STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-391
HENRY FISHER, ET AL.
VERSUS
CITY OF ALEXANDRIA, ET AL.
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 221,989 HONORABLE F. RAE SWENT, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell, Judges.
EXCEPTION OF PRESCRIPTION GRANTED; JUDGMENT REVERSED.
Edward A. Kaplan Attorney at Law Post Office Box 12386 Alexandria, Louisiana 71315 (318) 448-0831 Counsel for Plaintiff: Henry Fisher
Timothy D. Shumate Attorney at Law Post Office Box 86 Alexandria, Louisiana 71309 (318) 561-7280 Counsel for Plaintiff/Appellee: Wanda Fisher Paul D. Oberle, Jr. Richie, Richie & Oberle, L.L.P. Post Office Box 44065 Shreveport, Louisiana 71134 (318) 222-8305 Counsel for Defendant/Appellant: Imperial Fire and Casualty Insurance Company
Mark F. Vilar Faircloth, Vilar & Elliott, L.L.C. Post Office Box 12730 Alexandria, Louisiana 71315 (318) 442-9533 Counsel for Defendant/Appellee: City of Alexandria SULLIVAN, Judge.
Imperial Fire & Casualty Insurance Company (Imperial) appeals a judgment
rendered against it and in favor of Plaintiff, Wanda Blue Fisher, following trial on the
merits. Imperial also files an exception of prescription. For the following reasons,
we grant the exception of prescription and reverse the judgment of the trial court.
FACTS
An automobile accident involving a vehicle driven by Henry Fisher and a
vehicle driven by Police Officer Scott Clark, an employee of the City of Alexandria
(the City), occurred on August 22, 2005, in Alexandria, Louisiana. Henry’s wife,
Wanda, was a guest passenger in the car at the time of the accident. On September 2,
2005, a petition for damages was filed by both Henry and Wanda naming the City as
the only defendant and alleging that the accident was caused solely by the fault of
Officer Clark. On August 28, 2006, after more than a year had elapsed since the date
of the accident, Wanda filed a first supplemental and amending petition naming
Imperial as an additional defendant in its capacity as insurer of Henry and alleging
that the accident was caused by the combined fault of her husband and Officer Clark.
The matter proceeded to bench trial on June 13, 2007. The trial court issued
written reasons for judgment on August 3, 2007, in which it concluded that Henry
Fisher was solely at fault in causing the accident in which his wife was injured. The
reasons indicated that judgment would be rendered in favor of Wanda Fisher and
against Imperial, awarding her the general and special damages that she had proved
at trial.
On September 5, 2007, Imperial filed an exception of prescription, which the
trial court set for contradictory hearing. Wanda filed an opposition to the exception.
1 At the hearing on the exception, counsel for Imperial argued, citing La.Code Civ.P.
art. 928,1 that the trial court retained jurisdiction and could rule on the exception
because no judgment had been signed in the matter. The trial court refused to
consider the exception, however, insisting that it had rendered a decision and
instructing counsel for Imperial to appeal the judgment once it was rendered and to
file the exception with this court. The trial court “denied” the exception in open
court.
A written judgment on the merits was rendered on December 4, 2007. A
separate judgment denying Imperial’s exception of prescription was rendered on
December 17, 2007. Imperial timely filed a petition for suspensive appeal of the
December 4, 2007 judgment. After the appeal was lodged, Imperial filed an
exception of prescription in this court.
Louisiana Code of Civil Procedure Article 2163 provides, in pertinent part, that
an appellate court may consider a peremptory exception filed for the first time in that
court, if plead prior to submission of the case for decision, and if proof of the ground
of the exception appears in the record. Because the trial judge refused to consider
Imperial’s exception based upon the fact that the case had already been submitted for
decision, we will treat the exception as having been filed for the first time in this
court, and we will consider the exception on the merits.
In its sole assignment of error, Imperial asserts that the trial court erred as a
matter of law in denying its exception of prescription.
1 Louisiana Code of Civil Procedure Article 928 provides, in pertinent part:
B. The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to submission of the case for a decision . . . .
2 DISCUSSION
An appellate court may not set aside a trial court’s finding of fact in the
absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d
840 (La.1989). If the trial court’s findings are reasonable in light of the record
reviewed in its entirety, a court of appeal may not reverse even though it is convinced
that had it been sitting as the trier of fact, it would have weighed the evidence
differently. Id.
The law in Louisiana is clear that a timely filed suit against one joint tortfeasor
interrupts prescription as to the remaining joint tortfeasors. Gioustover v. Progressive
Am. Ins. Co., 561 So.2d 961 (La.App. 4 Cir. 1990), writ not considered, 566 So.2d
973 (La.1990); La.Civ.Code art. 2324(C). “The law is equally clear that where no
liability is found on the part of a timely sued alleged tortfeasor, prescription will not
be interrupted as to another joint tortfeasor, who is not timely sued, since no joint or
solidary obligation exists.” Gioustover, 561 So.2d at 964. See also Martin v. City of
Baton Rouge, 00-896 (La.App. 1 Cir. 6/22/01), 858 So.2d 440.
