STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-852
MAJOR PATRICK CALBERT
VERSUS
ORLANDO J. BATISTE, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2008-4932 HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
AFFIRMED.
Guy O. Mitchell, III Mitchell Law Offices 225 Court Street Ville Platte, Louisiana 70586-4492 (337) 363-0400 Counsel for Plaintiff/Appellant: Major Patrick Calbert Laura L. Putnam Assistant Attorney General 556 Jefferson Street, Fourth Floor Lafayette, Louisiana 70501 (337) 262-1700 Counsel for Defendant/Appellee: State of Louisiana, through the Department of Transportation and Development
Orlando J. Batiste In Proper Person 135 Harrison Drive Lafayette, Louisiana 70507 Defendant/Appellee KEATY, Judge.
Plaintiff appeals from the trial court’s granting of exceptions of prescription
and insufficient service of process in favor of defendant. For the following reasons,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
Raymond Calbert died on July 23, 2007, after his vehicle was struck by a
vehicle being driven by Orlando Batiste (Batiste). On July 14, 2008, the
deceased’s widow, Mary Ann Charles Calbert (Calbert), filed a wrongful death suit
individually and on behalf of her minor son, Rashaun Devon Calbert, against
Batiste.1 On August 28, 2008, Major Patrick Calbert (Major), the deceased’s son
and the sole plaintiff herein, filed a separate wrongful death and survival action
against Batiste, the State of Louisiana through the Department of Transportation
and Development (DOTD), and Lafayette Consolidated Government (LCG).2
Defendant, DOTD, filed exceptions of insufficient service of process and
citation, vagueness, no cause of action, and prescription. Following a hearing, the
trial court rendered judgment granting DOTD’s exceptions of prescription and
insufficient service of process and overruling DOTD’s exceptions of no cause of
action and vagueness, resulting in the dismissal of Major’s petition against DOTD.
Major appeals the trial court’s decision with respect to the granting of the
exceptions of prescription and insufficient service of process.
1 Calbert’s suit was docketed in the Fifteenth Judicial District Court, Lafayette Parish, as Civil Docket No. 08-4022. 2 Major’s suit was docketed in the same judicial district as Civil Docket No. 08-4932. Major’s suit against LCG was dismissed with prejudice according to the terms of a Consent Judgment signed on September 13, 2010. DISCUSSION
On appeal, Major contends the trial court erred when it sustained DOTD’s
exceptions of prescription and insufficient service of process.
In Louisiana, the standard of review regarding the exceptions of prescription
and insufficient service of process requires an appellate court to determine whether
the trial court’s finding of fact was manifestly erroneous. Taranto v. La. Citizens
Prop. Ins. Corp., 10-105 (La. 3/15/11), 62 So.3d 721, 726; JP Morgan Chase Bank
v. Smith, 07-1580 (La.App. 3 Cir. 5/21/08), 984 So.2d 209.
I. Prescription
In the present matter, because Major’s father died on July 23, 2007, Major
had one year to file a wrongful death and survival action under La.Civ.Code art.
3492.3 Since Major’s suit was not filed until August 28, 2008, Major’s action
prescribed. Thus, the issue on appeal is whether prescription was interrupted with
respect to Major’s suit when Calbert timely filed suit on July 14, 2008.
Major contends Louisiana law and jurisprudence provides that suit by one
plaintiff interrupts prescription as to all defendants in favor of all plaintiffs in
similar factual situations arising out of the same accident. In support of the
foregoing, Major cites Louisiana jurisprudence including Tureaud v. Acadiana
Nursing Home, 96-1262 (La.App. 3 Cir. 5/7/97), 696 So.2d 15.
In opposition, DOTD contends that Calbert asserts a wrongful death action
whereas Major asserts both a wrongful death and a survival action. Wrongful
death and survival actions are separate and distinct causes of action entirely
independent of each other. Guidry v. Theriot, 377 So.2d 319 (La.1979), abrogated
on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983). DOTD 3 Louisiana Civil Code Article 3492 provides, in pertinent part: “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.”
2 argues that even if prescription was interrupted by Calbert’s wrongful death action,
which it denies, the interruption had no bearing on the running of prescription on
Major’s survival action. Accordingly, DOTD alleges that Major’s survival action
is prescribed.
DOTD alleges that Tureaud is inapplicable. DOTD further contends that
notice within the prescriptive period is necessary when resolving prescription
issues. Since DOTD did not receive notice of a claim for the deceased’s wrongful
death within one year of his death, Major’s wrongful death claim against DOTD
prescribed.
