“Prescription” is the time period in which a litigant must file suit, or the action is barred. One of the first lessons a Louisiana law student learns is the importance of determining the prescriptive period of a cause of action. Filing a cause of action too late is fatal. A recent decision from the Louisiana Fifth Circuit Court of Appeal reads like a law school exam and illustrates that determining which prescriptive period applies is sometimes the key to the case.
In DeFelice v. Federated Nat’l Ins. Co., 18-374 (La. App. 5 Cir. 7/9/19), mold was discovered in plaintiff’s home on June 10, 2016. Plaintiffs notified their insurance company, who hired a mold remediation company to inspect the home. When the home was inspected on June 22, 2016, the inspector verbally informed plaintiffs that the home was safe. On the same day, a separate mold inspector collected samples. The second mold inspector issued a report on June 23, 2016 advising that mold remediation may be necessary. This report specifically stated that “certain mold and mold spores in buildings and housing can result in mild to severe health effects in humans and can deteriorate the structure of the dwelling resulting in content or structure damage.” The second report was provided to the plaintiffs.
Plaintiffs continued to live in the home. In August of 2016, plaintiffs’ infant son was born. Shortly thereafter, the infant began to experience breathing issues and was diagnosed with a lung condition by December of 2016. Plaintiffs vacated the premises in January of 2017.
More than one year after receipt of the second mold report, plaintiffs filed suit on July 24, 2017 against their insurer and the inspector who advised that the home had no mold problems. Plaintiffs raised claims for property damage, damage to the health of the parents, damage to the health of the minor child, and consortium claims on behalf of the parents for the damage to the minor child.
The DeFelice court found that prescription began to run on June 23, 2016 with regard to the parents’ individual and property damage claims. Because suit was not filed within a year of the second mold report advising of possible health and property damages, the parents’ individual health claims and the claims for property damage were prescribed under the one-year period set by Civil Code article 3492.
The minor child was not born when the report was issued on June 23, 2016. Plaintiffs argued that those claims were brought within a year of the child’s birth, and were therefore timely. The DeFelice court agreed and held that prescription could not began to run until the child was born. While Louisiana law provides that a child is a “person” upon conception, this “legal fiction” applies only to protect the interests of the child. The court reasoned that a finding that prescription commenced prior to birth would not “protect the interests” of the child. While the parent’s claims were prescribed, the claim filed on behalf of the infant, and any claims that the parents had related to their infant’s health condition, were timely.
The court’s analysis in DeFelice reminds that determining which prescriptive period applies to which claim is often the most important issue.