Randall Scott Iles v. State Farm Mutual Automobile Insurance Company

• Court: Louisiana Court of Appeal
• Decided: November 7, 2018
• Docket: CA-0018-0276
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

18-276

RANDALL SCOTT ILES

VERSUS

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20143183 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Saunders, J., dissents and assigns written reasons.

Brad M. Boudreaux Schutte, Terhoeve, Richardson, Eversberg, Cronin, Judice, & Boudreaux 501 Louisiana Avenue Baton Rouge, LA 70802 (225) 387-6966 COUNSEL FOR DEFENDANT/APPELLEE: State Farm Fire and Casualty Company

Remy A.M. Jardell 625 St. John Street Lafayette, LA 70501-5711 (337) 267-0985 COUNSEL FOR PLAINTIFF/APPELLANT: Randall Scott Iles AMY, Judge.

The plaintiff filed timely suit against his automobile liability provider to

recover damages resulting from an automobile accident under the policy’s uninsured

motorist provision. He noted that the alleged tortfeasor’s automobile liability

insurance had provided him with its entire policy limit for his injuries. Almost five

years following the accident, the plaintiff filed a supplemental and amending petition

naming his personal liability umbrella policy provider as an additional defendant. The

defendant umbrella policy provider filed an exception of prescription, alleging that it

was not a solidary obligor with the plaintiff’s automobile liability and UM policy

provider. The trial court sustained the exception. The plaintiff appeals. For the

following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Randall Scott Iles, instituted this matter on June 20, 2014, with

the filing of a petition by which he sought damages associated with a June 20, 2012

automobile accident. He alleged that the accident occurred when a vehicle driven by

Gregory Hall “failed to stop for some reason and rear ended the vehicle operated by

[the plaintiff.]” He explained that his vehicle was forced forward into another vehicle

stopped at a light. The plaintiff alleged that, as a result of this accident, his vehicle

was deemed a total loss and that he sustained serious personal injuries, as well as loss

of wages. Noting that Mr. Hall’s personal automobile insurer, Louisiana Farm

Bureau, provided him its entire policy limits, the plaintiff named his automobile

liability insurance provider, State Farm Mutual Automobile Insurance Company

(State Farm Mutual), as the sole defendant. He asserted that the State Farm Mutual

policy included UM coverage and alleged that it was indebted to him “for damages sustained as a result of this accident above and beyond the coverage afforded to the

tortfeasor, Gregory Hall.”

The record indicates that, after the filing of the petition, the litigation continued

between the plaintiff and State Farm Mutual as evidenced by filings related to trial

dates and to the parties’ exchange of expert witness and exhibit lists. Following a

March 2016 continuance of that litigation, the present matter arose with the plaintiff’s

May 10, 2017 filing of a first supplemental and amending petition by which he added

State Farm Fire and Casualty Company (State Farm Fire) as a defendant. Therein, the

plaintiff maintained that, as his personal liability umbrella policy provider, State Farm

Fire is a solidary obligor of previously-named defendant, State Farm Mutual. The

plaintiff re-urged all allegations of the original petition, including those related to

general damages, medical expenses, lost wages, and future lost wages and/or earning

capacity.

Subsequently, the plaintiff and State Farm Mutual filed a joint motion and order

of partial dismissal, seeking the dismissal of State Farm Mutual “with full prejudice.”

The trial court signed the order of partial dismissal on June 27, 2017, dismissing the

automobile liability insurer “with prejudice, reserving plaintiff’s rights to pursue all

claims against State Farm Fire . . . .”

By its July 2017 answer, State Farm Fire acknowledged that, at the time of the

subject accident, it had in place a personal liability umbrella policy. However, it

denied the amending petition’s allegation that it is solidarily liable with State Farm

Mutual, asserting that the two are separate legal entities. State Farm Fire also

advanced a number of defenses, including an allegation that the plaintiff’s claims

were prescribed and/or preempted.

