keating is distinguishable from the instant case because in Keating, the prescription date fell outside of the Supreme Court's 30-day Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A); whereas, the prescription date in the instant case falls within the Supreme Court's 30-day Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A).

We find the court's analysis in Keating to be persuasive. Although as set forth above, the facts in Keating are distinguishable from the instant case, Keating holds that La. C.C. art. 3472.1 applies only “to claims that were prescribing within the thirty-day period” of the Supreme Court's Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A), and not to claims that prescribe outside of the Supreme Court's Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A). We agree with this analysis. As noted above, the unambiguous language of Article 3472.1(B) clearly gives a litigant “[t]he right to file any pleading [such as a petition for damages] subject to the suspension as provided by Paragraph A of this Article” for a period of “sixty days after the termination of the suspension as provided by Paragraph A of this Article.” In the instant case, it is undisputed that the prescription date on plaintiff's claim falls within the Supreme Court's 30-day Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A), and plaintiff filed her petition within the additional 60-day period provided under Article 3472.1(B). Thus, plaintiff's claim is not prescribed. This interpretation of La. C.C. art. 3472.1 does not lead to absurd consequences and gives meaning to the entirety of Article 3472.1, especially Paragraph B of Article 3472.1.

Concerning legislative intent, considering the immense turmoil citizens of this state routinely face in the aftermath of natural disasters such as Hurricanes Laura and Ida, it is easy for us to understand and appreciate why the legislature decided to include Paragraph B in Article 3472.1. As a result of such natural disasters, many citizens of this state are left without places to live; many attorneys are left without offices to work from; and many courthouses are damaged to the extent that it may take many months or even years for repairs to be made and for the business of the court to return to normal. By allowing litigants across the board regardless of their particular circumstances an extra 60 days to file “any pleading” subject to the period of suspension provided by Article 3472.1(A), the legislature, wisely in our opinion, provided litigants of this state with a uniform period of time to pursue their claims after a declared emergency without facing claims of prescription or peremption regardless of the unknown particular hardships and circumstances faced by such litigants, whether pro se or counseled, their attorneys, and the public servants involved in the administration of justice at the courthouses affected by such declared emergency. To give any meaning to this statute other than the meaning we have given it herein would not in our opinion serve the interest of justice.

CONCLUSION

In summary, we conclude, as the trial court did, that plaintiff did not meet her burden of proving an interruption of prescription by acknowledgment. We further conclude that the clear and unambiguous language of La. C.C. art. 3472.1(B) authorizes an additional 60-day period for a litigant to file “any pleading,” including a petition for damages, to otherwise preserve a litigant's claim after the period of suspension granted by the Louisiana Supreme Court pursuant to Article 3472.1(A) expires, assuming: (1) the prescription date on the litigant's claim falls within the Supreme Court's Order of suspension of prescriptive and peremption period pursuant to Article 3472.1(A) (per Keating v. Miller, supra); and (2) the litigant files his/her claim within the additional 60-day period provided under Article 3472.1(B) (per the clear and unambiguous language contained therein). Both of those assumptions have proven to be true with respect to Ms. Patterson, and thus her claim is not prescribed.

DECREE

This writ application is denied.

WRIT DENIED

I have thoroughly reviewed the writ application, the opposition thereto, the applicable statutory law and jurisprudence, and the legislative history of La. C.C. art. 3472.1. While I agree with the majority that Ms. Patterson did not meet her burden of proving an interruption of prescription by acknowledgement, I respectfully disagree with the finding that Ms. Patterson met her burden of proving her claims did not prescribe based on suspension of prescription under La. C.C. art. 3472.1. In my opinion, Ms. Patterson's case prescribed prior to filing suit, and therefore, I would grant the writ application and the exception of prescription, dismissing her claims against these defendants.

In their writ application, defendants assert that the trial court erred by denying their exception of prescription, because the emergency order issued by the Louisiana Supreme Court on August 31, 2021, pursuant to the version of La. C.C. art. 3472.1(A) in effect at the time, only suspended prescription for 30 days, and La. C.C. art. 3472.1(B) did not grant an additional 60-day suspension. Defendants contend there were only 22 days left in the prescriptive period when it was suspended and therefore, Ms. Patterson only had 22 days from the termination of the suspension, or until October 17, 2021, to timely file suit. Ms. Patterson filed her petition for damages on October 25, 2021.

