Ramey v. Allstate Ins Company ( 2000 )

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.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 99-CV-838-M1
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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that this opinion should not be published and is not precedent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
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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
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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, 595 So. 2d 624 (La. 1990)). Moreover
“the burden is on the plaintiff to prove interruption of the
prescription period.” Washington v. Allstate Insurance Company,
901 F.2d 1281, 1287 (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, 901 F.2d 1281, 1287 (5th Cir
1990)(citing Simmons v. Bartleet Chemical, Inc., 420 So. 2d 1273,
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1275 (La App. 3rd Cir 1982) Importantly, “such acknowledgment
must be made with the intention to interrupt prescription.” Id.
Moreover “the burden is on the plaintiff to prove interruption of
the prescription period.” Id. 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, 738 So. 2d 1201, 1204 (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.