Imperial asserts that Plaintiffs’ claims against it are prescribed for the
following reasons: (1) the motor vehicle accident in question occurred on August 22,
2005; (2) the original petition that was filed on September 2, 2005, named only the
City as a defendant; (3) no claim or allegation of fault was asserted against Imperial
or its insured, Henry, until August 28, 2006, when Wanda filed a first supplemental
and amending petition naming Imperial as an additional defendant; and (4) the trial
court ultimately found that the City had no liability in causing the accident and that
Imperial’s insured, Henry, was entirely at fault in causing the accident.
3 In its appellee brief, the City offers no argument against Imperial’s assertion
that Plaintiffs’ claims against it have prescribed. Rather, it argues that the trial court’s
allocation of fault should not be disturbed on appeal because its factual findings have
not been shown to be an abuse of discretion or manifestly erroneous.
A review of the reasons for judgment issued by the trial court discloses that the
court went to great lengths to determine who was at fault in causing the subject
accident. In fact, the trial judge personally visited the scene of the accident in order
to determine which version of the accident, i.e., that of Plaintiffs or that of Officer
Clark, should prevail. Ultimately, the trial court determined that Henry failed to see
what he should have seen, thus causing the accident, and conversely, that Officer
Clark was not at fault in causing the accident.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-391
HENRY FISHER, ET AL.
VERSUS
CITY OF ALEXANDRIA, ET AL.
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 221,989 HONORABLE F. RAE SWENT, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell, Judges.
EXCEPTION OF PRESCRIPTION GRANTED; JUDGMENT REVERSED.
Edward A. Kaplan Attorney at Law Post Office Box 12386 Alexandria, Louisiana 71315 (318) 448-0831 Counsel for Plaintiff: Henry Fisher
Timothy D. Shumate Attorney at Law Post Office Box 86 Alexandria, Louisiana 71309 (318) 561-7280 Counsel for Plaintiff/Appellee: Wanda Fisher Paul D. Oberle, Jr. Richie, Richie & Oberle, L.L.P. Post Office Box 44065 Shreveport, Louisiana 71134 (318) 222-8305 Counsel for Defendant/Appellant: Imperial Fire and Casualty Insurance Company
Mark F. Vilar Faircloth, Vilar & Elliott, L.L.C. Post Office Box 12730 Alexandria, Louisiana 71315 (318) 442-9533 Counsel for Defendant/Appellee: City of Alexandria SULLIVAN, Judge.
Imperial Fire & Casualty Insurance Company (Imperial) appeals a judgment
rendered against it and in favor of Plaintiff, Wanda Blue Fisher, following trial on the
merits. Imperial also files an exception of prescription. For the following reasons,
we grant the exception of prescription and reverse the judgment of the trial court.
FACTS
An automobile accident involving a vehicle driven by Henry Fisher and a
vehicle driven by Police Officer Scott Clark, an employee of the City of Alexandria
(the City), occurred on August 22, 2005, in Alexandria, Louisiana. Henry’s wife,
Wanda, was a guest passenger in the car at the time of the accident. On September 2,
2005, a petition for damages was filed by both Henry and Wanda naming the City as
the only defendant and alleging that the accident was caused solely by the fault of
Officer Clark. On August 28, 2006, after more than a year had elapsed since the date
of the accident, Wanda filed a first supplemental and amending petition naming
Imperial as an additional defendant in its capacity as insurer of Henry and alleging
that the accident was caused by the combined fault of her husband and Officer Clark.
The matter proceeded to bench trial on June 13, 2007. The trial court issued
written reasons for judgment on August 3, 2007, in which it concluded that Henry
Fisher was solely at fault in causing the accident in which his wife was injured. The
reasons indicated that judgment would be rendered in favor of Wanda Fisher and
against Imperial, awarding her the general and special damages that she had proved
at trial.
On September 5, 2007, Imperial filed an exception of prescription, which the
trial court set for contradictory hearing. Wanda filed an opposition to the exception.
1 At the hearing on the exception, counsel for Imperial argued, citing La.Code Civ.P.
art. 928,1 that the trial court retained jurisdiction and could rule on the exception
because no judgment had been signed in the matter. The trial court refused to
consider the exception, however, insisting that it had rendered a decision and
instructing counsel for Imperial to appeal the judgment once it was rendered and to
file the exception with this court. The trial court “denied” the exception in open
court.
A written judgment on the merits was rendered on December 4, 2007. A
separate judgment denying Imperial’s exception of prescription was rendered on
December 17, 2007. Imperial timely filed a petition for suspensive appeal of the
December 4, 2007 judgment. After the appeal was lodged, Imperial filed an
exception of prescription in this court.
Louisiana Code of Civil Procedure Article 2163 provides, in pertinent part, that
an appellate court may consider a peremptory exception filed for the first time in that
court, if plead prior to submission of the case for decision, and if proof of the ground
of the exception appears in the record. Because the trial judge refused to consider
Imperial’s exception based upon the fact that the case had already been submitted for
decision, we will treat the exception as having been filed for the first time in this
court, and we will consider the exception on the merits.
