Tag: prescription

Louisiana Supreme Court Holds that Prescriptive Periods for Child Abuse Claims Cannot be Revived

The Louisiana Supreme Court recently found a statute enacted to revive child sex abuse claims for a limited period of three years was unconstitutional. The court addressed this issue in Douglas Bienvenu, et al. v. Defendant 1 and Defendant 2, and found the statute conflicted with the due process protections set forth in Article I, Section 2 of the Louisiana Constitution.

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.

In Bienvenu, the defendants filed an exception of prescription and argued the plaintiffs’ claims, which arose from alleged acts that occurred between 1971 and 1979, were subject to the general one-year liberative prescriptive period for delictual actions. After the 2021 amendment went into effect, the defendants filed a supplemental exception of prescription and argued (1) La. R.S. 9:2800.9, as amended, was not applicable, and (2) the amendment to the statute was unconstitutional. 

The trial court overruled the defendants’ exception, finding that the Legislature clearly expressed an intent to apply the statute retroactively and revive prescribed claims, narrowly tailoring the relief to child abuse cases. The appellate court denied defendants’ writ application, with one judge dissenting.

However, in a 4-3 decision, the Louisiana Supreme Court held that a defendant has a vested property right in accrued prescription. Therefore, it found a law that revives a prescribed cause of action violates due process. The Court further held that the Legislature lacked the authority to revive the prescribed claims “set forth under the facts alleged in this case,” finding the amendments to the statute unconstitutional.  As a result, the Court reversed the judgment of the trial court to the extent that it found the amendments to La. R.S. 9:2800.9 revived the claims upon which prescription had already accrued.

References:

Douglas Bienvenu, et al. v. Defendant 1 and Defendant 2, Case No. 2023-CC-01194 (La. 3/22/24) 

Bad Faith Action Brought Against an Insurer Less than Ten Years after the Date of Loss Dismissed As Prescribed

The Louisiana Supreme Court recently ruled a plaintiff’s bad faith insurance claim was prescribed where the policy at issue required actions to be brought within two years after the date of loss.

In Phyllis Wilson v. Louisiana Citizens Property Insurance Corporation, the plaintiff asserted a bad faith claim against an insurer. The applicable policy of insurance provided “[n]o action can be brought unless the policy provisions have been complied with and the action is started within two years after the date of loss.” The plaintiff alleged that the insurer failed to timely tender payments for losses that occurred on August 27, 2020 and October 20, 2020. However, the plaintiff did not file her suit unit January 9, 2023.

Prior to the Wilson decision, courts frequently relied on the Louisiana Supreme Court’s decision in Smith v. Citadel Ins. Co., which held that actions against insurers under Louisiana’s bad faith statutes are subject to a ten-year prescriptive period. In Smith, the Supreme Court addressed the issue of whether a bad faith action against an insurer was a delictual or tort action subject to a one-year prescriptive period, or a contractual action, which is subject to a ten-year prescriptive period under Louisiana law. The Smith court concluded that the duty of good faith owed by the insurer to the insured “emanates from the contract between the parties” such that the “insured’s cause of action is personal and subject to a ten-year prescriptive period.”

In Wilson, the Louisiana Supreme Court examined whether Smith required the Court to uphold a ten-year prescriptive period for bad faith actions even though the insurance policy at issue prohibited actions brought more than two years after the date of loss. The Wilson court ultimately concluded that an action against an insurer brought more than two years after the date of loss is prescribed where the applicable insurance policy set a term of two years for filing a claim against the insurer.

To reach this conclusion, the Wilson court cited Taranto v. Louisiana citizens Prop. Ins. Corp., which held “in the absence a statutory prohibition, a clause in an insurance policy fixing a reasonable time to institute suit is valid.” The Wilson court then turned to the applicable statute and noted that La. R.S. 22:868(B) “expressly provides that no policy ‘shall contain any condition, stipulation, or agreement limiting right of action against the insurer to a period of less than twenty-four months next after the inception of the loss when the claim is a first-party claim…’” The Wilson court noted the two-year limitation in the applicable policy was consistent with La. R.S. 22:868(B).

The court’s ruling supports the argument that policy provisions requiring actions to be filed within two years of the date of loss are enforceable. However, the Court did not disturb its holding in Smith, noting the Smith case was factually distinguishable because it did not involve a policy that contained a contractual limitation on the insured’s institution of suits. 

References:

Phyllis Wilson v. Louisiana Citizens Property Insurance Corporation, No. 2023-CC-01320 (La. 1/10/2024) (per curiam), 2024 WL 108714.

Smith v. Citadel Ins. Co., 2019-00052 (La. 10/22/19), 285 So.3d 1062.

Taranto v. Louisiana citizens Prop. Ins. Corp., 2010-0105 (La. 3/15/11), 62 So.3d 721, 728.