Court of Appeal of Louisiana,Third Circuit.

Beatrice RYES

v.

HOME STATE COUNTY MUTUAL, Scout Transportation Service, Inc. and Phillip Boudreaux.

.

May 14, 2008.

Appeal from the Sixteenth Judicial District Court Parish of St. Martin, Docket No. 06-71074-C, Honorable John Conery, District Judge.

Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.

COOKS, Judge.

STATEMENT OF THE FACTS

This appeal arises out of a one-vehicle accident involving a Peterbilt tractor-trailer rig owned by Phillip Boudreaux, leased by Scout Transportation Services and driven by Liney Ryes. Beatrice Ryes, Liney’s wife, was a passenger in the vehicle. Liney and Beatrice Ryes are residents of Louisiana. Phillip Boudreaux’s business is located in Louisiana. Scout Transportation Services, Inc. is a Texas-based company with an operational office in Broussard, Louisiana. The tractor-trailer rig was insured by Home State County Mutual Insurance Company. The rig contained the Scout Transportation company logo which provided as follows:

Operated by SCOUT Transportation Services, Inc. Lafayette, La.

Phillip Boudreaux and Scout Transportation entered into a contract for lease of the tractor-trailer rig. The contract was executed in Louisiana. Liney Ryes was hired by Scout Transportation as a cross-country driver. The employment contract was executed in Louisiana by Mr. Ryes and a representative of Scout Transportation. As part of its normal operating policies, Scout Transportation allows its drivers to take certain passengers with them on interstate runs. Scout Transportation asserts this policy is an added incentive to entice a larger pool of drivers to consider employment with the company. Scout Transportation requires those passengers to sign a pre-accident waiver/release agreeing to release, indemnify and/or defend Scout Transportation and/or any driver, owner, lessor, lessee, bailee, insurer, agents and/or servants from any and all claims resulting from an accident. Before making the cross-country trip, Mrs. Ryes signed the pre-accident waiver/release in Louisiana.

On July 26, 2006, Mr. Ryes was driving the tractor-trailer rig on Interstate Highway 70 in Colorado when the braking system allegedly failed on a descending slope of the highway. When he attempted to utilize the runaway truck ramp located between the highway and the side of the mountain, the rig struck the mountain and ricocheted off an embankment on the right side of the ramp, rolled over one-quarter time, and came to rest on its side. Two individuals were working on the escape ramp at the time. One individual dove under a parked semi-trailer and the other ran up the side of the mountain in order to escape collision with the runaway rig. Beatrice Ryes was severely injured in the crash.

Following the accident, Mrs. Ryes filed suit against Phillip Boudreaux, Scout Transportation and its insurer, Home State County Mutual Insurance Company. The Defendants answered the petition asserting Mrs. Ryes executed a written waiver/release of all claims against Scout Transportation. Mrs. Ryes filed a motion for summary judgment asserting the waiver/release is invalid under La.Civ.Code art.2004. Scout Transportation filed a cross motion for summary judgment asserting federal law, 49 U.S.C. § 14501(c)(1), preempts state law and La.Civ.Code art.2004 is not enforceable against a carrier engaged in interstate commerce. Alternatively, Scout Transportation argues if state law applies, then the law of Texas, not Louisiana, determines whether the pre-accident waiver/release is valid.

The trial court granted the motion for summary judgment in favor of Mrs. Ryes finding: (1) the federal statute in question does not preempt state law; (2) under Louisiana’s conflict of law provisions found in Civil Code Articles 3515 and 3537, Louisiana law rather than Texas law applies; and, (3) under La.Civ.Code art.2004, the pre-accident waiver/release was invalid. The Defendants appealed. For the reasons assigned below, we affirm the judgment of the trial court.

