Britt v. Old Dominion Freight Line, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAMES BRITT, ET AL. CIVIL ACTION

Plaintiffs

VERSUS NO. 24-2746 c/w

24-2905, 25-531

OLD DOMINION FREIGHT LINE, INC., ET AL. SECTION: “E”(3)

Defendants

Applies to: All Cases

AMENDED ORDER AND REASONS

Before the Court is a motion for summary judgment filed by Defendants, Clifford

Williams (“Williams”) and Old Dominion Freight Line, Inc. (collectively referred to as

“Defendants”).1 Defendants seek summary judgment in their favor and against Shavonne

Latimore (“Latimore”) because her claims are prescribed. Latimore filed an opposition to

the motion.2 Subsequent to this Court’s order,3 Latimore filed an amended opposition4 to

Defendants’ statements of material facts.5 Defendants filed a reply.6

Also before the Court are Williams and Old Dominion’s Motion to Dismiss

[Latimore’s] Cross Claim – Prescription and their Motion to Dismiss [Latimore’s] Cross

Claim – No Right to Maintain Two Actions on May 28, 2025.7 The issues presented in

1 R. Doc. 34 (24-2746).

2 R. Doc. 37 (24-2746).

3 R. Doc. 41 (24-2746).

4 R. Doc. 42 (24-2746).

5 R. Doc. 34-3 (24-2746).

6 R. Doc. 43 (24-2746).

7 R. Doc. 55; R. Doc. 56 (24-2746). The Motion to Dismiss [Latimore’s] Cross Claim – No Right to Maintain

Two Actions was set for submission on April 9, 2025, but this obviously is a typographical error as the

motion was not filed until May 28, 2025.7

these motions are the same issues before the Court in the Defendants Motion for

Summary Judgment.8 Because these issues have been fully briefed, and in the interest of

judicial economy, the Court will decide these motions as well.

BACKGROUND

I. Factual Background

This case arises out of a three-car accident that occurred on I-55 in Tangipahoa

Parish, Louisiana.9 Latimore alleges that on September 2, 2023, she was driving a Kia

Optima in the right lane of I-55 heading south when her “vehicle became disabled and her

vehicle came to a complete stop in the right hand lane of travel.”10

Latimore alleges that, when her vehicle stopped, she activated her emergency

signals, enabling the car directly behind hers to “come to a complete stop behind [her]

vehicle.”11 Latimore further alleges that Williams, “who was negligently operating a 2019

Freightliner, behind the vehicle traveling directly behind [her], as a result of being

inattentive and following too closely, failed to stop in time to avoid the vehicle

immediately behind” her.12 Latimore avers that Williams “made contact with the middle

vehicle, which impact caused the middle vehicle to crash into” her vehicle.13 Latimore

alleges that the accident “was a direct result of [Defendants’] negligence.”14

Latimore asserts negligence claims against Williams for “[f]ailing to maintain

control of his vehicle;” “[d]riving in a careless and reckless manner;” “[f]ailing to keep a

proper lookout/being inattentive;” “[f]ollowing too closely;” “[f]ailing to see what should

8 R. Doc. 34 (24-2746).

9 R. Doc. 1-2, p. 2 (25-531).

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.

have been seen;” “[f]ailing to act with the required degree of care commensurate with

existing driving conditions;” “[s]triking the vehicle directly behind Petitioner from the

rear;” and “[a]ny and all other acts of negligence, which may be proven at the trial of this

matter.”15

Latimore asserts negligence claims against Old Dominion Freight Line, Inc. for

“[f]ailing to properly train Defendant Driver;” “[f]ailing to properly supervise Defendant

Driver;” and “[a]ny and all other acts of negligence, which may be proven at the trial of

this matter.”16

Latimore avers she has sustained several damages, including “[p]ast, present and

future physical pain and suffering;” “[p]ast, present and future mental pain and anguish;”

“[p]past, present and future medical expenses;” “[l]oss of enjoyment of life;” “[d]amages

to her personal property;” and “[a]ny and all other damages which may be proven at the

trial of this matter.”17

II. Procedural Background

On July 30, 2024 (approximately two months before Latimore filed suit), James

Britt (“Britt”) and Kelly Budd (“Budd”), the driver and passenger of the middle car

involved in the accident described above, sued Old Dominion Freight Line, Inc., Ace

