Published by The Pellegrin Firm May 31, 2020

On April 3, 2020, the Louisiana Supreme Court reversed rulings of lower courts in a dispute over the timeliness of a fax-filed lawsuit. The case is Stevenson v. Progressive Security Insurance Company et al., Docket No. 2019-C-00637 in the Louisiana Supreme Court. The plaintiffs were injured in an automobile accident on December 13, 2016. The plaintiff’s tort suit was subject to the one-year liberative prescription for delictual actions. Exactly one year from the accident, the plaintiffs attempted to fax file the petition with the Terrebonne Parish Clerk of Court at approximately 4:47 p.m., but they continued to receive several “BUSY/NO SIGNAL” messages resulting in the failure to file the suit until December 14, 2017. The complicating factor in this case was a policy in place at the Terrebonne Parish Clerk of Court at the time to turn off the fax machines at the close of business hours, which is 4:30 p.m.

At the trial of the exception in the district court, the plaintiffs offered, filed, and introduced into evidence fax machine transmission sheets from counsel’s office demonstrating attempts to fax the petition on time. Additionally, they also offered into evidence an affidavit from a deputy clerk setting forth the clerk’s policy regarding fax filing. The affidavit states that the fax machines are turned off around 4:30 p.m. each day to avoid problems such as high volume paper jams, but attorneys do have the ability to request the machines to stay on should they know that they may need to file past office hours.

The defendants argued that no statute requires that fax filing be allowed after 4:30 p.m., the statutorily mandated close of business operations. The statutes also give the clerk of court the ability to establish his or her own system for electronic transmission filing and to adopt and implement their own procedures. In affirming the district court’s ruling, the court of appeal agreed with the defendant that the failed attempts to fax file the petition were insufficient to interrupt prescription. The court of appeal also claimed that a “simple telephone call would have been able to cure the dilemma.”

The Louisiana Supreme Court, adopting plaintiffs’ argument, found that the clerk of court had not made the fax equipment “available.” The language of the statute clearly states that all clerks of court “shall make available” their equipment, and the word “shall” in this case is equivalent to the word “necessary.” La. R.S. 13:756 mandates the hours of operations for clerks of court; however, the statement “shall make available” in La. R.S. 13:850 does not impose any hourly restrictions. The availability of equipment is not the same as keeping the clerk’s office open. The interpretation of the statute by Supreme Court is consistent with the principle that “prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted.” The fax filing would have been successful but for the unavailability of the clerk’s fax equipment.

They court rejected the clerk’s policy of turning off the fax machines at 4:30 p.m., as it shortens a tort victim’s one-year prescription period. If every clerk of court is allowed to establish a different rule regarding the available hours of their fax machines, it can result in inconsistent determinations of the timely filings of petitions. For example, filing a petition at 10:00 p.m. on the last day of the prescription period in Terrebonne Parish would not work under the current policy while filing the same petition in another parish would be deemed timely filed. The same prescriptive period must be available in every judicial district of the state.

The court also rejected the court of appeals’ finding that a simple telephone call could have cured the dilemma. The exception to the 4:30 p.m. rule allows for an attorney to request for the fax machines to stay on past 4:30 p.m. However, this is an unpublished policy meaning that it only offers a courtesy to attorneys that are aware its existence. The policy demonstrates inconsistency and unfairness resulting in prejudice against those unaware of the exception. Based on the facts of the case, the court found that the plaintiffs attempts to fax file their petition with the clerk of court prior to midnight on the last day of the prescriptive period was sufficient to interrupt prescription.