Kelli Showalter wife of/and Shane Showalter v. KPM Construction, L.L.C., and ABC Insurance Company

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

KELLI SHOWALTER WIFE OF/ AND NO. 2019 CW 0914 SHANE SHOWALTER

VERSUS

KPM CONSTRUCTION, L. L. C. AND ABC INSURANCE COMPANY SEP Q X019

In Re: K M Trucking and Dozer, Inc., applying for supervisory writs, 22nd Judicial District Court, Parish of St.

Tammany, No. 201714010.

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

WRIT GRANTED. The portion of the trial court' s June 4, 2019 judgment denying the exception raising the objection of

peremption filed by third -party defendant, K M Trucking and

Dozer, Inc., is reversed for the reasons set forth by this court in Stewart v. Continental Casualty Co., Inc., 2011- 0505 ( La.

App. 1st Cir. 11/ 9/ 11), 79 So. 3d 1047, writ denied, 2011- 2721 La. 2/ 17/ 12), 82 So. 3d 285, " Because the avoidance of the time

period interferes with the running of that time period, relation back of a petition adding a new defendant is not permitted where the time period involved is peremptive. Further, because the expiration of a peremptive time period destroys the cause of

action, there is nothing for an amended or supplemental petition to relate back to under LSA- C. C. P. art. 1153." See also Naghi v. Brener, 2008- 2527 ( La. 6/ 26/ 09), 17 So. 3d 919; and Shields v.

Alvin R. Savoie & Associates, Inc., 2017- 0602 ( La. App. 1st Cir. 11/ 1/ 17), 233 So. 3d 694. The undisputed facts establish that KPM Construction, LLC' s amended third -party demand naming K M

Trucking and Dozer, Inc. as a third- party defendant was filed after the expiration of the applicable peremptive period. See La. R. S. 9: 2772( A) ( 1) ( a) through ( c). Therefore, the exception

raising the filed by objection of peremption third -party defendant, K M Trucking and Dozer, Inc., is granted, and the claims asserted against it by third -party plaintiff, KPM Construction, LLC, are dismissed with prejudice.

JMM MRT WRC

D PUTY (! LERK' O1P COURT FOR THE COURT