American Insurance Company, Clifford Williams, and ABC Insurance Co. in solido18 for

negligence damages19 in the 21st Judicial District Court for the Parish of Tangipahoa.20

Defendants removed the action to this Court on November 25, 2024.21

15 Id. at p. 3.

16 Id.

17 Id. at p. 4.

18 R. Doc. 2-2, p. 1 (24-2746).

19 Id. at p. 2.

20 See generally id.

21 R. Doc. 2 (24-2746).

On September 20, 2024, Latimore filed suit against Clifford Williams and Old

Dominion Freight Line, Inc. in the 21st Judicial District Court for the Parish of

Tangipahoa.22 Defendants removed the action to this Court on March 18, 2025.23

On March 24, 2025, Latimore moved this Court for leave to file an amended

complaint,24 which was followed by an opposition by Defendants25 and a reply by

Latimore.26 On April 7, 2025, the magistrate judge granted Latimore’s motion for leave

to amend her complaint,27 and Latimore filed her first amended complaint that same

day.28 On April 15, 2025, Defendants answered the amended complaint29 and moved for

summary judgment due to Latimore’s claims being prescribed.30

On April 23, 2025, the Britt action and the Latimore action were consolidated.31

On April 24, 2025, Latimore moved this Court for leave to file a cross claim against

her co-defendants Clifford Williams, Old Dominion Freight Line Inc., and Ace American

Insurance Company in the consolidated action,32 which this Court granted in its April 25,

2025 Order.33 On May 12, 2025, the Court granted Britt leave to file a second amended

complaint to properly allege the citizenship of EAN Holdings, LLC.34

On April 24, 2025, Defendants filed their motion for summary judgment arguing

Latimore’s claims are prescribed.35 Latimore opposed the motion for summary

22 R. Doc 1-2 (25-531). Latimore initiated the fax-filing of her petition on August 27, 2024, but it was not

stamped by the Clerk’s office as filed until September 20, 2024 due to no receipt of originals.

23 R. Doc. 1. (25-531).

24 R. Doc. 10 (25-531).

25 R. Doc. 12 (25-531).

26 R. Doc. 14 (25-531).

27 R. Doc. 15 (25-531).

28 R. Doc. 16 (25-531).

29 R. Doc. 20 (25-531).

30 R. Doc. 21 (25-531)

31 R. Doc. 32 (minute entry) (24-2746). Prior to this consolidation, the Britt matter was already consolidated

with another case involving the same accident and the same parties.

32 R. Doc. 35 (24-2746).

33 R. Doc. 38 (24-2746).

34 R. Doc. 46 (24-2746).

35 R. Doc. 34 (24-2746).

judgment36 and Defendants replied.37 On May 28, 2025, Defendants filed their Motion

to Dismiss [Latimore’s] Cross Claim – Prescription and their Motion to Dismiss

[Latimore’s] Cross Claim – No Right to Maintain Two Actions.38

LEGAL STANDARD

Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.”39 “An issue is material if its resolution could affect the outcome of the action.”40

When assessing whether a material factual dispute exists, the Court considers “all of the

evidence in the record but refrain[s] from making credibility determinations or weighing

the evidence.”41 All reasonable inferences are drawn in favor of the nonmoving party.42

There is no genuine issue of material fact if, even viewing the evidence in the light most

favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving

party, thus entitling the moving party to judgment as a matter of law.43

If the dispositive issue is one for which the moving party will bear the burden of

persuasion at trial, the moving party “must come forward with evidence which would

‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”44 If the

moving party fails to carry this burden, the motion must be denied. If the moving party

successfully carries this burden, the burden of production then shifts to the nonmoving

party to direct the Court’s attention to something in the pleadings or other evidence in the

36 R. Doc. 37 (24-2746).

37 R. Doc. 43 (24-2746).

38 R. Doc. 55; R. Doc. 56 (24-2746).

39 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

40 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

41 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).

42 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

43 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).

