Atain Speciality Insurance Co. v. Premier Performance Marine, LLC
193 So. 3d 187
La. Ct. App.2016Background
- Premier Performance leased (did not own) a building insured by Atain; Atain paid $65,000 for storm damage and later sued Premier to recover the proceeds when it learned Premier was not the owner.
- The Cambres (owners) separately sued Premier alleging Premier kept the insurance proceeds and did not remit them.
- Premier alleged any misrepresentations on the insurance application were caused by its agent Bourg and filed a third-party demand (Feb 7, 2014) and a cross-claim (June 4, 2014) against Bourg seeking indemnity for any liability to Atain and the Cambres.
- Bourg moved in the district court by exception of peremption (and alternatively summary judgment) arguing claims were perempted under La. R.S. 9:5606 (one-year discovery/three-year absolute peremption), pointing to an application signed in March 2011 or March 2012.
- At the peremption hearing no exhibits were formally introduced into evidence; the trial court sustained Bourg’s exception and dismissed Premier’s incidental claims; Premier appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Premier’s claims against Bourg are perempted under La. R.S. 9:5606 | Premier: claims timely; negligent act occurred (at earliest) March 2012, so within three years; Premier lacked knowledge earlier because Bourg’s employee prepared the application and Premier’s rep did not read it | Bourg: the first incorrect application was signed March 2011; Premier had constructive knowledge then so claims filed in 2014 are perempted under the one- and three-year limits | Court reversed: on face of pleadings the alleged act was March 22, 2012 (per Atain’s petition), so claims not perempted; Bourg bore burden to prove peremption and introduced no admissible evidence at hearing |
Key Cases Cited
- Green Trails, LLC v. Stewart Title of Louisiana, Inc., 111 So.3d 14 (La. App. 1 Cir. 2012) (characterizing La. R.S. 9:5606 limitations as peremptive)
- Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009) (peremption may be asserted by peremptory exception)
- Denoux v. Vessel Management Services, Inc., 983 So.2d 84 (La. 2008) (documents attached to memoranda not in evidence cannot be treated as evidence on appeal)
- Union Planters Bank v. Commercial Capital Holding Corp., 907 So.2d 129 (La. App. 1 Cir. 2005) (same principle regarding exhibits not introduced into evidence)
- Cichirillo v. Avondale Indus., Inc., 917 So.2d 424 (La. 2005) (when no evidence at peremption hearing, exception decided on face of petition with allegations accepted as true)
- Onstott v. Certified Capital Corp., 950 So.2d 744 (La. App. 1 Cir. 2006) (appellate review framework when peremption decided without evidentiary support)