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Bennett v. Krupkin12/22/2000
well within the one year time frame envisioned by La. R.S. 22:629.
In Hedgepeth v. Guerin, supra, we discussed this issue in detail and found that:
[La. R.S. 22:629, La. R.S. 9:5628A, and La. R.S. 40:1299.45] guarantee a medical malpractice claimant a period of not less than one year within which to institute a claim against a health care provider and/or his insurer. However, a "claims made" policy, requiring that a claim be made within the policy period, may effectively reduce the time period within which a medical malpractice claimant may institute his action against the insurer. Hedgepeth, 96-1044 at pp. 13-14, 601 So.2d at 1363.
We then concluded that a policy provision which reduces the prescriptive period against the insurer to less than one year is without effect. Hedgepeth, 96-1044 at p. 14, 601 So.2d at 1364. Under the undisputed facts of this case, the instant policy provision likewise effectively reduces the prescriptive period such that the Bennetts effectively had less than one year from the date of the accrual of their cause of action to commence the action against St. Paul. Because " his would be a clear violation of the statutory law, which prohibits limiting a right of action against an insurer to less than one year," Hedgepeth, 96-1044 at p. 14, 601 So.2d at 1364, the district court properly granted summary judgment in favor of the Bennetts on the issue of coverage in this case.
St. Paul asserts that a case recently decided by the Supreme Court of Louisiana, Lloyd v. Ichinose, 98-2157 (La. 9/8/99) 760 So.2d 302, requires that a different result obtain in this case. In Lloyd, the Supreme Court examined an issue very similar to the issue at bar; however, we find that the facts are highly distinguishable. Therein, Dr. Herbert Ichinose misdiagnosed the cancerous nature of a mole in December of 1987. In November of 1988, the plaintiffs filed suit against Dr. Ichinose. In May of 1995 the plaintiffs amended their petition to add his insurer, St. Paul. The policy period had expired on October 1, 1987, and the Court stated that it was significant that "the event that triggered policy coverage did not occur during the policy period." Lloyd v. Ichinose, 98-2157 at p. 10, 760 So.2d at 307. The Court reasoned that, " nless there is a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume," Lloyd v. Ichinose, 98-2157 at p. 8, 760 So.2d at 306, and concluded that "the application of the requirement of the claims-made policy under the facts of the present case does not violate public policy." Lloyd v. Ichinose, 98-2157 at p. 10, 760 So.2d at 307. We distinguish Lloyd v. Ichinose because (i) significantly, there, the triggering event occurred outside the policy period while the instant triggering event occurred during the policy period; and (ii) there, the plaintiffs sought to add the insurer more than seven years after the insurance policy had expired while suit against the instant insurer was filed within a few months, well within the La. R.S. 22:629 one year period. For these reasons, we find Lloyd v. Ichinose inapposite to the instant case.
CONCLUSION
The district court correctly applied the law as discussed in Hedgepeth, supra, to facts which are not disputed to grant the final partial summary judgment, on the issue of coverage, in favor of the Bennetts and against St. Paul. Accordingly, we affirm at appellant's costs.
AFFIRMED.
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