Caserta et al v. Hanover Insurance Company/Massachusetts Bay Insurance Company

Filing 29

ORDER AND REASONS granting 23 Motion for Judgment on the Pleadings (Motion for Dismissal under Rule 12 (c)). FURTHER ORDERED that judgment will be entered. Signed by Judge Stanwood R. Duval, Jr on 1/15/2014. (swd, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SALVATORE CASERTA, ET AL

CIVIL ACTION

VERSUS

NO. 10-3027

HANOVER INSURANCE GROUPMASSACHUSETTS BAY INSURANCE
COMPANY

SECTION “K”(2)

ORDER AND REASONS

Before the Court is defendant Massachusetts Bay Insurance Company 's Motion to
Dismiss pursuant to Fed. R. Civ. P. 12(c) (Rec. Doc. 23).

I. BACKGROUND
On September 12, 2010, Plaintiffs, Salvatore Caserta, Diane Ferguson, Rhonda Olivier,
Deborah Sam and Calvin and Patrick Saulney (collectively "Plaintiffs"), filed their petition
concerning their five (5) separate and distinct Hurricane Katrina-related insurance claims.
Salvatore Caserta's property was located at 5800 Marshall Foch Street in New Orleans,
Louisiana. Diane Ferguson's property was located at 6574 Center Street in New Orleans,
Louisiana. Rhonda Olivier's property was located at 2900 Deer Creek Drive in Violet,
Louisiana. Deborah Sam's property was located at 2014 Phillip Street in New Orleans, Louisiana
and Calvin and Patricia Saulny's property was located at 10111 Deerfield Drive also in New
Orleans. The plaintiffs alleged that their insurer, Massachusetts Bay Insurance Company ("Mass
Bay"), failed to pay their claims for any and all hurricane damage under their respective
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homeowner's insurance policies. The Court granted a consent motion to stay these proceedings
pending ruling in the case then pending before the Louisiana Supreme Court (Rec. Docs. 5, 6).
The defendant recently moved to reopen the case on grounds that recent decisions by the United
States Court of Appeals for the Fifth Circuit and the Louisiana Supreme Court resolved
prescription issues in the defendant's favor and the defendant wished to move for dismissal on
that basis (Rec. Doc. 15).

II. LAW AND ANALYSIS
"A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard
as a motion to dismiss under Rule 12(b)(6)." Doe v. MySpace, Inc. 528 F.3d 413,2008 WL
2068064, at 3* (5th Cir.2008) (citations omitted). For both a Rule 12(b)(6) motion to dismiss
and Rule 12(c) motion for judgment on the pleadings, this Court is restricted to looking only "at
the pleadings and accept[ing] all allegations in them as true." Cuvillier v. Taylor, 503 F.3d 397,
402 (5th Cir. 2007), quoting St. Paul Ins. Co. v AFIA Worldwide Ins. Co., 937 F2d 274, 279 (5th
Cir. 1991).
Plaintiffs did not file their complaint until September 12, 2010. The deadline for filing
claims against an insurer related to losses from Hurricane Katrina expired on September 1, 2007.
Thus, it is obvious from the face of the petition that plaintiffs' claims are prescribed unless
prescription was somehow suspended, interrupted, or tolled. Defendant argues that the Fifth
Circuit in McGee v. State Farm Fire & Cas. Co.1 and the Louisiana Supreme Court in Quinn v.

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2013 WL 702702 (C.A.5 (La.)).
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La. Citizens Prop. Ins. Corp.2 removed the plaintiffs' only argument for suspension of the
prescription by holding that federal putative class actions do not operate to suspend prescription
under article 596 of the Louisiana Code of Civil Procedure.
The only putative class actions against Mass Bay were filed in federal court. Defendant
argues that under McGee and Quinn no bases exists for suspension of prescription on the instant
claims. The Court agrees that plaintiffs presented no basis for finding that prescription was
interrupted, suspended, or tolled for any reason. The Court also notes that Judge Vance in James
v. Hanover Insurance Company3 and Judge Engelhardt in Herring v. Metropolitan Property &
Casualty Insurance Company4 arrived at the same conclusion.

Moreover, as Judge Vance

stated in James:
"To the extent that plaintiffs mean to suggest that they qualify as
class members because they were eligible to receive benefits under
that program at some point in the past, this argument must fail.
Because plaintiffs have not alleged that they applied for benefits
before the July 31, 2007 deadline, they are not – and never were –
members of a class comprising "[a]ll current and former citizens of
the State of Louisiana who applied for and received or will receive
funds through The Road Home Program."5 Accordingly, the filing
of the Road Home class action could not suspend prescription of
plaintiffs' claims under Article 596. See McGee v. State Farm Fire
& Cas. Co., 2013 WL 702702, at *1 (5th Cir. Feb 26, 2013)
(affirming district court's conclusion that prescriptive period for
plaintiffs' suit against insurer for Katrina-related damages was not
suspended by the filing of the Road Home class action because

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2012 WL 5374255 (La. 2012).

3

2013 WL 3728279 (E.D.La.).

4

2013 WL 3893282 (E.D.La.).

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Louisiana State et al. v. AAA Insurance et al., No. 2:07-cv-05528, R. Doc. 1-1 at 21.
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plaintiffs "were neither members of [,] nor had claims related to [,]
the class action in Road Home").
James, at *4. Accordingly,
IT IS ORDERED that the Mass Bay's Motion for Dismissal under Rule 12 (c) (Rec.
Doc. 23) is GRANTED dismissing all claims against it urged by plaintiffs herein.
IT IS FURTHER ORDERED that judgment will be entered accordingly.
New Orleans, Louisiana, this 15th day of January, 2014.

____________________________________
STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE

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