Dorsey v. Moses

269 So. 3d 907
CourtLouisiana Court of Appeal
DecidedApril 10, 2019
DocketCW 18-961
StatusPublished

This text of 269 So. 3d 907 (Dorsey v. Moses) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorsey v. Moses, 269 So. 3d 907 (La. Ct. App. 2019).

Opinion

EZELL, Judge.

Relators, the State of Louisiana, Department of Public Safety and Corrections (DOC) and Raymond Laborde Correctional Center, seek supervisory writs from the judgment of the Twelfth Judicial Court, Parish of Avoyelles, which denied Relators' exception of insufficiency of service of process.

STATEMENT OF THE CASE

This case arises out of an automobile accident which occurred on Interstate 10 in Baton Rouge, Louisiana, on November 20, 2017. Tyrone Dorsey was a passenger in a van owned by Raymond Laborde Correctional Center. Sergeant Todd Moses was driving the van. As Sergeant Moses attempted to change lanes, the van collided with the rear end of the vehicle traveling in front of it. As a result of the accident, Mr. Dorsey filed a personal injury lawsuit against Sergeant Moses, and Relators herein, the DOC and Raymond Laborde Correctional Center.

Mr. Dorsey requested service of the petition on Relators via service on the "Office of Risk Management through the Governor's Office through the Attorney General and Attorney General through Honorable Jeff Landry." Relators filed an exception of insufficiency of service of process. The trial court denied the exception, and Relators now seek review of that ruling.

SUPERVISORY RELIEF

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application *909for supervisory writs. See La.[Code Civ.P.] arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933.

INSUFFICIENCY OF SERVICE OF PROCESS

Relators assert that the trial court erred when it denied their exception of insufficiency of service of process. In support of their argument, Relators cite La.R.S. 39:15381 (emphasis added), which provided at the time suit was filed:

(1) Claims against the state or any of its agencies to recover damages in tort for money damages against the state or its agencies for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the state or such agency, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted in accordance with the provisions specified in this Chapter. However, immunity for discretionary acts of executive, legislative, and judicial officers within the scope of their legally defined powers shall not be abridged.
(2) The state and its agencies shall be liable for claims in the same manner and to the same extent as a private individual under like circumstances.
(3) A judgment may be settled in accordance with R.S. 39:1535(B)(6).
(4) In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general , as well as any others required by R.S. 13:5107. However, there shall be no direct action against the Self-Insurance Fund and claimants, with or without a final judgment recognizing their claims, shall have no enforceable right to have such claims satisfied or paid from the Self-Insurance Fund.

Relators assert that because La.R.S. 39:1538(4) uses the mandatory word "shall" and the conjunctive word "and", the statute mandates that in actions brought against the State to recover money damages in torts, service of process must be made on all of the following agents for service of process: 1) the head of the department concerned; 2) the Office of Risk Management (ORM); and 3) the Attorney General. Relator notes that La.Civ.Code art. 9 provides "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and not further interpretation may be made in search of the intent of the legislature." Relators maintain that since La.R.S. 39:1538(4) is clear and unambiguous regarding the service of process requirements for tort suits against the State, the statute should be interpreted and enforced as written. As such, Relators contend that service of process should have been made on the head of the DOC, the ORM, and the Attorney General. Relators assert that the ORM does not accept service of process "through the attorney general", as suggested by Plaintiff's service instructions. Thus, Relators argue that the attempt to serve the ORM through the Attorney General was improper.

In his opposition to the instant writ application, Mr. Dorsey asserts that the trial court properly denied the exception of insufficiency of process. Plaintiff contends that Relators take the position that the service requirements set forth in *910Title 39 of the Louisiana Revised Statutes, which is entitled "Public Finance," applies to this case. However, Mr. Dorsey takes the position that this case is governed by the service requirement set forth in Title 13, which is entitled, "Courts and Judicial Procedure." Louisiana Revised Statutes 13:5107(A) provides:

1) In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
(2) Service shall be requested upon the attorney general within ninety days of filing suit. This shall be sufficient to comply with the requirements of Subsection D of this Section and also Code of Civil Procedure Article 1201(C). However, the duty of the defendant served through the attorney general to answer the suit or file other responsive pleadings does not commence to run until the additional service required upon the department, board, commission, or agency head has been made.

In Burnett v. James Construction Group , 10-2608 (La. 7/1/11), 66 So.3d 482, the supreme court observed that service on the attorney general satisfies the service requirements of La.R.S. 13:5107(A). The supreme court recognized in Whitley v. State, through the Board of Supervisors of Louisiana State University Agricultural Mechanical College , 11-40 (La. 7/1/11), 66 So.3d 470, that the service of process requirements under La.R.S.

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Bluebook (online)
269 So. 3d 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsey-v-moses-lactapp-2019.