44 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.

v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).

record setting forth specific facts sufficient to establish that a genuine issue of material

fact does indeed exist.45

On the other hand, if the dispositive issue is one on which the nonmoving party

will bear the burden of persuasion at trial, the moving party may satisfy its burden of

production by either (1) submitting affirmative evidence that negates an essential element

of the nonmovant’s claim, or (2) demonstrating there is no evidence in the record to

establish an essential element of the nonmovant’s claim.46 When proceeding under the

first option, if the nonmoving party cannot muster sufficient evidence to dispute the

movant’s contention that there are no disputed facts, a trial would be useless, and the

moving party is entitled to summary judgment as a matter of law.47 When, however, the

movant is proceeding under the second option and is seeking summary judgment on the

ground that the nonmovant has no evidence to establish an essential element of the claim,

the nonmoving party may defeat a motion for summary judgment by “calling the Court’s

attention to supporting evidence already in the record that was overlooked or ignored by

the moving party.”48 Under either scenario, the burden then shifts back to the movant to

demonstrate the inadequacy of the evidence relied upon by the nonmovant.49 If the

movant meets this burden, “the burden of production shifts [back again] to the

45 Celotex, 477 U.S. at 322-24.

46 Id. at 331-32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)

(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322-24, and

requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s

claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential

element); Fano v. O’Neill, 806 F.2d 1262, 1266 (5th Cir. 1987) (citing Justice Brennan’s dissent in Celotex,

and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims on

summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE

AND PROCEDURE § 2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and

dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how

the standard was applied to the facts of the case.” (internal citations omitted)).

47 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1980); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50 (1986).

48 Celotex, 477 U.S. at 332-33.

49 Id.

nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving

party’s papers, (2) produce additional evidence showing the existence of a genuine issue

for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further

discovery is necessary as provided in Rule 56(f).”50 “Summary judgment should be

granted if the nonmoving party fails to respond in one or more of these ways, or if, after

the nonmoving party responds, the court determines that the moving party has met its

ultimate burden of persuading the court that there is no genuine issue of material fact for

trial.”51

Still, “unsubstantiated assertions are not competent summary judgment evidence.

The party opposing summary judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that evidence supports the claim.

‘Rule 56 does not impose upon the district court a duty to sift through the record in search

of evidence to support a party’s opposition to summary judgment.’”52

UNDISPUTED FACTS

The following facts are undisputed. Latimore seeks damages from the Defendants

for injuries allegedly sustained as a result of a car accident.53 The car accident occurred

on September 2, 2023.54 Latimore retained current counsel on October 23, 2023.55 On

September 20, 2024, Latimore filed her Petition for Damages.56 Defendants have not

made any “unconditional payments or promises to pay [Latimore] on her claims.”57

50 Id. at 332-33 & n.3.

51 Id.; see also First Nat’l Bank of Ariz., 391 U.S. at 289.

52 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (first citing Celotex, 477 U.S. at 324;

then Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994); then quoting Skotak v. Tenneco Resins, Inc., 953

F.2d 909, 915-16 & n.7 (5th Cir. 1992)).

53 R. Doc. 34-3, p. 1 (24-2746).

54 Id. ¶ 1 (citing Exhibit “A” to Memorandum in Support of Motion, Latimore’s Petition for Damages).

55 Id. ¶ 2 (citing R. Doc. 10-2, p. 6, Plaintiff’s Memorandum in Support of Motion for Leave).

56 Id. ¶ 3 (citing Exhibit “A” to Petition and Clerk’s filing stamp on top of first page).

57 Id. ¶ 8.

DISPUTED FACTS

Defendants state it is an undisputed fact that “[Latimore]’s Petition for Damages

is prescribed on its face.”58 Latimore disputes this for three reasons based on largely legal

as opposed to factual issues.