2 The following month, State Farm Fire filed the exception of prescription now

under review, framing the single inquiry of whether State Farm Mutual and State

Farm Fire are solidary obligors for the alleged injuries stemming from the June 20,

2012 accident. At the close of the related hearing, the trial court explained that it

would sustain the exception of prescription, “finding that more than two (2) years had

passed” and that the entities are not solidarily liable “because there’s two (2) separate

numbers.” It thereafter entered a judgment in that regard, dismissing the plaintiff’s

claims against State Farm Fire.

The plaintiff appeals, first asserting that the trial court erred in sustaining the

exception of prescription when timely suit had been filed against State Farm Mutual,

an entity he contends was the solidary obligor of State Farm Fire. The plaintiff also

argues that the trial court should have concluded that the latter-filed suit related back

to the timely suit against State Farm Mutual.

Discussion

Exception of Prescription

Louisiana Code of Civil Procedure Article 927(A)(1) provides for the

peremptory exception of prescription. Although the party urging the exception

typically bears the burden of proving such an exception, if prescription is evident on

the face of the petition, the burden shifts to the plaintiff to demonstrate that the matter

has not prescribed. Lomont v. Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620, cert.

denied, _ U.S. _, 136 S.Ct. 1167 (2016). In the event the plaintiff asserts that

prescription has been interrupted due to solidary liability between two parties, the

plaintiff bears the burden of proving that solidarity. Rizer v. Am. Sur. & Fid. Ins. Co.,

95-1200 (La. 3/8/96), 669 So.2d 387.

3 If the exception of prescription is asserted prior to trial, the parties may

introduce evidence to support or controvert the objection pleaded. La.Code Civ.P. art.

931. Absent such evidence, the trial court must decide the exception upon accepting

the facts as alleged in the petition as true. Duckworth v. La. Farm Bureau Mut. Ins.

Co., 11-2835 (La. 11/2/12), 125 So.3d 1057. However, in the event evidence is

introduced at the hearing, an appellate court considers the trial court’s factual findings

pursuant to the manifest error—clearly wrong standard of review. Lomont, 172 So.3d

620.

Interruption of Prescription – Solidary Obligors

Turning to the circumstances of this matter, it is noteworthy that the plaintiff

brought this action against both State Farm Mutual and State Farm Fire in their

capacities as UM providers. As to such suits, La.R.S. 9:5629 provides that: “Actions

for the recovery of damages sustained in motor vehicle accidents brought pursuant to

uninsured motorist provisions in motor vehicle insurance policies are prescribed by

two years reckoning from the date of the accident in which the damage was

sustained.”

As reported, the plaintiff filed the original petition against State Farm Mutual

on June 20, 2014, two years after the underlying June 20, 2012 accident. Yet, the

plaintiff did not file the amending petition naming State Farm Fire until approximately

five years after the accident. Only at that time did the plaintiff plead the existence of

an applicable personal liability umbrella policy as issued by State Farm Fire. In

opposition to the exception, the plaintiff contended that the two State Farm entities are

solidary obligors and, therefore, suit as to State Farm Mutual interrupted the

prescriptive period as to State Farm Fire. He maintains that argument before this

court. Given the fact that the action against State Farm Fire was prescribed on its

4 face, that burden of proving interruption of prescription due to solidary liability was

the plaintiff’s. Rizer, 669 So.2d 387. Following review, we maintain the underlying

determination that the plaintiff failed to do so.

Louisiana Civil Code Article 1793 foundationally provides that: “Any act that

interrupts prescription for one of the solidary obligees benefits all the others.”

Determinative as to the relationship of these defendants, however, La.Civ.Code art.

1794 instructs that: “An obligation is solidary for the obligors when each obligor is

liable for the whole performance. A performance rendered by one of the solidary

obligors relieves the others of liability toward the obligee.” Furthermore,

La.Civ.Code art. 1796 provides that: “Solidarity of obligation shall not be presumed.