LAW AND DISCUSSION

Standard of Appellate Review

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate, i.e., (1) whether there is a genuine issue of material fact; and, (2) whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-66 (La.7/6/04), 880 So.2d 1;Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2257 (La.2/29/00), 755 So.2d 226. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

State Law Negligence Claims and Federal Preemption

Scout Transportation relies on 49 U.S.C. § 14501(c)(1) (emphasis added) to support its argument that federal law preempts the enforcement of Louisiana’s prohibition against pre-accident waivers contained in La.Civ.Code art.2004. The federal statute in question provides, in relevant part:

(c) Motorcarriers of property-

(1) General rule-Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motorcarrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

Louisiana’s prohibition against pre-accident waivers of liability is contained in La.Civ.Code art.2004 which provides, in relevant part:

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.

Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Scout Transportation asserts La.Civ.Code art.2004 bars enforcement of the pre-accident waiver contained in the contract Mrs. Ryes signed and paves the way for a tort suit against the company. Scout Transportation contends any imposition of liability under Louisiana tort law would necessarily affect the “price” the company would charge for transporting interstate cargo. Further, Scout Transportation argues the enforcement of Louisiana’s statute would limit its potential driver pool to those individuals agreeing not to travel with a spouse or close relative. Scout Transportation contends the company will be forced to change its “route and service” to avoid travel through Louisiana and risk incurring the financial burden the effects of La.Civ.Code art.2004 would present. Scout Transportation relies on several cases to support is position that “any tort action ‘where the subject matter of the action is related to the carrier’s prices, routes, or services’ “ is preempted by the federal statute. Beyer v. Acme Truck Line, Inc., 02-1, p. 6 (La.App. 5 Cir. 11/14/01),802 So.2d 798, 800,citing Deerskin Trading Post, Inc. v. United Parcel Serv. of Am., Inc. 972 F.Supp. 665 (N.D.Ga.1997).

We have examined the cases relied on by Scout Transportation and find they do not support the position that 49 U.S.C. § 14501(c)(1) prohibits Mrs. Ryes from asserting her state law tort claim against Scout Transportation or that the federal statute was meant to prevent a state from prohibiting contract provisions which would deny its citizens a tort remedy for damages resulting from the negligence of an interstate carrier.

The two cases relied on by Scout Transportation, Beyer and Deerskin Trading Post, involve suits seeking to enforce price controls on interstate carriers and are distinguishable from the facts in this case. In Beyer, independent truckers filed a class action lawsuit against three truckingcompanies alleging the companies engaged in price fixing with oil companies. The plaintiffs asserted several causes of action all under Louisiana state law. The Louisiana appellate court held the plaintiffs’ claims were directly related to the “price, route or service” of the interstate carrier and all state law claims were preempted by federal statute.

In Deerskin, the plaintiff asserted breach of contract claims under state law against UPS alleging UPS overcharged for shipping services to Deerskin customers. The federal appellate court held the plaintiff’s state law claims were preempted. Significantly, however, the federal court distinguished personal injury suits which are only tangentially, not directly, related to a carrier’s “price, route or service” and are not preempted by the federal statute.

There are three circumstances in which a federal law preempts state law: (1) when the federal statute expressly directs that the state law is invalid; (2) when Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme; or (3) when the state law conflicts with federal law or interferes with the achievement of federal objectives. Air Transport Association of American v. Cuomo, 520 F.3d 218 (2d Cir.2008).

Deerskin, 972 F.Supp. 665, also held the preemption provision found in the 49 U.S.C. § 14501(c)(1), the relevant provision in this case, is identical to that found in the Airline Deregulation Act (ADA) making the cases involving suits against airlines applicable to our analysis in the present case involving interstate motorcarriers.

The present suit deals with an area of law traditionally regulated by state law and which historically involves the most fundamental aim of a state’s police powers, i.e., protecting the safety of its citizens and ensuring access to state courts for redress of injury. In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 112 S.Ct. 2608, 2617 (1992), the Supreme Court held any analysis of issues arising under the Supremacy Clause “start[s] with the assumption that the historic police powers of the States [are] not to be superseded by … Federal Act unless that [is] the clear and manifest purpose of Congress.”Cipollone, 505 U.S. at 516. (citations omitted); See also N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 1676 (1995), where the Supreme Court has stated that despite the “opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law.”

