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Bealer v. Vancourt11/29/2005
Panel composed of Judges Thomas F. Daley, Clarence E. McManus, and Walter J. Rothschild
AFFIRMED.
Plaintiffs, Joyce and Ellis Bealer, appeal a judgment of the trial court sustaining an Exception of Prescription filed by defendants, Herman Vancourt, Jr. and State Farm Mutual Automobile Insurance Co. ("State Farm"), and dismissing plaintiffs' lawsuit. For the reasons which follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This case arises from a motor vehicle accident that occurred on June 25, 2003 in Jefferson Parish. According to plaintiffs, Ellis Bealer was operating his vehicle westbound on Van Trump Street and he stopped at its intersection with LA 23 Franklin Street. Suddenly, a vehicle driven by Herman Vancourt, Jr. proceeded across the intersection, collided with one vehicle and then collided with the Bealers' vehicle, causing damage to the Bealer vehicle and personal injuries to Joyce Bealer, who was riding as a passenger.
In a letter dated July 8, 2003, Mr. Vancourt's insurer, State Farm, indicated that it would pay for the repair of the Bealers' vehicle. Records from State Farm indicate that it paid $4,079.98 for repairs to the Bealers' vehicle and $626.23 for the Bealers' rental car expenses. On July 7, 2004, plaintiffs filed suit against Mr. Vancourt and State Farm, asserting that Mrs. Bealer suffered mental and physical injuries as a result of this accident and seeking general and special damages.
On August 23, 2004, defendants filed a Peremptory Exception of Prescription, asserting that plaintiffs' claims against them had prescribed, because suit was not filed within one year after the accident. Plaintiffs filed an opposition to defendants' exception, arguing that their case had not prescribed, because State Farm's payment of their property damage and rental car expenses interrupted prescription.
A hearing on defendant's Exception of Prescription was held on January 18, 2005. At the conclusion of the hearing, the trial court granted defendants' exception and dismissed plaintiffs' lawsuit. A judgment reflecting this ruling was signed by the trial court on January 25, 2005. It is from this judgment that plaintiffs appeal.
LAW AND DISCUSSION
On appeal, plaintiffs argue that the trial court erred in granting defendants' Exception of Prescription, because prescription was interrupted when State Farm paid plaintiffs' property damage and rental car expenses in full. Defendants respond that State Farm's payment of property damage and rental car expenses did not interrupt prescription and that the trial court properly maintained their exception.
In Louisiana, tort actions generally prescribe one year from the date the injury or damage is sustained. LSA-C.C. 3492; Gary v. Camden Fire Ins. Co., 96-0055 (La. 7/2/96), 676 So. 2d 553, 555. Although the party pleading prescription ordinarily has the burden of proof, when the petition reveals on its face that prescription has run, the burden shifts to the plaintiff to show that prescription was either suspended, interrupted, or renounced. Lima v. Schmidt, 595 So. 2d 624, 628 (La. 1992). Pursuant to LSA-C.C. art. 3464, prescription which has not yet accrued can be interrupted by the debtor's acknowledgement of the right of the person against whom he had commenced to prescribe. Sotomayor v. Lewis, 95-2520 (La. App. 4 Cir. 4/24/96), 673 So. 2d 1201, 1202. An acknowledgment can be oral, in writing, formal, informal, express, or tacit. Id. at 1203. In Lima v. Schmidt, supra at 634, the Louisiana Supreme Court stated that " tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or p
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