Simmons v. Bartleet Chemical, Inc.

• Decision Date: 13 October 1982
• Docket Number: No. 82-148,82-148
• Citation: 420 So.2d 1273
• Parties: McKinley SIMMONS, Plaintiff-Appellant, v. BARTLEET CHEMICAL, INC. and United States Fidelity & Guaranty Company, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1273

420 So.2d 1273

McKinley SIMMONS, Plaintiff-Appellant, v. BARTLEET CHEMICAL, INC. and United States Fidelity &amp Guaranty Company, Defendants-Appellees.

No. 82-148.

Court of Appeal of Louisiana Third Circuit.

Oct. 13, 1982.

Emile C. Toups, Lafayette, for plaintiff-appellant.

Gachassin & Capretz, Nicholas Gachassin, Jr., Lafayette, for defendant-appellee.

Before CULPEPPER, GUIDRY and LABORDE, JJ.

LABORDE, Judge.

McKinley Simmons, plaintiff-appellant, sued Bartleet Chemical, Inc. and its insurer, United States Fidelity & Guaranty Company (USF&G), for personal injuries sustained in an automobile accident. The lower court sustained defendants' plea of prescription and Simmons appeals. Whether plaintiff's claim had prescribed is the issue on appeal. We affirm.

On July 13, 1979, plaintiff, McKinley Simmons, was injured when his automobile was involved in a collision with an automobile owned by Bartleet, insured by USF&G and driven by an employee of Bartleet. After the accident, Simmons hired an attorney to represent him. During October, 1979, the property damage claim resulting from the above accident was settled for $1,650.00. A cancelled check and a letter confirmed this settlement. USF&G's agent, Arlene Signorelli contacted Simmons' attorney by letters dated October 22, 1979, November 29, 1979, January 17, 1980, and March 25, 1980. By the above correspondence USF&G tried to obtain copies of any medical bills, reports or lost wage verification. The attorney for Simmons did not respond to the requests for information sought by USF&G. USF&G closed their file concerning Simmons on July 29, 1980. On November 19, 1980, Simmons' attorney wrote USF&G regarding a possible settlement of Simmons' personal injuries. USF&G replied that the claim for Simmons had prescribed on July 13, 1980, therefore, they would not be in the position to make a settlement with him. It should be noted that from October 1979, to November 1980, a period of one year, USF&G had no contact from either Simmons or his attorney regarding any claim being made by Simmons for his alleged personal injury. On July 8, 1981, Simmons filed a lawsuit for bodily and personal injury damages as a result of the accident which occurred on July 13, 1979. USF&G filed an Exception of Prescription inasmuch as the suit was filed more than one year after the date of the accident. The trial judge ruled in USF&G's favor after a hearing on the exception and dismissed Simmons' suit.

Simmons' claim is predicated upon an offense or quasi-offense within the purview of Louisiana Civil Code Article 2315, the applicable prescriptive period of which is one year. LSA-C.C. Articles 3536 and 3537. A prima facie showing has been made that the claim has prescribed due to the fact no judicial demand had been made prior to the lapse of one year from the date of the accident. An important question arises whether the running of prescription has been interrupted. The general rule regarding the burden of proof is that when the plaintiff's petition shows on its face that the prescriptive period has run, and the plaintiff contends that there was a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Cordova v. Hartford Accident and Indemnity Co., 378 So.2d 1088 (La.App.3rd Cir.1979). ¹

Simmons argues that his suit was timely filed because the running of prescription was interrupted. The interruption occurred when USF&G acknowledged their liability by sending letters to Simmons' attorney requesting medical bills, reports and lost wage verifications and by paying the property damage claim.

Louisiana Civil Code Article 3520 provides as follows:

"Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed."

Louisiana Civil Code Article 3520 does not require that such an acknowledgment be in any particular form. It may be made verbally, in writing, by partial payment, by payment of interest, by pledge or in other ways; and it may be inferred from the facts or circumstances. By its terms, Louisiana Civil Code Article 3520 is applicable to the prescription of all rights and actions and the Supreme Court finds no justification in the Civil Code for insulating rights based on offenses or quasi-offenses from its effects. Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378 (La.1980). To constitute an acknowledgment the actions of the defendant must clearly and specifically indicate that the defendant accepts liability. Marathon Insurance Company v. Warner, 244 So.2d 353 (La.App. 2nd Cir.1971). The facts show the adjuster, Arlene Signorelli, expressed a willingness to discuss Simmons' claim. However, her statements and actions in writing the letters did not manifest an intention to admit the company's liability for the personal injuries. In our view, the insurance company never admitted that it owed Simmons for his personal injuries.

The Supreme Court in Collins v. Capital Valve and Fitting Co., 409 So.2d 579 (La.1982) held that the settlement of property damages resulted in a transaction or compromise. The court looked at Louisiana Civil Code Article 3073 to determine the scope of a transaction or compromise. Louisiana Civil Code Article 3073 states:

"Transactions regulate...