Joseph v. North American Risk Services

86 So. 3d 752, 2011 La.App. 4 Cir. 1417, 2012 WL 662833, 2012 La. App. LEXIS 240
CourtLouisiana Court of Appeal
DecidedFebruary 29, 2012
DocketNo. 2011-CA-1417
StatusPublished
Cited by2 cases

This text of 86 So. 3d 752 (Joseph v. North American Risk Services) 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
Joseph v. North American Risk Services, 86 So. 3d 752, 2011 La.App. 4 Cir. 1417, 2012 WL 662833, 2012 La. App. LEXIS 240 (La. Ct. App. 2012).

Opinion

JAMES F. McKAY III, Judge.

|, The appellant, Andrea Joseph, seeks review of the judgment of the trial court maintaining the exception of prescription, the exception of insufficiency of service of process, and the motion for involuntary dismissal filed by Otis Elevator Company (Otis). For the following reasons, we affirm.

STATEMENT OF FACTS/PROCEDURAL HISTORY

On August 1, 2002, Mrs. Joseph filed a petition for damages, alleging that she was injured on August 1, 2001, when her head was struck while she was loading or unloading an elevator at work for the United States Postal Service.

In her petition for damages, Mrs. Joseph named as defendants Elite Elevator Service (Elite); Elite’s insurer, North American Risk Services (North American); and XYZ Elevator Manufacturer.

While the instant appeal involves the exceptions filed by Otis, a brief history of the case as it involves the other defendants will be presented as our decision requires consideration of the entirety of the record.

Mrs. Joseph filed an informa pauperis application, which the trial court granted on April 14, 2003.

hNorth American filed a motion for summary judgment alleging that it was not the insurer of Elite as alleged by Mrs. Joseph in her petition for damages. On May 7, 2004, the trial court granted the motion for summary judgment, dismissing all of plaintiffs claims against North American.

[754]*754Elite filed a motion for summary judgment. Elite argued that Mrs. Joseph would not be able to carry her burden of proof as there was no evidence of a previous accident with the elevator gate which allegedly struck Mrs. Joseph, that there was no notice of any alleged problem with the elevator gate, that there was no evidence that Elite negligently serviced the elevator, and/or that there was no evidence of any defect in the elevator gate.

Mrs. Joseph opposed Elite’s motion for summary judgment. Therein, Mrs. Joseph stated that, “Elite Elevator provided an on-site inspector and repairman for the elevators serving the Postal Service at the Loyola location. Since Elite Elevator Service has maintenance control over the elevator that malfunctioned and injured plaintiff, the plaintiff now brings this action against Elite Elevator Service.”

After a hearing, the trial court, on November 15, 2004, granted the motion for summary judgment filed by Elite, dismissing all of Mrs. Joseph’s claims against Elite.

On July 21, 2006, Mrs. Joseph filed a first supplemental and amended petition for damages. Therein, Mrs. Joseph named Otis as the manufacturer of the elevator which caused injury to Mrs. Joseph on August 1, 2001. The first supplemental and amended petition requested service on Otis.

The service return indicated that Otis received service of the original petition for damages on February 24, 2011. Further, the service return indicated that Otis ^received service of the first supplemental and amended petition for damages on March 23, 2011.

In response, Otis filed an exception of insufficiency of service of process and motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C). Otis additionally filed an exception of prescription.

On July 11, 2011, the trial court issued a judgment maintaining the exception of prescription, the exception of insufficiency of service of process, and the motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C) filed by Otis. The trial court dismissed all of Mrs. Joseph’s claims against Otis with prejudice.

PEREMPTORY EXCEPTION OF PRESCRIPTION

As a general rule, prescription statutes are to be strictly construed against the application of prescription. In re Medical Review Panel Proceedings of Berry, 09-0752 (La.App. 4 Cir. 1/27/10), 30 So.3d 251; Williams v. Earl K. Long Medical Center, 2009-1483 (La.App. 4 Cir. 5/28/10), 40 So.3d 412, 416, is a recent statement of this black-letter legal principle. In this instance, the applicable prescription statute is La. C.C. art. 3492. La. C.C. art. 3492 provides that a tort claim is subject to a one-year prescriptive period commencing from when the injury or damage is sustained. As a general rule, the party pleading prescription bears the burden of proving the plaintiffs claim has prescribed; however, when a claim has prescribed on its face, the burden shifts to the plaintiff to demonstrate prescription was suspended or interrupted. In re Medical Review Panel for the Claim of Moses, 2000-2643, p. 6 (La.5/25/01), 788 So.2d 1173, 1177; Lopez v. House of Non-Denomination Ministries, 2009-1147 (La.App. 4 Cir. 1/13/10), 29 So.3d 680, 681.

|4Here, Mrs. Joseph alleged that she sustained an injury on August 1, 2001. Mrs. Joseph named Otis as a defendant on July 21, 2006, more than one year after the injury was sustained. Thus, the claim is prescribed on its face.

[755]*755In support of her assertion that the trial court erred in granting the exception of prescription, Mrs. Joseph argues that the filing of the first supplemental and amended petition related back to the filing of the original petition on August 1, 2002. The code article stating that an amendment to a petition relates back to an earlier filing is La. C.C.P. art. 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Mrs. Joseph further cites Raziano v. Lincoln Property Co., 520 So.2d 1213 (La.App. 5 Cir.1988), in support of her argument that the first supplemental and amended petition relates back to the petition filed on August 1, 2002. Particularly, Mrs. Joseph points to the language in Ra-ziano which cites La. C.C.P. art. 5051. La. C.C.P. art. 5051 provides that the articles of the Code of Civil Procedure are to be construed liberally, with due regard for the fact that the rules of procedure implement the substantive law. Id., 520 So.2d at 1217. (Internal citations omitted.). Further, Mrs. Joseph argues that prescription statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished by it. Id.

Even so, Mrs. Joseph ignores the portion of Raziano which discusses the four factors to be considered under La. C.C.P. art. 1153. While the Raziano court applied those factors to an amendment which added a new plaintiff, courts have held that those factors are to be examined when considering an amendment that ^changes the identity of a defendant. In Hodges v. Republic Western Ins. Co. 2005-0245 (La. App. 4 Cir. 12/14/05), 921 So.2d 175, 178, quoting Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La.1983), this Court outlined the criteria adopted by the Louisiana Supreme Court for determining whether an amendment under La. C.C.P. art. 1153 that changes the identity of a defendant will be allowed to relate back:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;

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86 So. 3d 752, 2011 La.App. 4 Cir. 1417, 2012 WL 662833, 2012 La. App. LEXIS 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-north-american-risk-services-lactapp-2012.