 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brister v. Geico Insurance3/28/2002
Michael Brister appeals a trial court judgment that sustained a peremptory exception raising the objection of prescription and dismissed his claims against GEICO Insurance (GEICO). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brister was injured in an automobile accident that occurred on September 3, 1998. The driver of the other vehicle was insured by GEICO. Brister contacted an attorney, Keith Ward, to represent him in this matter, but did not sign any contract or other representation agreement. Ward did not respond to his telephone calls, so Brister tried to discuss settlement directly with GEICO. However, GEICO's adjuster would not discuss the case with Brister. On March 26, 1999, Ward settled Brister's claim against the tortfeasor and GEICO for $5,750 and forged Brister's endorsement to the GEICO settlement check. The settlement was confected without Brister's knowledge or authority. During September 1999, after Brister's personal injury claims against the tortfeasor and GEICO had prescribed, Ward remitted to Brister three payments from the settlement proceeds totaling $2,333.43.
On May 17, 2000, Brister filed suit against Ward and GEICO, seeking recovery of unearned attorney fees in the amount of $1,916.57 from Ward and seeking an award against Ward and GEICO, in solido, for injuries sustained in the accident to the extent that his actual damages exceeded the settlement amount and for emotional distress, trauma, humiliation, and mental anguish suffered as a result of Ward and GEICO's actions in the unauthorized settlement of his claims. In his petition, Brister acknowledged that his underlying claim against the tortfeasor and GEICO for injuries suffered in the accident prescribed on September 2, 1999. Brister alleged that GEICO owed him a duty to negotiate in good faith in settling his claim and that it knew or should have known that Ward was not representing him when it settled the claim.
GEICO responded by filing a peremptory exception raising the objection of prescription. GEICO maintains that its actions did not prevent Brister from timely filing his suit relative to any injuries he may have sustained in the September 3, 1998 accident. The trial court agreed. Furthermore, the court found that any cause of action against GEICO that Brister may have had arising out of Ward and GEICO's improper settlement of his claim had prescribed one year from the settlement date of March 26, 1999. Therefore, the trial court sustained GEICO's exception raising the objection of prescription. The judgment dismissing GEICO from this action was certified as a partial final judgment.
Brister appeals, contending the trial court erred in sustaining the exception and requesting an opportunity to amend his petition. This contention is based on the assertion that the doctrine of contra non valentem prevented the running of prescription on the cause of action relating to the improper settlement until Brister discovered that the settlement had taken place. Brister also argues that the trial court should not have dismissed his case, but should have allowed him an opportunity to amend his petition to show that his claim against GEICO had not prescribed. GEICO argues that the trial court was correct in finding both claims had prescribed, and further suggests nothing could have been gained by allowing Brister leave to amend his petition, because he has no cause of action against GEICO based on the facts of this case.
ANALYSIS
An objection of prescription is raised by a peremptory exception, which a defendant may raise at any stage of the proceeding in the trial court prior to submission of the case for a decision. LSA-C.C.P. arts. 927 and 928(
Page 1 2 3 4 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|