Rafael & Dioigna Acevedo VS Louisiana Farm Bureau Mutual Insurnace Company

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NOT DESIGNATED FUR PUBLICATION STATE 4F L UISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 2176 r RAFAEL AND DIOIGNA ACEVEDO VERSUS LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY Y DATE OF JUDG MENT J 2 2012 ON APPEAL FROM TI TWENTY JUDICIAL DISTRICT COURT ND SEC NUMBER 2008 DIV B PARISH OF ST TAMMANY 16821 STATE OF LOUISIANA HONORABLE AUGUST J HAND JUDGE V Al J Robert Jr New prleans Louisiana Counsel for Plaintiffs Appellants Rafael and Dioigna Acevedo Andrew L Pauche Jr Counsel for Defendant Appellee James K Ordeneaux Louisiana Farm Bureau Mutual Scott H Mason Insurance Company New rleans Louisiana BEFORE WHIPPLE KUI AND GUIDRY JJ V Disposition AFFIRMED A KUHN J appellants Plaintiffs Rafael and Dioigna Acevedo appeal the trial court s judgment which sustains a peremptory exception raising the objection of prescription filed by defendant Louisiana Farm Bureau Mutual Insurance appellee Company Farm Bureau and dismisses their claims We affirm On January S 2009 homeowner insurer the Farm Bureau Acevedos filed this lawsuit against ir th According to the allegations of their petition on August 29 2005 as a result of the wind and wind rains of Hurricane driven Katrina the Acevedos home located in Slidell Louisiana sustained roof damage and interior damage including the contents The Acevedos averred that the damage rendered their home uninhabitable for an extended period of time and r caused a total loss Farm Bureau made a a P artial PY ment declining to PY the a Acevedos full payment for damage to structure other structures contents debris removal and loss of use living expenses Claiming Farm Bureau failed additional to tender a tim and sufficient payment under the insurance contract they sought ly the difference between the partial payment and the policy limits as well as penalties and attorney fees s Farm Bureau answered the lawsuit generally denying the Acevedos claims and asserting several affirmative defenses Subsequently Farm Bureau filed a r peremptory exception objecting to the petition on the basis of prescription noting that by special legislation all claims under insurance policies for damages caused by Hurricane Katrina 1 were barred if not filed See Act 8p2 of the 200C Louisiana Regular Session 2 by August 30 2007 Since the I Acevedos filed their lawsuit well after the August 30 2Q07 deadline Farm Bureau maintained it was untimely and therefore should be dismissed After a hearing the trial court concluded that the Acevedos claims were prescribed and dismissed their petition From a judgment in conformity with this ruling the Acevedos have devolutively appealed The Acevedos maintain that because they are putative class members in two actions where the court has not yet ruled upon the propriety of class certification they are entitled to suspension of prescription under the provisions of La C P art 596 The filing of an individual lawsuit is an effective opt out of a class action and prevents a plaintiff from taking advantage of suspension ofprescription under La C P art forum it is or even filed 596 It does not matter when the lawsuit is filed in which if it is correctly filed Wilkienson v Louisiana Farm Bureau Mut Ins Co 2011 p 6 App 1 st Cir 3 1421 La 2312 2012 WL Z See Wilkienson v Louisiana Farm Bu Mut Ins Co 2011 p 3 n La App lst eau 1421 3 Cir 3 2012 WL 996539 unpublished opinion 12 23 3 Y At the time the Acevedos filed their lawsuit La C art 596 provided P Liberative prescription on the claims arising out of the transactions or occw7rences described in a petition brought on behalf of a class is suspended on the filing of the petition as ta all members of the class as defined or described therein Frescription which has been suspended as provided herein begins to run again 1 As to any person electing to be excluded from the class from the subrnission ofthat person selection form 2 As to any person excluded from the class pursuant ta 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 ta exclude him or 3 As to all members thirty days after mailing or other d or livery publication of a notice to the class that the action has been dismissed that the demand for class reliefhas been stricken pursuant ta Article 592 or that the court has denied a motion to certify the class or has vacated a previous order certifying the class 3 996539 unpublished opinion Lory v Louisiana Farm Bureau Mut Ins Co 1621 2011 p 3 App lst Cir 3 2012 WL 99653b unpublished La 12 23 opinion accord Duckworth v Louisiana Farm Bureau Mut Ins Co 2011 0837 La App 4th Cir 11 78 So 835 writ ranted 2011 La 23 3d 35 2 12 30 3 3d So and Diacey v Allstate Ins Co E La 201 l2011 WL D 4403988 relying on Katz v ACCstate Ins Co 2004 La App 4th Cir 1133 OS 2 91 So 443 447 and Lester v Exxon Mobil Corp 2Q09 La 2d 1105 App Sth Cir 6 42 So 1071 1074 writ denied 2010 La 10 29 3d 76 2244 10 17 l2 51 So 14 but see In re WorldCom Securities Litigation 496 F 3d 3d 56 245 254 2d Cir 20Q7 Because the Acevedos filed this lawsuit before the class certification in either of the two actions for which they are putative class members they effectively opted out of the class actions and are therefore unable to rely on the suspension provisions of La C P art 596 Thus having filed their suit over sixteen months after the August 30 2007 deadline their claims against Farm Bureau are prescribed And since an amendment of their pleadings to allege that they are putative class members cannot remove the grounds of the objection of prescription the trial court correctly denied that relief See La C P I art 934 when the g r nds ou ection of the ob dismissed 4 cannot be removed the claim shall be DECREE Based on the law of this circuit we find no error in the trial court s v judgment which sustains Farm Bureau exception of prescription and dismisses s the lawsuit Appeal costs are assessed against plaintiffs Rafael and appellants Dioigna Acevedo AFFIRMED 5

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