First, Latimore states that her Petition is not facially prescribed because the

prescriptive period was interrupted when Louisiana Civil Code article 3492 was repealed

and replaced with Act No. 423 (H.B. No. 315), which had an effective date of July 1,

2024.59

Second, Latimore states that her Petition is not facially prescribed because

Defendants maintained continuous and frequent contact, resulting in a tacit

acknowledgment of the liability and thus prescription was interrupted.60

Third, Latimore states that her Petition is not facially prescribed because she filed

an incidental demand, which is an exception to the tolling of prescription.61 Latimore

avers that this exception allows her “amendment to the original Petition for Damages, [to]

relate[] back to the original filing date of September 20, 2024,” pursuant to Louisiana

Code of Civil Procedure Article 1153.62

Defendants state it is an undisputed fact that “Latimore has not filed any pleadings

in the James Britt matter.”63 Latimore disputes this and states she filed a cross-claim in

the Britt matter on April 25, 2025.64

58 Id. at ¶ 5 (citing Exhibit “A” to Memorandum in Support of Motion, Petition and Clerk’s filing stamp on

top of first page, and Plaintiff’s admission of same, R. Doc. 11, p. 9).

59 R. Doc. 42, ¶ 5 (citing R. Doc. 37-1).

60 Id. (citing R. Doc. 37, Exhibit 1 (24-2746)).

61 Id. (citing R. Doc. 16 (25-531) and R. Doc. 39 (24-2746)).

62 Id. (citing R. Doc. 37, p. 16 (24-2746)).

63 R. Doc. 34-3 at p. 1 (24-2746).

64 R. Doc. 42 at p. 2 (24-2746).

Defendants state it is an undisputed fact that “Defendants have not informed

Latimore that they admit liability or will not contest liability.”65 Latimore disputes this is

an undisputed fact and maintains that Defendants have tacitly acknowledged the liability

“via continual and frequent communications throughout the prescriptive period,” and

states that Defendants have not explicitly denied or disputed liability to Latimore.66

LAW AND ANALYSIS

I. The prescriptive period was not interrupted by the July 1, 2024

change in the law.

In their motion for summary judgment, Defendants argue they are entitled to

summary judgment because Latimore’s claim was subject to a one-year prescriptive

period and thus Latimore’s claim is time barred.67 Latimore argues summary judgment

is inappropriate here because her claim is not prescribed. Latimore argues that because

Louisiana Civil Code article 3492 was repealed during the running of her prescriptive

period, the only remaining article that applied was Louisiana Civil Code article 3499,

which provided her a prescriptive period of ten years.68 This Court rejects Latimore’s

argument.

Prior to July 1, 2024, the liberative prescriptive period for delictual actions in

Louisiana was one year.69 In the 2024 Regular Session of the Louisiana State Legislature,

House Bill No. 315, Act No. 423 was enacted.70 This Act “repeal[ed Louisiana] Civil Code

Article[] 3492” and changed the liberative prescription period for delictual actions from

one year to two.71 The Act also expressly provided for a “prospective application only and

65 R. Doc. 34-3 at p. 2 (24-2746).

66 R. Doc. 42 at p. 3 (24-2746).

67 R. Doc. 34-1 at pp. 8-9.

68 R. Doc. 37 at p. 8.

69 LA. C.C. ART. 3492 (repealed by Acts 2024, No. 423, § 2, eff. July 1, 2024).

70 See generally 2024 Regular Session, House Bill No. 315, Act No. 423,

https://www.legis.la.gov/legis/ViewDocument.aspx?d=1381901 (last visited May 28, 2025).

71 Id.

[that it] shall apply to delictual actions arising after the effective date of this Act”72 on July

1, 2024.73 The new law now establishes that “[d]elictual actions are subject to a liberative

prescription of two years. This prescription commences to run from the day that injury

or damage is sustained.”74

In Parker v. Chet Morrison Contractors, LLC, another section of this Court

analyzed whether a claim was prescribed when Parker filed a negligence action in

September 2023 against his employer for a “near-drowning incident” that occurred over

ten years prior in February 2013.75 After noting that the new law applies only

prospectively and “its two-year prescriptive period ‘shall apply to delictual actions arising

after the [July 1, 2024] effective date of [Act 423],” the Court held that “[b]ecause the

alleged facts underlying Parker’s negligence claim occurred before July 1, 2024, the

former Article 3492 and its one-year prescriptive period apply.”76

There are no disputes of material fact with respect to this argument. It is

undisputed that Latimore’s car accident occurred on September 2, 2023.77 Instead,

Latimore makes an argument based on Louisiana law. Because the accident occurred on

