Williams v. American Family Mut. Ins. Co.

• Decision Date: 09 December 1987
• Docket Number: No. 86-1100,86-1100
• Citation: 520 So.2d 1082
• Parties: Edgar M. WILLIAMS, Plaintiff-Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1082

520 So.2d 1082

Edgar M. WILLIAMS, Plaintiff-Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.

No. 86-1100.

Court of Appeal of Louisiana, Third Circuit.

Dec. 9, 1987.

Gold, Simon, Weems, Bruser, Sharp, Sues & Rundell, Henry B. Bruser, Alexandria, for plaintiff-appellant.

Stafford, Stewart & Potter, James D. Kirk, Alexandria, for defendants-appellees.

Before DOMENGEAUX, GUIDRY and LABORDE, JJ.

GUIDRY, Judge.

Edgar M. Williams, individually and on behalf of his minor son, Kurt E. Williams, filed this suit for damages allegedly resulting from an automobile accident which occurred on July 20, 1983. The automobile occupied by Kurt was struck from the rear by an automobile driven by Elliot M. Schroll. Two years following the accident, on July 19, 1985, petitioner filed suit against Schroll, his insurers, American Family Mutual Insurance Company and American Standard Insurance Company of Wisconsin (hereafter American) and Reliance Insurance Company (hereafter Reliance), plaintiff's uninsured motorist carrier. ¹ Schroll and his insurer filed an exception of prescription and in their answer alleged contributory negligence on the part of Kurt. Reliance filed answer in the nature of a general denial. The exception of prescription was referred to the merits. The case was tried to a jury which sustained the exception. Specifically, the jury determined that Schroll and American had not acknowledged the debt owed to plaintiff such as to interrupt the course of prescription. Judgment was rendered pursuant to the jury verdict and plaintiff appealed.

FACTS

On July 20, 1983, Kurt E. Williams was driving his father's 1982 Toyota pick-up truck south on U.S. Highway 71 in Rapides Parish, Louisiana. While stopped in a line of traffic on Highway 71, plaintiff's pick-up truck was struck from the rear by a 1968 Ford Thunderbird driven by Elliot M. Schroll. Kurt allegedly suffered a soft-tissue neck injury as a result of the accident.

On September 12, 1983, Ms. Nancy Engdahl, a claims representative for American, wrote to Edgar Williams and enclosed a draft payable to his order in satisfaction of the property damage claim to his Toyota pickup truck. In the September 12th correspondence, Ms. Engdahl also enclosed a draft in the amount of $50.00 and a release to be signed on behalf of Kurt. Mr. Williams subsequently returned the draft and release for Kurt's injury but cashed the draft which was sent to satisfy the damage to his truck. Thereafter, Ms. Engdahl contacted Mrs. Williams, Kurt's mother, every 30 to 60 days by telephone inquiring about the possibility of settling for Kurt's personal injury. Mrs. Williams indicated that she would settle only when Kurt was released from the doctor and was symptom-free. On each occasion, Ms. Engdahl informed Mrs. Williams that she would contact her again within 30 to 60 days to check on Kurt's progress. These negotiations between Ms. Engdahl and Mrs. Williams continued for almost two years postaccident, with contacts being made during the remainder of 1983; in the months of August, September and October of 1984; and, in January, March, April, May, June and July of 1985. Although Ms. Engdahl made numerous offers of settlement she never categorically admitted that American or Schroll were indebted to plaintiffs. During this period, more than one year postaccident, American sent a receipt, release and check which were never negotiated. Subsequent to the tendering of the last receipt, release and check, the plaintiffs filed suit.

The principal issue on appeal is whether the jury clearly erred in sustaining the exception of prescription filed by the defendants, Schroll and American.

Generally, tort actions prescribe one year from the day injury or damage is sustained. La.C.C. art. 3492. However, prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. CC. art. 3464. Liberative prescription is interrupted when the debtor acknowledges the right of the creditor. Acknowledgment of such a right may be formal or informal, express or tacit. See Comments, La.C.C. art. 3464; Flowers v. United States Fidelity and Guaranty Company, 381 So.2d 378 (La.1979). Interruption of prescription for an unliquidated claim for damages can be accomplished by a tacit acknowledgement by the debtor. Flowers, supra; Richardson v. Louisiana Farm Bureau, Etc., 393 So.2d 200 (La.App. 1st Cir.1980), writ denied, 398 So.2d 529 (La.1981). Once a plaintiff's petition shows on its face that the prescriptive period has run, the burden of proof is on the plaintiff to show an interruption or suspension of prescription. Simmons v. Bartleet Chemical, Inc., 420 So.2d 1273 (La.App. 3rd Cir.1982).

As our Supreme Court in Flowers v. United States Fidelity and Guaranty Company, supra, at 382, states:

"... acknowledgement 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 that it may be implicit or it may be inferred from the facts and circumstances."

In our view, the record amply supports a finding that American tacitly acknowledged the debt owed to the plaintiffs thereby interrupting prescription and the trial court erred in holding to the contrary.

Ms. Nancy Engdahl testified that she realized early on that American's insured, Elliot Schroll, was 100% at fault in the accident. She also testified that it was company policy to seek out and settle claims when the company considered their insured to be 100% at fault. Additionally, after contacting the Williams family promptly to settle the property damage claim, Ms. Engdahl remained in continuous contact with Mrs. Williams for nearly two years. On each contact Ms. Engdahl inquired concerning the amount required to obtain a release for Kurt's injuries and, upon being informed that Kurt was not yet symptom free, indicated that she would contact the Williams again in 30 or 60 days. Mrs. Williams testified that she told Ms. Engdahl she would not settle or sign a release until her son was released from the doctor or was symptom-free. She also testified that she understood Ms. Engdahl's repeated contacts to mean they would indeed be paid once they notified Engdahl of Kurt's cure or release from the doctor....