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Equity dictates recognizing an insurer's tender under La. Rev. Stat. Ann. § 22:658 as an acknowledgment and thus within the waiver exception, which results in an interruption of abandonment under La. Code Civ. Proc. Ann. art. 561, and a recommencement of the abandonment period from the date of the tender.
After appellant sued appellee, negotiations were followed by appellee's unconditional tender to appellant. This was followed by a period of relative inactivity on both sides after which appellant filed a copy of the tender check and correspondence into the record and requested the service of the petition on appellee. The petition was served on appellee over three years after filing. Appellee's motion to dismiss for abandonment was granted, then vacated. The Court of Appeal reversed and appellant sought review.
Should the appellee’s unconditional tender to appellant be recognized as an interruption of the abandonment period?
The court noted that under La. Code Civ. Proc. Ann. art. 561, an action was considered abandoned if no step was taken in its prosecution or defense for three years. An action was not to be dismissed on technicalities, but only when clearly abandoned. The reason for the rule requiring a party's action to be on the record in order to interrupt the abandonment period was not applicable to the facts of this case. In this case, appellee’s unconditional tender to appellant was made to satisfy the requirements of La. Rev. Stat. Ann. § 22:658(A)(1), and was not part of informal negotiations. Appellee's unconditional tender was, for purposes of abandonment, an acknowledgment. Given the protection from a bad-faith claim appellee derived from its tender, it had to also be recognized as an interruption of the abandonment period.