Gallagher Bassett Services, Inc. v. Canal Insurance Co.

202 So. 3d 1160, 2016 La.App. 1 Cir. 0088, 2016 La. App. LEXIS 1685
CourtLouisiana Court of Appeal
DecidedSeptember 16, 2016
Docket2016 CA 0088
StatusPublished
Cited by7 cases

This text of 202 So. 3d 1160 (Gallagher Bassett Services, Inc. v. Canal Insurance Co.) 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
Gallagher Bassett Services, Inc. v. Canal Insurance Co., 202 So. 3d 1160, 2016 La.App. 1 Cir. 0088, 2016 La. App. LEXIS 1685 (La. Ct. App. 2016).

Opinion

DRAKE, J.

|,April Celestine, cross-plaintiff, filed a cross-claim against several defendants, including Canal Insurance Company (Canal), cross-defendant, after being named as a defendant in a lawsuit filed by Gallagher Bassett Services, Inc. and National Union Fire Insurance Company (collectively referred to as “Gallagher Bassett”). Gallagher Bassett sought to recover, as subrogee, the amount it paid to Celestine pursuant to an insurance policy following an automobile accident that occurred in Olympus, Washington. Canal filed a peremptory exception raising the objection of prescription to the cross-claim filed by Celestine, which the trial court granted and from which Celestine appeals. For the following reasons, we affirm the judgment of the trial court. Canal filed in this court an exception pleading res judicata, which for the following reasons, we dismiss as moot.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an automobile accident that occurred on February 14, 2011, in Olympus, Washington. Celestine was a tractor-trailer driver and was injured by Brenda Fowler, the driver of the other tractor-trailer, involved in the collision. At the time of the accident, Fowler was operating a tractor-trailer, which was leased to OM Logistics, LLC (OM Logistics) and insured with a policy of liability insurance by Canal.

Gallagher Bassett filed this suit on December 4, 2013, against Celestine, OM Logistics, and Canal, seeking reimbursement for the amounts it paid Celestine pursuant to a Truckers Occupational Accident Insurance policy, which provided accidental, health, and disability insurance. Gallagher Bassett alleged that its claims arose through legal subrogation as a result of paying Celestine’s medical costs and medical leave benefits due to the negligence of Fowler. Gallagher Bassett alleged, alternatively, that the claims against Celestine, its own insured, |2were based on the contractual obligations of Celestine to reimburse Gallagher Bassett out of any recoveries related to the accident Celestine received from third parties for the amount Gallagher Bassett paid on behalf of Celestine.

After Gallagher Bassett filed this lawsuit, Celestine filed a lawsuit on February 13, 2014, in the Superior Court for Thur-ston County, Washington (Washington case), where the accident occurred, naming as defendants, Canal, OM Logistics, and Fowler. On July 10, 2014, in response to the present suit, Celestine filed an answer and cross-claim, naming as cross-defendants, Canal, OM Logistics, and Fowler. Canal filed a peremptory exception raising the objection of prescription to the cross-claim of Celestine.

On November 14, 2014, the Washington case was dismissed for failure to timely serve the defendants within the statutory period. The court stated that Celestine’s “claims arising from the February 14, 2011 accident [were] barred by the statute of limitations.” Her lawsuit in, Washington was dismissed with prejudice.

After a hearing on Canal’s prescription exception, the trial court sustained the exception and dismissed Celestine’s cross-claim against Canal, with prejudice. The [1164]*1164trial court entered judgment on October 14, 2015. It is from this judgment that Celestine appeals.

ERROR

Celestine claims that the trial court erred in finding that there was no interruption of prescription in accordance with La. C.C. arts. 2324(C) and 3462, resulting in the dismissal of her cross-claim.

LAW AND DISCUSSION

Prescription

Generally, the trial court’s factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription- begins |sto run, are reviewed on appeal under the manifest error-clearly wrong standard of review. Gilmore v. Whited, 2008-1808 (La. App. 1 Cir. 3/31/09), 9 So.3d 296, 299. However, in this case, Celestine asserts that the issue of whether her cross-claim was prescribed involves the proper application and interpretation of Articles 2324(C) and 3462. The proper application and interpretation of a statute is a question of law. Gilmore, 9 So.3d at 299. Therefore, on review, this court must initially determine whether the trial court was legally correct or legally incorrect in its interpretation of Articles 2324(C) and 3462 and in its application of those statutes to this case. See Gilmore, 9 So.3d at 299.

We first note that delictual actions are subject to liberative prescription of one year commencing from the day of injury or day damage is sustained. La. C.C. art. 3492. Prescription is interrupted by' the filing of suit in a court o f competent jurisdiction and venue. La. C.C. art. 3462. The interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. La. C.C. art. 2324(C). Similarly, the interruption of prescription is effective against all solidary obligors. La. C.C. arts. 1799 and 3503. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue within the prescriptive period continues as long as the suit is pending. La. C.C. art. 3463. The interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made an appearance of record or thereafter; or fails to prosecute the suit at trial. La. C.C. art. 3463.

Prescription runs against all persons unless they fall within an exception provided by law. La. C.C. art. 3467. The filing of a tort suit by one party generally does not affect the running of prescription against other parties who sustained separate damages in the same accident. Louviere v. Shell Oil Co., 440 So.2d 93, 95 (La. 1983). There are exceptions to the general rule: (1) La. C.C.P. |4art. 1153 allows an amending petition to relate back to the date of filing the original pleading; (2) La. C.C.P. art. 1067 allows an additional ninety days for an incidental demand; and (3) when parties share a single cause of action. Calbert v. Batiste, 2012-852 (La.App. 3 Cir. 2/6/13), 109 So.3d 505, 507 (citing Lou-viere, 440 So.2d at 93).

A cross-claim is an incidental demand. La. C.C.P. art. 1031. An incidental demand is not barred by prescription if.it was not barred at the time the main demand was filed and is filed within ninety days of date of service of the main demand. La. C.C.P. art. 1067.

Celestine first argues that Gallagher Bassett’s filing suit in Louisiana on December 4, 2013, interrupted prescription as to all joint tortfeasors, OM Logistics, Fowler, and Canal, because that suit was filed within the three year statute of limitations for Washington state. Wash. Rev. Code 4.16.080. We find that the Gallagher Bassett suit filed in Louisiana was subject to the prescription of Louisiana, not the [1165]*1165statute of limitations of Washington state, as argued by Celestine. The general rule is that substantive -rights are governed by the lex loci or the place where the action arose, while -the procedural rights are governed by the lex fon or the place of the forum. Davis v. Gravois, 2013-0439 (La. App, 4 Cir. 9/25/13), 125 So.3d 541, 545 n. 2 (citing Matney v. Élue Ribbon, Inc., 12 So.2d 249 (LaApp. 1 Cir. 1942);'Patterson v. Patterson, 436 So.2d 603 (LaApp. 4 Cir.1983)).

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202 So. 3d 1160, 2016 La.App. 1 Cir. 0088, 2016 La. App. LEXIS 1685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-bassett-services-inc-v-canal-insurance-co-lactapp-2016.