By Caroline F. Bordelon
The COVID-19 pandemic has affected the practice of law in countless ways from the introduction of remote hearings and Zoom depositions, to e-signatures and the increased use of technology to connect us all. One issue unique to Louisiana lawyers has been the impact of COVID-19 on liberative prescription.
Liberative prescription, an analogous concept to the statute of limitations, was suspended by Louisiana Governor John Bel Edwards beginning on March 16, 2020. Through a series of Proclamations, Governor Edwards suspended liberative prescription from March 16, 2020 through July 5, 2020 – a total of 111 days.
On June 9, 2020, Louisiana Revised Statute § 9:5829 went into effect. It provides, in pertinent part, that this suspension of prescription is limited, and only applies to claims which prescribed between March 17, 2020 and July 5, 2020:
"All prescriptions, including liberative...shall be subject to a limited suspension or extension during the time period of March 17, 2020, through July 5, 2020; however, the suspension or extension of these periods shall be limited and shall apply only if these periods would have otherwise expired during the time period of March 17, 2020, through July 5, 2020. The right to file a pleading or motion to enforce any right, claim, or action which would have expired during the time period of March 17, 2020, through July 5, 2020, shall expire on July 6, 2020." See also La. Rev. Stat. § 9:5830.
According to Article 3472 of the Louisiana Civil Code, “the period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.” Thus, typically, when the period of suspension ends, the “time which preceded suspension is added to the time which it follows to compose the necessary period; only the period of suspension is deducted.” Shannon v. Vannoy, 2017-1722 (La. App. 1 Cir. 6/1/18), 251 So.2d 442, 448. Louisiana Revised Statute § 9:5829 makes clear, however, that the Governor’s orders do not simply push back prescriptive periods for four months.
The suspension of liberative prescription related to COVID-19 can applied as follows: A negligence claim – which is subject to a 1 year liberative prescription period – arising out of a car accident that occurred on September 5, 2019 would still prescribe on September 5, 2020. However, if that car accident had occurred on April 5, 2019, any resulting negligence claim would prescribe on July 6, 2020 – not April 5, 2020.
Similar statutes were passed in the wakes of other disasters faced by Louisiana lawyers. In the aftermath of Hurricanes Rita and Katrina, for example, Governor Blanco issued similar orders and the Louisiana Legislature passed statutes which created limited suspensions of prescription. See La. Rev. Stat. § 9:5821. Another example followed the Great Flood of 2016. See La. Rev. Stat. § 9:5827.