Opinion
No. 02-2013, Section: I/1
October 22, 2002
ORDER AND REASONS
Defendant, Charter Oak Fire Insurance Company ("Charter Oak"), has filed a motion to dismiss the plaintiffs' petition pursuant to F.R.Civ.P. 12(b)(5) and 12(b)(6). (Rec. Doc. No. 6). Plaintiffs, Rosita Rodriguez ("Rodriguez") and Orleans Sheet Metal and Roofing, Inc. ("Orleans"), have not opposed the motion.
The petition was removed to this court on June 28, 2002. (Rec. Doc. No. 1).
In the motion to dismiss, the defendant contends that plaintiff, Orleans, has no right of action against it. The defendant also seeks dismissal of the petition on other grounds not discussed here. Because there are valid bases for dismissal of all of plaintiffs' claims, it is unnecessary to decide the other issues raised in defendant's motion.
On January 23, 2002, plaintiffs filed a petition against the defendant, her insurer, seeking to recover damages which she alleged were incurred as a result of a January 23, 2000, hailstorm. (Rec. Doc. No. 1). Rodriguez alleged that she contracted with Orleans to perform roof repairs or, alternatively, replace the roof on her property. According to the petition, Orleans negotiated with the insurer to obtain sufficient funds to repair the hail-damaged roof, but Orleans and the insurer failed to agree on the amount needed to perform the work. Plaintiffs have sued the defendants for $33,401.20, representing the cost of roof repairs, plus penalties resulting from defendant's arbitrary and capricious refusal to pay under the policy, costs, and attorney's fees. (Rec. Doc. No. 1).
In the petition, Ms. Rodriguez alleges that her insurer was Travelers Insurance company, but in the motion to dismiss, the defendant noted that the proper defendant is charter Oak. (Rec. Doc. No. 6).
Defendant, Charter Oak, seeks dismissal arguing that the plaintiffs' claim for failure to pay under the policy as well as plaintiffs' claim for arbitrary and capricious failure to pay pursuant to 22:1220 have prescribed. Defendant also argues that plaintiffs' claim pursuant to La. R.S. 22:1214 is invalid as a matter of law.
As noted by the defendant, the petition states that the hailstorm which caused roof damage occurred on January 23, 2000, but the petition was not filed until January 23, 2002. The insurance policy at issue requires that any lawsuit arising out of the policy be filed within one year of the date of the loss. (Rec. Doc. No. 6, Exh. 1). Such policy provisions, so long as they allow an insured at least a 12 month period for filing lawsuits for claims under the policy, are valid and enforceable. See, La. R.S. 22:629; S.E.A. Towing Company, Inc., v. Great Atlantic Insurance Co., 688 F.2d 1000, 1001 (5th Cir. 1982), cert. denied, 460 U.S. 1038, 103 S.Ct. 1429, 75 L.Ed.2d 789 (1983); Boh Brothers Construction Company, Inc. v. The Board of Levee Commissioners of the Orleans Levee District, 550 So.2d 1258, 1261 (La.App. 4th Cir. 1989). The plaintiffs' claim against the insurer for failure to pay under the policy has prescribed.
Plaintiffs' claim for breach of a duty imposed by La. R.S. 22:1220 is a tort claim subject to a one year liberative prescriptive period which commences on the date of the injury. See, Zidan v. USAA Property and Casualty Insurance Company, 622 So.2d 265, 266 (La.App. 1st Cir. 1993). Because plaintiffs' claim pursuant to La. R.S. 22:1220 was not filed within one year of the date of the injury, it has prescribed.
Finally, plaintiffs asserted a claim pursuant to La. R.S. 22:1214 which defines unfair methods of competition and unfair or deceptive acts or practices in the business of insurance. La. R.S. 22:1214 does not provide for a private cause of action and, therefore, this claim must also be dismissed. See, Clausen v. Fidelity and Deposit Company of Maryland, 660 So.2d 83, 86 (La.App. 1st Cir. 1995).
Upon review of the record, the motion and memorandum of counsel, for the above reasons as well as the reasons stated by the defendant in its memorandum in support of the motion to dismiss the Court finds that the motion should be granted.
Accordingly,
IT IS ORDERED that the motion of defendant, Charter Oak Fire Insurance Company, to dismiss is GRANTED.