In the area of personal injury suits against interstate carriers, the courts have found a state’s interest in preserving a tort remedy for its citizens overrides any limited burden on interstate commerce. See Vinnick v. Delta Airlines, Inc., 93 Cal.App.4th 859 (Cal.Ct.App.2001), where the court allowed a negligence claim against Delta Airlines when a passenger was injured by luggage falling from an overhead bin; Stone v. Frontier Airlines, Inc., 256 F.Supp.2d 28 (D.Mass 2002), where the wife of a deceased airline passenger brought suit against the airline asserting a claim under state law that the carrier was negligent in failing to have a defibrillator aboard a plane; Haynes v. Nat’l R.R. Passenger Corp., 423 F.Supp.2d 1073 (U.S.C.D.Ca.), which allowed a suit by a passenger against Amtrak for failure to warn against the dangers of deep vein thrombosis on extended trips; and Kuehne v. United Parcel Service, Inc., 868 N.E.2d 870 (Ind.App.2007), where a homeowner brought a negligence suit against UPS for injuries sustained when she tripped over a package left on her doorstep.

Moreover, the federal statute at issue reserves to the states the power to enact reasonable safety regulations, including route controls based upon vehicle size, weight, and whether the vehicles were transporting hazardous cargo. The states have the authority as well to regulate minimum levels of financial responsibility. Section 14501(c)(2) provides in relevant part:

(2) Matters not covered.-Paragraph (1)-

(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motorcarriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization[.]

Scout Transportation cites the Texas case of Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564 (Tex.App.-San Antonio 2004), to support its position that a pre-accident waiver of liability is valid under Texas law and should be enforced. The Tamez case arose in Texas. Texas, unlike Louisiana, allows a party to contract away its liability if certain requirements are met. In Tamez, the plaintiffs were seeking to avoid the effects of the pre-injury waiver by asserting under the federal statute they were “statutory employees” of Southwestern Motor and any waiver of liability by them in favor of the company is invalid under the federal statute. The Tamez court reviewed the history and amendments to the Federal MotorCarrier Safety Regulations and found nothing in the statute to prevent a driver-employee from executing a pre-accident waiver of liability. The court stated, prior to the amendments to the statute, interstate motorcarriers attempted to insulate themselves from liability to third parties for negligent drivers by asserting the drivers were “independent contractors.” The amendments to the federal statute required the carriers to assume full direction and control of the leased vehicles and imposed liability as a matter of law for the negligence of its drivers. The court stated:

The purpose of the amendments to the act was to ensure that interstate motorcarriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the leased drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred and providing financially responsible defendants.

Id. at 572.

The Tamez court found no bar under federal law to the enforcement of the pre-accident waiver executed in Texas by the driver-employee of the Southwestern Motor Transport rig. We agree with the Tamez court and find nothing in the federal statute which would prevent Louisiana from preserving a tort remedy for its citizens against the carrier by prohibiting a pre-accident waiver of liability. In fact, allowing the federal statute in this case to preempt Louisiana’s ban against pre-accident waivers would allow Scout Transportation to shield itself from any financial responsibility for its own negligence-a result in direct conflict with the purpose behind the enactment of 49 U.S.C. § 14501(c)(1). We affirm the decision of the trial court finding the federal statute does not preempt Louisiana’s ban against pre-injury waivers.

Choice of Law

Scout Transportation contends Texas law instead of Louisiana law applies to a determination of the validity of the pre-accident waiver of liability. In determining which state’s law should be applied, we look to La.Civ.Code art. 3537 which provides, in relevant part:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition of the other.