Ms. Patterson responds that her claims did not prescribe prior to the filing of her petition, because the Louisiana Supreme Court suspended all prescriptive periods for a period of 30 days starting August 26, 2021. She asserts that the suspension terminated on September 27, 2021, and pursuant to La. C.C. art. 3472.1(B), she had 60 additional days from that date to file suit. Therefore, she contends her claims were timely-filed on October 25, 2021.

On August 26, 2021, Governor John Bel Edwards issued Proclamation Number 165 JBE 2021, declaring a state of emergency due to Hurricane Ida. The Louisiana Supreme Court, acting under the authority of La. C.C. art. 3472.1, issued an order that provided “[a]ll prescriptive and peremptive periods are hereby suspended statewide for a period of thirty days commencing from the Governor's August 26, 2021 declaration of state of emergency.”

At the time the governor issued this executive order, La. C.C. art. 3472.1 provided:⁶

A. Notwithstanding any other provisions of the law, in the event the governor declares a state of emergency or disaster pursuant to R.S. 29:721 through 772, the Supreme Court of Louisiana may enter an order or series of orders as deemed necessary and appropriate to suspend all prescriptive and peremptive periods for a period of time not to exceed ninety days. Thereafter, should the need for continuing suspension be necessary to preserve access to the courts, the governor may issue executive orders as deemed appropriate. The period of suspension authorized by the provisions of this Article shall terminate upon the earlier of an order of the Supreme Court of Louisiana or upon termination of the declared state of disaster or emergency. Nothing in this Article limits the authority of the governor or the legislature to act in accordance with its authority.

B. The right to file any pleading subject to the suspension as provided by Paragraph A of this Article shall terminate sixty days after the termination of the suspension as provided by Paragraph A of this Article. (Emphasis added.)

The language of La. C.C. art. 3492.1(A) authorized the Louisiana Supreme Court to suspend all prescriptive and peremptive periods for up to 90 days, in the event the governor declared a state of emergency, in order to preserve access to the courts in accordance with La. Const. Art. I, § 22. However, the language of La. C.C. art. 3472.1(B) did not authorize any additional suspension or otherwise preserve a litigant's claims. Rather, it limited the time within which a litigant had the right to avail himself of the benefit of a suspension ordered pursuant to La. C.C. art. 3472.1(A).

In the event that a suspension due to an emergency occurred in the beginning or middle of the prescriptive period, access to the courts at the end of the prescriptive period would not be an issue. Therefore, if not exercised within 60 days of the end of the period of suspension, a litigant would lose the right to apply the suspension to his case, as it would not be necessary in order to preserve access to the courts.

For instance, if an accident occurred in January of 2023 and prescription was set to expire in January of 2024, a 30-day suspension in March of 2023 would not apply to add 30 days to the end of the prescriptive period, pursuant to La. C.C. 3472.1(B). Presumably, the emergency or disaster that caused the 30-day suspension would not impede a litigant's right to timely file suit, where there would be ample time after the emergency suspension to file suit. A suspension due to an emergency, pursuant La. C.C. art. 3472.1, does not act as a “bonus,” allowing additional days to file pleadings where there is no impediment to a litigant's rights. Rather, it acts as a “safe harbor” to preserve a litigant's access to the courts in situations where such rights are at risk.

The majority finds that the language of La. C.C. art. 3472.1 was clear and unambiguous, effectively granting litigants two suspensions, a period of suspension up to 90 days under (A) and an additional 60-day suspension under (B). However, in my view, the language of the statute, the caselaw, and the legislative history do not support this interpretation. It is my opinion that the language of the statute authorizes one suspension of up to 90 days under (A), and precludes the application of such suspension where access to the courts is not at issue.

The fundamental question in all cases of statutory interpretation is legislative intent and the rules of statutory construction are designed to ascertain and enforce that intent. Carollo v. Dep't of Transportation & Dev., 21-1670 (La. 9/1/22), 346 So.3d 751, 759. “When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” Id.; La. C.C. art. 10.

In an effort to ascertain the legislative intent behind the enactment of La. C.C. art. 3472.1, I have reviewed the video recordings of legislative hearings pertaining to the enactment of La. C.C. art. 3472.1, Acts 2020, 1st Ex. Sess., No. 3, § 1, effective June 25, 2020.⁷ During a hearing on June 11, 2020, the bill to enact La. C.C. art. 3472.1 was addressed and came for vote before the Louisiana House of Representatives. The bill's author, Representative Joseph Marino, gave a direct answer to the question of whether the amount of time remaining in the prescriptive period at the time of the suspension would remain the same after the suspension or whether a “grace period” was intended. Representative Marino specifically stated that the same amount of time remaining at the beginning of the suspension would remain at the conclusion of the suspension of prescription. This clarification conforms with La. C.C. art. 3472, which provides, “[t]he period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.”