In the present case, we find that the trial court was not manifestly erroneous
in granting DOTD’s exception of prescription for the following reasons. First,
prescription runs against all persons unless they fall within an exception provided
by law. La.Civ.Code 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, 440 So.2d 93. There are three
exceptions to the general rule: (1) La.Code Civ.Proc. art. 1153 allows an
amending petition to relate back to the date of filing the original pleading; (2)
La.Code Civ.Proc. art. 1067 allows an additional ninety days for incidental
demands; and (3) when parties share a single cause of action. Louviere, 440 So.2d
93. Each exception has limited application.4 The underlying rationale for these
exceptions is lack of prejudice to the defendant and/or full recovery to a plaintiff
who timely filed suit. Neither rationale is applicable in this case.
4 Louisiana Code of Civil Procedure Article 1153 only applies if the late-added action or defense arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Louisiana Code of Civil Procedure Article 1067 is applicable only if the demand is filed within ninety days of the date of service and only if the demand had not prescribed at the time the main demand was filed. 3 Second, notice to the defendant within the prescriptive period is an essential
element when an untimely plaintiff, such as Major, seeks to defeat prescription
based on another plaintiff’s, Calbert’s, timely filed suit. Giroir v. S. La. Med. Ctr.,
Div. of Hosps., 475 So.2d 1040 (La.1985); Nini v. Sanford Bros., Inc., 276 So.2d
262 (La.1973). In Warren v. Louisiana Medical Mutual Insurance Co., 07-492 (La.
12/2/08), 21 So.3d 186, reversed on other grounds on rehearing, the supreme court
detailed the statutes and jurisprudence relating to prescriptive issues for additional
plaintiffs. Summarizing the issues, the supreme court explained that the focus is
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-852
MAJOR PATRICK CALBERT
VERSUS
ORLANDO J. BATISTE, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2008-4932 HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
AFFIRMED.
Guy O. Mitchell, III Mitchell Law Offices 225 Court Street Ville Platte, Louisiana 70586-4492 (337) 363-0400 Counsel for Plaintiff/Appellant: Major Patrick Calbert Laura L. Putnam Assistant Attorney General 556 Jefferson Street, Fourth Floor Lafayette, Louisiana 70501 (337) 262-1700 Counsel for Defendant/Appellee: State of Louisiana, through the Department of Transportation and Development
Orlando J. Batiste In Proper Person 135 Harrison Drive Lafayette, Louisiana 70507 Defendant/Appellee KEATY, Judge.
Plaintiff appeals from the trial court’s granting of exceptions of prescription
and insufficient service of process in favor of defendant. For the following reasons,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
Raymond Calbert died on July 23, 2007, after his vehicle was struck by a
vehicle being driven by Orlando Batiste (Batiste). On July 14, 2008, the
deceased’s widow, Mary Ann Charles Calbert (Calbert), filed a wrongful death suit
individually and on behalf of her minor son, Rashaun Devon Calbert, against
Batiste.1 On August 28, 2008, Major Patrick Calbert (Major), the deceased’s son
and the sole plaintiff herein, filed a separate wrongful death and survival action
against Batiste, the State of Louisiana through the Department of Transportation
and Development (DOTD), and Lafayette Consolidated Government (LCG).2
Defendant, DOTD, filed exceptions of insufficient service of process and
citation, vagueness, no cause of action, and prescription. Following a hearing, the
trial court rendered judgment granting DOTD’s exceptions of prescription and
insufficient service of process and overruling DOTD’s exceptions of no cause of
action and vagueness, resulting in the dismissal of Major’s petition against DOTD.
Major appeals the trial court’s decision with respect to the granting of the
exceptions of prescription and insufficient service of process.
1 Calbert’s suit was docketed in the Fifteenth Judicial District Court, Lafayette Parish, as Civil Docket No. 08-4022. 2 Major’s suit was docketed in the same judicial district as Civil Docket No. 08-4932. Major’s suit against LCG was dismissed with prejudice according to the terms of a Consent Judgment signed on September 13, 2010. DISCUSSION
On appeal, Major contends the trial court erred when it sustained DOTD’s
exceptions of prescription and insufficient service of process.
In Louisiana, the standard of review regarding the exceptions of prescription
and insufficient service of process requires an appellate court to determine whether
the trial court’s finding of fact was manifestly erroneous. Taranto v. La. Citizens
Prop. Ins. Corp., 10-105 (La. 3/15/11), 62 So.3d 721, 726; JP Morgan Chase Bank
v. Smith, 07-1580 (La.App. 3 Cir. 5/21/08), 984 So.2d 209.
I. Prescription
In the present matter, because Major’s father died on July 23, 2007, Major
had one year to file a wrongful death and survival action under La.Civ.Code art.
3492.3 Since Major’s suit was not filed until August 28, 2008, Major’s action
prescribed. Thus, the issue on appeal is whether prescription was interrupted with
respect to Major’s suit when Calbert timely filed suit on July 14, 2008.
Major contends Louisiana law and jurisprudence provides that suit by one
plaintiff interrupts prescription as to all defendants in favor of all plaintiffs in
similar factual situations arising out of the same accident. In support of the
foregoing, Major cites Louisiana jurisprudence including Tureaud v. Acadiana
Nursing Home, 96-1262 (La.App. 3 Cir. 5/7/97), 696 So.2d 15.
