La. Legislature Ratifies and Amends Governor’s Orders Suspending Prescription, Other Legal Deadlines

By William H. Patrick, IV – Associate | will.patrick@taylorporter.com

Click here to access the full text of Act 162

On June 9, 2020, the Governor signed House Bill 805 into law as Act 162 (the “Act”) of the 2020 Regular Session of the Louisiana Legislature. The Act ratified and amended the Governor’s suspension of prescriptive periods, peremptive periods, and other legal deadlines in response to the COVID-19 pandemic.

The Effects of La. R.S. 9:5828, 9:5829 and 9:5830

The Act created three new statutes now contained in Title 9 of the Louisiana Revised Statutes.[1] Louisiana Rev. Stat. 9:5828 ratifies and confirms the Governor’s suspension of prescription, peremption, and legal deadlines – subject to the amendments enumerated in 9:5829 and 9:5830.

Louisiana Rev. Stat. 9:5829 amends the Governor’s suspension of prescriptive and peremptive periods.  The statute creates a limited suspension of the prescriptive and peremptive periods for periods that would have prescribed or perempted from March 17, 2020 to July 5, 2020.  If a period would have expired in that time frame, it instead expired on July 6, 2020.  Otherwise, the orders suspending prescription and peremption have no effect.  For example, a negligence claim arising out of a car accident on March 30, 2020 would still prescribe on March 30, 2021. But, a negligence claim arising out of a car accident on March 30, 2019 prescribed July 6, 2020 – not March 30, 2020. Plaintiff and defense attorneys alike should be careful to ensure they understand the implications of La. R.S. 9:5829. The Governor’s orders no longer simply push back prescriptive and peremptive periods four months.

Louisiana Rev. Stat. 9:5830 applies to “deadlines in legal proceedings”, and is the longest and most complex of the new statutes. The effects of La. R.S. 9:5830 are a little less clear than the effects of La. R.S. 9:5828 and 9:5829.

Any legal deadline that would have expired between March 17 and July 5 is subject to a limited suspension. The right to file a pleading or motion to “enforce any deadline in legal proceedings which would have expired . . .” from March 17 to July 5 expires on July 6, 2020. It appears that any party to a lawsuit seeking to enforce a legal deadline that expired during the suspension period was required to file such a motion on or by July 6. The statute does not lay out the consequence of either filing or failing to file such a motion. Namely, it is unclear whether a suspended deadline can even be enforced. Nor does La. R.S. 9:5830 establish a new deadline for suspended legal deadlines. It may be the intent of the Legislature to maintain the courts’ broad discretion in setting and controlling deadlines.

Louisiana Rev. Stat. 9:5830(B) allows a party to seek an extension of any deadlines in a legal proceeding not suspended by the Governor’s orders by contradictory motion or declaratory judgment. However, the party seeking the extension must prove that (1) either the party or his attorney was “adversely affected by the COVID-19 public health emergency”; and (2) that, but for the adverse effects of the public health emergency, the party would have met the legal deadline. When the party meets its burden, the court shall extend the deadline, but can extend it no later than September 1, 2020.

Prescription and Peremption in the Face of Disaster

The Act should come as no surprise to those attorneys that have practiced in Louisiana through other state-wide disasters. During the chaos of Hurricane Katrina and Hurricane Rita, Governor Blanco issued orders suspending legal deadlines similar to those issued by Governor Edwards.[2] 

In response, the Legislature ratified and amended Governor Blanco’s orders via statutes enumerated at La. R.S. 9:5821 et seq. The Legislature created a limited suspension of prescription and peremption from August 26, 2005 through January 3, 2006.[3] Any right, claim, or action that would have expired in that period instead expired on January 4, 2006.[4]

More recently, the Legislature acted in response to Governor Edwards’ order suspending prescription and peremption during the Great Flood of 2016.[5] Louisiana Rev. Stat. 9:5827 amended Governor Edwards’ suspension of prescriptive and peremptive periods from August 12, 2016 through September 30, 2016. Consequently, prescriptive and peremptive periods that would have run on or before September 30, 2016 instead ran on the earlier of (1) the date calculated pursuant to La. C.C. art. 3472[6]; or (2) September 30, 2017. The statute further provided that the Governor’s suspension would not apply to any prescriptive period or peremptive period accruing on or after October 1, 2017.

Act 162 and the previous acts passed by the Legislature are necessary to stymy the unintentional and long-lasting effects of suspension of prescription and peremption. Under the general precepts of suspension, the period of suspension is not counted towards the accrual of prescription.[7]  When the period of suspension ends, the “time which preceded suspension is added to the time which it follows it to compose the necessary period; only the period of suspension is deducted.”[8]

The consequences of the Governor’s order absent Legislative intervention would be far-reaching.  The prescriptive period of every claim, right, and action would essentially be extended by roughly four months, irrespective of whether the claim, right, or action was actually impacted by the pandemic.

For the most extreme of examples, if a party began accruing bad faith acquisitive prescription on January 1, 2020, acquisitive prescription would accrue in April of 2050 rather than January 1, 2050.  By limiting the effect of the suspension to those claims that would have prescribed or perempted from March 17 to July 5, 2020, the Legislature has limited the unintended consequences and potential confusion that the Governor’s orders may have caused down the road.

About William H. Patrick, IV: William “Will” H. Patrick, IV is an Associate at Taylor Porter practicing in various areas of commercial litigation. Will earned his J.D., cum laude, in 2019 from Louisiana State University Paul M. Hebert Law Center. He served as a senior editor of the board of the LSU Journal of Energy Law & Resources, and he was a junior graduate editor of the Journal of Civil Law Studies. Will received his bachelor of arts degree in history with a minor in business administration from LSU in 2016.

FOOTNOTES
[1] See La. R.S. 9:5828, et seq.
[2] See Compensation Specialties, LLC v. New England Mut Life Ins. Co., 2008-1549 (La. App. 1 Cir. 2/13/09), 6 So.3d 275, 282 for a discussion of Governor Blanco’s suspension of legal deadlines.
[3] La. R.S. 9:5822.
[4] Id.
[5] La. R.S. 9:5827.
[6] La. C.C. art. 3472 establishes the effect of suspension. It states “[t]he period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.”
[7] La. C.C. art. 3472.
[8] Shannon v. Vannoy, 2017-1722 (La. App. 1 Cir. 6/1/18), 251 So.2d 442, 448.