If Your Client Sees Grayish Substances in the Vents and Smells Foul Odors in the Air Conditioning Closet at the Office, Don’t Delay Filing that Louisiana Lawsuit

When I was a prosecutor, defense attorneys, not always in jest, would say to me that something was rotten and stinking up the prosecutor’s office. But I never found the cause of that stinking smell. Apparently in the District Attorney's Office for St. Landry Parish, Louisiana, though, there was a foul odor, and that odor was enough to ultimately cause the dismissal of a lawsuit by two former employees of the District Attorney's Office against the insurers for a building where the District Attorney's Office had operated from.

 

The District Attorney’s Office is located in the City of Opelousas, the parish seat and largest city in St. Landry Parish, with a population of approximately 22,500. Opelousas sits along Interstate 49, 20 miles north of Lafayette. It is the third oldest city in Louisiana and has a Cajun and Creole culture that is home to crawfish, gumbo, jambalaya, and shrimp dishes and Swamp Pop, Zydeco, and Cajun music.

 

The District Attorney’s Child Support Enforcement Section is now located at 231 South Union Street in Opelousas, but in 1997 to 2000 it was located in a building at 128 West Bellevue Street. During that time period, the plaintiffs in Artholee v. Trinity Universal Ins. Co., 2009 La. App. LEXIS 170 (La. App. 3 Cir. Feb. 4, 2009), worked in the Support office at that location. In October, 2004, six years after one plaintiff had left her employment, and four years after the other plaintiff had left her employment, they filed a lawsuit in the Twenty-Seventh Judicial District Court, Parish of St. Landry, against the insurers of the 128 West Bellevue Street building, claiming that they had suffered damages during their employment because of a toxic mold infestation there.

 

The defendants filed a peremptory exception of prescription in the district court, seeking the dismissal of the lawsuit on the basis that it had been filed more than one year after the end of the employment of the plaintiffs, and thus was barred by the by operation of the one year liberative prescription of La. C.C. Art. 3492. The plaintiffs responded by invoking the doctrine of contra non valentem non currit praescriptio, asserting that their claims had not expired because they had filed their lawsuit within one year after they learned what had caused their illnesses. The district court agreed with the insurers and dismissed the lawsuit.

 

The Court of Appeal of Louisiana, Third Circuit, affirmed the dismissal, holding that the plaintiffs failed to meet their burden of proving that their claims had not been prescribed or expired. The plaintiffs first argued that the defendants had become aware of the toxic mold infestation in 2003 and failed to notify the plaintiffs and other employees of the infestation, thus suspending the running of the one-year time period. The appellate court rejected that argument because neither of the plaintiffs was employed in the Support Enforcement Section in 2003, there was no showing that the defendants had deliberately concealed information about the toxic mold infestation, and even if the applicable date in 2003 applied, the plaintiffs still failed to file their lawsuit within one year of that date.

 

The plaintiffs also argued that prescription could be suspended "where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant." The plaintiffs asserted that although they had symptoms during their employment, they did not know that their symptoms related to their former work environment until they learned in August, 2004 that the defendants had been sued for mold infestation in the 128 West Bellevue Street building. The defendants responded that the plaintiffs had constructive knowledge of the cause of their symptoms and that they knew facts that were sufficient to call for inquiry into the cause of their symptoms.

 

The appellate court agreed that the plaintiffs should have connected the dots back when they worked in the office. “In the depositions introduced into the record in this matter, both plaintiffs testified that they were aware of unusual and debilitating symptoms during their employment. They sought medical help. Also, they both testified that they observed water leaks and cleaned a grayish substance from the vents and Cassandra Ardoin testified that she smelled a foul odor in the air conditioning closet. Although no one connected the plaintiffs' symptoms to conditions in the building, it is the opinion of the court that the circumstances set forth in the depositions bear strong analogy to the facts of those cases which define the term and consider such facts a cause of action ‘reasonably knowable to the plaintiff.’…Although it is unfortunate when persons are unable to obtain compensation for injuries, the doctrine of prescription has a social utility that has been recognized by the legislature and the courts. It is the duty of the trial court to follow the law.”

 

So the lesson is clear. If you come across a foul and disgusting odor when you visit your prosecutor’s office, don’t assume that it is a reflection on the prosecutor’s unwillingness to plea bargain your client’s case. First, check for water leaks, grayish substances in the vents, and foul odors in the air conditioning closet. And what should you do if you find any such problems? I would suggest you spring for a latte for your prosecutor and discuss why your client deserves a plea bargain at the prosecutor’s favorite coffee shop.