The Pitfalls of Fax Filing
Courts in Louisiana will scrupulously review fax-filed pleadings to ensure that the exact same pleadings are submitted both for the fax-filing and the “original” filing. As one recent case demonstrated, simply correcting a typographical error in the original-filed copy could result in dismissal of the pleading and the dismissal of the entire case.
The Louisiana Legislature authorized filing of pleadings by facsimile in 1991, in La.R.S. 13:850. Since that time, the Legislature has amended the statute three times, most recently in 2016. The most far-reaching change to La.R.S. 13:850 occurred with the 2016 amendment, which amended Subsection B of the statute to clarify that the original document had to be “identical” to the document filed by facsimile. The statute defines the “original document” as one: “identical to the facsimile filing in number of pages and in content of each page including any attachments, exhibits, and orders. A document not identical to the facsimile filing or which includes pages not included in the facsimile filing shall not be considered the original document.” Moreover, Subsection C of the statute plainly provides: “If the filing party fails to comply with any of the requirements of Subsection B of this Section, the facsimile filing shall have no force or effect.”
The courts have demanded mandatory satisfaction with the requirements of Subsection B. Recently, in Smith v. St. Charles Par Pub. Sch, 17-475 (La. App. 5 Cir. 05/01/18); 2018 La. App. LEXIS 832, the only difference between the fax-filed petition and the original petition presented to the clerk of court was the correction of a typographical error. The fax-filed petition alleged that the injury occurred on October 6, 2005, while the original petition delivered to the clerk’s office stated that the injury occurred on October 6, 2015. Because the correction of this one typographical error invalidated the filing of the petition, the state Fifth Circuit Court of Appeal upheld the dismissal of the plaintiff’s claim on an exception of prescription.
Similarly, in Palazola v. IMC Consulting Eng’rs, 16-22 (La. App. 5 Cir. 6/30/16), 197 So.3d 782, the plaintiff filed the petition by facsimile on January 6, 2015. The petition alleged that the accident occurred on January 9, 2014. The clerk’s office physically received the plaintiff’s original petition on January 23, 2015. However, the document which had been fax-filed contained different formatting and pagination from the original petition filed with the clerk’s office. The court held that the difference in formatting and pagination rendered the fax filing as never occurring and dismissed the lawsuit because the original was received by the clerk’s office January 23 – more than one year after the accident.
The Second Circuit in Taylor v. Broomfield, 46,590 (La. App. 2 Cir. 9/21/11), 73 So.3d 485, upheld the dismissal of the plaintiff’s petition on an exception of prescription. The petition that was fax-filed did contain a verification page. However, the fax filed verification page had not been notarized. Between the date the petition was fax-filed and the date the original was filed with the court, the verification was notarized. The Court of Appeal reversed the trial court and dismissed the plaintiff’s petition on the exception of prescription, because “the court could not find authority authorizing changes between the fax-filed Petition and the one ‘original signed document.’” Id. at 489.
Considering this jurisprudence, insurance counsel should closely examine a pleading to determine if it was fax-filed. If it was, then counsel should attempt to obtain copies of both the fax-filed pleading and the “original” pleading to ensure that the original is an exact copy of the facsimile. If the two versions of the pleadings differ, in any manner – – in substance or in format – – the pleading should be invalid. Counsel should consider filing an exception of prescription, seeking a dismissal with prejudice of the lawsuit, because it was filed beyond the one year tort prescription period.