IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30527 Summary Calendar

HERBERT RAMEY; NORMA RAMEY

Plaintiffs-Appellants,

versus

ALLSTATE INSURANCE COMPANY

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 99-CV-838-M1 - - - - - - - - - - November 2, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Herbert Ramey and Norma Ramey (Rameys) appeal the district

court’s judgment which granted summary judgment for Allstate

Insurance Company (“Allstate”). The district court found that

Rameys did not file their claim within the prescription period

and that the prescription period had not been interrupted. On

appeal, the Rameys argue that Allstate did indeed interrupt the

prescription period and they should therefore be allowed to

proceed with their claims. We disagree.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-30527 - 2 -

This case involves an Allstate insurance policy for fire

loss and property damage the Rameys secured on a dwelling that

was already similarly insured by another party through State

Farm. Nonetheless, the Rameys aver that they are the lawful

insurable interest in the dwelling. On January 5, 1998, a fire

occurred and destroyed the dwelling in question. Immediately

thereafter, the Rameys contacted Allstate and informed them of

the fire. On January 6, 1998, the Allstate claims representative

met with the Rameys and offered them an advance of $5,000 on the

contents coverage in the policy. After this meeting, the

representative learned that the dwelling was insured by another

party and that the legal ownership of the dwelling was in

question. Also, it is alleged that on this same day, January 6,

1998, the Allstate representative said that Allstate and State

Farm would split the claim.

It is undisputed that the prescription period under both

Louisiana law and the insurance policy runs in one year from the

date of the fire. La. R.S. 22:691(F). Moreover, it is also

undisputed that the Rameys filed suit on September 20, 1999, more

than one year after the date of the fire, on January 5, 1998.

The Rameys argue, however, that the prescription period was

interrupted because Allstate waived it.

“The insurer’s conduct can waive the time limitation

inserted for its benefit in the policy.” Griffin v. Audubon

Insurance Company, 649 So.2d at 74. “The waiver need not be in

writing, but may be evidenced by conduct on the part of the

insurer which indicates continuation of negotiations thereby No. 00-30527 - 3 -

inducing the insured to believe the claim will be settled without

suit.” Id. Nevertheless, “mere settlement offers of conditional

payments, humanitarian or charitable gestures and recognition of

disputed claims will not constitute acknowledgments.” Id.

(citing Lima v. Schmidt,

(La. 1990)). Moreover

“the burden is on the plaintiff to prove interruption of the

prescription period.” Washington v. Allstate Insurance Company,

(5th Cir 1990).

As proof of waiver, the Rameys argue that Allstate led them

to believe that Allstate waived the prescription period because

1) the Allstate representative on January 6, 1998, said Allstate

would split the claim with State Farm, 2) State Farm deposited

its portion in the Registry of the Court, and 3) Allstate paid

them $5,000 for contents and granted an extension for the

production of documents. Yet, four days after the fire, on

January 8, 1998, Allstate sent the Rameys a letter indicating

that it was reserving all of its rights to deny coverage under

the policy because of “pending questions involving ownership of

[the] dwelling and possible other question involving insurable

interests.” Thereafter, Allstate sent a letter on January 27,

February 10, and another on March 13, 1998 asserting the same

rights.

“Under Louisiana law, an acknowledgment sufficient to

interrupt prescription must be clear, concise and express

recognition of the right which the creditor claims.” Washington

v. Allstate Insurance Company,

(5th Cir

1990)(citing Simmons v. Bartleet Chemical, Inc.,

, No. 00-30527 - 4 -

1275 (La App. 3rd Cir 1982) Importantly, “such acknowledgment

must be made with the intention to interrupt prescription.”

Moreover “the burden is on the plaintiff to prove interruption of

the prescription period.”

This Court should look to the

overall actions for the insurer to determine whether the insurer

“led the insured to reasonable believe the insured would not

require compliance with the policy provision that suit must be

filed within a year.” Id at 1287-288. Importantly, conditional

payments and settlement offers are not enough to prove waiver.

Griffin, 649 So.2d at 74; Greeson v. Acceptance Insurance

Company,

(La App 1999) . See also La. R.S.

22:651.

Four days after the fire, Allstate made clear that it

intended to reserve all rights under the policy. Louisiana

jurisprudence provides that a mere settlement offer or emergency

payment it gave to the Ramey’s is not enough to constitute

waiver. Moreover, State Farm putting up money does not affect

Allstate’s rights because State Farm cannot make an admission on

behalf for Allstate. Fed R. Ev. 801(d)(2). Allstate did not

waive its rights under the policy. Therefore, the Rameys’ claims

are barred by the one year prescription period.

For the foregoing reasons, we find that the Rameys fall

woefully short of creating a fact issue with respect to waiver.

Accordingly, we uphold the judgment of the district court.

AFFIRMED.