September 2, 2023, it follows that the facts underlying Latimore’s claim (i.e. the date of

the accident) occurred prior to the July 1, 2024 effective date of Act No. 423. As the

statute and the Parker case made clear, the two-year prescriptive period applies only to

delictual actions arising after July 1, 2024.78 There is no support for an argument that a

ten-year prescriptive period applies.79 In the instant case, the facts underlying the

72 Id. at § 3.

73 Id. at § 4.

74 LA. C.C. ART. 3493.11.

75 Parker v. Chet Morrison Contractors, LLC, No. CIV.A 23-5122, 2024 WL 3970312 at *2-3 (E.D. La. Aug.

28, 2024).

76 Id. at *5 (emphasis added).

77 R. Doc. 42 at ¶ 1.

78 Parker v. Chet Morrison Contractors, LLC, 2024 WL 3970312 at *5.

79 See generally id.

negligence claim occurred on September 2, 2023, which is before the new law’s effective

date of July 1, 2024. Thus, Latimore is restricted to the one-year prescriptive period. To

rule otherwise would result in a retroactive application that is unsupported by law or

jurisprudence.

II. Latimore’s prescriptive period was not interrupted.

In their motion for summary judgment, Defendants argue it is an undisputed fact

that they did not provide continuous and frequent contact with Latimore that rose to the

level of tacit acknowledgment.80 Conversely, Latimore disputes this is an undisputed fact

and argues the three emails from defense counsel do indeed rise to such a level, resulting

in her prescription period being interrupted.81 In reality, there is no dispute as to the

extent or nature of communications between Latimore and defense counsel. Instead, the

issue is whether under Louisiana law these communications rise to the level of a tacit

acknowledgement sufficient to interrupt prescription.

Absent a federal rule of civil procedure expressly stating to the contrary, the Erie

doctrine controls how federal courts determine statutes of limitations – known as

prescriptive periods in Louisiana. “Under the Erie doctrine, federal courts sitting in

diversity [jurisdiction] apply state substantive law and federal procedural law.”82 It has

been repeatedly held that “[s]tate statutes of limitations are [considered] substantive

law.”83 Thus, “federal courts [with diversity jurisdiction must] apply state statutes of

limitations to state-law claims.”84 In the instant case, there is no federal rule of civil

80 R. Doc. 34-1 at p. 10 (24-2746).

81 R. Doc. 37 at pp. 10-11 (24-2746).

82 Quinn v. La. Citizens Prop. Ins. Corp., 118 So. 3d 1011, 1019 n.12 (La. 2012) (citing Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 427 (1996)); Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

83 Wilson v. Hearos, LLC, 128 F.4th 1254, 1264 (11th Cir. 2025).

84 Franco v. Mabe Trucking Co., Inc., 3 F.4th 788, 797 (citing Guaranty Trust Co. of New York v. York,

326 U.S. 99, 111-12 (1945)).

procedure expressly stating the statute of limitations for tort claims – known as delictual

actions in Louisiana. Thus, because this Court has diversity jurisdiction over this matter,

and because prescriptive periods are considered substantive law rather than procedural,

this court is required to apply Louisiana’s prescription laws.

“Liberative prescription is a mode of barring actions as a result of inaction for a

period of time.”85 Prescription statutes must be interpreted in favor of keeping the action

alive, rather than barring it.86 “The burden of proving prescription ordinarily lies with

the party raising the exception; however, when prescription is evident from the face of the

petition, the burden shifts to the plaintiff to show the action has not prescribed.”87 One

way a plaintiff may meet this burden is by showing prescription was interrupted.88 “The

party claiming interruption . . . bears the burden of proving that interruption . . .

occurred.”89 “Interruption of prescription must occur before the prescriptive period has

expired.”90 In the instant case, because the accident occurred on September 2, 2023 and

Latimore did not file her suit until September 20, 2024, more than one year after the

accident, Latimore’s claim has prescribed on its face. Thus, the burden of proof rests with

Latimore to show that her claim has not prescribed.

