Tassin v. Allstate Ins. Co.

• Decision Date: 13 February 1975
• Docket Number: No. 6640,6640
• Parties: Della Tassin, wife of, and Wess J. TASSIN v. ALLSTATE INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 680

310 So.2d 680

Della Tassin, wife of, and Wess J. TASSIN v. ALLSTATE INSURANCE COMPANY et al.

No. 6640.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 13, 1975.

Rehearing Denied April 15, 1975.

Writ Refused June 20, 1975.

Arnold C. Jacobs, New Orleans, for plaintiffs-appellants.

Murphy & Simon, E. Kelleher Simon, New Orleans, for defendant-appellee, Allstate Ins. Co.

Frans J. Labranche, Jr., Bossier City, in pro. per. and amicus curiae.

Before BOUTALL, SCHOTT and MORIAL, JJ.

SCHOTT, Judge.

On April 20, 1972, plaintiffs filed suit for personal injuries growing out of an automobile accident which occurred on March 9, 1971. Defendants filed the peremptory exception of prescription based upon LSA-C.C. Art. 3536. This exception was referred to the merits and after trial was overruled by judgment dated December 5, 1973. Subsequently, on February 22, 1974, plaintiffs were awarded judgments in favor of Mrs. Tassin in the amount of $3,000, and Mr. Tassin in the amount of $933.21.

From the latter judgment plaintiffs appealed, seeking an increase in the quantum awarded to Mrs. Tassin, and defendants answered the appeal seeking a reversal of the judgment of the trial court overruling the exception of prescription. It is prescription which provides the central issue on appeal.

Plaintiffs' first argument is that defendants stipulated liability, confessed judgment and precluded themselves from appealing from the judgment overruling their exception of prescription. In order to consider this argument it becomes necessary first to consider the procedural steps leading up to and taking place after the judgments of the trial court.

On February 16, 1973, the trial on the exception commenced with the testimony of Mr. Frans J. Labranche, who had represented plaintiffs. At the conclusion of his testimony defendants' counsel asked for the opportunity to produce Allstate's personnel in rebuttal whereupon the trial judge referred the exception to the merits. A minute entry to that effect gave defendants fifteen days to file pleadings, and on February 23 defendants filed their answer in which they reaffirmed their plea of prescription.

At the outset of the trial on the merits on September 20, 1973, there is a statement by counsel for defendants that he 'would be willing to stipulate to the liability in this case provided the suit is amended instanta (sic) to limit the total of the suit to $10,000.00.' Whereupon the trial judge authorized the amendment. Immediately thereafter defendants' counsel raised the pending exception of prescription, there was discussion among counsel and the court as to which side had the burden of proof and who would call as witnesses the personnel of Allstate. When defendants' counsel prepared to call his first of these witnesses Mr. Labranche made the following statement:

'At this time to perhaps clarify, I don't think there is any dispute. I would like to move the Court to make an instanta amendment to the petition to the effect and to make it definitelv clear that we are changing our amendment and would be to the effect in additional paragraph stating that Allstate Insurance Company promised the attorney for the plaintiff that it would settle the case and for plaintiff's counsel not to file suit, acknowledging liability in the matter and in fact paid the subrogated auto damage to State Farm on August 26th 1971. That prescription has been interrupted and/or suspended.'

Defendants' objection to the amendment was then overruled and the case went to trial on a waiver by defendants of further delay notwithstanding the late amendment of the pleadings. Defendants' evidence consisted of the testimony of Mr. Frank Arrigo primarily and a number of other Allstate personnel.

From the foregoing we find no merit to plaintiffs' contention that defendants unconditionally stipulated liability and confessed judgment. At all times they clung to their exception. Considering their stipulation as to liability in the context of the pleadings and the record of what was said and done at trial, we have concluded that the stipulation was with reservation by defendants of their rights under the exception.

Nor is there any merit to plaintiffs' contention that defendants' appeal is inadequate on the question of prescription. While recognizing that defendants could not take an appeal from the first judgment which was not final, plaintiffs argue that since they appealed only from the final judgment as to quantum and since defendants did not independently appeal but only answered plaintiffs' appeal the scope of the appeal is limited to quantum. Plaintiffs' argument is disposed of by LSA-C.C.P. Art. 2133 which provides:

'The answer filed by the appellee shall be equivalent to an appeal on his part From any portion of the judgment rendered against him and of which he complains in his answer.'

