96-1075 La.App. 3 Cir. 3/12/97, Veillion v. Fontenot

• Decision Date: 12 March 1997
• Citation: 692 So.2d 639
• Parties: 96-1075 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 639

692 So.2d 639

96-1075 La.App. 3 Cir. 3/12/97

Wanda Thibodeaux VEILLION, et al., Plaintiffs--Appellants, v. Mark FONTENOT, et al., Defendants--Appellees.

No. 96-1075.

Court of Appeal of Louisiana Third Circuit.

March 12, 1997.

Writ Denied May 16, 1997.

Amy, J., concurred in result.

Chuck David Granger, Opelousas, for Wanda Thibodeaux Veillion.

Steven J. Bienvenu, Opelousas, for Mark Fontenot, et al.

Before SAUNDERS, PETERS and AMY, JJ.

[96-1075 La.App. 3 Cir. 1] SAUNDERS, Judge.

More than one year following her automobile accident of June 18, 1993, plaintiff, Wanda Thibodeaux Veillion, filed suit on February 17, 1995, individually and as natural tutrix of her minor daughter, Christina "Hope" Thibodeaux, seeking damages on behalf of her daughter and reimbursement of medical expenses she, the mother, had paid. The trial court sustained defendants' exception of prescription and dismissed her and her minor daughter's suit with prejudice. Plaintiffs appeal. We affirm. Payments made under the med-pay portion of State Farm Mutual Automobile Insurance Company's policy did not interrupt the tolling of the minor plaintiff's suit for general damages.

[96-1075 La.App. 3 Cir. 2] The instant dispute is delictual in nature; therefore, the liberative prescriptive period of one year governs. La.Civ.Code art. 3492. The accident occurred June 18, 1993, more than one year before suit was filed on February 17, 1995, and the tolling of prescription is apparent from the face of the petition; therefore, the burden is on the plaintiffs to establish suspension, interruption, or renunciation to save her and her minor daughter's claims from extinction. See Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95); 656 So.2d 5, writ denied, 95-2076 (La.11/13/95); 662 So.2d 478; Augustine v. Derronne, 590 So.2d 703 (La.App. 3 Cir.1991).

The record discloses that there remain no outstanding medical expenses, as the mother has already been reimbursed. Therefore, ultimately the question is whether State Farm's payments to the mother under its med-pay policy for her minor daughter's medical expenses constituted a "tacit acknowledgment of the debt sufficient to interrupt the running of prescription for all claims arising out of the accident," Melton v. United States Fidelity and Guaranty Ins. Co., 531 So.2d 1140, 1141 (La.App. 4 Cir.1988), including the minor's claims for general damages against Gary Fontenot, father of Mark B. Fontenot, the minor driver of the car in which she was traveling as a passenger, and their insurer, State Farm.

According to La.Civ.Code art. 3464, "[p]rescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe." Acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways, and it may be implicit or inferred from the facts and circumstances. Flowers v. United States Fidelity and Guar. Co., 381 So.2d 378 (La.1979); Landor v. Allstate Ins. Co., 571 So.2d 843 (La.App. 3 Cir.1990), writ denied, 575 So.2d 375 (La.1991); Williams v. American Family Mut. Ins. Co., 520 So.2d 1082 (La.App. 3 Cir.1987).

[96-1075 La.App. 3 Cir. 3] Under the circumstances of this case, we conclude that State Farm's payments under the med-pay provisions of the policy it sold Hope's host driver did not interrupt the tolling of prescription. We view as critical to this conclusion the undisputed facts that plaintiff explicitly stated that she sought only reimbursement of her medical expenses until after her claim had prescribed; that, apart from plaintiff's receipt of a medical reimbursement check, the parties had engaged in no direct communications of any kind during the year preceding her suit's filing; and the absence of any substantive allegation that the insurer had acted unfairly.

As a general rule, an insurer's payment under the med-pay provisions of its policy--payments that are "due irrespective of defendant's liability in tort," Farley v. Pat Todd Oil Co., Inc., 548 So.2d 1230, 1230 (La.1989) (Lemmon, J., concurring in denial of writ),--does not "interrupt the course of prescription tolling against her tort claim." Landor, 571 So.2d at 847. In accord, Martinez v. Breaux Mart, Inc., 93-2257, 93-2497 (La.App. 4 Cir. 1/13/94); 631 So.2d 471; Touchet v. State Farm Fire & Cas. Co., 542 So.2d 1142 (La.App. 3 Cir.), writ denied, 546 So.2d 1214 (La.1989).

In this case, there is no evidence to suggest that the insurer's claims adjuster acted unfairly; to the contrary, the evidence discloses that State Farm agreed to pay, and did pay, all of the medical bills incurred by plaintiffs. Nor is there any evidence to suggest that payments made by the insurer exceeded the limits of its med-pay policy. Cf. Keller v. National Union Fire Ins. Co., ...