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Roberts v. USAA Cas. Ins. Co.

Court of Appeal of Louisiana, First Circuit

November 7, 2014

RANDY J. ROBERTS AND JAMIE J. ROBERTS
v.
USAA CASUALTY INSURANCE COMPANY, LIONEL J. BILLOT, MICHAEL A. HEBERT, JENELLE C. HIESTER, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS INSURER FOR JANELLE C. HIESTER, PHYLIS A. CHAUVIN, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS INSURER FOR PHYLIS A. CHAUVIN, AND ABC INSURANCE COMPANY, AS THE INSURER FOR MICHAEL A. HEBERT

On Appeal from the Twenty-Second Judicial District Court, In and for the Parish of St. Tammany, State of Louisiana. No. 2010-16827. Honorable Raymond S. Childress, Judge Presiding.

Paul A. Tabary, III, Elizabeth Borne, Lacey Tabary, Chalmette, Louisiana, Counsel for Plaintiffs/Appellants, Randy J. Roberts and Jamie J. Roberts.

Charles S. Green, Jr., Henry Bellamy, New Orleans, Louisiana, Counsel for Defendant/Appellee, Gulf Coast Electric Co., LLC.

John M. Crosby, Metairie, Louisiana, Counsel for Defendants/Appellees, Jenelle Hiester and State Farm Mutual Automobile Insurance Company as Insurer for Janelle Hiester.

Nat G. Kiefer, Jr., Megan C. Kiefer, Metairie, Louisiana, Counsel for Defendant/Appellee, Progressive Security Insurance Company as the alleged insurer of Gulf Coast Electric Co., LLC.

James P. Nader, Daniel M. Redmann, Sarah C. Douglas, New Orleans, Louisiana, Counsel for Defendants/Appellees, State Farm Mutual Automobile Insurance Company as UM insurer for Randy J. Roberts and Jamie J. Roberts.

Adrianne L. Baumgartner, Kathleen E. Simon, Covington, Louisiana, Counsel for Defendants/Appellees, Phylis A. Chauvin and State Farm Mutual Automobile Insurance Company as insurer for Phylis A. Chauvin.

Michael A. Hebert, Picayune, Mississippi, Defendant/Appellee, In Proper Person.

BEFORE: WHIPPLE, CJ., McCLENDON, AND HIGGINBOTHAM, JJ.

OPINION

Page 419

[2014 0384 La.App. 1 Cir. 3] McCLENDON, J.

Plaintiffs appeal a trial court judgment granting defendant/appellee's peremptory exception raising the objection of prescription. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises from an automobile accident that occurred on November 4, 2009. On November 3, 2010, plaintiffs, Randy Roberts and Jamie Roberts, filed a petition for damages naming Lionel J. Billiot and his liability insurer United Services Automobile Association (USAA)[1] as defendants. Plaintiffs also named Michael A. Hebert, Jenelle C. Hiester, Phylis A. Chauvin, and their liability insurers, as defendants. Plaintiffs alleged that all named defendants were liable to plaintiffs " jointly, [severally], and in solido" for all reasonable damages.

On August 1, 2012, Mr. Billiot signed an affidavit acknowledging that " he was not in the course and scope of any employment at the time of the November 4, 2009 accident." On September 20, 2012, after reaching a settlement with Mr. Billiot and USAA, plaintiffs filed a motion to dismiss Mr. Billiot and USAA from the suit with prejudice. The trial court granted the motion on September 25, 2012.

Plaintiffs aver that following Mr. Billiot's dismissal they learned from Mr. Billiot's deposition that he may have been in the course and scope of his employment with Gulf Coast Electric Co., LLC (Gulf Coast) at the time of the accident, despite the statement made in his affidavit otherwise. On January 10, 2013, plaintiffs filed a " Second Supplemental and Amended Petition For Damages," to add Gulf Coast as a defendant.