A solidary obligation arises from a clear expression of the parties’ intent or from law.”

Simply, the nature of the respective contracts issued to the plaintiff by State Farm

Mutual and State Farm Fire indicates that neither was liable for the whole

performance pursuant to La.Civ.Code art. 1794.

The plaintiff refers this court to the supreme court ruling in Hoefly v.

Government Employees Insurance Co., 418 So.2d 575 (La.1982), for the proposition

that an UM provider is a solidary obligor. However, in Hoefly, 418 So.2d at 576, the

supreme court framed the question before it as “whether an automobile accident

victim’s uninsured motorist carrier is solidarily obliged with the tortfeasor so that the

victim’s timely suit against the latter interrupts prescription with regard to the

insurer.” That question is not posed by the present proceeding.

Standing apart from Hoefly, 418 So.2d 575, the plaintiff did not file a timely

suit against the tortfeasor in the present matter. Thus, even if State Farm Mutual and

State Farm Fire are each the solidary obligor of Mr. Hall, the alleged tortfeasor in this

5 case, prescription was not interrupted by the filing of suit against him. 1 Thus, as

urged, the relevant purported solidary obligation is not between the tortfeasor and the

UM provider as in Hoefly, but is, instead, between the automobile liability provider

and the personal liability umbrella policy, both of which provide UM coverage.

This matter is further distinguishable from Hoefly, 418 So.2d at 578, as the

supreme court found the nature of the relationship between the tortfeasor and the UM

provider in that case to be solidary in nature as they “are obliged to the same thing.”

In the present case, the purported solidary obligors are not obliged to the same thing.

Rather, their relationship is more analogous to that in Rizer, 669 So.2d 387. In that

case the supreme court considered whether an accident victim’s UM coverage was

solidarily liable with the tortfeasor’s liability carrier so that the victim’s timely-filed

suit against the latter interrupted prescription as to the victim’s UM carrier. Id.

Focusing on the respective obligations of the purported solidary obligors, the supreme

court explained that:

It is clear that the obligation of the uninsured motorist carrier does not begin until the obligation under the tortfeasor’s motor vehicle liability policy ends; there is no overlap. Since an uninsured motorist carrier and a tortfeasor’s motor vehicle liability insurer each has a separate obligation which is not coextensive, they are not liable for the same thing. Therefore, the two are not solidary obligors.

Applying these precepts to the present case, we find that USAA, the injured plaintiff’s uninsured motorist carrier, and LIGA as successor to American Surety, the tortfeasor’s motor vehicle liability insurer, were not liable to the same thing. Accordingly, they are not solidary obligors.

Id. at 390.

1 Pursuant to La.Civ.Code art. 3492, delictual actions are subject to a one-year prescriptive period, which “commences to run from the day injury or damage is sustained.” The supreme court has explained that once a cause of action is extinguished by the running of such a prescriptive period, “a subsequent timely suit against alleged solidary obligors will not revive the prescribed action.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 7 (La. 5/21/08), 983 So.2d 84, 89.

6 Similar to the separate obligations identified in Rizer, 669 So.2d at 390, there is

no “overlap” in the obligation of State Farm Mutual and that of State Farm Fire.

Rather, the personal liability umbrella policy issued by the latter is clearly one of

excess, providing plain language in that regard. Pointedly, the declarations page of

the State Farm Fire personal liability umbrella policy lists various “Required

Underlying Insurance Policies,” including a policy of “automobile liability[.]” 2 And,

in its “Other Conditions” section, the umbrella policy sets forth a number of items,

including an “Other Insurance” condition providing that: “This policy is excess over

all other valid and collectible insurance.” Recall that La.Civ.Code art. 1796 provides

that a solidary obligation “shall not be presumed.” But it is instead one that “arises

from a clear expression of the parties’ intent or from law.” Id. By this provision, the

parties provided a clear expression of intent for the personal liability umbrella policy

to act in excess of the underlying automobile liability policy.3

Such distinct language contravenes the plaintiff’s contention that the insurers

were each liable for the whole performance as is required by La.Civ.Code art. 1794.

