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Cothern v. Barber

Court of Appeals of Louisiana, First Circuit

September 15, 2017

DOY E. COTHERN
v.
KALYN BARBER; JOHN BARBER, INDIVIDUALLY AND AS THE FATHER AND ADMINISTRATOR OF THE ESTATE OF THE UNEMANCIAPATED MINOR, KALYN BARBER; BRIDGETTE BARBER, INDIVIDUALLY AND AS THE MOTHER OF THE UNEMANCIPATED MINOR, KALYN BARBER; GEICO INSURANCE COMPANY; JAMES JORDAN; STATE FARM FIRE AND CASUALTY COMPANY; AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

         Appealed from the 22nd Judicial District Court Parish of Washington State of Louisiana Docket Number 108304, Honorable Allison H. Penzato, Judge Presiding

          Thomas Huval Stefini W. Salles Covington, LA, Counsel for Plaintiff/ Appellant, Doy E. Cothern.

          Ashley E. Sandage Hammond, LA, Counsel for Defendants/Appellees, Kalyn Barber (Jordan) and James Jordan.

          Stephen R. Barry Daphne McNutt New Orleans, LA, Counsel for Defendants/ Appellees, John Barber and Bridgette Barber.

          Kathleen Simon New Orleans, LA, Counsel for Defendant/ Appellee, Geico Insurance Company.

          BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.

          WHIPPLE, C.J.

         This matter is before us on appeal by plaintiff, Doy E. Cothern, from a judgment of the trial court granting a peremptory exception raising the objection of no cause of action and dismissing, with prejudice, plaintiffs claims against defendants, John Barber and Bridgette Barber. For the following reasons, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On or about July 30, 2104, plaintiff Doy E. Cothern was involved in an automobile accident with defendant Kalyn Barber in Bogalasa, Louisiana, resulting in injuries to Cothern. At the time of the accident, Kalyn Barber was eighteen years old and was driving a vehicle owned by James Jordan. Cothern filed a lawsuit on June 25, 2015, seeking damages for injuries sustained as a result of the automobile accident. Named as defendants in Cothern's lawsuit were: Kalyn Barber; James Jordan; State Farm as the automobile liability insurer of Jordan; State Farm as the underinsured motorist insurer of Cothern; Kalyn's parents, John and Bridgette Barber ("the Barbers"); Geico Insurance Company as the automobile insurer of the Barbers; and an unnamed insurer as the Barbers' homeowners insurer.

         In pertinent part, the petition alleged that Kalyn was a Mississippi-licensed motorist, who was living outside of her parents' residence in Mississippi. The petition further alleged that Kalyn's parent(s) had signed her application for a driver's license as an unemancipated minor prior to her seventeenth birthday and, thus, were vicariously liable for her negligence in causing the automobile accident pursuant to Mississippi Code Section 63-l-25[1] and LSA-C.C. art. 22l.[2]

         A curator ad hoc was appointed to represent the interest of the Barbers. Thereafter, the curator filed a peremptory exception raising the objection of no cause of action on behalf of the Barbers, [3] contending that: (1) Kalyn was eighteen at the time of the accident and, thus, Mississippi Code Section 63-1-25 is inapplicable; and (2) LSA-C.C, art. 221 is likewise inapplicable because the father's administration of his minor's estate terminates at the time of majority of the child, which, pursuant to LSA-C.C. art. 29, is attained upon reaching the age of eighteen.

         Prior to a hearing on the Barbers' exception of no cause of action, Cothern filed a second amended and supplemental petition, [4] deleting any reference to Mississippi Code Section 63-1-25, but still naming the Barbers as defendants in the lawsuit on the basis that Kalyn was subject to the tort laws of Louisiana, including LSA-C.C art. 2318, [5] as well as the Louisiana Civil Code articles governing conflict of laws. Cothern attached to the amended petition a copy of Mississippi Code Section 1-3-27, which states that the term "minor" includes any person under twenty-one years of age.

         Accordingly, in his opposition to the exceptions raised by the Barbers, Cothern argued that because Kalyn was a domiciliary of Mississippi, her status as a minor should be determined by the law of Mississippi, in particular Miss. Code Ann. 1-3-27, and Kalyn (age ...


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