85 LA. C.C. ART. 3447.

86 Lima v. Schmidt, 595 So. 2d 624, 629 (La. 1992) (overruled on other grounds) (citing Foster v. Breaux,

270 So. 2d 526 (1972)); Knecht v. Board of Trustees for Colleges and Universities, 525 So. 2d 250 (La. Ct.

App. 1st Cir.), writ denied, 530 So. 2d 87 (La. 1988); Odessa House v. Goss, 453 So. 2d 299 (La. Ct. App.

3rd Cir. 1984)).

87 In re Maison Royale, 663 B.R. 316, 322 (E.D. La. June 18, 2024) (quoting Mitchell v. Baton Rouge

Orthopedic Clinic, L.L.C., 333 So. 3d 368 (La. 2021); see also Lima, 595 So. 2d at 628 (“When the plaintiff’s

petition on its face reveals that prescription has run, the burden is on the plaintiff to show why the claim

has not prescribed.”); Mallett v. McNeal, 939 So. 2d 1254, 1258 (La. 2006) (“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.”) (citing Bailey v. Khoury, 891 So. 2d 1268, 1275 (La. 2005)).

88 Lima v. Schmidt, 595 So. 2d at 628.

89 In re Maison Royale, 663 B.R. at 322 (citing Taranto v. La. Citizens Prop. Ins. Corp., 62 So. 3d 721, 726

(La. 2011)).

90 Id. at 326 (citing Reynolds v. Walgreen Co., 342 So. 3d 975, 984 (La. Ct. App. 1st Cir. 2022), writ denied,

348 So. 3d 79 (La. 2022).

“Prescription is interrupted when one acknowledges the right of the person against

whom he had commenced to prescribe.”91 An acknowledgment sufficient to interrupt a

prescriptive period “erases the time that has accrued, [and] prescription recommenc[es]

anew from the date of interruption.”92 There is no form requirement for an

acknowledgment to occur – it can be “oral, in writing, formal, informal, express or

tacit. . . . If the acknowledgment is tacit, it is necessary to ascertain that the alleged facts

imply a definite admission of liability.”93

Louisiana jurisprudence has provided several examples of what constitutes a tacit

acknowledgment, including “when a debtor performs acts of reparation or indemnity,

makes an unconditional offer or payment, or lulls the creditor into believing he will not

contest liability.”94 Other evidence of a tacit acknowledgment includes “undisputed

liability, repeated and open-ended reassurances of payment, and continuous and frequent

contact with the creditor throughout the prescriptive period.”95 On the other hand, “mere

settlement offers or conditional payments, humanitarian or charitable gestures, and

recognition of disputed claims will not constitute acknowledgments.”96

In Safeco Ins. Co. v. Norcold, Inc., the Louisiana First Circuit Court of Appeal

analyzed whether prescription was interrupted by a defendant’s tacit acknowledgment of

a debt evidenced by several emails.97 Specifically, defendant’s emails asserted that

“[o]nce [Defendant] ha[s] negotiated the settlements and releases, [Plaintiff] will receive

91 LA. C.C. ART. 3464.

92 Lima v. Schmidt, 595 So. 2d at 631 (citing Comment, Interruption of Prescription by Acknowledgment

in Louisiana, TUL. L. REV. 430 (1940)); see also LA. C.C. ART. 3466 (“If prescription is interrupted, the time

that has run is not counted. Prescription commences to run anew from the last day of interruption.”).

93 Bates v. City of Denham Springs, 367 So. 3d 102, 107 (La. Ct. App. 1st Cir. 2023) (emphasis added) (citing

Safeco Ins. Co. v. Norcold, Inc., 113 So. 3d 1104, 1107 (La. Ct. App. 1st Cir. 2013)).