On August 15, 2013, Gulf Coast filed a peremptory exception raising the objection of prescription. Gulf Coast, citing LSA-C.C. art. 3463, asserted that when plaintiffs voluntarily dismissed their claims against Mr. Billiot, it eliminated the interruption of prescription against Gulf Coast. As such, Gulf Coast urged [2014 0384 La.App. 1 Cir. 4] that plaintiffs' claims filed against it more than three

Page 420

years after the accident had prescribed.[2] In opposition, plaintiffs contended that LSA-C.C. art. 3463 did not apply because although Mr. Billiot had been dismissed, the underlying suit was still pending.

Following argument, the trial court granted Gulf Coast's exception of prescription and dismissed plaintiffs' action against Gulf Coast with prejudice. On October 22, 2013, the trial court signed a written judgment evidencing its ruling in open court. Plaintiffs timely filed a motion for new trial, which was denied by the trial court.

Plaintiffs have appealed, asserting that the trial court committed legal error when it found that the dismissal of Mr. Billiot constituted a voluntary dismissal of the action under LSA-C.C. art. 3463.

DISCUSSION

Statutes providing for prescriptive periods are to be strictly construed in favor of maintaining a cause of action. David v. Our Lady of the Lake Hosp., Inc., 02-2675 (La. 7/2/03), 849 So.2d 38, 47. Thus, if there are two possible constructions, the one which favors maintaining an action, as opposed to barring, should be adopted. Oil Ins. Ltd. v. Dow Chemical Co., 07-0418 (La.App. 1 Cir. 11/2/07), 977 So.2d 18, 22, writ denied, 07-2319 (La. 2/22/08), 976 So.2d 1284.

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. McKenzie v. Imperial Fire and Cas. Ins. Co., 12-1648 (La.App. 1 Cir. 7/30/13), 122 So.3d 42, 46, writ denied, 13-2066 (La. 12/6/13), 129 So.3d 534. However, the proper application and interpretation of a statute [2014 0384 La.App. 1 Cir. 5] or article is a question of law. McKenzie, 122 So.3d at 46. The issue of whether the plaintiffs' action was prescribed involves the proper application of LSA-C.C. art. 3463. Therefore, on review, this court must determine whether the trial court was legally correct or legally incorrect in determining that the plaintiffs' claims against Gulf Coast were prescribed.

Plaintiffs timely instituted the original suit in this matter on November 3, 2010, naming numerous parties, including Mr. Billiot, as defendants, asserting joint and solidary liability. Generally, the interruption of prescription against a solidary or joint tortfeasor is effective as to all solidary or joint tortfeasors. LSA-C.C. art. 1799 and 2324(C). If Mr. Billiot and Gulf Coast are solidary obligors as to plaintiffs, then the interruption of prescription against Mr. Billiot interrupted prescription against Gulf Coast. See Etienne v. National Auto. Ins. Co., 99-2610 (La. 4/25/00), 759 So.2d 51, 56. Further, if Gulf Coast and the remaining defendants are joint tortfeasors, then the timely instituted action against the joint tortfeasors also interrupted prescription against Gulf Coast. Doyle v. Mitsubishi Motors Corp., 99-0459 (La.App. 1 Cir. 3/31/00), 764 So.2d 1041, 1045, writ denied, 00-1265 (La. 6/16/00), 765 So.2d 338.[3]

Page 421

Gulf Coast, citing LSA-C.C. art. 3463, contends that interruption was considered never to have occurred because plaintiffs dismissed Mr. Billiot from the suit. We disagree. Louisiana Civil Code article 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. [Emphasis added.]

Although Mr. Billiot may have been dismissed, other defendants, who are alleged joint tortfeasors, remain in the suit and the suit is still pending. Dismissal of a [2014 0384 La.App. 1 Cir. 6] particular defendant is not the same as the dismissal of the lawsuit. Doyle, 764 So.2d at 1045. Article 3463 makes it clear that an interruption of prescription resulting from the proper filing of suit continues so long as the suit is pending. Id.[4] As such, plaintiffs' January 10, 2013 amended petition naming Gulf Coast as a defendant, which was filed several months after Mr. Billiot was dismissed and while suit against the other potential joint tortfeasors was pending, was timely.

CONCLUSION

For the foregoing reasons, the trial court's October 22, 2013 judgment is reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed to appellee, Gulf Coast Electric Co., LLC.

REVERSED AND REMANDED.


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