Rather, following the reasoning expressed by the supreme court in Rizer, 669 So.2d

387, we maintain the finding that the plaintiff failed in his burden of proving that

prescription was interrupted due to the existence of a solidary obligation. Simply, the

insurers were not “obliged to the same thing.” Rizer, 669 So.2d at 389 (quoting

Hoefly, 418 So.2d at 579).

2 The declarations page of the State Farm Mutual automobile liability policy reports UM coverage limits of $250,000 “each person” and $500,000 “each accident” coverage. 3 Further, jurisprudence provides that: “The whole theory of umbrella insurance is that the insured protects himself against catastrophic loss by the procurement of insurance coverage which takes up where his primary policy leaves off. Thus, umbrella coverage is to be regarded as true excess over and above any type of primary coverage.” Lee v. USAA Cas. Ins. Co. of Am., 571 So.2d 127, 129, n.3 (La.1990) (quoting Coates v. Northlake Oil Co., 499 So.2d 252, 255 (La.App. 1 Cir. 1986), writ denied, 503 So.2d 476 (La.1987)).

7 This assignment lacks merit.

Capacity of the Parties

By his second assignment of error, the plaintiff contends that the trial court

alternatively erred in failing to find that the amendment of his petition to name State

Farm Fire did not relate back to the timely filed suit against State Farm Mutual.

Louisiana Code of Civil Procedure Article 1153 provides that: “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 the filing the original pleading.”

The plaintiff argues that this provision is applicable to the amending petition in this

case in light of the supreme court’s expression in Ray v. Alexandria Mall, 434 So.2d

1083 (La.1983). On review, we do not find that extension of Ray is appropriate in the

matter at hand. Rather, in Ray, 434 So.2d at 1086-87, the supreme court explained

that:

[W]e establish the following criteria for determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:

(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;

(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;

(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

8 In contrast to the criteria of Ray, 434 So.2d 1083, it is apparent that the

amending petition in this case did not seek to merely change the identity of the party

sued. Rather, the wholly separate legal entity of State Farm Fire was named for the

first time by the amending petition. There is no indication that State Farm Fire

“received notice of the institution of the action[,]” or that it was merely a “substitute

defendant” who must have known or should have known that “but for a mistake

concerning the identity of the proper party defendant, the action would have been

brought against him.” Id. at 1087. Instead, the amending petition introduced a new

party and alleged liability under a newly identified policy. Such an occurrence is

contrary to Ray’s criteria that “[t]he purported substitute defendant must not be a

wholly new or unrelated defendant” as such an extension of La.Code Civ.P. art. 1153

“would be tantamount to assertion of a new cause of action which would have

otherwise prescribed.” Id.

Accordingly, we find no merit in the plaintiff’s contention that the amending

petition related back to the timely filed original petition pursuant to La.Code Civ.P.

art. 1153.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this proceeding are assigned to the plaintiff—appellant, Randall Scott Iles.

9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 18-276

RANDALL SCOTT ILLES VERSUS STATE FARM MUTUAL AUTOMOBILE INS. CO.

I disagree with the majority’s opinion to affirm the trial court’s ruling that

Plaintiff’s petition does not relate back to the timely filed original petition pursuant

to La.Code. Civ.P. art. 1153. In my view, Plaintiff meets all of the criteria necessary

to have his amending petition relate back to his original petition. Ray v. Alexandria

Mall, Through St. Paul Prop. & Liab. Ins., 434 So.2d 1083 (La. 1983).

A reading of the Ray case suggests strongly that consideration of equity and

public policy underlie the reasoning of the court. In my view, those same

considerations would dictate a reversal of the trial court in the matter at hand.

Accordingly, I respectfully dissent.