Scout Transportation contends Texas law should apply to determine the validity of the pre-accident waiver because Scout is a Texas corporation. We have examined the record and find Louisiana has the greater interest in the application of its laws in this case. Both Liney and Beatrice Ryes are Louisiana citizens. The employment contract was executed in Louisiana, and the waiver was signed in Louisiana. Scout Transportation hired Liney in Broussard, Louisiana. The vehicle’s owner, Phillip Boudreaux, is a Louisiana citizen. The rig is garaged and insured in Louisiana. Scout Transportation maintains an operational office in Broussard. The Scout rig contains a placard on the side of the vehicle which states the company is operated out of Lafayette, Louisiana. The load originated in New Iberia and was brokered from Broussard, Louisiana. The vehicle had brake maintenance performed in Lafayette, Louisiana. We find no error in the finding of the trial court that Louisiana has a significant interest in having its laws enforced and a vital interest in preserving a tort remedy for its citizens. We affirm the trial court findings that Louisiana law applies and under La.Civ.Code art.2004 a pre-accident waiver of liability is invalid.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court granting the Plaintiff’s motion for summary judgment finding the pre-accident waiver/release of liability is invalid under Louisiana Civil Code Article 2004.

AFFIRMED.

United States District Court,E.D. Louisiana.

SASOL WAX AMERICAS, INC. and Indemnity Ins. Co. of North America

v.

HAYES/DOCKSIDE, INC.

May 14, 2008.

ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

Before the Court is Hayes’ motion for summary judgment. For the reasons that follow, the motion is GRANTED.

Background

In August 2005, Hayes/Dockside had stored various wax-based products for Sasol Wax Americas in Hayes’ Arabi, Louisiana warehouse, as it had done for decades. When Hurricanes Katrina and Rita hit, the warehouse was flooded and its roof damaged; 453 tons of Sasol Wax’s products were damaged and deemed unfit for their intended use.

On October 27, 2005, Hayes’ president, John Bertel, wrote to Larry O’Toole of Sasol Wax, informing him that his products had been damaged. On April 7, 2006, O’Toole responded to Bertel that Sasol was making a claim for the damage. On August 25, 2006, Sasol Wax (on its own behalf and on behalf of its underwriters, Indemnity Insurance Company of North America) sued Hayes.

On March 25, 2008, Hayes moved for summary judgment dismissing the plaintiffs’ suit on the grounds that, pursuant to a warehouse receipt, Sasol was required to notify Hayes of any claim against it in a timely manner and to file suit within nine months. Attached as an exhibit to the affidavit of Hayes’ president, John Bertel, was a blank form of a warehouse receipt that restricts a depositor’s time for notifying Hayes of a claim and for filing suit. But Sasol disputed that any such warehouse receipt was ever executed and submitted a sworn affidavit stating that it has no such receipt for its hurricane-damaged goods that were stored at Hayes’s warehouse. The Court denied the motion without prejudice on the basis that whether the valid warehouse receipts existed between the parties was an issue fact.

On April 29, 2008, Hayes filed the present Motion for Summary Judgment, re-urging the arguments contained within the previous motion. As a result of further discovery and investigation, Sasol concluded that it did receive a warehouse receipt with the standard terms and conditions for a shipment that was delivered to Hayes shortly before the storms. Further, Sasol has produced a Contract and Rate Quotations, signed by agents for Hayes and Sasol, which contain the same terms regarding notice and time of suit. Hayes argues that these documents are now the missing link in the chain of summary judgment evidence.

I.

Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”Anderson v. Liberty Lobby, Inc. ., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id.Therefore, “[i]f the evidence is merely colorable, or is not significantly probative,” summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

II.

Hayes argues that the receipts issued when plaintiffs’ goods were delivered to Hayes included the Standard Contract Terms and Conditions for Merchandise Warehousemen and, because plaintiff failed to give notice of the claim within 60 days and to file suit within nine months, as provided for in the terms, the claim should be dismissed for failure to comply with a condition precedent and for prescription.

