Lefkowitz v. GEICO Advantage Ins. Co.

583 F.Supp.3d 763

Jane Ann LEFKOWITZ

v.GEICO ADVANTAGE INSURANCE COMPANY et al.

CIVIL ACTION NO. 20-3247

United States District Court, E.D. Louisiana.

Signed February 2, 2022

Filed February 3, 2022

Dominic Nicholas Varrecchio, Law Offices of Dominic N. Varrecchio, New Orleans, LA, for Jane Anne Lefkowitz.

Jane Anne Lefkowitz, Pro Se.

William Ryan Acomb, Devin J. Barnett, Porteous, Hainkel & Johnson, New Orleans, LA, for GEICO Indemnity Company.

SECTION: "G"

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, CHIEF JUDGE

Before the Court are Defendant GEICO Advantage Insurance Company ("GEICO Advantage") and Connor Toes’ ("Toes") Motions to Dismiss for Failure to State a Claim.¹ GEICO Advantage and Toes both argue that Plaintiff Jane Ann Lefkowitz's ("Plaintiff") claims have prescribed because they were not filed within one year of the April 19, 2019 automobile accident at issue in this case.² Plaintiff opposes both motions and argues that a three-year statute of limitations applies to her claims.³ Considering the motions, the memoranda in support and in opposition, the record, and the applicable law, the Court grants the motions.

I. Background

This matter arises out of an automobile accident which allegedly occurred on April 19, 2019 in Orleans Parish, Louisiana.⁴ Plaintiff alleges that she was injured when the vehicle she was driving was struck by a vehicle being driven by Toes and owned by Scott Westwood.⁵ GEICO Advantage issued a liability policy for the vehicle driven by Toes.⁶ GEICO Indemnity Insurance Company ("GEICO Indemnity" or "UM carrier") provided uninsured/underinsured motorist coverage for Plaintiff's vehicle.⁷

On December 1, 2020, Plaintiff filed suit against Toes, GEICO Advantage and GEICO Indemnity in this Court.⁸ Plaintiff asserted diversity jurisdiction pursuant to 28 U.S.C. § 1332.⁹ Plaintiff alleged that she is a citizen on Louisiana, Toes is a citizen of New York, Geico Advantage is a citizen of Nebraska and Maryland, and GEICO Indemnity is a citizen of Maryland.¹⁰ Plaintiff also alleged that the amount in controversy exceeds $75,000.¹¹

On June 2, 2021, GEICO Advantage filed a motion to dismiss.¹² On June 9, 2021, Toes filed a motion to dismiss.¹³ On June 22, 2021, Plaintiff opposed both motions.¹⁴ On June 29, 2021, GEICO Advantage and Toes filed a reply brief in further support of the motions.¹⁵

II. Parties’ Arguments

A. GEICO Advantage and Toes’ Arguments in Support of the Motions to Dismiss¹⁶

GEICO Advantage and Toes argue that Plaintiff has failed to state a claim upon which relief can be granted because her claims have prescribed.¹⁷ GEICO Advantage and Toes assert that Plaintiffs’ claims against them are subject to the one-year prescriptive period set forth in Louisiana Civil Code Article 3492.¹⁸ GEICO Advantage and Toes contend that the prescriptive period commenced on April 19, 2019, when the accident occurred.¹⁹ Because Plaintiff did not file suit until December 1, 2020, more than 19 months later, GEICO and Toes assert that the prescriptive period clearly had run when the suit was filed.²⁰

B. Plaintiffs’ Arguments in Opposition to the Motions to Dismiss²¹

Plaintiff asserts that she was unable to retain counsel until November 2020, due to the serious injuries she sustained in this accident and other medical issues.²² Nevertheless, Plaintiff argues that her claims against GEICO Advantage and Toes have not prescribed because they are subject to a three-year statute of limitations under New York law.²³ Plaintiff contends that New York law applies because Toes is a domiciliary of New York.²⁴ According to Plaintiff, if the claims are dismissed in this Court she would be forced to refile in New York.²⁵ Plaintiff asserts that convenience and fairness militate in favor of allowing the claims to proceed in this Court.²⁶

Plaintiff also claims that she put the defendants on notice of this claim prior to the prescription deadline and immediately after the April 19, 2019 accident.²⁷ Finally, Plaintiff notes that a two-year prescriptive period applies to her claims against the UM carrier, GEICO Indemnity.²⁸