Additionally, the legislature had another opportunity to express its intent with regard to La. C.C. art. 3472.1, when the statute was amended in 2022, pursuant to Acts 2022, No. 469, § 1. The amendment removed the language of La. C.C. art. 3472.1(B) that previously provided for the 60-day period within which to file a pleading, which is the language at issue in this writ application. It further amended the language in La. C.C. art. 3472.1(A) to provide that in response to a state of emergency or disaster, the governor may issue an executive order or proclamation to suspend liberative prescriptive or peremptive periods that would have accrued during the time specified in the order or during the duration of the effectiveness of the order. The article, as amended, further provides:

Upon the termination of the period of suspension, liberative prescription or peremption commences to run again and accrues upon the earlier of thirty days after the expiration of the period of suspension or in accordance with the period of time as calculated pursuant to Article 3472.

On March 21, 2022, Representative Thomas Pressly, as author of the bill, testified before the House Civil Law and Procedure Committee. He indicated that the intent of the 2022 amendments was not to change the law but simply to clarify that the law was not intended to extend the suspension period for an additional 60 days. Rather, a litigant would have the same amount of time remaining at the end of the suspension as he had when the suspension began.

Also, when Representative Pressly presented the bill for vote on March 24, 2022, he stated that the amendment was intended to clarify the law and was “purely technical dealing with a change in wording.”

In support of its position that Ms. Patterson had an additional 60 days after the 30-day suspension expired to file her petition, pursuant to La. C.C. art. 3472.1(B), the majority relies on Peralez v. HDI Global Specialty SE, 22-343 (La. App. 3 Cir. 11/9/22), 353 So.3d 235. However, I find the majority's reliance on Peralez to be misplaced. In my opinion, the Peralez decision supports a finding that Ms. Patterson was not afforded 60 additional days to file her petition and that her claim prescribed.

In Peralez, the Court addressed a prescription issue in light of the Louisiana Supreme Court's order suspending prescription for 30 days, from August 21, 2020 through September 20, 2020, as a result of Hurricane Laura. The plaintiff alleged she was injured on July 9, 2020, but she did not properly file her petition until July 26, 2021, which exceeded the one-year prescriptive period for delictual actions. Peralez, 353 So.3d at 236-37. She argued her petition was timely-filed due to the 30-day suspension of prescription. However, the Third Circuit found the plaintiff's claims had prescribed, explaining that while the suspension of the prescriptive period was for 30 days, the right to file a pleading subject to this suspension had expired where the plaintiff did not file her petition within 60 days after the termination of the suspension. The Court specifically stated that La. C.C. art. 3472.1(B) limits the effect of the suspension power in La. C.C. art. 3492.1(A), but “does not attach additional time to Plaintiff's running of prescription on her claim.” Peralez, 353 So.3d at 243.

In Robinson v. State Farm Mutual Auto. Ins. Co., 22-0726 (La. App. 4 Cir. 6/20/23), 368 So.3d 1143, the Fourth Circuit addressed a similar prescription issue arising from the same August 31, 2021 order of the Louisiana Supreme Court at issue in the present case. The plaintiff filed a petition on May 18, 2022, alleging damages from an automobile accident that occurred on April 26, 2021. Robinson, 368 So.3d at 1144. The defendants filed a peremptory exception of prescription, which the plaintiff opposed, arguing she was entitled to 30 additional days to file her claims because the Court suspended prescription for 30 days as a result of the governor's emergency order. The trial court granted the peremptory exception of prescription, and the Fourth Circuit affirmed.

In reviewing La. C.C art. 3472.1, as applied to the Louisiana Supreme Court order suspending all prescriptive and peremptive periods for 30 days commencing from the Governor's August 26, 2021 emergency declaration, the Robinson court found that the plaintiff's claims had prescribed. The Court found that the plaintiff could not avail herself of the 30-day suspension period where suit was not filed within 60 days, and stated, “the Supreme Court Order did not preserve [Plaintiff's] claims nor did it add time to her prescriptive period.” Robinson, 368 So.3d at 1148.

