Corey Cooper VS Louisiana Citizens Property Insurance Company (2012CA0108R)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAI FIRST CIRCUIT 2 201 CA 0108 COREY COOPER ET AL VERSUS LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY Judgment Rendered SEP 2 1 2012 APPEALED FROM TIDE TWENTYSECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST T AMMANY STATE OF LOUISIANA DOCKET NUMBER 2010 15824 THE HONORABI MARTIN E COADY JUDGE E Joseph M Bruno Attorneys for PlaintiffAppellant Melissa A DeBarbieris Corey Cooper Christopher M Hatcher New Orleans Louisiana Charles M Hughes Jr Attorneys for Defendant Appellee Rachael P Catalanotto Louisiana Citizens Property Insurance Ryan G Davis Mandeville Louisiana Corporation and John W Waters Jr Kristin Mosely Jones New Orleans Louisiana BEFORE KUILN PETTIGREW AND McDONALD JJ Ike EI c s QC4 4 Afc c4 0 c s cis Q WDONALD J On September 17 2010 Ms Corey Cooper filed suit for damages against Louisiana Citizens Property Insurance Company Citizens for a Hurricane Katrina claim Ms Cooper asserted that she owned immovable property with improvements and personal property located in St Tarnmany that she had purchased homeowner sinsurance policies from Citizens and that after Hurricane Katrina she presented her claims for damage in a timely fashion but that Citizens failed to pay the amount due under her policy and violated its duties of good faith and fair dealing Ms Cooper asserted that Citizens was a defendant in eight putative class actions and as a result of those filings prescription had been interrupted as to Citizens Ms Cooper noted further that as no notice had been published pursuant to La C art 596 regarding rulings on the issue of class P certification prescription had been suspended on her claims Citizens filed an answer to the petition and a peremptory exception raising the objection of prescription asserting that Ms Cooper claims were prescribed s After a hearing the district court ruled in favor of Citizens granting the prescription exception and dismissing Ms Cooper claims with prejudice s The district court found that Ms Cooper petition was prescribed on its face that she s failed to prove she was a member of any of the class actions that she could not show that prescription was suspended because of her membership in a class action found that she opted out of pending class actions by filing an individual lawsuit before class certification was determined Ms Cooper has appealed the judgment and on appeal makes three assignments of error 1 Whether the trial court erred as a matter of law in finding that Defendant had met its burden of proof on the issue ofprescription as the face of Plaintiff petition did not show the claim was s prescribed but instead alleged various class actions that served to toll prescription with regard to Plaintiff s claims 2 2 Whether the trial court erred as a matter of law in granting s Defendant Exception of Prescription dismissing with prejudice s Plaintiff Hurricane Katrina claim although Plaintiff suit was not s prescribed as she had established that she was a putative class member of one or more timely filed class actions which served to suspend prescription pursuant to La C art 596 P 3 Whether the trial court erred as a matter of law in finding that filing of an individual suit results in the forfeiture of the suspension of prescription afforded by the filing of a class action pursuant to La C art 596 and that Plaintiff tiling of the P s instant suit served to opt out ofthe class actions ofwhich she is a member THE STANDARD OF REVIEW In reviewing a peremptory exception raising the objection of prescription the standard of review requires an appellate court to determine whether the trial s court finding of fact was manifestly erroneous Jurisprudence provides that statutes involving prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished On the issue of prescription the mover bears the burden of proving prescription However if the petition is prescribed on its face then the burden of proof shifts to the plaintiff to negate the presumption by establishing a suspension or interruption Taranto v Louisiana Citizens Property Ins Corp 20100105 La 3 62 So 721 726 11 15 3d ANALYSIS Ms Cooper asserts that the district court erred by finding that Citizens met its burden of proof on the issue of prescription as her petition listed several class actions of which she was a member which served to suspend prescription with regard to her claims therefore the face of the petition did not show that her claim had prescribed erred by granting the exception of prescription as she had established that she was a putative class member of one or more timely filed class actions which served to suspend prescription pursuant to La C art 596 and P 3 erred by finding that her filing of the instant suit served to opt out of the class actions of which she was a member Act 802 of the 2006 Regular Session of the Louisiana Legislature