C. GEICO Advantage and Toes Arguments in Further Support of the Motion

In reply, GEICO Advantage and Toes assert that the substantive law of Louisiana applies to this action because the accident occurred in Louisiana, Plaintiff resides in Louisiana, and her medical providers and witnesses are located in Louisiana.²⁹ GEICO Advantage and Toes cite Louisiana Civil Code article 3549, which provides that "[w]hen the substantive law of this state would be applicable to the merits of an action brought in this state, the prescriptive and peremption law of this state law applies."³⁰ Therefore, GEICO Advantage and Toes argue that the one-year statute of limitations set forth under Louisiana law applies to this action.³¹

GEICO Advantage and Toes assert that Plaintiff's argument that she put the defendants on notice of the claim prior to filing suit is of no moment because it does not affect the running of the prescriptive period.³² GEICO Advantage and Toes concede that the UM carrier, GEICO Indemnity, is subject to a two-year prescriptive period.³³ Nevertheless, GEICO Advantage and Toes assert that a timely filed suit against the UM carrier does not interrupt prescription against the alleged tortfeasor and his insurance carrier.³⁴ Finally, even assuming this case were filed in New York, GEICO Advantage and Toes assert that the claims would still be prescribed because New York law requires that a claim brought by a non-resident on a cause of action accruing outside the state be timely filed under the law of both New York and the jurisdiction where the cause of action accrued.³⁵

III. Legal Standard on a Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed "for failure to state a claim upon which relief can be granted."³⁶ A motion to dismiss for failure to state a claim is "viewed with disfavor and is rarely granted."³⁷ "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face."³⁸

The "[f]actual allegations must be enough to raise a right to relief above the speculative level."³⁹ The complaint need not contain detailed factual allegations, but it must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action.⁴⁰ That is, the complaint must offer more than an "unadorned, the defendant-unlawfully-harmed-me accusation."⁴¹

Although a court must accept all "well-pleaded facts" as true, a court need not accept legal conclusions as true.⁴² "[L]egal conclusions can provide the framework of a complaint, [but] they must be supported by factual allegations."⁴³ Similarly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" will not suffice.⁴⁴ If the factual allegations are insufficient to raise a right to relief above the speculative level, or an "insuperable" bar to relief exists, the claim must be dismissed."⁴⁵

IV. Analysis

The facts at issue in this motion are undisputed. The car accident at issue in this litigation occurred on April 19, 2019. Under Louisiana Civil Code article 3492, Plaintiff was required to file suit against GEICO Advantage and Toes within a year of the accident.⁴⁶ Plaintiff did not commence this litigation until December 1, 2020, more than 19 months later.

Nevertheless, Plaintiff argues that the claims against GEICO Advantage and Toes did not prescribe because they are subject to a three-year statute of limitations under New York law. Plaintiff argues that the three-year statute of limitations should apply because Toes is a domiciliary of New York. Plaintiff does not cite any authority to support this argument.

In diversity cases, federal courts are bound by the conflict-of-law rules of the state in which they sit.⁴⁷ Accordingly, a federal district court sitting in Louisiana is bound to apply Louisiana choice-of-law rules.⁴⁸ "Federal courts apply Louisiana prescription law to diversity actions which Louisiana law governs, as ‘state statutes of limitations are considered substantive for purposes of Erie analysis.’ "⁴⁹

In Crase v. Astroworld, Inc. , the Fifth Circuit considered whether to apply Louisiana's one-year statute of limitations or Texas’ two-year statute of limitations to a tort case filed in the Eastern District of Louisiana by a plaintiff who allegedly injured himself at the Astroworld amusement park in Houston, Texas.⁵⁰ The Fifth Circuit affirmed the district court's dismissal of the case on the ground that Louisiana's one-year prescriptive period applied.⁵¹ The Fifth Circuit explained as follows:

Crase argues that the Louisiana choice-of-law rules (which, under the Erie doctrine the district court is bound to apply), dictate that the law of the state with the greater interest in the case should apply. Thus, he argues, because the alleged injury and alleged negligence occurred in Texas, and because the defendants are principally domiciled in Texas, and the only connection that Louisiana has with the action is that Crase resides in Louisiana, Texas has a greater interest in the case and therefore Texas law should apply.

This court has stated, however, that the "interest analysis" principles "were not intended to apply to questions of prescription or statute of limitations." Louisiana courts customarily apply the law of the forum to the issue of limitations; therefore, we find that Louisiana's one-year law of prescription applies in this case. Even the court in Santos recognized that, because "Louisiana choice of law views statutes of limitations as a procedural rule," distinct from substantive rules which are selected according to the interest analysis principles, "a Federal District Court in Louisiana must apply Louisiana's prescriptive periods in a diversity action." We hold, therefore, that because the suit was not instituted within one year

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