279 So.3d 422
La. Ct. App.2019Background
- In June 2016 a plumbing overflow at plaintiffs’ home led to discovery of mold. Federated (insurer) retained Enviro-Clean Services, Inc. (ECS) to evaluate the damage; ECS inspected June 22, 2016 and allegedly told owner David DeFelice the house was "safe" to occupy.
- Knight Building Inspection Services tested the property and issued a June 23, 2016 report documenting mold contamination, warning of possible health effects, and recommending licensed remediation.
- Plaintiffs (DeFelice, his partner Katie Hondroulis, and their newborn son Pascal) continued living in the house; Pascal was born August 16, 2016 and later developed breathing problems and was diagnosed with bronchiolitis on December 23, 2016.
- Plaintiffs sued Federated, ECS, and Knight on July 24, 2017 alleging negligence, negligent/intentional misrepresentation, detrimental reliance, unfair trade practices, and damages to person and property; ECS filed a peremptory exception of prescription, which the trial court granted.
- The Fifth Circuit affirmed in part, reversed in part, and remanded: it held claims on behalf of the minor child and the parents’ claims arising from Pascal’s health are timely, but affirmed dismissal (prescription) of the parents’ individual claims unrelated to Pascal’s health.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did prescription commence for claims on behalf of the minor child? | Prescription didn’t begin before Pascal’s birth; plaintiffs lacked knowledge of any child injury until diagnosis/symptoms after birth. | Prescription began June 23, 2016 when Knight’s report warned of mold and health risks. | Claims on Pascal’s behalf did not accrue before his birth; suit filed within one year of accrual and therefore timely (reversed as to child). |
| When did prescription commence for parents’ individual claims arising from Pascal’s health? | Those claims accrue with the child’s claim (after birth/diagnosis); parents lacked notice before birth. | Prescription began with the June 23, 2016 report. | Parents’ individual claims related to Pascal’s health accrue contemporaneously with the child’s claims and are timely (reversed as to these claims). |
| When did prescription commence for parents’ individual claims unrelated to Pascal’s health (property/personal claims)? | Accrual requires manifest damage; the June 23 report did not create immediately manifest, determinable damages—so accrual had not occurred before filing. | The June 23 Knight report provided actual/constructive knowledge that risks and damage existed; prescription ran from that date and expired before suit. | Court affirmed dismissal: those individual claims unrelated to the child’s health accrued by June 23, 2016 and prescribed before the July 24, 2017 suit (affirmed as to these claims). |
| Standard of review/burden on prescription defense | Plaintiffs emphasize that prescriptive periods cannot run before a cause of action accrues or damages manifest. | ECS relied on the face of pleadings and evidence (Knight report) to show accrual and shift burden. | When evidence introduced, trial court fact findings reviewed for manifest error; prescription evident on face of pleadings shifts burden to plaintiff. Court applied these principles in dividing claims. |
Key Cases Cited
- Campo v. Correa, 828 So.2d 502 (La. 2002) (defines accrual/constructive knowledge for delictual actions)
- Bailey v. Khoury, 891 So.2d 1268 (La. 2005) (mother’s individual claim accrues with child’s claim; discussion of unborn child's interests)
- Tenorio v. Exxon Mobil Corp., 170 So.3d 269 (La. App. 5 Cir. 2015) (prescription accrual analysis; manifest error review when evidence introduced)
- Born v. City of Slidell, 180 So.3d 1227 (La. 2015) (prescription cannot run before a right can be exercised; accrual requires actionable damage)
- Cole v. Celotex Corp., 620 So.2d 1154 (La. 1993) (damage must be actual and appreciable for accrual)