Debra Miller v. Randall Lathers

• Court: Louisiana Court of Appeal
• Decided: December 18, 2019
• Docket: 2019CW1140
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

DEBRA MILLER NO. 2019 CW 1140

VERSUS

RANDALL LATHERS, ET AL DEC 18 2019

In Re: Progressive Security Insurance Company as liability carrier and Randall Lathers, applying for supervisory writs, 21st Judicial District Court, Parish of

Tangipahoa, No. 2017- 3194.

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

WRIT GRANTED WITH ORDER. The district court' s October 31, 2018 ruling denying the exception of prescription filed by Randall Lathers and Progressive Security Insurance Company, in its capacity as the liability insurer for Randall Lathers, is vacated. Louisiana Civil Code article . 3462 provides that "[ i] f a suit is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served

by process within the prescriptive period." Herein, none of the defendants were served within the one- year prescriptive period

for del.ictual actions, as by Louisiana provided Civil Code

article 3492. Thus, in determining whether this suit was timely initiated, the 21st judicial District Court must make an

independent determination of whether venue was proper in East

Baton Rouge Parish, where the suit was originally filed. See Land v. Vidri,ne, 2010- 1342 ( La. 3/ 15/ 11) 62 So. 3d 36, 42; but cf. Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L. L. P.,

47, 186 ( La. App. 2d Cir. 8/ 22/ 12), 120 So. 3d 281, 288 ( finding that transfer of venue by consent judgment is a" legal barrier" that precludes independent consideration of the venue issue by the transferee court), overruled on other grounds by Lomont v. Bennett, 2014- 2483 ( La. 6/ 30/ 15), 172 5o. 3d 620, cert. denied, U. S. _, 136 S. Ct. 1167, 194 L. Ed. 2d 178 ( 2016). This matter

i shereby remanded to the 21. st Judi,c.i,al, District Court for

consideration in accordance with this ruling.

JEW GH

McClendon, J., concurs.

DEPUT LERK OF COURT

FOR THE COURT