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La. Code Civ. Proc. Ann. art. 561 states, in part: A. An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
The claimant filed a worker's compensation suit. The day before the trial was scheduled to begin, the insurer filed a motion to continue the trial date indefinitely for the stated reason that they agreed to pay compensation and medical expenses. The insurer paid total and permanent disability benefits and medical expenses for over five years. The claimant filed a motion to set the matter for trial when the payments stopped. The insurer filed a motion to dismiss the lawsuit based on abandonment under La. Code Civ. Proc. Ann. art. 561. The trial court denied the motion and the insurer sought a writ.
Did the payment of compensation and medical benefits for more than five years constitute a waiver of C.C.P. Art. 561 abandonment of the pending lawsuit?
The court held that the trial court properly denied the motion to dismiss, and denied the writ requested. The court held that payment of compensation and medical benefits by the insurer was totally inconsistent with any intent to treat the case as abandoned. The court noted that the insurer continued the trial date "indefinitely," voluntarily acknowledged an obligation, and made monthly payments for more than five years. The court held that each payment was a continuing waiver of the insurer's right to plead abandonment because payment was inconsistent with an intent to treat the case as abandoned.