Posted On: March 12, 2009 by Thornhill Law Firm, APLC

An Introduction to Prescription

After Hurricane Katrina thousands of people along the Gulf Coast filed claims on their insurance policies. The insurance companies responded by paying some claims in full, some claims partially, and not paying some claims. Policy holders with valid claims were forced to resort to litigation to get fairly reimbursed for their loss of property or damage to their property. Thornhill Law Firm filed many of these claims and were able to help their clients recoup some of their losses, but we were forced to turn away those that called us after the period of prescription or peremption had run. Prescription, which exists in both common and civil law, is the idea that if a claim has not been made within a certain time period, then there no longer exists a remedy at law. Peremption, a civil law concept, actually stops the claimant from bringing the claim. Effectively, peremption extinguishes a claim. Prescription and peremption are commonly referred to as statutes of limitations or statutes of repose.

Prescription and peremption can only be set by legislation according to the Louisiana Civil Code Article 3457. This means that the legislature is the only entity that may decide if a certain claim will be limited by prescription or peremption. That also mean that the set time limit is not always going to be the same. For example, the legislature could say prescription and/or peremption applies to the area of taxes in the time limit of three years. However, they could also say that prescription and/or peremption applies to situations of disavowing paternity and that the claim must be brought within six months of the alleged fraud. The statute will also specify when prescription starts to run. In the last example, if a presumed father wants to disavow paternity, he should file his claim within six months of the child being born. If he is absent or has no reason to believe there has been fraud, he is given six months from the time he returns or realizes that he has been defrauded. The statute may state prescription and peremption begin to run from when the claimant knew, or should have known of the cause of the claim being filed.

Prescription and peremption place limits on the amount of time a claimant is given to file their claim and the Court has recognized exceptions to the rules in the case of prescription, namely interruption, suspension, acknowledgment, and renunciation. Therefore, prescription is interrupted when the claim is filed, suspended when there is a relationship such as spouses or parent and minor child, acknowledged when the defendant agrees they were at fault before prescription has accrued, and renounced when the defendant agrees they were at fault after prescription has accrued . Recently the Louisiana Supreme Court issued an opinion regarding the issue of prescription interruption. The decision in Warren v. LA Medical Mutual Insurance Co., 2008 WL 5158226, examined whether a claimant, a mother and a daughter, could amend their wrongful death claim regarding their husband and father’s death, respectively, to add another daughter as a claimant. It is in the insurance company’s best interest to keep the number of plaintiffs low, as in Thornhill Law Firm’s experience, a claim for loss of consortium is a piece of a wrongful death claim. Loss of consortium damages will be determined for each individual claiming it, so the insurance company would rather only pay two people for loss of consortium instead of three. The Court decided that the second daughter could be added as a plaintiff in the above case because the amendment relates back to the date of the original filing of the complaint. While normally the second daughter would have been barred due to prescription, she was able to take advantage of the fact that her mother and sister had timely filed a complaint.

Frequently a suit may be dismissed once it has been commenced. When a judge dismisses the claim involuntarily, which means the claimant has not chosen to drop the suit, it will be dismissed either with or without prejudice. The distinction is very important in the matter of prescription or peremption. If a claim is dismissed with prejudice, the period of prescription or peremption picks up from where it was the date the suit was filed. For example, if the suit were filed three months after the claim, then it is dismissed with prejudice, the day it is dismissed would theoretically recommence the running of time a claimant has left to file another suit arising from the same incident. This is said in theory because another legal doctrine, res judicata, would bar the claimant from bringing another suit when the claim is dismissed with prejudice. However, if the suit were involuntarily dismissed without prejudice, the period of prescription starts anew. When the time starts to run on either prescription or peremption it is like a clock counting down. In the second case, once the suit is dismissed involuntarily without prejudice the countdown clock is going to be reset to the original amount of time and the claimant has that length of time to file another suit arising from that claim.

Prescription or peremption rules can vary, such as in the case of fraud, criminal matters, or when the state is involved, so it is very important to have accurate legal counsel to determine whether prescription or peremption have indeed run. In the case where time has run out, the claim can be the best example of a legal claim around, such as if Dr. Smith decided to get drunk before performing Aunt Sally’s surgery and due to his intoxication, he killed her, but if the period of prescription has run, you will be out of luck. Thornhill Law Firm firmly believes in seeking justice for our clients, but we need your help to file your claim in a timely manner. If you have any questions regarding whether your claim has been voided due to prescription please contact us, toll-free, at 1-800-989-2707 or visit our website at http://www.thornhilllawfirm.com.

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