McKenzie v. Imperial Fire & Casualty Insurance Co.

122 So. 3d 42, 2012 La.App. 1 Cir. 1648, 2013 WL 3895034, 2013 La. App. LEXIS 1537
CourtLouisiana Court of Appeal
DecidedJuly 30, 2013
DocketNo. 2012 CA 1648
StatusPublished
Cited by22 cases

This text of 122 So. 3d 42 (McKenzie v. Imperial Fire & Casualty Insurance Co.) 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
McKenzie v. Imperial Fire & Casualty Insurance Co., 122 So. 3d 42, 2012 La.App. 1 Cir. 1648, 2013 WL 3895034, 2013 La. App. LEXIS 1537 (La. Ct. App. 2013).

Opinion

WELCH, J.

li>The plaintiff, Thomas McKenzie, appeals a trial court judgment sustaining the peremptory exception raising the objection of prescription filed by defendant, the State of Louisiana, through the Department of Transportation and Development (“DOTD”), and dismissing the plaintiffs claims against DOTD with prejudice. For reasons that follow, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On October 19, 2008, the plaintiff was traveling westbound on Interstate 10 in St. Tammany Parish when Sharon Braud, who was traveling eastbound on the interstate, crossed over the median and collided with the vehicle driven by the plaintiff. The collision caused the plaintiffs vehicle to leave the paved roadway and ultimately crash on the embankment. As a result of [45]*45the incident, the plaintiff sustained various personal injuries.'

On November 24, 2008, the plaintiff filed a petition for damages in the Thirty-Fourth Judicial District Court (“34th JDC”) for the Parish of St. Bernard, naming as defendants Sharon Braud;1 her automobile liability insurer, Imperial Fire and Casualty Insurance Company (“Imperial”); and the plaintiffs uninsured/underinsured motorist insurer, State Farm Insurance Company (“State Farm”).2 Following a settlement of the plaintiffs claims against State Farm, on | ¡¡September 9, 2009, State Farm was dismissed with prejudice from the suit, reserving the rights of the plaintiff to proceed against the remaining defendants.

On October 13, 2010, the plaintiff filed a supplemental and amended petition for damages in the 34th JDC. The amended petition copied the original petition “in extenso ” and added an additional defendant, DOTD, which allegedly had responsibility for maintaining the median where the accident at issue took place. With regard to DOTD, the plaintiff alleged that DOTD was both negligent and strictly liable for the plaintiffs injuries, because it failed to provide an adequate barricade in the median of the interstate where the accident occurred.

Based on a settlement of claims with the plaintiff, on November 16, 2010, Imperial, Sharon Braud, and the Estate of Sharon Braud were dismissed with prejudice from the suit, with a reservation of rights against all remaining defendants. The DOTD then filed, in response to the plaintiffs petition, a declinatory exception raising the objection of improper venue. In the exception, DOTD sought a transfer of this suit to St. Tammany Parish, based on allegations that St. Bernard Parish was an improper venue pursuant to La. R.S. 13:5104(A)3 and because St. Tammany Parish was the most convenient forum.

On June 24, 2011, the trial court sustained the exception and ordered this case transferred to the Twenty-Second Judicial District Court (“22nd JDC”) for St. [46]*46Tammany Parish. Once the case was transferred to the 22nd JDC, on January 18, 2012, DOTD filed an answer to the plaintiffs petition and supplemental and amended petition, essentially denying the factual allegations of the petitions. ^Additionally, on January 30, 2012, DOTD filed a peremptory exception raising the objection of prescription, claiming that the plaintiffs supplemental and amended petition naming it as a defendant was not filed and served on them until two years after the accident at issue and that the supplé-mental and amended petition did not relate back to the original petition under La. C.C.P. art. 1153,4 because it did not comply with the criteria established by the supreme court in Ray v. Alexandria Mall, 434 So.2d 1083, 1086-87 (La.1983).5 After a hearing, the trial court sustained the objection of prescription and dismissed the plaintiffs claims against DOTD with prejudice.6 A judgment in accordance with the trial court’s ruling was. signed on May 2, 2012, and it is from this judgment that the plaintiff has appealed.

On appeal, the plaintiff contends that the trial court erred in sustaining the exception, because the defendants named in the original petition ■ and the DOTD are joint tortfeasors. He argues that under La. C.C. arts. 2324(C) and 3462, his timely original suit against the defendants/joint tortfeasors named therein interrupted prescription as to all other joint tortfeasors, including DOTD. Accordingly, the plaintiff.claims that his suit against DOTD was not prescribed.

I ,LAW AND DISCUSSION

Standard of Review

Generally, the trial court’s factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription begins to run, are reviewed on appeal under the manifest error-clearly wrong standard of review. Gilmore v. Whited, 2008-1808 (La.App. 1st Cir.3/31/09), 9 So.3d 296, 299. However, in this case, the issue of whether the plaintiffs action was prescribed involves the proper application and interpretation of La. C.C. arts. 2324(C) and 3462. The proper application and interpretation of a statute is a question of law. Gilmore, 9 So.3d at 299. Therefore, on review, this court must determine whether the trial court was legally correct or legally incorrect in determining that the plaintiffs claims against DOTD were prescribed.7

[47]*47 Prescription

A claim for personal injuries is a delictual action subject to a liberative prescriptive period of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 8492. The objection of prescription may be raised by a peremptory exception. See La. C.C.P. art. 927(A)(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. However, when no evidence has been introduced at a hearing on an exception of prescription, as in this case, all allegations of the petition are to |fibe accepted as true. Wheat v. Nievar, 2007-0680 (La.App. 1st Cir.2/8/08), 984 So.2d 773, 775.

Ordinarily, the party pleading the objection of prescription bears the burden of proving the claim has prescribed. Hogg v. Chevron USA, Inc., 2009-2632 (La.7/6/10), 45 So.3d 991, 998. However, if a petition has prescribed on its face, the burden shifts to the plaintiff to show that the action has not prescribed. Wheat, 984 So.2d at 775. In this case, DOTD was named as a defendant in the plaintiffs lawsuit by an amended petition filed almost two years after the accident. Thus, the plaintiffs claims against DOTD are prescribed on the face of the petition, and the plaintiff bears the burden of proving that his claim has not prescribed.

The plaintiff contends that DOTD is a joint tortfeasor with Sharon Braud, Imperial, and State Farm, that prescription was interrupted when he filed suit against Sharon Braud, Imperial, and State Farm in the 34th JDC, and thus, the interruption of prescription against Sharon Braud, Imperial, and State Farm interrupted prescription as to DOTD, citing La. C.C. art. 2324(C).

When the plaintiffs basis for claiming interruption of prescription is that the newly added defendant is a joint tortfeasor with a defendant who was timely sued, then the plaintiff bears the burden of proving that joint tortfeasor status. Wheat, 984 So.2d at 775.

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Bluebook (online)
122 So. 3d 42, 2012 La.App. 1 Cir. 1648, 2013 WL 3895034, 2013 La. App. LEXIS 1537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenzie-v-imperial-fire-casualty-insurance-co-lactapp-2013.