KSLA-TV, Inc. v. Radio Corp. of America

• Citation: 732 F.2d 441
• Decision Date: 21 May 1984
• Docket Number: No. 83-4600,KSLA-T,INC,83-4600
• Parties: , Plaintiff-Appellant, v. RADIO CORPORATION OF AMERICA and Stainless, Inc., Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 441

732 F.2d 441

KSLA-TV, INC., Plaintiff-Appellant, v. RADIO CORPORATION OF AMERICA and Stainless, Inc.,

Defendants-Appellees.

No. 83-4600

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 21, 1984.

McGlinchey, Stafford, Mintz, Cellini & Lang, C.G. Norwood, Jr., B. Franklin Martin, III, Marie A. Moore, New Orleans, La., for plaintiff-appellant.

Deutsch, Kerrigan & Stiles, Ralph L. Kaskell, Jr., Ethel H. Cohen, New Orleans, La., for Stainless.

Bodenheimer, Jones, Klotz & Simmons, G.M. Bodenheimer, Shreveport, La., for RCA, Zurich and Home.

Blue, Williams & Buckley, E. Ross Buckley, Jr., Metairie, La., for Paxton.

Adams & Reese, Robert B. Nolan, New Orleans, La., for Lexington.

Alex F. Smith, Jr., Kim Hanson LaVigne, Shreveport, La., for Bethlehem Steel Corp.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEE, POLITZ, and JOHNSON, Circuit Judges.

PER CURIAM:

This is an appeal from the district court's order granting summary judgment for defendants. Finding that plaintiff's claim is barred by a Louisiana peremptive ¹ statute, we affirm.

KSLA-TV, Inc. ("KSLA"), a television station serving Shreveport, Louisiana, brought this action to recover damages that resulted from the collapse of its 1,709 foot television broadcast tower in October 1977. KSLA sought recovery from RCA, Inc., the company from which the tower had been purchased, and Stainless, Inc., the subcontractor that manufactured and erected the tower. ²

When discovery was completed, Stainless moved for summary judgment arguing that La.Rev.Stat.Ann. Sec. 9:2772 (West Supp.1984) barred KSLA's action. The district court granted Stainless's motion, 501 F.Supp. 891, and later granted similar motions by RCA and its insurers. On appeal, we affirmed the judgment in part, but remanded for reconsideration of two issues raised by KSLA that the trial court did not specifically address. 693 F.2d 544. These issues are:

(1) whether Sec. 2772 can be invoked against one who fraudulently conceals defects in his product; and

(2) whether Sec. 2772 applies to negligence for failure to warn when the duty to warn arises from subsequently obtained knowledge.

Id. at 546.

Section 2772(A) provides that "[n]o action ... to recover damages shall be brought ... against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property ... [m]ore than ten years after the date of registry in the mortgage office of acceptance of the work by owner." It is agreed that the television tower was built, and the work was accepted, more than ten years prior to the time this action was filed.

KSLA argues that the limitations period in Sec. 2772 is tolled by fraudulent concealment of defects. KSLA notes that prescriptive periods are suspended under the doctrine of contra non valentem agere non currit prescriptio; periods of limitation are tolled where a defendant has "knowingly concealed information from a plaintiff or [has] through his own conduct misled or lulled the plaintiff into inaction." McClendon v. State, 357 So.2d 1218, 1221 (La.App.1978).

Section 2772 is, however, a statute of peremption. There is a major distinction between a statute of limitations (prescription) and one of peremption. Prescription "bars the remedy sought to be enforced and terminates the right of access to the courts for enforcement of the existing right." Pounds v. Schori, 377 So.2d 1195, 1198 (La.1979). A peremptive statute, on the other hand, totally destroys the previously existing right so that, upon expiration of the statutory period, a cause of action or substantive right no longer exists to be enforced. Id.; Tharpe & Brooks, Inc. v. Arnott Corp., 406 So.2d 1, 5 (La.App.1981).

Peremption cannot be interrupted or suspended. Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978); Succession of Pizzillo, 223 La. 328, 65 So.2d 783, 786 (1953). See also Lege v. Vermilion Parish School Board, 360 So.2d 664, 668 (La.App.1978) ("[t]here can be no--repeat, no--interference with the running of time") (emphasis omitted). Peremptive periods "are not subject to the disabilities and excuses through which the effect of ordinary statutes of limitation may be avoided, nor, it seems, can they be evaded even by proof of fraud." Carpenter v. Cox, 186 So. 863, 865 (La.App.1938). Thus, the ten year period in Sec. 2772 is not tolled by allegations of fraud.

KSLA also maintains that Sec. 2772 does not apply to actions for negligent failure to warn, where the duty to warn arises from knowledge obtained subsequent to the completion of construction. Section 2772, by its terms, applies to all actions ...