By: Corey Meaux
One of the more unique aspects of Louisiana law was its one-year prescriptive period for delictual actions, aka tort/personal injury claims. If you are not familiar with our unique Louisiana legal terminology, a “prescriptive period” is our equivalent of a “statute of limitation,” which is what you’ve likely heard if you’ve done claims in other states. When a claim has “prescribed,” the “statute of limitations” has run its course. Recently, the Louisiana legislature has amended the prescriptive period for tort/personal injury claims, which is now a two-year period. This prescription commences to run from the day of the injury or the date that damage is sustained. Importantly, the new Act provides that the new statute shall be given prospective application only and shall apply to actions arising after the effective date of the Act. Therefore, damages that have already occurred are still subject to the one-year prescriptive period. For example, if you have an injury that occurred on June 30, 2024, the tort lawsuit must still be filed before June 30, 2025. However, if the injury occurs on July 1, 2024, the tort lawsuit must be filed before July 1, 2026.
How will this affect workers’ compensation cases? As you know, all 1008s for payments of indemnity must be filed within one year from the accident, or within one year from the last payment of indemnity (three years for SEBs if payment has been made). This is a specific rule as it relates to indemnity benefits in workers’ compensation cases. However, for years prescription as it relates to penalties and attorneys’ fees has been governed based on the prescriptive period for delictual (tort/personal injury) actions. Therefore, based on the change in the law, there is the possibility that claims for penalties and attorneys’ fees may now be subject to a two-year prescriptive period. While there are some exceptions, this explanation covers the majority of the situations that you will encounter.
What is more concerning is the fact that the filing of a tort claim revives a workers’ compensation claim because it interrupts prescription. An interruption of prescription starts the prescription period over again. For example, if you have a claimant that has not filed a workers’ compensation claim but decides to file a claim in tort close to the two-year prescriptive period, prior case law appears to dictate that the workers’ compensation claim is revived, and the claimant can still file a claim at that time. We are not fully certain how this change in the prescriptive period for tort claims will affect workers’ compensation claims, but it certainly concerning and something that you need to be aware of moving forward. As we hear more on the changes in the law, we will provide you with updates.
