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Leblanc v. Succession of Raggio2/20/2002
LANIER, J. dissents and assigns reaons.
FITZSIMMONS, J. concurs in part, dissents in part and assigns reasons.
Peggy Sexton LeBlanc appeals an adverse summary judgment wherein the trial court dismissed her demands at her cost in favor of Westport Insurance Corporation (Westport), a malpractice insurer for Joseph R. Raggio. Concluding that the notice requirement of the claims made policy at issue conflicts with statutory law relating to prescription and legal malpractice, we reverse the judgment of the trial court and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
Peggy Sexton LeBlanc filed suit against the succession of her deceased attorney, Joseph R. Raggio, on January 14, 2000 alleging that he committed attorney malpractice to her detriment. She amended the petition on January 24, 2000 to join Westport, Mr. Raggio's malpractice insurer at the time of the alleged incidence of malpractice. This was the first notice Westport had of Ms. LeBlanc's claim.
Westport subsequently filed a motion for summary judgment alleging that it afforded no coverage under its "claims made" policy because Ms. LeBlanc's claims were not made or reported during the covered policy periods. The trial court agreed and entered judgment dismissing Ms. LeBlanc's suit against Westport.
Ms. LeBlanc now appeals alleging as her one assignment of error that the trial court erred in dismissing her suit.
DISCUSSION
We find merit in Ms. LeBlanc's argument. This court has previously ruled that a claims made policy such as the one at bar is in clear violation of statutory law, which prohibits limiting a right of action against an insurer to less than one year. Hedgepeth v. Guerin, 96-1044, p. 14 (La.App. 1 Cir. 3/27/97), 691 So.2d 1355, 1364; Bennett v. Krupkin, 99-2702, p. 5 (La.App. 1 Cir. 12/22/00), 779 So.2d 923, 925. In Hedgpeth this court observed that a claims made policy effectively reduced prescriptive periods such that a claimant has less than one year from the date of the accrual of his or her cause of action to commence an action. Hedgepeth, 96-1044 at p. 14, 691 So.2d at 1364. Accordingly, in Hedgepeth this court concluded that the portions of the policy limiting liability to those claims which occurred and were reported while the policy was in force were "unenforceable and without effect under the facts of [that] case." Id.
Westport's insurance policy provides that coverage will be provided for wrongful acts of an insured attorney only if "the claim is first made during the policy period." However, La. R.S. 22:629 provides, in pertinent part, as follows:
A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state or any group health and accident policy insuring a resident of this state, regardless of where made or delivered shall contain any condition, stipulation, or agreement:
(3) Limiting right of action against the insurer ... to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically provided in this Code.
B. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract. (Emphasis added.)
In the instant case, Westport asserts that it cannot be liable under the terms of its policy for claims made after August 6, 1998, the last date Mr. Raggio was covered by their policy. However, since this policy provision limits a right of action against an insurer to le
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