94 Lima v. Schmidt, 595 So. 2d at 634; see also In re Maison Royale, 663 B.R. at 327.

95 Id.

96 Id.

97 See generally Safeco Ins. Co., 113 So. 3d 1104.

the checks,” and defendant would “like to get this one moving towards settlement due to

the one year statute of limitations that will run in May.”98 Defendant also sent a couple

of emails inquiring about the status of the matter.99 The Louisiana First Circuit Court of

Appeal held that the defendant did not tacitly acknowledge the debt to plaintiff, and thus

prescription had not been interrupted.100 Specifically, the court focused on how a

settlement offer was never actually made, it was just merely mentioned.101 The court

emphasized that just because Defendant “intended and was willing to discuss settlement

with [Plaintiff] . . . [Defendant’s] statements and actions failed to manifest a definite

admission of liability to [Plaintiff].”102 Even if a settlement offer had been made, “the law

is clear that settlement offers do not evidence an acknowledgment unless the offer is

tendered unconditionally.”103

Similarly, in Gray v. State Farm Fire & Casualty Co., the Western District of

Louisiana analyzed the same issue. In that case, the plaintiff argued that several emails

“led him to believe [Defendant] would not contest liability.”104 The emails requested

additional information from the plaintiff and offered to schedule a mediation twice.105

The court held these emails did not prove an “acknowledg[ment of Defendant’s] liability”

sufficient to interrupt prescription.106

In Mire v. American Multi-Cinema, Inc., another section of this court analyzed

this issue.107 In Mire, the defendant “requested medical bills and a Medicare form,” which

98 Id. at 1108.

99 Id.

100 Id.

101 Id.

102 Id. at 1109.

103 Id. at 1108.

104 Gray v. State Farm Fire & Cas. Co., No. 23-1053, 2025 WL 1213860, at *3-4 (W.D. La. Apr. 25, 2025).

105 Id. at *4.

106 Id.

107 See generally Mire v. American-Multi-Cinema, Inc., No. 14-2582, 2015 WL 5682621 (E.D. La. Sept. 25,

2015).

was necessary for settlement evaluation purposes.108 The court held defendant’s “actions

of requesting information . . . [did] not rise to the level of acknowledging the alleged

debt.”109

In this matter, several communications were exchanged between counsel for

Latimore and counsel for Defendants over the course of approximately five months.110

The substance of the emails was the following:

(1) November 20, 2023: Defense counsel left a voicemail for Latimore’s

counsel asking to discuss the accident and medical status of Latimore.111

(2) November 29, 2023: Defense counsel emailed Latimore’s counsel

regarding same.112

(3) November 30, 2023: Latimore’s counsel returned defense counsel’s call

and left a voicemail stating that medical records would be forwarded

when received.113

(4) December 21, 2023: Latimore’s counsel’s legal assistant emailed

medical records to defense counsel.114

(5) January 16, 2024: Latimore’s counsel emailed defense counsel a

treatment update.115

(6) March 1, 2024: Defense counsel emailed Latimore’s counsel asking

whether treatment (i.e. injections) was done.116 Latimore’s counsel

108 Id. at *3.

109 Id. at *4.

110 R. Doc. 37 at pp. 10-11; see also R. Doc. 34-1 at p. 10 (24-2746).

111 R. Doc. 37 at p. 10 (24-2746); R. Doc. 37-9 (24-2746); R. Doc. 34-1 at p. 10 (24-2746).

112 Id.

113 R. Doc. 37 at p. 10 (24-2746); R. Doc. 34-1 at p. 10 (24-2746).

114 Id.; R. Doc. 37-10 (24-2746).

115 R. Doc. 37 at p. 10 (24-2746); R. Doc. 37-11 (24-2746); R. Doc. 34-1 at p. 10 (24-2746).

116 R. Doc. 37 at p. 10 (24-2746); R. Doc. 37-12 (24-2746); R. Doc. 34-1 at p. 10 (24-2746).

responded that injections were performed and that medical records

would be sent when available.117

(7) March 5, 2024: Latimore’s counsel’s legal assistant emailed medical

records to defense counsel.118

(8) April 3, 2024: Defense counsel emailed Latimore’s counsel asking for a

settlement demand.119

The emails Latimore contends are “continuous and frequent” contact that resulted

in a tacit acknowledgment of the debt are similar to those in Safeco, Gray, and Mire, as

discussed above. First, the November 20, 2023 voicemail and the November 29, 2023

follow-up email, by themselves, do not amount to a tacit acknowledgment. As the Mire

court reasoned, merely discussing the facts and requesting medical records is not

sufficient to tacitly acknowledge liability. Second, the March 1, 2024 email cannot

constitute a tacit acknowledgment for the same reason. Finally, the April 3, 2024 email

regarding the settlement demand does not rise to the level of a tacit acknowledgment for

reasons described in Safeco. Even though a settlement demand was asked for, an offer

was never provided, much less unconditionally, and therefore is not a definite admission

of liability. The communications in Safeco, Gray, and Mire come much closer to being

tacit acknowledgments than the communications in this case. Instead, in this case,