In opposition, DOTD contends that Calbert asserts a wrongful death action
whereas Major asserts both a wrongful death and a survival action. Wrongful
death and survival actions are separate and distinct causes of action entirely
independent of each other. Guidry v. Theriot, 377 So.2d 319 (La.1979), abrogated
on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983). DOTD 3 Louisiana Civil Code Article 3492 provides, in pertinent part: “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.”
2 argues that even if prescription was interrupted by Calbert’s wrongful death action,
which it denies, the interruption had no bearing on the running of prescription on
Major’s survival action. Accordingly, DOTD alleges that Major’s survival action
is prescribed.
DOTD alleges that Tureaud is inapplicable. DOTD further contends that
notice within the prescriptive period is necessary when resolving prescription
issues. Since DOTD did not receive notice of a claim for the deceased’s wrongful
death within one year of his death, Major’s wrongful death claim against DOTD
prescribed.
In the present case, we find that the trial court was not manifestly erroneous
in granting DOTD’s exception of prescription for the following reasons. First,
prescription runs against all persons unless they fall within an exception provided
by law. La.Civ.Code 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, 440 So.2d 93. There are three
exceptions to the general rule: (1) La.Code Civ.Proc. art. 1153 allows an
amending petition to relate back to the date of filing the original pleading; (2)
La.Code Civ.Proc. art. 1067 allows an additional ninety days for incidental
demands; and (3) when parties share a single cause of action. Louviere, 440 So.2d
93. Each exception has limited application.4 The underlying rationale for these
exceptions is lack of prejudice to the defendant and/or full recovery to a plaintiff
who timely filed suit. Neither rationale is applicable in this case.
4 Louisiana Code of Civil Procedure Article 1153 only applies if the late-added action or defense arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Louisiana Code of Civil Procedure Article 1067 is applicable only if the demand is filed within ninety days of the date of service and only if the demand had not prescribed at the time the main demand was filed. 3 Second, notice to the defendant within the prescriptive period is an essential
element when an untimely plaintiff, such as Major, seeks to defeat prescription
based on another plaintiff’s, Calbert’s, timely filed suit. Giroir v. S. La. Med. Ctr.,
Div. of Hosps., 475 So.2d 1040 (La.1985); Nini v. Sanford Bros., Inc., 276 So.2d
262 (La.1973). In Warren v. Louisiana Medical Mutual Insurance Co., 07-492 (La.
12/2/08), 21 So.3d 186, reversed on other grounds on rehearing, the supreme court
detailed the statutes and jurisprudence relating to prescriptive issues for additional
plaintiffs. Summarizing the issues, the supreme court explained that the focus is
on whether the defendant knew or should have known of the existence and
involvement of the new plaintiff. Id.
In the present case, Calbert’s timely filed wrongful death suit named only
Batiste as a defendant; whereas, Major’s untimely wrongful death and survival
action named Batiste, DOTD, and LCG as defendants. Since DOTD was not
named in Calbert’s timely suit, it did not know of the existence of the new plaintiff,
Major, within one year of the decedent’s death. As such, Major’s wrongful death
and survival action prescribed against DOTD, and the trial court’s finding was not
manifestly erroneous.
This assignment of error is without merit.
II. Improper Citation
Regarding DOTD’s exception of insufficient service of process and citation,
Major contends that the requirement of citation has been waived by DOTD’s
repeated responses in the trial and appellate courts. Major alleges that, in any
event, the exception can be cured by serving the parties mentioned by DOTD.
DOTD contends that Major has not satisfied the service requirements of
La.R.S. 39:1538. Although Major served the attorney general, he failed to serve
DOTD’s department head and the Office of Risk Management (ORM) as required 4 by La.R.S. 39:1538. DOTD alleges that Major should be required to serve the
department head and the ORM in order to maintain his action. See Whitley v. State,
Bd. of Supervisors of La. State Univ. Agric. Mech. College, 11-40 (La. 7/1/11), 66
So.3d 470.
Louisiana Revised Statutes 39:1538 provides, in pertinent part:
(4) In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107. However, there shall be no direct action against the Self-Insurance Fund and claimants, with or without a final judgment recognizing their claims, shall have no enforceable right to have such claims satisfied or paid from the Self-Insurance Fund.
In the present case, Major was required to serve the head of DOTD, the
ORM, and the attorney general. The record shows that Major only served the
attorney general. Since Major failed to serve the head of DOTD and the ORM as
required by the statute, service was incomplete. Thus, the trial court’s ruling
granting DOTD’s exception of insufficient service of process and citation was not
DECREE
The judgment of the trial court is affirmed. All costs of this appeal are
assessed against Major Patrick Calbert.