Always check time frames for proof of loss and the time to file a lawsuit. I preach these are lessons because the time to adjust claims and resolve disputes seems to be dragging on. While some states allow for an “equitable tolling” where the time for limitations is tolled until a denial occurs, most states do not allow this extension.

A recent Louisiana case involving a condominium association’s claim is an example where “equitable tolling” was not allowed.1

Before the Court is “Defendant Peleus Insurance Company’s Motion to Dismiss for Failure to State a Claim” (Doc. 12). Peleus Insurance Company (“Peleus) moves to dismiss the instant lawsuit on the ground that it is time-barred under the policy of insurance.

INTRODUCTION

Plaintiff owned property that was insured by Peleus during the relevant time period. On or about April 2, 2017, a wind and hailstorm caused substantial damages to the subject property. Plaintiff made a claim with Peleus for its losses but disputes the adjusted amounts for the claim. Plaintiff’s claims for coverage in this lawsuit are under three separate commercial property insurance policies issued by three separate property insurance carriers for physical damage as the result of three separate and independent storm events spanning more than three years’ time. This Motion is filed by one of the three carriers, Peleus only, based on the relevant policy language.

Plaintiff filed the instant lawsuit on December 30, 2021, alleging that Peleus and the two other insurance carriers failed to adequately adjust the claims or compensate Plaintiff. Plaintiff asserts claims of breach of contract and bad faith damages and penalties pursuant to Louisiana Revised Statute § § 22:1892 and 22:1973. This motion pertains only to the Peleus policy for alleged damages that occurred on or about April 2, 2017, due to the wind and hailstorm.

The problem is obvious—the lawsuit was filed more than two years after the loss, and the policy required a lawsuit to be filed within two years of the loss. The trial court noted the same thing:

The date of loss that is the basis of the cause of action against Peleus is April 2, 2017; Plaintiff filed this lawsuit December 30, 2021, more than four years after the April 2, 2017 [sic] hailstorm.

The court ruled there were not exceptional circumstances preventing the “prescriptive period” (aka “statute of limitations”) from running.

I am making a point of this obvious rule of law because I am often asked to review cases where time has passed since the loss occurred. Unfortunately, some seem oblivious to the time requirements to file a lawsuit. While many duties after a loss can be corrected, some states have strict rules when lawsuits need to be filed.

Thought For The Day

Life’s tragedy is that we get old too soon and wise too late.
—Benjamin Franklin
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1 Camellia Condominium Assoc. v. United Specialty Ins. Co., No. 6:21-cv-04460 (W.D. La. Mar. 21, 2022).