ORDER & REASONS
LANCE M. AFRICK, District Judge.
Before the Court is defendant James River Insurance Company's ("James River") motion
Accepting all of the factual assertions in Alkasaji's complaint as true, they are as follows: this action arises from a motor vehicle collision between Alkasaji and uninsured motorist Giovanna Matias ("Matias") that occurred on October 30, 2016 in New Orleans, Louisiana.
At the time of the collision, Alkasaji was insured by James River, which provided coverage that included uninsured motorist ("UM") claims.
On October 9, 2017, Alkasaji submitted his initial proof of loss to James River and asked James River to "tender general and special damages" within thirty days.
Upon receiving the November 1, 2017 email, counsel for Alkasaji called James River that same day to inform James River of the applicable Louisiana law with respect to unconditional tenders from UM carriers.
On December 17, 2018, Alkasaji submitted a supplemental proof of loss, including new medical records and additional medical expenses, and he requested a supplemental tender for special and general damages within thirty days.
Alkasaji submitted a third proof of loss that included additional medical reports and collision-related medical expenses on May 20, 2019.
On October 31, 2019, Alkasaji filed suit against James River in the Civil District Court for the Parish of Orleans, State of Louisiana.
i. Motion to Dismiss
In a removed case where the defendant challenges the complaint in a motion to dismiss for failure to state a claim, federal pleading standards control. Peña v. City of Rio Grande City, 879 F.3d 613, 617 (5th Cir. 2018). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a complaint or part of a complaint when a plaintiff fails to set forth well-pleaded factual allegations that "raise a right to relief above the speculative level." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). The complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A facially plausible claim is one in which "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If the well-pleaded factual allegations "do not permit the court to infer more than the mere possibility of misconduct," then "the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).
In assessing the complaint, a court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012). Furthermore, on a Rule 12(b)(6) motion, the Court generally must limit itself to the contents of the pleadings, including attachments thereto. Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).
"Dismissal is appropriate when the complaint `on its face show[s] a bar to relief.'" Cutrer v. McMillan, 308 F. App'x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). "If the allegations . . . show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim." Jones v. Bock, 549 U.S. 199, 215 (2007); see Frame v. City of Arlington, 657 F.3d 215, 240 (5th Cir. 2011) ("[A] complaint may be subject to dismissal if its allegations affirmatively demonstrate that the plaintiff's claims are barred by the statute of limitations and fail to raise some basis for tolling.").
ii. Prescription of Alkasaji's UM Claim
Under La. Stat. Ann. § 9:5629, "[a]ctions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained." However, "[p]rescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe." Mallett v. McNeal, 2005-2289, p. 5 (La. 10/17/06), 939 So.2d 1254, 1258 (citing La. Civ. Code Ann. art. 3464). "An uninsured/underinsured motorist carrier's unconditional payment of monies to its insured pursuant to [La. Stat. Ann. § 22:1892] and McDill, constitutes an acknowledgment sufficient to interrupt prescription." Demma v. Auto. Club Inter-Ins. Exch., 2008-2810, p. 15 (La. 6/26/09), 15 So.3d 95, 105 (internal citation omitted). Prescription commences to run anew from the last day of interruption. La. Civ. Code Ann. art. 3466; Babin v. Babin, 08-776, p. 3 (La. App. 5 Cir. 3/10/09), 10 So.3d 784, 786, writ denied, 2009-0813 (La. 6/19/09), 10 So.3d 735.
"The burden of proof on the prescription issue lies with the party asserting it unless the plaintiff's claim is barred on its face, in which case the burden shifts to the plaintiff." Mallett, 939 So. 2d at 1258.
James River argues that Alkasaji's UM claim is prescribed because it was not filed within two years of the collision, which occurred on October 30, 2016.
iii. Prescription of First-Party Bad Faith Claim
An insured's claim of bad faith by his insurer is a personal action that is subject to a ten-year prescriptive period. Smith v. Citadel Ins. Co., 2019-00052, p. 10 (La. 10/22/19), 285 So.3d 1062, 1069. Although prior jurisprudence from Louisiana courts and federal courts applying Louisiana law was divided as to whether a one-year or ten-year prescriptive period applied to such claims,
Alkasaji claims that James River failed to administer his documented UM claim in good faith.
iv. Prescription of LUTPA Claim
LUTPA prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." La. Stat. Ann. § 51:1405(A). To establish a LUTPA claim, the plaintiff must show that the alleged conduct "`offends established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious.'" K&F Rest. Holdings, Ltd. v. Rouse, No. 18-30953, 2020 WL 502620, at *2 (5th Cir. Jan. 30, 2020) (quoting Quality Envtl. Processes, Inc. v. I.P. Petroleum Co., 2013-1582, p. 21 (La. 5/7/14), 144 So.3d 1011, 1025). "`[T]he range of prohibited practices under LUTPA is extremely narrow,' so `only egregious actions involving elements of fraud, misrepresentation, deception, or other unethical conduct will be sanctioned based on LUTPA.'" Id. (quoting Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633, p. 11 (La. 4/23/10), 35 So.3d 1053, 1060).
The law provides for a private right of action to recover damages suffered as a result of a LUTPA violation. See La. Stat. Ann. § 51:1409(A). Such actions are subject to a liberative prescription of one year that commences from the time of the transaction or act that gave rise to the right of action.
The parties disagree as to the date when the prescriptive period for Alkasaji's LUTPA claim commenced. James River argues that prescription started to run on November 1, 2017 when James River offered to settle Alkasaji's claim subject to a confidentiality and non-disparagement agreement.
For the foregoing reasons,
R. Doc. No. 1-2, at 13 ¶ 25.