Ansardi v. Louisiana Citizens Property Insurance Corporation

• Decision Date: 01 March 2013
• Docket Number: 2012–CA–0166.,Nos. 2011–CA–1717,s. 2011–CA–1717
• Citation: 111 So.3d 460
• Parties: Melanie ANSARDI v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION. Eric Johnson, et al. v. Louisiana Citizens Property Insurance Corporation.
• Court: Court of Appeal of Louisiana — District of US

111 So.3d 460

Melanie ANSARDI

v.LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.

Eric Johnson, et al.

v.Louisiana Citizens Property Insurance Corporation.

Nos. 2011–CA–1717, 2012–CA–0166.

Court of Appeal of Louisiana,

Fourth Circuit.

March 1, 2013.

David C. Jarrell, The Law Offices of David C. Jarrell, APLC, Sidney D. Torres, III, Roberta L. Burns, Beau F. Camel, Law Offices of Sidney D. Torres, III, APLC, Chalmette, LA, for Plaintiffs/Appellants.

Paul A. Tabary, III, Lacey Tabary, Elizabeth R. Borne, Tabary & Borne, L.L.P., Chalmette, LA, John W. Waters, Jr., Kristin Mosely Jones, Bienvenu Foster Ryan & O'Bannon, LLC, New Orleans, LA, Darren A. Patin, Christopher M. G'sell, Hailey McNamara Hall Larmann & Papale, Metairie, LA, for Defendant/Appellee.

Frank M. Buck, Jr., New Orleans, LA, Timothy J. Falcon, Jeremiah A. Sprague, Falcon Law Firm, Marrero, LA, Amicus Curiae, for themselves.

David W. Bernberg, Henna Ghafoor, The Law Office of David W. Bernberg, L.L.C., New Orleans, LA, Amicus Curiae, Leslie Frances.

Steven M. Levy, Anthony T. Eliseuson, SNR Denton U.S. LLP, Chicago, IL, Judy Y. Barrasso, Susan M. Rogge, Barrasso Usdin Kupperman Freeman & Sarver, LLC, New Orleans, LA, Amicus Curiae, American Ins. Assoc.

Joseph M. Bruno, Melissa A. Debarbieris, Bruno & Bruno LLP, New Orleans, LA, Amicus Curiae, Courtney Nero.

James A. Babst, Wegmann & Babst, LLC, New Orleans, LA, Amicus Curiae, La. Assoc. of Business and Industry.

Adrianne L. Baumgartner, Charles L. Chassaignac, IV, Porteous Hainkel & Johnson, L.L.P., New Orleans, LA, Amicus Curiae, Nat. Assoc. of Mut. Ins. Companies.

(Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET, Judge SANDRA C. JENKINS). ¹

PAUL A. BONIN, Judge.

[4 Cir. 1]Because both the devastation of the aftermath of Hurricane Katrina and the ensuing first-party claims against the state-created Louisiana Citizens Property Insurance Company are concentrated in our three-parish circuit, ² we consolidated these two appeals for an en banc determination of recurring issues presented by Citizens' exceptions of prescription in individual lawsuits in which the plaintiffs rely upon previously filed state or federal class-action lawsuits to toll the prescriptive period.

After the consolidation of these appeals, however, the Supreme Court of Louisiana granted writs of certiorari in two cases, see Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11–0837 (La.App. 4 Cir. 11/23/11), 78 So.3d 835,writ granted,11–2835 (La.3/30/12), 85 So.3d 99, and Quinn v. Louisiana Citizens Property Ins. Corp., 11–937 (La.App. 5 Cir. 9/23/11) (unpublished), writ granted,12–0152 (La.3/30/12), 85 So.3d 100, the resolution of which we expected would likely impact the disposition of these consolidated cases as well as similar cases [4 Cir. 2]which we had stayed pending our own decision.³ Accordingly, we deferred ruling until the Supreme Court's decisions became final, which has now occurred. See Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11–2835 (La.11/2/12), –––So.3d ––––, 2012 WL 5374248, and Quinn v. Louisiana Citizens Property Ins. Corp., 12–0152 (La.11/2/12), ––– So.3d ––––, 2012 WL 5374255,reh'g denied, (La.1/25/13).

Bound by the controlling authority of the Duckworth and Quinn decisions, we decide that in these and similar cases the district court, under the ordinary decisional rules applicable to the exception of prescription (which are summarized in Part III–B, post ), must find for each class-action lawsuit upon which the plaintiff relies for tolling, first, that such class-action lawsuit was filed on or before September 4, 2007, in a Louisiana court of competent jurisdiction and proper venue, or, if in a Louisiana court of competent jurisdiction but not of proper venue, [4 Cir. 3]that Citizens was served with process by that date; second, that such class-action lawsuit has been continuously pending in a Louisiana court of competent jurisdiction; and third, that there are facts which affirmatively establish that the plaintiff's current claim arises out of the transactions or occurrences described in the class-action lawsuit such that the plaintiff was a putative member of the proposed class as described. Next, the court must find that the plaintiff's individual lawsuit was timely filed within the time remaining for the period of the suspension of prescription as specifically provided by La. C.C.P. art. 596.