allowed the filing of Hurricane Katrinarelated claims for damages on or before August 30 2007 effectively extending the regular prescriptive period to file such claims Ms spetition was filed more than three years after the legislative prescriptive Cooper period of Act 802 had run Thus the burden shifted to Ms Cooper to negate the presumption of prescription by establishing a suspension or interruption Louisiana Code of Civil Procedure article 596 provides in part A Laiberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein Prescription which has been suspended as provided herein begins to run again 1 As to any person electing to be excluded from the class thirty days from the submission of that person election form s 2 As to any person excluded from the class pursuant to Article 592 thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him or 3 As to all members thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed that the demand for class relief has been stricken pursuant to Article 592 or that the court has denied a motion to certify the class or has vacated a previous order certifying the class Although Ms Cooper claimed to be a putative member of eight different class actions she presented no evidence of the class actions or her class membership Louisiana Code of Civil Procedure article 596A provides that the class action petition determines what claims are suspended Ms Cooper failed to introduce any class action petition to show that her claims fell within the defined membership class Further Ms Cooper asserted in her petition that no notice had been published pursuant to La C art 596 regarding rulings on the issue of class P 11 certification thus prescription was suspended and had not begun to run again Ms Cooper relies upon Taranto 2010 0105 La 3 62 So 721 to show that 11 5 1 3d Article 596 suspends prescription for parties fitting the definition of a putative class member However the difference between this case and Taranto is that the plaintiffs in Taranto never filed petitions of their own until after the trial court ruled on their motions to certify the class actions whereas the appellant in this case did That action by Ms Cooper takes this case out of the realm of Taranto s analysis See Wilkienson v Louisiana Farm Bureau Mutual Ins Co 2011 1421 La App 1 Cir 3unpublished 12 23 This court in Wilkienson followed the jurisprudence in Lester v Exxon Mobil Corp 2009 1105 La App 5 Cir 6 42 So 1071 writ denied 10 29 3d 2010 2244 La 12 17 51 So 14 and Katz v Allstate Ins Co 2004 11 10 3d 33 La App 4 Cir 2 917 So 443 writ denied 2005 0526 La 4 901 05 2d 05 29 2d So 1069 to find that the filing of an individual lawsuit is an effective opt out of a class action and prevents the plaintiff from taking advantage of Article 596 s suspension of prescription For these reasons we cannot say that the district court was manifestly erroneous in finding that Ms Cooper case was prescribed and dismissing her s suit Thus the district court judgment granting a peremptory exception raising the objection of prescription in favor of Louisiana Citizens Property Insurance Company and against Ms Cooper and dismissing Ms Cooper clairns with s prejudice is affirmed Ms Cooper is cast with costs AFFIRMED 5 COREY COOPER NUMBER 2012 CA 0108 VERSUS COURT OF APPEAL LOUISIANA CITIZENS PROPERTY FIRST CIRCUIT INSURANCE COMPANY STATE OF LOUISIANA n BEFORE KUHN PETTIGREW AND McDONALD I PETTIGREW I CONCURS WITH THE RESULT AND ASSIGNS REASONS I note after a review of the pleadings in this matter the appellant did not allege in her petition that she was a putative member of the eight enumerated class actions referred to in her petition Because of this I agree with the trial court that the s appellant petition was prescribed on its face and it was her burden at the hearing on the prescription exception to negate the presumption by establishing a suspension of prescription Taranto v Louisiana Citizens Property Ins Corp 2010 0105 La 11 15 3 62 So 721 726 The appellant failed to carry this burden Therefore I 3d concur with the results reached by the majority COREY COOPER ET AL FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY NO 2012 CA 0108 KUHN J concurring I have serious reservations about the propriety of this court holdings in s Wilkienson v Louisiana Farm Bureau Mut Ins Co 2011 1421 La App 1 st Cir 3unpublished opinion as well as Acevedo v Louisiana Farm Bureau 12 23 Mut Ins Co 2011 2176 La App 1st Cir 7 and believe the issues raised in 12 2 other cases like the one presently before us should be examined by the Louisiana Supreme court to reconcile the jurisprudence and the provisions of La C art P 596 See Duckworth v Louisiana Farm Bureau Mut Ins Co 2011 0837 La App 4th Cir 11 78 So 835 writ granted 2011 2835 La 3 23 3d 12 30 3d So But in conformity with the law of this circuit I agree with the result reached by the majority Accordingly I concur 1
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