182 So. 3d 312
La. Ct. App.2015Background
- Plaquemines Parish brought a reconventional demand against general contractor M.R. Pittman Group, LLC alleging a delictual (tort) property-damage claim to a pumping-station wing wall arising from a post-Katrina rebuild project completed December 2011.
- Pittman moved for summary judgment asserting the one-year prescriptive period (La. Civ. Code art. 3492) had run; Pittman relied on documentary evidence (completion notice, project reports, depositions, and meeting minutes) showing the parish knew or should have known of the damage earlier.
- Pittman’s insurer, The Gray Insurance Company, separately raised prescription by peremptory exception; the trial court sustained Gray’s exception after an evidentiary hearing, making factual findings against the parish’s contra non valentem tolling claim.
- Eight weeks later the trial court granted Pittman’s summary-judgment motion and dismissed the parish’s tort claim with prejudice, citing the same factual reasoning used against Gray; contractual reconventional claims remained pending.
- The court of appeal exercised supervisory jurisdiction (converted the appeal into a writ application), reviewed de novo, and concluded genuine issues of material fact exist about whether Pittman’s conduct tolled prescription under the third category of contra non valentem (acts that lull a plaintiff into inaction). The trial court’s interlocutory ruling was vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability / Procedural vehicle | Partial summary judgment should be reviewable by appeal | Judgment lacked Article 1915(B)(1) finality designation so not appealable | Court converted appeal to supervisory writ and exercised jurisdiction |
| Whether the tort claim is prescribed | Tolling applies via contra non valentem (Pittman lulled parish into inaction via statements at April 13, 2011 meeting) | Claim is prescribed based on documentary evidence showing knowledge or discoverability before filing | Trial court erred to grant summary judgment; genuine material facts exist on tolling |
| Applicability of contra non valentem (third category: lulled into inaction) | Pittman made misleading statements and mischaracterized cause of damage, which prevented parish from timely suing | Pittman did not conceal or commit fraud; parish unreasonably failed to investigate | Contra non valentem turns on credibility and reasonableness; summary judgment inappropriate because those are fact questions |
| Standard of review and evidentiary posture (exception vs summary judgment) | N/A (argues for tolling under summary-judgment standard) | Pittman relied on documentary record to meet summary-judgment burden | Court: different standards apply; factual findings made after evidentiary hearing on exception cannot substitute for summary-judgment analysis; de novo review requires resolving factual inferences for non-movant, so summary judgment was improper |
Key Cases Cited
- Hogg v. Chevron USA, Inc., 45 So.3d 991 (La. 2010) (distinguishes burden and review when prescription is raised by summary judgment vs exception)
- Marin v. Exxon Mobil Corp., 48 So.3d 234 (La. 2010) (contra non valentem applies only in exceptional circumstances; outlines four categories)
- Suire v. Lafayette City-Parish Consol. Gov't, 907 So.2d 37 (La. 2005) (trial court cannot weigh evidence or make credibility determinations on summary judgment)
- Independent Fire Ins. Co. v. Sunbeam Corp., 756 So.2d 226 (La. 2000) (same limitation on credibility findings at summary judgment)
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (contra non valentem identified as doctrine to soften prescriptive statutes)
- Allstate Ins. Co. v. Fred’s Inc., 25 So.3d 821 (La. 2010) (contra non valentem not applied where plaintiff’s lack of diligence, not defendant’s concealment, caused failure to discover claim)
- Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La. 1993) (when petition facially shows prescription, burden shifts to opponent to show otherwise)