If the plaintiffs individual lawsuit satisfies these factual criteria, a district court shall overrule Citizen's exception of prescription; if it does not, then its exception shall be sustained.

When these exceptions were submitted for decision, neither the parties nor the district judges had the benefit of the Supreme Court's views on these issues, and especially given the overruling of the decision of a panel of this court ⁴ in Duckworth, supra (respecting the opt-out effect of the filing of an individual lawsuit alone without the submission of an election form, by which the person [4 Cir. 4]elects to be excluded from the class prior to a ruling on certification), we vacate the judgments sustaining the exceptions of prescription and remandthese cases to their respective trial judges for a complete evidentiary hearing on Citizens' exception of prescription.

To expedite the consideration of the issues, which may be presented on remand, and to assist the district court and the parties, in accord with Quinn's directive, we authorize the plaintiffs to file their amendments within thirty days of the finality of this judgment to remove any grounds for the objection under La. C.C.P. art. 934. After the expiration of that period, Citizens may amend its exceptions, if necessary, and re-urge its exception of prescription.

In the following Parts we explain our decision in greater detail.

I

On August 29, 2005, Hurricane Katrina struck St. Bernard Parish, damaging, if not obliterating, virtually all of its housing stock and scattering its residents to the far corners of the nation. It is out of this unparalleled disaster, and the herculean post-Katrina rebuilding efforts of St. Bernard Parish's remaining residents, that these consolidated claims arise. The present case, as noted, presents largely legal questions. The answers to these questions, however, must be applied within the factual context of distinct lawsuits. In this Part, we first describe the special status of Citizens as a property insurer, then turn to discuss the facts underlying both the Ansardi and Johnson suits, review their respective procedural histories, and briefly discuss the facts underlying the various Katrina-related class-actions[4 Cir. 5]that the plaintiffs allege have suspended prescription on their respective claims.

A

Louisiana Citizens Property Insurance Company is the insurer of last resort. It is a non-profit corporation created by the legislature to provide certain insurance programs which “function exclusively as residual market mechanisms to provide essential property insurance for residential and commercial property in the State, solely for applicants who are in good faith entitled, but are unable, to procure insurance through the voluntary market.” La. R.S. 22:2291. The legislature intended Citizens' income to be exempt from federal taxation so that the corporation would have the “maximum financial resources to pay claims following a catastrophic hurricane.” Id.

Citizens is operated by a board of directors, and its employees are treated similarly to state employees in that they are prohibited from participating in political activity. SeeLa. R.S. 22:2293 A, B(3). Citizens is also treated as a public entity for the purposes of the “Open Meetings Law,” seeLa. R.S. 42:11 et seq., and the “Public Records Law,” seeLa. R.S. 44:1–41. SeeLa. R.S. 22:2293 D(1). Funding for Citizens, however, does not come from state funds, and the debts and liabilities of the corporation are not considered to be obligations of the state. SeeLa. R.S. 22:2193 B(1).

[4 Cir. 6]In the context of these first-party claims, Citizens had ready access in its own records of the identities of its policy-holders who likely were affected by the storm's ravages.

B

On July 29, 2009,⁵ Melanie Ansardi first filed suit against Citizens. Ms. Ansardi's claim initially was cumulated along with several hundred other claims as part of a mass joinder lawsuit involving 183 St. Bernard Parish property owners, each of whom claimed to have sustained wind related damages to their respective properties during Hurricane Katrina. Further, the plaintiffs claimed that they notified Citizens of their respective wind losses, but that Citizens failed to initiate adjustment of the loss within the time set out by La. R.S. 22:1892. Each of the plaintiffs also claimed that Citizens, after it started adjusting their losses, failed to tender any undisputed amounts within the time set out in La. R.S. 22:1973 after having received satisfactory proofs of loss. The plaintiffs, accordingly, brought suit against Citizens seeking all amounts due under their respective policies, penalties and attorney's fees for violating La. R.S. 22:1892 and La. R.S. 22:1973, as well as legal interest and costs. The July 29, 2009 petition also indicates that the named plaintiffs are putative class members of the class described in Orrill v. AIG, Inc., 09–0888 (La.App. 4 Cir. 4/21/10), 38 So.3d 457,writs denied,[4 Cir. 7]09–2807, 10–0945, 10–1117 (La.9/17/10), 45 So.3d 1035, 1036, but that they elected to opt out of the Orrill matter by mailing in the requisite opt out forms.⁶

On August 25, 2009, the plaintiffs reached a consent judgment with Citizens that specifically called for each of the named plaintiffs to file an individual lawsuit. The consent judgment, however, provided that each of the subsequent individual...