65 So. 3d 235
La. Ct. App.2011Background
- Cawley was in a December 7, 2007 auto accident in a Shell parking lot.
- Payton struck her vehicle with Don Robert Services, Inc. as owner/permitter.
- Cawley filed suit on February 18, 2009 naming Payton, Don Robert Services, Inc., and National Fire & Marine Insurance.
- Defendants asserted prescription via a peremptory exception; trial court sustained and dismissed.
- Plaintiff appealed challenging whether prescription was interrupted by settlements/payments.
- Issue is whether National's payments and the June 2, 2008 release interrupted prescription on bodily injury claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did tacit acknowledgment interrupt prescription? | Cawley argues National's payments to her husband and Enterprise amounted to tacit acknowledgment. | National contends payments were not unconditional settlements and cannot interrupt prescription. | No interruption; payments did not unconditionally acknowledge liability. |
| Did the June 2, 2008 release constitute a settlement under La. R.S. 22:1290 interrupting prescription? | Release of property damages should be treated as admission affecting her bodily injury claim. | Release was a settlement of property damage; not an admission for other claims. | Release was a settlement under 22:1290 and did not interrupt bodily injury prescription. |
| Was the Enterprise rental payment to National proven as an unconditional payment interrupting prescription? | Recharge claims that rental payment to Enterprise, in her name, was unconditional. | Record shows no proof that National paid Enterprise; no interruption. | Not proven; no interruption based on Enterprise payment. |
Key Cases Cited
- Mallett v. McNeal, 939 So.2d 1254 (La. 2006) (tacit acknowledgment requires unconditional payments or equivalents)
- Flowers v. U.S. Fid. & Guar. Co., 381 So.2d 378 (La. 1979) (tacit acknowledgment principles in prescription interruption)
- Lima v. Schmidt, 595 So.2d 624 (La. 1992) (settlement concepts under prescription context)
- Lawrence v. Our Lady of the Lake Hosp., 48 So.3d 1281 (La.App. 1st Cir. 2010) (burden shifting on prescription when no factual dispute; de novo review applied)