In its sole assignment of error, Imperial asserts that the trial court erred as a
matter of law in denying its exception of prescription.
1 Louisiana Code of Civil Procedure Article 928 provides, in pertinent part:
B. The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to submission of the case for a decision . . . .
2 DISCUSSION
An appellate court may not set aside a trial court’s finding of fact in the
absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d
840 (La.1989). If the trial court’s findings are reasonable in light of the record
reviewed in its entirety, a court of appeal may not reverse even though it is convinced
that had it been sitting as the trier of fact, it would have weighed the evidence
differently. Id.
The law in Louisiana is clear that a timely filed suit against one joint tortfeasor
interrupts prescription as to the remaining joint tortfeasors. Gioustover v. Progressive
Am. Ins. Co., 561 So.2d 961 (La.App. 4 Cir. 1990), writ not considered, 566 So.2d
973 (La.1990); La.Civ.Code art. 2324(C). “The law is equally clear that where no
liability is found on the part of a timely sued alleged tortfeasor, prescription will not
be interrupted as to another joint tortfeasor, who is not timely sued, since no joint or
solidary obligation exists.” Gioustover, 561 So.2d at 964. See also Martin v. City of
Baton Rouge, 00-896 (La.App. 1 Cir. 6/22/01), 858 So.2d 440.
Imperial asserts that Plaintiffs’ claims against it are prescribed for the
following reasons: (1) the motor vehicle accident in question occurred on August 22,
2005; (2) the original petition that was filed on September 2, 2005, named only the
City as a defendant; (3) no claim or allegation of fault was asserted against Imperial
or its insured, Henry, until August 28, 2006, when Wanda filed a first supplemental
and amending petition naming Imperial as an additional defendant; and (4) the trial
court ultimately found that the City had no liability in causing the accident and that
Imperial’s insured, Henry, was entirely at fault in causing the accident.
3 In its appellee brief, the City offers no argument against Imperial’s assertion
that Plaintiffs’ claims against it have prescribed. Rather, it argues that the trial court’s
allocation of fault should not be disturbed on appeal because its factual findings have
not been shown to be an abuse of discretion or manifestly erroneous.
A review of the reasons for judgment issued by the trial court discloses that the
court went to great lengths to determine who was at fault in causing the subject
accident. In fact, the trial judge personally visited the scene of the accident in order
to determine which version of the accident, i.e., that of Plaintiffs or that of Officer
Clark, should prevail. Ultimately, the trial court determined that Henry failed to see
what he should have seen, thus causing the accident, and conversely, that Officer
Clark was not at fault in causing the accident. We have thoroughly reviewed the
record, including the evidence submitted in conjunction with the trial on the merits
and the trial transcript, and we conclude that there is ample support for the trial
court’s factual conclusions.
In Gioustover, 561 So.2d 961, the passenger of a vehicle being driven by her
mother filed suit against Donald Bonanno and Progressive American Insurance
Company, the driver and insurer of the other vehicle involved in the accident. Those
original defendants filed a third-party demand against Allstate Insurance Company,
the mother’s insurer, more than one year after the date of the accident, and five days
later, the plaintiff filed a supplemental and amending petition naming Allstate as an
additional principal defendant. Following a trial, the original defendants were found
free of fault, and judgment was rendered in favor of the plaintiff and against Allstate.
All of the plaintiff’s claims against the original defendants were dismissed. The
4 plaintiff and her mother appealed, and Allstate filed an exception of prescription in
the court of appeal.
The appellate court reviewed the evidence and testimony adduced at trial, along
with the trial court’s reasons for judgment, and concluded that there was no manifest
error in the trial court’s factual determination that the plaintiff’s mother was solely
at fault in causing the accident. Accordingly, the court of appeal affirmed the trial
court’s dismissal of the original defendants, Bonanno and Progressive. In addressing
Allstate’s exception of prescription, the court of appeal ruled that because no joint or
solidary liability existed between Bonanno and the plaintiff’s mother, prescription
was not interrupted as to Allstate when suit was timely filed against Bonanno and
Progressive. Thus, the court of appeal maintained Allstate’s exception of
prescription, reversed the trial court’s judgment, and dismissed all of the plaintiff’s
claims against it.
This matter is on all fours with Gioustover. We agree with the trial court’s
factual determination that Officer Clark was free from fault in causing the accident.
Accordingly, because there is no joint liability between Officer Clark and Henry,
prescription was not interrupted as to Imperial when Plaintiffs filed suit against the
City, Officer Clark’s employer. Wanda Fisher’s suit against Imperial was not filed
until more than one year had elapsed since the date of the accident, and thus her
claims against Imperial had prescribed. Accordingly, we maintain Imperial’s
exception of prescription, reverse the judgment of the trial court, and dismiss all
claims against Imperial with prejudice. Plaintiff/appellee, Wanda Fisher, is cast with
all costs of this appeal.
5 EXCEPTION OF PRESCRIPTION GRANTED; JUDGMENT
REVERSED.