Defendants merely recognized a disputed claim. Latimore’s argument that Defendants

never explicitly denied liability120 is without merit as that does not equal tacit

acknowledgment under Louisiana jurisprudence. Additionally, this Court agrees with

117 R. Doc. 37 at p. 10 (24-2746); R. Doc. 37-13 (24-2746); R. Doc. 34-1 at p. 10 (24-2746).

118 R. Doc. 37 at p. 11 (24-2746); R. Doc. 37-14 (24-2746); R. Doc. 34-1 at p. 10 (24-2746).

119 R. Doc. 37 at p. 11 (24-2746); R. Doc. 37-15 (24-2746); R. Doc. 34-1 at p. 10 (24-2746).

120 Id. at p. 12 (24-2746).

Defendants that these communications, taken together, “can hardly be described as

continuous or frequent.”121

III. Latimore’s Petition and Amended Complaint do not relate back to

Britt’s original demand.

In Latimore’s First Amended Complaint, filed on April 7, 2025, she represents that

her amended complaint should be construed as an intervention into the Britt suit.122

Based on this premise, Latimore argues in her opposition to the motion for summary

judgment that her amended complaint in the Latimore action is an “intervention” in the

Britt action and as a result is an incidental demand and not barred by prescription

pursuant to Louisiana Code of Civil Procedure Article 1067.123 In their motion for

summary judgment, Defendants argue that Latimore’s Petition and Amended Complaint

in the Latimore action is not an incidental demand in the Britt matter and thus cannot be

construed as an intervention in the Britt action.124 Again, the facts relating to this

argument are not in dispute. Instead, the legal issue is whether Latimore’s amended

petition in the Latimore action may be construed as an intervention in the Britt action.

The Court finds that it may not.

Under Federal Rule of Civil Procedure 15(c)(1)(B), “[a]n amendment [may] relate[

] back to the date of the original pleading when the amendment asserts a claim or defense

that arose out of the conduct, transaction, or occurrence set out . . . in the original

pleading,”125 Latimore’s Amended Petition in the Latimore action may relate back, but

only to her own original Petition in the Latimore action. Given that Latimore’s original

121 R. Doc. 34-1 at p. 10.

122 R. Doc. 16, p. 3 (25-531).

123 R. Doc. 37 at p. 14 (24-2746). The Federal Rules of Civil Procedure are applicable “to a civil action after

it is removed from a state court.”123 Thus, Latimore’s entire argument rooted in Louisiana law is

inapplicable.

124 R. Doc. 34-1 at p. 14 (24-2746).

125 FED. R. CIV. P. 15(c)(1)(B).

Petition was untimely, Latimore’s Amended Complaint relating back to that date does not

render her filing timely. Rule 15(g) applies only to an amendment to a pleading already

filed, not a new cross-claim. Nothing in Rule 15, nor anywhere else in the Federal Rules

of Civil Procedure for that matter, grants Latimore the opportunity to fix her untimeliness

by having her amended petition in the Latimore action relate back to the timely complaint

filed in the Britt action.

Accordingly;

CONCLUSION

IT IS ORDERED that Defendants’ Motion for Summary Judgment!2° is

GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [Latimore’s ]

Cross Claim — Prescription!27 is GRANTED and Defendants’ Motion to Dismiss

[Latimore’s] Cross Claim — No Right to Maintain Two Actions'28 is DENIED as moot.!29

New Orleans, Louisiana, this 12th day of June, 2025.

Susie —_

SUSIE nigh

UNITED STATES DISTRICT JUDGE

126 R, Doc. 34 (24-2746).

127R, Doc. 55 (24-2746).

Doc. 56 (24-2746).

1290 Summary judgment has been granted against Latimore with respect to her claim and cross-claim because

they are prescribed and she no longer has two actions pending against Williams and Old Dominion.

18