The front of the warehouse receipt states that the goods are delivered to Hayes “SUBJECT TO ALL TERMS AND CONDITIONS INCLUDING LIMITATION OF LIABILITY HEREIN AND ON THE REVERSE HEREOF.”The reverse side of the receipt contains the Standard Terms and Conditions for Merchandise Warehousemen. Section 12, entitled “NOTICE OF CLAIM AND FILING OF SUIT,” states:

(a) Claims by the depositor and all other persons must be presented in writing to the warehouseman within a reasonable time, and in no event longer than either 60 days after delivery of the goods by the warehouseman or 60 days after depositor of record or the last known holder of a negotiable warehouse receipt is notified by the warehouseman that loss or injury to part or all of the goods has occurred, whichever time is shorter.

(b) No action may be maintained by the depositor or others against the warehouseman for loss or injury to the goods stored unless timely written claim has been given as provided in paragraph (a) of this section and unless such action is commenced either within nine months after depositor of record or the last known holder of a negotiable warehouse receipt is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter.

(c) When goods have not been delivered, notice may be given of known loss or injury to the goods by mailing of a registered or certified letter to the depositor of record or to the last known holder of a negotiable warehouse receipt. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by warehouseman.

A. Condition Precedent to Recovery

John Bertel, President of Hayes, was notified by Larry O’Toole, of Sasol, that Sasol was making a claim for the damage to their goods more than five months, far outside the 60 day time-mandate, after Sasol had been informed of the damage. The defendant argues that, pursuant to the terms and conditions of the warehouse receipt, this claim was not presented timely. The Court agrees. Because Sasol, an experienced corporation that has been in the business of shipping and storing wax products for many years, failed to fulfill a condition precedent of the contractual terms to which it agreed, it is, by the terms of the transaction, precluded from recovering against Hayes.

A state court decision is instructive. A similar “notice of claim” provision was enforced in NOPSI v. The Louisville and Nashville Railroad Co., 94-1625, 9 (La.App. 4 Cir. 03/16/1995);652 So.2d 1033, 1036. The clear notice provision in a contract of rail carriage imposed a requirement that a party claiming that its goods were damaged (NOPSI) give the carrier notice in writing within nine months of the notification of loss date. The facts revealed that notice was not given until ten months and three days after NOPSI received notice that its goods were damaged. Id. at 1037.The court stated that because NOPSI failed to file a written claim with the defendant within nine months after delivery of the damaged product, NOPSI’s suit was untimely. Id. The court then granted the defendant’s exception. Id.

Similarly in this case, the notice provision is express in the Terms and Conditions for Merchandise Warehousemen printed on each warehouse receipt received by Sasol. Sasol had knowledge of the damage and more than reasonable opportunity to make notice of claim against Hayes. Accordingly, the Court finds that the notice provision shall be enforced against Sasol and its subrogated insurer, and the suit dismissed.

B. Prescription

In addition to the notice of claim provision, the terms and conditions provide for a prescriptive period which mandates that suits be filed within nine months of the warehouseman (Hayes) notifying the depositor of record (Sasol) of the loss. Since the plaintiff did not commence this lawsuit against Hayes until nine months and 28 days after receipt of notice of the loss, the defendant argues, and this Court agrees, that this matter should be dismissed as time-barred.

While Louisiana law prohibits agreements to extend the period for prescription, there is no prohibition to agreements to shorten the period. The relevant codal provision is Article 3471 of the Louisiana Civil Code which states: “A juridical act purporting to exclude prescription, to specify a longer period than that established by law, or to make the requirements of prescription more onerous, is null.”If not for Article 3471, the party with the greater bargaining power could demand that the agreement excludes prescription, and then could bring an action at any time in the future. This is contrary to the public policy that all claims must be brought within a specified time, and, therefore, prohibited. For similar reasons, Article 3471 prohibits agreements that lengthen the time for prescription. Consistent with the text of the article, the prohibition of requirements that make prescription more onerous means requirements that act to extend prescription and make it more onerous on the defendant.

