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Dauterive Contractors3/13/2002
his burden. According to La.R.S. 9:5605, no malpractice action may be filed unless done so within one year from the date of the act of malpractice (which was on May 7, 1997). On the one hand, this means that the malpractice action must have been brought by May 7, 1998. However, the statute clearly goes on to say in Subsection A that the action may be brought within one year from the date the act was discovered or should have been discovered.
In Griffin v. Kinberger, 507 So.2d 821 (La.1987), our supreme court determined whether the plaintiffs had actual or constructive knowledge that they were the victims of medical malpractice sufficient to commence the running of the one-year prescriptive period. In the pre-La.R.S. 9:5605 case of Norwood, the Second Circuit applied the Griffin principles to a legal malpractice action.
The standard imposed in Griffin is that of a reasonable man. This standard is designed to establish a rule that any plaintiff who had knowledge of facts that would place a reasonable man on notice that malpractice may have been committed shall be held to have been subject to the commencement of prescription by virtue of such knowledge even though he takes the position that he did not know because these facts were not sufficient to trigger such knowledge in his mind. Taussig, 689 So.2d at 684 (quoting Norwood v. Fish, 537 So.2d 783, 786 (La.App. 2 Cir.), writ denied, 539 So.2d 634 (La.1989)).
Norwood adjudicated a legal malpractice case prior to the enactment of La.R.S. 9:5605 when prescriptive periods were still applicable. We have said that La.R.S. 9:5605 is peremptive in nature. Considering, however, that the language of Subsection A imposes a discovery exception to the one-year peremptive period, we think that the Griffin reasonableness standard is applicable in determining when the peremptive period commences in the context of modern legal malpractice actions. To determine the application of the reasonableness standard to Mr. Dauterive's knowledge, a review of the pertinent facts is in order.
The trial judge found Mr. Repaske's recollection more complete. And we note that " hen findings are based on determinations regarding the credibility of witnesses, the manifest error - clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell, 549 So.2d at 844. Moreover, considering any discrepancies between Mr. Repaske and Mr. Dauterive's testimony, we note that "reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony." Stobart, 617 So.2d at 882. See also Rosell, 549 So.2d 840; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
By early August 1998, Mr. Dauterive was apprised of the late filing when Mr. Repaske relayed the information to him. According to his testimony, Mr. Repaske explained at that point that he had malpractice insurance and that Mr. Dauterive could make a claim. He could not say for sure, however, whether he told Mr. Dauterive "talk to someone else" at this point. Mr. Repaske claimed that on November 9, 1998, he told his client that his malpractice insurance would compensate for the mistake and that Mr. Dauterive was free to make a claim. He also encouraged his client to "talk to someone else" and explained that if an objection was filed against the new proof of claim, there would be no chance for recovery. So, if not by August 1998, Mr. Dauterive knew of Mr. Repaske's mistake by November 9, 1998, when he signed the new proof of claim. When the object
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