Williams v. State Farm Mutual Automobile Insurance Co.

904 So. 2d 782, 2004 La.App. 4 Cir. 2182, 2005 La. App. LEXIS 1572, 2005 WL 1398849
CourtLouisiana Court of Appeal
DecidedMay 18, 2005
DocketNo. 2004-CA-2182
StatusPublished
Cited by2 cases

This text of 904 So. 2d 782 (Williams v. State Farm Mutual Automobile 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
Williams v. State Farm Mutual Automobile Insurance Co., 904 So. 2d 782, 2004 La.App. 4 Cir. 2182, 2005 La. App. LEXIS 1572, 2005 WL 1398849 (La. Ct. App. 2005).

Opinion

TOBIAS, J.

The plaintiffs/appellants, Herbert and Amy Williams, appeal from a judgment dismissing their lawsuit against defendants/appellees, State Farm Mutual Automobile Insurance Company (“State Farm”) and Corlis Louper, on the basis of pre[783]*783scription. For the following reasons, we reverse the judgment.

Herbert Williams alleges that he was injured in an automobile accident on 13 January 2000 with defendant Corlis Lou-per. On 12 January 2001, Herbert and Amy Williams filed suit against Louper and his insurer, State Farm, in First City Court for the City of New Orleans. State Farm was provided its first notice of the suit by a courtesy copy of the petition on 6 July 2001; however, Louper was not served with the citation and petition until 6 November 2002.

Once the petition was finally served, defendants filed a motion to dismiss the suit due to plaintiffs’ failure to timely serve the citation and petition pursuant to La. C.C.P. art. 1201(C).1 The suit was dismissed without prejudice on 20 February L2003. It is alleged that the trial court concluded that the plaintiffs were without “good cause” in failing to meet the affirmative burden to ensure timely service of the citation and petition.2

On 21 May 2003, the plaintiffs filed a second petition for damages against State Farm and its insureds in First City Court; the case was assigned to a different section of court than the first. After service, the defendants filed a peremptory exception of prescription arguing that the petition was prescribed on its face. The plaintiffs opposed the motion, contending that because the filing of the first petition interrupted prescription, the second suit filed three months later was timely. The defendants responded that no interruption occurred under La. R.S. 9:5801, which provides as follows:

Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3463, shall continue.

| ¡¡The plaintiffs further opposed the exception arguing that the first court did not specifically find that they were in bad faith and that case law has distinguished “good cause” from bad faith.

The trial court granted the peremptory exception of prescription and entered judgment in favor of the defendants on 7 January 2004. This appeal followed.

The plaintiffs argue that the trial court erred in dismissing their lawsuit because the filing of the first petition interrupted prescription. They further maintain that once the suit was dismissed, the prescriptive period of one year began to run anew and, thus, the second petition filed three months later was timely.

[784]*784On the other hand, the defendants point to La. R.S. 9:5801, and contend that there was no interruption because, in dismissing the lawsuit, the trial court had to have found bad faith in that no other reason existed to dismiss the case.

La. C.C. art. 3462 provides:

Prescription is interrupted when ... the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

La. C.C. art. 3463 provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

^Finally, La. C.C. art. 3466 provides:

If prescription is interrupted, the time that has run is not counted. Prescription commences to run anew from the last day of interruption.

There is no question but that the first suit filed by the plaintiffs interrupted prescription and that prescription remained interrupted from 12 January 2001 until 21 February 2003.3 In addition, the defendants concede that without the bad faith required in La. R.S. 9:5801, the plaintiffs’ claims have not prescribed. Therefore, the sole issue is whether the second trial court found that the plaintiffs were in bad faith when granting the exception of prescription and/or evidence of bad faith is found in the record.

We were faced with a similar issue in Futrell v. Cook, 00-2531 (La.App. 4 Cir. 12/19/01), 805 So.2d 325, wherein we stated:

The plaintiffs next argue that the trial court erred in maintaining the exception of prescription absent a finding that the plaintiffs acted in bad faith. The reversal of the granting of an exception of prescription requires a finding of manifest error. See Davis v. Hibernia National Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61, 63, writ denied, 99-0897 (La.9/3/99), 747 So.2d. 536. We find merit in the plaintiffs’ argument, not because the trial judge failed to state that he found evidence of bad [785]*785faith, but because the record does not support a finding of bad faith which is a prerequisite to maintaining the exception of prescription.

The portion of the judgment that maintained the defendants’ exception of prescription was based upon La. R.S. 9:5801. This statute provides:

Notwithstanding the provisions of Civil Code article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith.
Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code article 3463, shall continue. (Emphasis added.)
The defendants argue that a plaintiffs required showing of “good cause” under La.Code Civ. P. art. 1672(C) equates with a court’s finding of “bad faith” needed in La. R.S. 9:5801. We find no basis for this argument in reason or the law. Because the hearing on the exceptions is not contained in the record, we do not know if the trial court addressed the issue of bad faith. Clearly, the statute requires that the trial court had to have made such a factual finding to grant the exception of prescription. Our review of the record, however, convinces us that the trial court clearly erred in maintaining this exception. The record as it currently exists supports no finding of bad faith on the part of the plaintiffs or their counsel, only mistake or inadvertence.

Id. at pp. 5-6, 805 So.2d at 328-29. [Emphasis added.]

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904 So. 2d 782, 2004 La.App. 4 Cir. 2182, 2005 La. App. LEXIS 1572, 2005 WL 1398849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-state-farm-mutual-automobile-insurance-co-lactapp-2005.