Wooden v. Hartford Ins. Co.
| Citation | 335 So.2d 742 |
| Decision Date | 07 July 1976 |
| Docket Number | No. 12946,12946 |
| Parties | James V. WOODEN, Plaintiff-Appellant, v. The HARTFORD INSURANCE COMPANY, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Kidd, Katz & Strickler by Stephen J. Katz, Monroe, for plaintiff-appellant.
Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, for defendant-appellee.
Before PRICE, HALL and JONES, JJ.
Plaintiff appeals from a judgment of the district court sustaining the defendant insurance company's peremptory exception of prescription of one year and dismissing plaintiff's suit for damages for personal injuries arising out of an automobile accident. We affirm the judgment of the district court.
Plaintiff, James V. Wooden, filed suit on March 19, 1975, against defendant, The Hartford Insurance Company, alleging he was injured in an automobile accident which occurred March 16, 1974, caused by the negligence of an employee of defendant's insured. Plaintiff alleged defendant paid to him $500 in partial settlement of his claim on or about January 27, 1975, but that defendant has not paid any sums for plaintiff's physical injuries, medical expenses or loss of earnings, for which plaintiff sought recovery of the sum of $50,315.
Defendant filed a peremptory exception of prescription pleading the prescription of one year provided in LSA-C.C. Art. 3536. 1 Upon trial of the exception, it was established that (1) the accident occurred March 16, 1974; (2) negotiations toward settlement were carried on between an adjuster for the insurance company and plaintiff's attorney (who was not the same attorney representing plaintiff on appeal, the latter attorney having enrolled as counsel after judgment was rendered in the district court); (3) a settlement of plaintiff's claim for damages to his automobile was reached and the defendant insurance company issued its draft for $500 on December 17, 1974, in full settlement of the property damage claim, which payment was accepted by plaintiff; (4) a settlement of plaintiff's personal injury claims could not be reached and the adjuster suggested to plaintiff's attorney that he go ahead and file suit; and (5) suit was filed March 19, 1975. It was stipulated that there was no claim of deception or fraud or anything other than completely fair dealing on the part of defendant and its adjuster at all times.
Plaintiff contended in the trial court and contends on appeal that the running of the one-year prescriptive period provided by LSA-C.C. Art. 3536 was interrupted by the payment made for property damage. Plaintiff contends the payment amounted to a partial payment of the debt owed him and an acknowledgment of his right to recover damages, within the meaning of LSA-C.C. Art. 3520, which provides:
'Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.'
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. Tassin v. Allstate Insurance Company, 310 So.2d 680 (La.App.4th Cir. 1975) writ refused 313 So.2d 836.
An acknowledgment sufficient to interrupt prescription must be a clear, concise and express recognition of the right which the creditor claims. Article 3520 has reference to those situations where there is an acknowledgment of a liquidated amount such as a note or account, not where the amount is to be negotiated. Tassin, supra. See also 14 Tul.L.Rev. 430 (1940). The acknowledgment must be of a specific debt, and must be couched in clear and certain terms. A debtor cannot acknowledge a debt so as to stop the running of prescription against him without knowing what amount he is acknowleding. Kennard v. Yazoo and M.V.R. Co., 190 So. 188 (La.App.1st Cir. 1939).
Recognition of the existence of a disputed claim is not such an...
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