APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 728-857, DIVISION
"N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, CARLOS RUSSELL AND DESHANNON
RUSSELL Ron A. Austin Catherine H. Hilton Lillian A. Williams
COUNSEL FOR DEFENDANT/APPELLEE, SCOTTSDALE INSURANCE COMPANY
Pablo Gonzalez Jennifer R. Kretschmann
composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and
Marion F. Edwards, Judge Pro Tempore
M. CHEHARDY CHIEF JUDGE.
appeal, plaintiffs challenge the trial court's ruling
sustaining Scottsdale Insurance Company's peremptory
exception of prescription. After review, we reverse the
judgment of the trial court.
and Procedural History
21, 2012, Michael Jones rear-ended the plaintiff, Carlos
Russell, while both drivers were waiting to unload their dump
trucks in Belle Chasse, Louisiana. That day, Michael Jones
was in the course and scope of his employment with Riley
& Carroll Properties ("R & C"), which is
owned by Ernest Riley. After the accident, State National
Insurance Company ("SNIC") paid Carlos Russell a
total of $8, 738.52 for property damage to his vehicle.
12, 2013, plaintiff and his wife filed a claim for personal
injury against Jones, R & C, and their liability insurer,
SNIC. On July 21, 2014, plaintiffs filed a first supplemental
and amending petition to name, as a defendant, his own
uninsured/under-insured motorist coverage carrier,
Progressive Paloverde Insurance Company. On January 8, 2015,
plaintiffs filed a second supplemental and amending petition
to name Ernest Riley, the owner of the trucking company, as a
defendant. On or about June 11, 2015, plaintiffs confirmed a
default judgment against Michael Jones, Ernest Riley, and R
& C, jointly, severally, and in solido, for $154, 255.72
plus interest from the date of the demand.
intervening time, counsel for SNIC reported to counsel for
plaintiffs that SNIC had discovered that, at the time of the
accident in question, Scottsdale Insurance Company carried
general liability insurance coverage for Jones, Riley, and R
& C. Based on this newly discovered information,
plaintiffs, on March 7, 2017, sought and received leave to
file a third supplemental and amending petition for damages
to assert a claim against Scottsdale Insurance Company, as
insurer for defendants, Jones, R & C, and Riley, on the
date of the accident in question.
2, 2017, Scottsdale filed a peremptory exception of
prescription, arguing that the claim against it had
prescribed because the petition naming it was filed more than
one year after the default judgment against its insureds had
been confirmed. To its exception, Scottsdale attached the
petition and supplemental petitions and the default judgment
of June 11, 2015. The plaintiffs opposed the exception on the
basis that the two liability insurers were solidarily liable
for the damages caused by their insureds. To their
opposition, the plaintiffs attached a "Loss Run"
document indicating that Scottsdale insured the defendants.
Finally, Scottsdale filed a reply to the plaintiffs'
opposition, to which it attached its "File Notes"
regarding the July 21, 2012 incident in question.
hearing on July 26, 2017,  the trial court granted
Scottsdale's exception finding:
The evidence admitted to this Court with regard to this
matter does contain claim notes from a Scottsdale
representative or adjustor that appears to this Court to show
that the plaintiff did in fact have actual knowledge
as[sic] Scottsdale as an insurance company within
days or at least a month of the date of this accident.
Furthermore, a default judgment was taken against the
tortfeasor and more than a year passed between that default
judgment and the filing of suit against Scottsdale in March
of 2017 for an action that occurred [in] 2012. Again, the
Court is going to sustain the exception of prescription based
on those reasons.
plaintiffs are appealing that judgment. On appeal, plaintiffs
have assigned four assignments of error: first, the trial
court erred in failing to conclude that prescription was
interrupted against Scottsdale because Scottsdale was
solidarily liable with SNIC; second, the trial court erred in
failing to conclude that plaintiffs' third amending
petition related back to the original petition; third, the
trial court erred in sustaining the exception of prescription
based on the finding that plaintiffs had actual knowledge of
Scottsdale within one year of the accident; and fourth, the
trial court erred in concluding that the ...