Exception of Prescription Raised After Trial Causes Lawsuit Dismissal in Jefferson Parish Case

wreck-1459986-1024x686In nearly every case of injury to person or property, there is a time period during which you can bring a lawsuit. When that time period ends is determined by statute. Defendants in cases where the time has past may bring an exception of prescription to have these cases dismissed. But how many times and when the exception of prescription may be raised is an issue that took center stage in an automobile accident case from  Jefferson Parish.

On May 8, 2008, Pauline Herrera filed a lawsuit against Beatrice Gallegos and USAgencies Casualty Insurance Company. Ms. Herrera alleged that her vehicle was struck by Ms. Gallegos’s vehicle on May 8, 2007. In response, Ms. Gallegos filed an exception of prescription and answer, alleging that the accident actually occurred on May 7, 2007, and Ms. Herrera’s lawsuit was filed beyond the one-year prescriptive period.

A hearing on the exception of prescription was held and no exhibits were admitted into evidence. The judge for the Parish Court of the Parish of Jefferson suggested the best way to find out the date of the accident was to call the Kenner Police Department. The judge overruled the exception for lack of sufficient evidence.

Ms. Gallegos then filed a motion for a re-hearing of the exception of prescription. No evidence was introduced or admitted and the Trial Court denied the motion. Ms. Gallegos then filed a second exception of prescription. In this exception, Ms. Gallegos alleged that the accident was reported on May 7, 2007, according to the Kenner Police Department’s call log and an affidavit from the custodian of records. This would mean that Ms. Herrera’s filing of the lawsuit on May 8, 2008, was untimely. The Trial Court overruled the exception.

Ms. Gallegos then filed a motion to re-urge exception of prescription. No evidence was admitted at this hearing but the Trial Court judge sustained the exception based upon the affidavit from the Kenner Police Department. The Trial Court dismissed Ms. Herrera’s lawsuit with prejudice.

Ms. Herrera appealed and the Trial Court’s dismissal of her lawsuit was reversed by the Louisiana Fifth Circuit Court of Appeal.  The Fifth Circuit found that the Trial Court considered the affidavit from the Kenner Police Department even though the documentation had not formally been admitted into evidence.

The case was remanded and again proceeded to trial. This time, the Trial Court found in favor of Ms. Gallegos and her insurance company based upon documentation from the Kenner Police Department showing the accident occurred on May 7, 2007, and not May 8, 2007. Ms. Herrera’s lawsuit was untimely filed and therefore her claim had prescribed. Ms. Herrera appealed again to the Fifth Circuit.   

Ms. Herrera alleged the Trial Court erred when it found in favor of Ms. Gallegos after the trial on the merits. Ms. Gallegos contended that her exception of prescription was properly before the Trial Court and timely considered, and that the evidence introduced supported the Trial Court’s finding that Ms. Herrera’s claim had prescribed.

An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal or after the close of evidence, but prior to the submission of the case after trial pursuant to La. C.C.P. arts. 927, 928(B). A party may re-urge a peremptory exception after a denial of an exception. See Shorts v. Gambino, 570 So.2d 209 (La. Ct. App. 1990).

The Fifth Circuit found that Ms. Gallegos was not precluded from re-urging her exception of prescription following previous denials by the Trial Court. The record showed that Ms. Gallegos filed an exception of prescription at the same time as her answer to Ms. Herrera’s petition for damages. Despite the fact that the issue of exception of prescription had been granted, reversed, and then granted again, the Fifth Circuit found that it was not precluded from addressing the issue of prescription simply because it was the second time the issue was considered on appeal.

The Fifth Circuit then turned to the merits of Ms. Herrera’s contention that the Trial Court erred in ruling in the defendant’s favor following the trial. The Fifth Circuit determined that the Trial Court was not manifestly erroneous in finding that the accident occurred on May 7, 2007. The record was clear that the Kenner Police Department documentation revealed that the date of the accident was May 7, 2007. Ms. Herrera did not dispute this evidence and she also admitted that she could not say with certainty on which date the accident occurred. Based on a review of the record, the Trial Court did not commit manifest error in dismissing Ms. Herrera’s claim.

This case demonstrates that exceptions of prescription may be raised at any time. It also shows that an excellent attorney is essential to consult after an automobile accident since an attorney will understand the relevant statute of limitations. There was no dispute that Ms. Herrera’s vehicle was damaged by Ms. Gallegos, it was a mere technicality that was overlooked which caused her cause of action to expire.


Written by Berniard Law Firm Blog Writer: John Trepel

Additional Berniard Law Firm Articles on Louisiana’s Exception of Prescription:  Louisiana Property Damage Case Examines Exception of Prescription

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