DAMIEN KNOCKUM NO. 2024 CW 1130

VERSUS

VAUGHAN INDUSTRIES, LLC, JANUARY 13, 2025 BRAD PERKINS AND GALLAGHER BASSETT INSURANCE

In Re: Vaughan Industries, LLC, Brad Perkins, Gallagher Bassett Insurance and Hartford Fire Insurance, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 749301.

BEFORE: THERIOT, HESTER, AND EDWARDS, JJ.

WRIT GRANTED. The trial court' s September 30, 2024 ruling, defendants', Vaughan Industries, LLC, Brad Perkins, denying Gallagher Bassett Insurance and Hartford Fire Insurance, peremptory exception of prescription, is reversed. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception, however, if the action is prescribed on its face, the plaintiff bears the burden of showing that the action has not prescribed.

Cawley v. Nat' l Fire & Marine Ins. Co., 2010- 2095, La. App. lst Cir. 5/ 6/ 11), 65 So. 3d 235, 237. Plaintiff, Damien Knockum, filed his petition on June 7, 2024, alleging he sustained injuries in a vehicular accident on May 24, 2023. Therefore, on its face plaintiff' s action is prescribed and plaintiff bears the burden of showing that the action has not prescribed under La. Civ. Code art. 3492. Plaintiff asserted that the property damage payment from Gallagher Bassett Insurance to Progressive Insurance Company, plaintiff' s insurer, was an unconditional tender that interrupted prescription pursuant to La. Civ. Code art. 3464, and not a settlement payment under La. R. S. 22: 1290. We find that defendant' s payments for property damage to Progressive Insurance Company constituted a settlement under La. R. S. 22: 1290, which did not interrupt prescription under La. Civ. Code art. 3464. The two insurers agreed to the property damage split claim on an 80/ 20% split, and following a partial payment, there was a further offer for the final amount, which was paid. Therefore, we find the payments were made based on this agreement that the payments would settle the property damage claim. Accordingly, defendants' peremptory exception of prescription is sustained and plaintiff' s claims against defendants, Vaughan Industries, LLC, Brad Perkins, Gallagher Bassett Insurance and Hartford Fire Insurance, are dismissed.

URT OF APPEAL, FIRST CIRCUIT

DETY CLERK OF COURT FOR THE COURT