182 So. 3d 303
La. Ct. App.2015Background
- Plaquemines Parish contracted with MR Pittman, LLC to build a drainage pump station; a canal wing wall was alleged damaged during construction.
- Pittman sued the Parish asserting delays; Parish counterclaimed and later, on June 30, 2014, asserted a property-damage tort claim against Pittman and a direct-action claim against Pittman’s insurer, The Gray Insurance Company, under La. R.S. 22:1269(B).
- Gray pleaded the one-year delictual prescription (La. C.C. art. 3492) by exception, arguing the Parish’s claim (filed June 30, 2014) was time-barred given the project completed in December 2011 and the Parish’s earlier knowledge of damage.
- The Parish argued contra non valentem tolled prescription because (1) Pittman’s April 13, 2011 project meeting statements allegedly lulled the Parish into inaction, and (2) alternatively asked the court to preserve the prescribed claim as an offset under La. C.C.P. art. 424.
- The trial court sustained Gray’s exception, finding the Parish knew of the wing wall problem by April 13, 2011 and unreasonably failed to investigate; the court found no concealment or fraud by Pittman sufficient to invoke contra non valentem.
- On appeal, the Fourth Circuit affirmed, reviewing factual findings for manifest error and legal conclusions de novo, and rejected the Parish’s offset argument because Gray advanced no claim against the Parish.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Parish’s direct-action tort claim against Gray was prescribed | Parish: claim tolled by contra non valentem because Pittman’s statements lulled it into inaction; suit timely if tolled | Gray: one-year delictual prescriptive period began when Parish knew or should have known of the damage; claim filed after one year | Held: Claim prescribed; exception sustained — Parish knew of problem by April 13, 2011 and did not reasonably investigate |
| Whether contra non valentem (lulling/ill practices) applies | Parish: Pittman’s meeting statements amounted to misrepresentation/concealment preventing suit | Gray: no concealment or fraud; condition was open and obvious; Parish’s inaction unreasonable | Held: Contra non valentem inapplicable — no acts rising to concealment/fraud and Parish’s inaction unreasonable |
| When prescription commenced (actual vs constructive knowledge) | Parish: argued lack of clear knowledge of tort or reliance on Pittman statements delayed accrual | Gray: constructive knowledge arose at or before April 13, 2011 meeting; reasonable person would investigate | Held: Prescription ran from constructive knowledge by April 13, 2011; suit filed too late |
| Whether a prescribed claim may be preserved as an offset under La. C.C.P. art. 424 | Parish: even if prescribed, the wing-wall claim should be preserved as an incidental offset | Gray: no claim asserted against Parish; no obligation Gray seeks to enforce, so no offset available | Held: No offset — Article 424 requires a defensive use against an existing claim; Gray asserted none |
Key Cases Cited
- Marin v. Exxon Mobil Corp., 48 So.3d 234 (La. 2010) (explains contra non valentem categories and requires concealment/fraud or ill practices for lulling to apply)
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (standard for disturbing trial court factual findings; contra non valentem used sparingly)
- Campo v. Correa, 828 So.2d 502 (La. 2002) (prescription begins on actual or constructive knowledge of tort; reasonableness of plaintiff’s inquiry considered)
- Allstate Ins. Co. v. Fred’s Inc., 25 So.3d 821 (La. 2010) (contra non valentem not applicable where plaintiff’s lack of diligence caused delay)