Prescription: Survival Actions, Interruptions and Statutory Interpretations

The word prescription normally conjures up images of medicine and the slips of paper sometimes given to patients as they leave the doctor’s office. One thing people may be unaware of is that prescription carries an additional legal meaning in the state of Louisiana. In the legal field, prescription refers to the amount time within which a person may file a lawsuit. The beginning of this time period usually begins when the event associated with the claim occurred. In many states this limit is referred to as the ‘statute of limitations,’ but here in Louisiana that rule is called ‘prescription.’ One of the more confusing areas of prescription deals with whether or not the time limitation can be interrupted or extended.

La. C.C. art. 3462 sheds some light on this, and provides that “prescription is interrupted when . . . the obligee commences action against the obligor, in a court of competent jurisdiction.” This means that if someone brings a claim against a party, then the prescription period of any subsequent action against that same party is considered to have been interrupted. Further, La. C.C. art. 3463 provides that “[a]n interruption of prescription…continues as long as the (first) suit is pending.” This means that the interruption will continue until the prior suit is resolved. This seems clear enough, but another part of the Louisiana statute comes into play and places constraints on when an action is considered to have been interrupted. La. C.C. art. 3463 provides that “interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.”

Read altogether the Louisiana statutes seem to be saying that the filing of a lawsuit against a defendant will interrupt the prescription period of any subsequent actions against the same defendant, unless the first suit is voluntarily dismissed. If the first suit is voluntarily dismissed, then the second action’s prescription period will be considered to have never been interrupted, and will therefore prescribe within the normal allotted prescription period.

An area of law where this plays an important role is in survival actions. In the state of Louisiana survival actions prescribe one year from the death of the deceased. La. C.C.art. 2315.1. This means that any survival action must be brought within a year from the death of the deceased, unless the survival action’s prescription period is interrupted. This would occur if a prior suit was filed and is still pending against the same party that the survival action is being brought against. In that instance the prescription of the survival action will be considered to have been interrupted, and the time period within which the survival action can be filed will be extended.

All of this seems straightforward, but when put into practice, the answers can be complicated, as illustrated in the recent case of Sims v. the American Insurance Company decided in October, 2012. On August 22, 2008 the plaintiffs, John and Jo Sims filed an intentional tort and negligence suit in state court (Sims I) against Dow Chemicals and other defendants as a result of John Sim’s brain cancer. The case was removed to federal court, but on October 1, 2008 John passed away. Subsequently, on October 2, 2009 the plaintiffs filed suit in state court for wrongful death and survival actions (Sims II), over a year after Jo Sim’s death. While Sims I was pending in federal court, the plaintiffs filed a “Stipulation and Notice of Dismissal with Prejudice,” of Sims I which was signed by the defendants. Afterwards, since Sims II was filed after the one year prescription period for survival actions, the defendants attempted to dismiss Sims II. The Sims protested arguing that (1) at the time Sims II was filed, Sims I was still pending, and (2) a dismissal with prejudice under F.R.C.P. 41 does not constitute a voluntary dismissal under La. C.C. art. 3463.

In the court’s analysis, having found that the Stipulation constituted a voluntary dismissal, the major focus was on whether or not it mattered when Sims I was dismissed. The plaintiffs argued that in order for the La. C.C. art. 3463 language of “interruption is considered never to have occurred” to apply, the voluntary dismissal must occur before the second suit (Sims II in this instance) is filed. The plaintiffs believed that since Sims I was voluntary dismissed after the filing of Sims II La. C.C. art. 3463 did not apply, and therefore, that the prescription period was interrupted. The defendants argued that La. C.C. art. 3463 applied regardless of when of Sims II was filed, before or after Sims I’s voluntary dismissal. The court agreed with the defendants that it did not matter when Sims I was dismissed given the language of La. C.C. art. 3463 which stated, “interruption is considered never to have occurred if the plaintiff … voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter.”

The major takeaway from the court’s holding is that a voluntarily dismissal, regardless of whether the dismissal occurs before or after the filing of the second lawsuit, will cause the prescription period of any subsequently filed lawsuit to not be considered to have been interrupted. However, if the first lawsuit is still pending when a second suit is filed, and the first lawsuit is not later voluntarily dismissed, then the prescription period of the second lawsuit will have been considered to have been interrupted, and therefore the parties will have an extended amount of time to file their lawsuit.

This statutory back and forth seems complicated, but once the legalese is simplified, the concept is not all that abstract.

If you have any questions about survival actions, prescription, or are curious whether your claim’s prescription period has been interrupted do not hesitate to call the Berniard Law Firm today to speak with an attorney immediately.