This interpretation is supported by Comment (b) to Article 3471, which states:

In Louisiana, jurisprudence is well-settled that parties may not extend a period of prescription that is established by law. See E .L. Burns Co. v. Anthony Cashio, 302 So.2d 297 (La.1974); and Nabors Oil & Gas Co. v. Louisiana Oil Refining Co., 151 La. 361, 91 So. 765 (1922). For the validity of agreements intended to shorten the prescriptive period, see Note, 16 Tul. L.Rev. 625 (1942).

In contrast to agreements to extend prescription, Louisiana jurisprudence generally has allowed the parties contractually to shorten the prescriptive period. Louisiana Health Service & Indem. Co. v. McNamara, 561 So.2d 712, 719 (La.1990).

In Green v. Peoples Benev. Industrial Life Ins. Co. of Louisiana, 5 So.2d 916 (La.App. 2nd Cir.1941), the defendant insured the plaintiff’s wife under a life insurance policy that named the wife’s niece as the beneficiary. Eight years after his wife’s death the plaintiff brought suit to recover under the policy, claiming that the whereabouts of the beneficiary were unknown. Prescription of contracts is generally 10 years in Louisiana; however, the insurer contended that the suit was precluded by a clause in the policy which read “no suit shall be brought … after two years from the time when the right of action shall accrue.”Id. at 917.The Louisiana court of appeals affirmed the trial court’s dismissal of the case, holding that in Louisiana parties to a contract may shorten the prescriptive period. Id. at 918.

Again, in McDermott, Inc. (Harvey Supply Div.) v. M-Electric & Constr. Co., 496 So.2d 1105, 1112 (La. Ct.App. 4 Cir.1986), the court held that plaintiff-vendee was subject to a shorter prescriptive period contained in the contract between themselves and the defendants, a vendor and an electric company. The plaintiff alleged that defendant had improperly supplied defective materials and used poor workmanship in performing switch terminations. Id. at 1107.In M-Electric, the defendant rebuilt stress cone terminations. The trial court ruled that, while such activities are in the nature of a construction or installation contract giving rise to a prescriptive period of ten years, the parties had contracted for a one year prescriptive period for all such claims. Id. at 1111.Holding that there is no prohibition on shortening the period to bring suit, the court affirmed the trial court’s granting of a peremptory exception of prescription against the plaintiff.Id. at 1112.

In opposition to this motion, plaintiffs argue that the Court should nullify the time limitations in the warehouse receipt and warehousing contracts as being against public policy and onerous under Louisiana Civil Code art. 3471.

Relying on La. R.S. 22:929(A)(3), which extended the time to sue insurers for Hurricane Katrina claims, plaintiffs assert that cargo owners, such as Sasol, encountered the same difficulties as insurers did in assessing the extent of the damage to their property which resulted from Hurricanes Katrina and Rita. As such, they submit that the nine month time limitations contained in defendant’s warehouse receipt and contracts are unenforceable for Hurricane Katrina and Rita damage claims as against public policy. The Court finds this argument unpersuasive. The public policy reasons for extending the time period for insurance claims were narrow, fact-specific and cannot be stretched to apply to claims involving sophisticated corporations, their warehouse receipts, and delivery documents.

Further, plaintiffs’ argument that the time limitations are onerous under La. Civ.Code art. 3471 fails; the code article does not prohibit requirements that shorten the period for prescription; rather, the article only prohibits acts which purport to extend a period of prescription.

The Court, having been provided with the missing link to Hayes’ request for summary judgment, finds that Sasol received ample notice of the terms and conditions of storage and failed to meet two separate time-provisions: in failing to provide timely notice of the loss, Sasol failed to meet a condition precedent to recovery, and in failing to file suit within nine months of notice of the loss, Sasol allowed its claim to prescribe. As no genuine issues of material fact remain, the defendant’s motion for summary judgment is GRANTED.