In their answer defendants specifically complain about the judgment overruling their exception of prescription.

The foregoing arguments of plaintiffs were raised not only in their brief but also in a motion to dismiss the appeal of defendants . It follows that this motion is denied.

The trial court gave the following reasons for judgment on the exception of prescription:

'1) The burden of establishing prescription was on Allstate and they did not carry this burden. Plaintiffs' counsel testified that Allstate asked him to withhold filing suit and promised they would settle; none of Allstate's witnesses were actually able to deny this . In fact this Court was unimpressed with the witnesses for Allstate since none of them had any independent recollection of the facts. Several Allstate witnesses, while reading from their own records, were caught reading in words which in fact were not there. Their record did not support defendants' position.

'The letter from Allstate to plaintiffs' attorney in May, 1972 apologized for the misunderstanding. This Court finds that this confirms that plaintiffs' attorney had in good faith relied on Allstate's commitment, and Allstate knew this. It is also significant that Allstate's file was passed on to a new adjuster after the regular one year prescriptive period. This Court believes this would not have been handled in that manner if Allstate really believed prescription had run.

'Mr. Frank Arrigo, whom plaintiffs' counsel testified had admitted liability and asked him to withhold suit, was not able to deny that he in fact had made such a request and admissions.

'This Court was impressed by Mr. Labranche's testimony. He had clear, independent recollection of the facts and this Court is convinced he told the truth. Mr. Labranche was subjected to a detailed cross examination by defendant, and his testimony was definite and unimpeached. The same cannot be said of defendants' witnesses, and this Court was not convinced of their veracity. Defendants' record is also suspect.

'2) Prescription was in fact interrupted and/or suspended by the actions of Allstate. The Court finds and Allstate's own record substantiates that they admitted liability, set and increased their reserve, paid the auto damage under a subrogation claim, and continued to negotiate or attempt to settle the case with plaintiff counsel after the one year period. This court finds from the evidence that it was defendants' intent to interrupt or suspend the running of prescription. Defendants made an acknowledgment of their obligation and purposely persuaded plaintiffs' counsel to withhold suit.

'3) Allstate is estopped to plead prescription. This Court finds that Allstate convinced plaintiffs' counsel to withhold suit and having accomplished their end, they cannot now come into Court and defeat plaintiffs' claim. This Court finds that equitable estoppel is applicable under the facts, and that defendant is in bad faith.

'4) In Summation:

This Court finds that Allstate did intend to interrupt and/or suspend prescription, and that plaintiff, in good faith, relied on Allstate's representations; and therefore, defendant is estopped to plead prescription.'

At the outset, defendants insist that the trial judge erred in his statement that the burden of establishing prescription was on Allstate, and defendants contend that this error of law led to the erroneous result reached. We agree that the statement was erroneous since the law is clear that where the claim has prescribed under the allegations of the petition itself the burden is then on the plaintiff to show why the claim has not prescribed. But irrespective of this statement by the trial judge, we have the entire record before us in which both sides presented all of their evidence and we have evaluated that evidence with proper regard as to who had the burden of proof. Thus, the trial judge's statement constitutes harmless error under the circumstances.

There is no contradiction between Labranche and Arrigo to the effect that this claim was under active settlement negotiations from March, 1971, up until January, 1972. The trial judge accepted Mr. Labranche's testimony to the effect that he was under the impression that as of the last time he spoke to Arrigo in January it was not necessary for him to file suit, that the case would definitely be settled as soon as the medical reports were assembled, and that this impression remained even to the time when the suit was filed after it had prescribed on its face. The only serious contradiction between Labranche and Arrigo was to the effect that Labranche, on the one hand, said in January that Arrigo told him it was not necessary to file a suit and that the case would definitely be settled; whereas, Arrigo denied ever telling him such. We accept the credibility call by the trial judge in favor of Mr. Labranche, and proceed with the real issue in this case as to whether as a matter of law plaintiffs' suit has nevertheless prescribed.

Plaintiffs' argument is twofold: 1) That defendants are estopped by their words and actions from invoking ...