Gradney v. Southern Farm Bureau Casualty Insurance

375 So. 2d 212, 1979 La. App. LEXIS 2918
CourtLouisiana Court of Appeal
DecidedSeptember 7, 1979
DocketNo. 7080
StatusPublished
Cited by2 cases

This text of 375 So. 2d 212 (Gradney v. Southern Farm Bureau Casualty Insurance) 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
Gradney v. Southern Farm Bureau Casualty Insurance, 375 So. 2d 212, 1979 La. App. LEXIS 2918 (La. Ct. App. 1979).

Opinions

DOMENGEAUX, Judge.

Henry Gradney filed this suit on February 6, 1978, for damages allegedly due to injuries received in a work related accident which occurred on February 9, 1977. The petition alleges that plaintiff was injured when he was struck by a “gin-pole” mounted onto a truck, which was then being used to pull a pipe out of the ground. The truck was owned by Eldridge Vidrine, and was leased by him to plaintiff’s employer, Leland Vidrine.

Plaintiff brought suit against Southern Farm Bureau Casualty Insurance Company, hereinafter referred to as Southern Farm Bureau, alleging that it had issued a general liability policy to the owner of the truck, Eldridge Vidrine, which would provide coverage for the accident. Additionally, the workman’s compensation insurer, American Insurance Company, hereinafter referred to as American, filed a petition of intervention on February 8, 1978, in order to be reimbursed for the compensation benefits it had paid to plaintiff.

Southern Farm Bureau filed a motion for summary judgment seeking to dismiss the principal demand, on the ground that it had not issued a liability policy to Eldridge Vid-rine. This motion was supported by an affidavit by the underwriting manager of Southern Farm Bureau, John Acaldo.

Before this motion was ruled upon, plaintiff filed an amended and supplemental petition, which amended the original caption of the petition to read “Henry Gradney v. Louisiana Farm Bureau.” Plaintiff also substituted the Louisiana Farm Bureau in lieu of Southern Farm Bureau throughout the original petition. American, however, did not amend to include Louisiana Farm Bureau in its intervention.

Louisiana Farm Bureau filed an exception of no right of action, on the ground that it was not an insurer of any of the parties. Plaintiff then filed a second amended and supplemental petition, naming as defendant the Louisiana Farm Bureau Mutual Insurance Company, hereinafter referred to as Louisiana Farm Bureau Mutual, alleging that this was the insurer which had issued the policy providing coverage for Eldridge Vidrine. The second amended petition was filed on May 4, 1978, which was more than one year after the date of the accident.

American, on May 19, 1978, also filed an amended and supplemental petition of intervention, adding Louisiana Farm Bureau Mutual, the correct insurer, as a defendant, in addition to the previously named defendant in intervention, Southern Farm Bureau.

[214]*214Louisiana Farm Bureau Mutual filed an exception of prescription against plaintiff’s main demand and against American as the intervenor.

The trial judge fixed all exceptions and motions for hearing, and made the following disposition of them:

(1) The exception of no right of action filed by Louisiana Farm Bureau was sustained and the suit dismissed as to that defendant. This ruling is not contested on appeal.

(2) The exceptions of prescription filed by Louisiana Farm Bureau Mutual against both the plaintiff’s main demand and American’s intervention were sustained, and the plaintiff’s demands and American’s intervention were dismissed as to Louisiana Farm Bureau Mutual.

(3) The trial court granted Southern Farm Bureau’s motion for summary judgment dismissing American’s intervention against it.

From judgment in accordance with these rulings, both plaintiff and the intervenor appeal.

The issues presented on appeal are:

(1) Whether the trial court erred in sustaining the exception of prescription filed by Louisiana Farm Bureau Mutual against both plaintiff and intervenor, and

(2) Whether the trial court erred in sustaining the motion for summary judgment against the intervenor, since the motion was made only against plaintiff.

I.

The right to bring an action for offenses and quasi offenses prescribes in one year. La.C.C. art. 3536. Prescription is interrupted “by the commencement of a civil action in a court of competent jurisdiction in the proper venue.” La. R.S. 9:5801.

Plaintiff and intervenor contend that the filing of the original pleadings on February 6, 1978, within one year from the date of the accident, naming Southern Farm Bureau as a defendant, interrupted the running of prescription against Louisiana Farm Bureau Mutual. On the other hand, defendant, Louisiana Farm Bureau Mutual, contends that the original pleadings naming Southern Farm Bureau as a defendant did not interrupt the running of prescription against it.

We hold that both plaintiff’s and interve-nor’s claims have not prescribed,and we reverse the District Court’s judgment in this regard.

The situation in the instant case is very similar to that presented in Jackson v. American Employers’ Insurance Company, 202 La. 23,11 So.2d 225 (1942). In Jackson, the plaintiff sought to recover for the personal injuries sustained by plaintiff’s minor child, who had been hit by an automobile owned and operated by defendant’s insured. Suit was filed within one year after the accident, but the defendant named therein was the Employers’ Liability Assurance Corporation, Ltd. Actually, the policy had not been issued by that defendant, but was issued by the American Employers’ Insurance Corporation, against which suit was not brought until more than one year after the accident. The relationship between the Employers’ Liability Assurance Corporation, Ltd. and the American Employers’ Insurance Corporation was fairly close, and described by the Supreme Court as follows:

“The Employers’ Liability Assurance Corporation, Ltd., against which the first suit was brought, and the American Employers’ Insurance Company, against which the present suit was brought, are separate and distinct corporations. But the two corporations, together with the Employers’ Fire Insurance Company, are doing business in this state and throughout the United States as a group of insurance companies under the title “The Employers’ Group, of Boston, Massachusetts”. Their letterhead bears that title, and in the upper right-hand corner the three members of the group are listed, the Employers’ Liability Assurance Corporation, Ltd., being at the top of the list, the Employers’ Fire Insurance Company being next on the list, and the American Employers’ Insurance Company being [215]*215third on the list. The letterhead discloses that the group of companies, or each one of the three companies, has one and the same office for its claim department, which is indicated on the letterhead thus: “Gulf Claim Department, Hibernia Bank Building, New Orleans, Louisiana”. The three companies have one and the same agent, namely, the Secretary of State, for service of process upon any one of them. They have the same local attorneys, and have one and the same manager of their claim department, and one office and one force of employees for that department. The three companies have the same telephone number, Magnolia 4154, listed in the telephone book under the name of each company. As to two of the companies, namely, the Employers’ Liability Assurance Corporation, Ltd., which was sued originally, and the American Employers’ Insurance Company, defendant in this suit, the telephone number is listed as being in their “Underwriting and Claims Department”. These facts, showing the close business relation of the group of companies, are disclosed by the record and were admitted frankly in the argument of the case. The attorney who brought the first suit died before it came to trial.

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Bluebook (online)
375 So. 2d 212, 1979 La. App. LEXIS 2918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gradney-v-southern-farm-bureau-casualty-insurance-lactapp-1979.