     Case: 10-30250 Document: 00511505027 Page: 1 Date Filed: 06/10/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 10, 2011

                                       No. 10-30250                         Lyle W. Cayce
                                                                                 Clerk

ROBERT H. DIXEY, II,


                                                   Plaintiff - Appellant

v.

ALLSTATE INSURANCE COMPANY,


                                                   Defendant - Appellee




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CV-4443


Before JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges.
PER CURIAM:*
       Robert H. Dixey’s property was insured with Allstate Insurance Company.
In the aftermath of Hurricane Katrina, which had damaged his property on
August 29, 2005, Dixey filed a claim with Allstate; Allstate subsequently paid
him $1,205.30 on his claim. Feeling shortchanged, Dixey brought suit against


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 10-30250 Document: 00511505027 Page: 2 Date Filed: 06/10/2011



                                         No. 10-30250

Allstate on July 21, 2009. Allstate argued that Dixey’s suit was contractually
barred as untimely,1 but Dixey argued that Louisiana v. AAA Insurance, a class
action that had been filed on August 23, 2007, tolled the contractual limitation
period. The district court held that no class action could toll a contractual
limitation period and granted Allstate a judgment on the pleadings.
       Dixey appealed to this court, and we held the appeal in abeyance awaiting
the Louisiana Supreme Court’s decision in Taranto v. La. Citizens Prop. Ins.
Corp., which has now been decided. See -- So.3d ---, 2011 WL 880323 (La. Mar.
15, 2011). Taranto appears to have changed -- or at least clearly established --
the applicable law. Specifically, it held that one year time limitation periods in
insurance contracts are subject to Article 596 tolling, reasoning that these one
year limitation periods merely reflect the statutorily-mandated limitation period.
Id. at *10.
       In their post-Taranto letter briefs that were submitted to this court, the
parties have now raised several additional issues related to the timeliness of this
action that respond to the holding of Taranto. These issues appear to be at least
in part factual, and the record before us does not address them with any clarity.
Consequently, we REVERSE and VACATE the district court’s judgment and
REMAND this case for further consideration in the light of Taranto.2




       1
           Allstate concedes that Dixey had until August 29, 2007, to file suit.
       2
         We are aware that the district court expressed some concern that LA . CODE CIV . PROC .
ANN . art. 596 may be unconstitutional if it is applicable to the contractual limitation period
at issue here. Allstate urges us to rule that Article 596 is unconstitutional. We do not address
this argument because, if the case can be decided under Louisiana law, we should avoid the
constitutional question. Jordan v. City of Greenwood, 711 F.2d 667, 669 (5th Cir. 1983) ( “[I]f
a constitutional question is presented on appeal, it should not be addressed if there is a
possibility the case can be decided on narrower statutory grounds on remand.”). Of course, if
the district court determines that Louisiana law does not resolve the question, it would then
be appropriate to address whether Article 596 impairs the obligation of private contracts
under the Louisiana and United States Constitutions.

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