In the present case, considering the allegations of the petition, the applicable jurisprudence, and the language of former La. C.C. art. 3472.1, both (A) and (B), it is my opinion that prescription was suspended for only 30 days in accordance with the Louisiana Supreme Court's August 31, 2021 order. Therefore, the prescriptive period originally set to expire on September 17, 2021, was extended to October 17, 2021, due to the 30-day suspension. La. C.C. art. 3472.1(B) did not add additional time to the prescriptive period; rather, it limited the time within which a litigant could take advantage of the suspension of prescription. Therefore, Ms. Patterson's claims prescribed prior to filing her petition for damages until October 25, 2021.

Accordingly, for these reasons, I would grant the writ application, reverse the trial court's ruling, grant the exception of prescription, and dismiss plaintiff's claims against these defendants.

FOOTNOTES

1.   In her petition for damages, plaintiff also named her uninsured/underinsured motorist carrier, State Farm Mutual Automobile Insurance Company, as a defendant.

2.   La. C.C. art. 3492 was repealed by La. Acts 2024, No. 423, § 2, effective July 1, 2024. Because the tort claims in this case arose prior to this date, former La. C.C. art. 3492, providing a one-year prescriptive period, applies in this matter. La. C.C. arts. 3493.1 currently provides a two-year prescriptive period for delictual actions.

3.   Although one exhibit, a copy of the Louisiana Supreme Court's August 31, 2021 order, was introduced and admitted into evidence, this Court can take judicial notice of the governor's proclamation and the text of the Supreme Court's order pursuant to La. C.E. art. 202(B), even if not formally introduced. See Peralez, 353 So.3d at 239, n. 4. The relevant facts here are undisputed, and the issue is purely legal. Accordingly, we find the de novo standard of review applicable here.

4.   Article 3472.1 was amended effective on August 1, 2022 to now provide as follows:Notwithstanding any other provision of the law or any provision of an executive order or proclamation, in the event the governor, in response to a state of emergency or disaster, issues an executive order or proclamation pursuant to R.S. 29:721 through 775 that purports to suspend or extend liberative prescriptive or peremptive periods in all or part of the state, the executive order or proclamation shall have the effect of suspending only those liberative prescriptive or peremptive periods that would have otherwise accrued during the period of time specified in the order or proclamation or, if no period of time is specified, during the duration of the effectiveness of the executive order or proclamation. Upon the termination of the period of suspension, liberative prescription or peremption commences to run again and accrues upon the earlier of thirty days after the expiration of the period of suspension or in accordance with the period of time as calculated pursuant to Article 3472.

5.   In his dissent in Keating, Judge Belsome would have found that the Keatings’ claim was not prescribed, reasoning as follows, to wit:La. C.C. art. 3472.1(B) provided the Keatings, “the right to file any pleading subject to the suspension ․ sixty days after the termination of the suspension ․”. That sixty-day period ended on November 18, 2021.In Robinson, [supra,] the literal reading of the Supreme Court's order would have added thirty days to the date on which prescription tolled. However, the order was of no value to that plaintiff because her lawsuit was filed on May 18, 2022, more than seven months after the last day of the suspension period and more than five months after the sixty-day “right to file” period of La. C.C. art. 3472.1(B). Clearly, the filing in Robinson was not timely.The peremptive period for the Keatings claim was also suspended for thirty days. Critically, however, the Keatings did file their claim within the sixty-day period permitted for filing by La. C.C. art. 3472.1(B).However, the Keatings’ claim was set to prescribe on October 14, 2021, which was outside of the 30-day period of suspension established by the Supreme Court's August 31, 2021 Order.

6.   La. C.C. art. 3472.1 was subsequently amended by Acts 2022, No. 469, § 1, which became effective on August 1, 2022.

7.   In State Farm Mutual Automobile Insurance Co. v. U.S. Agencies, L.L.C., 05-728, 05-729 (La. App. 1 Cir. 3/24/06), 934 So.2d 745, 748, writ denied, 06-933 (La. 6/16/06), 929 So.2d 1288, the First Circuit stated that “[c]ommentary at legislative committee meetings and journals of the houses of the state legislature are helpful to courts in determining the purpose and true legislative intent behind a law. A court may take notice of these records and journals, where preserved, as they are a matter of public record.” See also Perez v. Irby Constr. Co., 19-454 (La. App. 3 Cir. 1/29/20), 290 So.3d 1149, 1165, writ denied, 20-353 (La. 6/3/20), 296 So.3d 1066.

GRAVOIS, J.

CONCURS IN PART, DISSENTS IN PART, WITH REASONS FHW