Judicial Interest Rate for Louisiana Hits a 17-Year High

In 2021, the Louisiana Legislature amended La. R.S. 9:2800.9 to provide that a legal action against a person for sexual abuse of a minor, if barred by liberative prescription prior to the effective date of the amendment, is revived for a three-year period after the effective date of the amendment. In 2022, La. R.S. 9:2800.9 was amended again to specifically state the Legislature’s intent to revive any cause of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.

On March 22, 2024, the Louisiana Supreme Court issued its decision in Douglas Bienvenu, et al. v. Defendant 1 and Defendant 2, and found the statute was unconstitutional because it conflicted with due process protections set forth in the Louisiana Constitution. Specifically, the Court found that a defendant has a vested property right in accrued prescription and that revival of a prescribed cause of action violated due process.

However, the Louisiana Supreme Court granted the plaintiffs’ request for rehearing, and on June 12, 2024, the Court vacated its prior ruling and found that the amendments to La. R.S. 9:2800.9 were constitutional.

On rehearing, the court agreed that a defendant has a vested property right in accrued prescription but found another step in constitutional analysis was required— examination of whether the legislature’s revival of prescribed causes of action for sexual abuse of minors “comports with substantive due process.” The Court noted, “The essence of substantive due process is protection from arbitrary and capricious action.”

In Bienvenu, the defendants’ right to plead prescription was an economic interest that did not implicate fundamental rights. The statute at issue was social welfare legislation, enacted to address societal costs of child sexual abuse. Therefore, the Court found the applicable due process test was whether the legislation was reasonable in relation to the goal to be attained and was adopted in the interest of the community as a whole. The statute needed only to have a rational relationship to a legitimate governmental interest to survive due process scrutiny.

The Court found the amendments to La. R.S. 9:2800.9 passed this test because (1) the provision assists in identifying hidden child predators so children will not be abused in the future; (2) shifts the costs of the abuse from the victims and society to those who actually caused it; and (3) educates the public about the prevalence and harm from child sexual abuse to prevent future abuse. These interests were found legitimate and compelling. Thus, the statute was constitutional and could be applied retroactively “to revive, for the period stated, all causes of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.”

References:

Bienvenu v. Defendant 1, 2023-01194 (La. 3/22/24), 382 So. 3d 38, reh'g granted, 2023-01194 (La. 5/10/24), and opinion vacated on reh'g, 2023-01194 (La. 6/12/24).

Bienvenu v. Defendant 1, 2023-01194 (La. 6/12/24).

Picture it – you purchase a new home in a quiet, family-friendly neighborhood. On your first night, you notice that the neighbors are having a party – a big loud party. Your haven of peace and tranquility is interrupted by thumping bass and the shrieks of people jumping into a pool. The next day, the neighbors are gone, and the block is quiet again. However, the party returns the next weekend, bigger and louder than before. You do some research and find the house is listed on a popular website for short term rentals. What do you do?

This is the exact question that was posed to the Louisiana Court of Appeals for the Second Circuit in Marina Homeowners Association, Inc. v. Cahill. In that case, the Marina Homeowner’s Association filed a petition seeking declaratory judgment against the owner of the house on the basis that the use of the home as a short-term rental violated the covenants of the homeowner’s association. In response, the property owners argued that the covenants had expired and were no longer applicable. Therefore, they claimed they were free to use their property as they saw fit.

Many homeowners in Louisiana are familiar with building restrictions. Authority for the issuance of building restrictions is found in Louisiana Civil Code article 775. A building restriction is a real right under Louisiana Civil Code article 777. However, Louisiana Civil Code article 778 provides that if there is doubt as to the existence, validity, or extent of building restrictions, the issue should be resolved in favor of the unrestricted use of the immovable. These articles also provide a subsequent purchaser of the immovable property is also bound by the building restrictions if they are recorded in the public records.

The building restrictions for the subdivision at issue provided that the restrictions had a term of twenty years and then would renew automatically in ten-year periods. These restrictions bound the original property owners and all subsequent property owners. The court found that even though the original twenty-year term for the building restrictions had expired, the restrictions would automatically renew unless amended by the Association. Therefore, the property owner’s house was subject to the building restrictions.

Importantly for this case, the building restrictions specifically prohibited the use of the property for any reasons other than residential purposes. Therefore, the operation of a short-term rental was a violation of the building restrictions.

The Homeowners Association prevailed in this case – the property owners were no longer able to use their property for short term rentals. As the moral of the story – to be a good neighbor – it helps to follow the rules. And it is always important to check the fine print to know what those rules are!

References:

Marina Homeowners Ass'n, Inc. v. Cahill, 56,423 (La. App. 2 Cir. 8/27/25), 420 So. 3d 782.

The Louisiana Fourth Circuit Court of Appeal recently considered a medical malpractice case with an unusual set of facts. Rather than the standard medical malpractice case, where a patient argues that he was misdiagnosed and/or claims that the doctor made a mistake when administering medical treatment, in Dufreche v. Jeffery Wayne Coco, MD and Internal Medicine Specialists, Inc., 2020-CA-0030 (La. App. 4^th Cir.), the patient alleged that his doctor committed malpractice by failing to communicate test results.

In Dufreche, the patient showed signs of an HIV infection. He was tested twice before being treated by the infectious disease specialist. Both tests were negative. During his examination, the infectious disease doctor thought it was unlikely that the patient had HIV, but tested him anyway at the patient’s insistence. According to the patient, he was notified by the doctor that he would be provided the results upon receipt.

Unfortunately, the test results showed that the patient was HIV positive; however, he was not contacted. Fifteen months passed, during which the patient was unaware that he was HIV positive. Because he was not contacted, he assumed he was negative. When testing by another physician showed he was positive, the patient/plaintiff filed suit to recover damages allegedly suffered through a delay in treatment and psychological shock, including a claim for “emotional distress.”

To recover, the patient was required to establish: 1) the standard of care; 2) breach of that standard of care; and 3) that the breach caused his emotional distress. At trial, the doctor testified that he required his patients to follow up in person to receive test results, and expected the patients to contact his office to schedule an appointment. The court found that expecting a patient to follow up in person to receive sensitive test results was not a breach of the standard of care. However, the evidence established that the patient was not instructed that he must schedule an in-person appointment to obtain his test results.

The Dufreche court agreed with the lower court in finding that a failure to notify the patient of the doctor’s policy was a breach of the standard of care. Further, the court found that the infectious disease specialist, who admitted to a duty to the public to protect them from HIV, had also breached his duty for failing to notify an HIV positive patient of his diagnosis for over fifteen months. The doctor’s failure to communicate the results caused the patient’s emotional distress – resulting in an award of $45,000 in damages.

Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense. When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.