FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-01428,
DIVISION "0" Honorable Ethel Simms Julien, Judge
Christopher M. Rodriguez Michael I. Rodriguez ATTORNEY AT LAW
COUNSEL FOR PLAINTIFF/APPELLANT
C. Gaudin Scott O. Gaspard BURGLASS & TANKERSLEY, L.L.C.
COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Edwin A. Lombard, Judge Joy Cossich
Lobrano, Judge Regina Bartholomew-Woods
A. Lombard Judge
Appellant, Lillie Love, seeks review of the June 27, 2017
judgment of the district court denying her motion for new
trial and upholding its grant of the exception of
prescription of the Appellees, Blaine Kern Artists, Inc., and
Barry Daigle, on January 31, 2017. Pursuant to our de
novo review, we find that the district court did not err
in granting the exception of prescription of the Appellees.
Furthermore, we do not find that the district court abused
its discretion in denying the motion for new trial of Ms.
Love; thus, we affirm.
and Procedural History
instant appeal arises out of a personal injury suit filed by
Ms. Love wherein she asserted that she was injured as a
spectator at the parade of the Gentilly Carnival Club, Inc.,
d/b/a Krewe of Endymion ("Endymion") on February 9,
2013. She alleges that her injuries were caused by a float
driver who hit metal barricades in front of her as she stood
at the corner of Canal St. and Carrollton Ave. in New
February 2014, Ms. Love timely filed suit against Endymion,
and its commercial general liability (CGL) insurer, Certain
Underwriters at Lloyd's, London
("Underwriters") as well as John Doe, the unknown
driver of the super-float that struck the barricades. She
raised claims against these defendants for negligence and
gross negligence in her petition.
the pre-trial discovery process, Endymion identified Blaine
Kern Artists, Inc. ("BKA") and Barry Daigle as the
proper parties to pursue. On September 30, 2015, Ms. Love
filed a First Supplemental and Amending Petition for Damages
substituting Barry Daigle as the driver of the super-float in
place of John Doe and added his employer, BKA, as a
defendant. Ms. Love further asserted claims of joint and
concurrent negligence against Endymion, BKA and Barry Daigle.
December 2015, Endymion filed a motion for summary judgment
asserting that Ms. Love could not meet her burden of proof
under La. Rev. Stat. §9:2796(A). The motion, which was
unopposed, was granted by the district court. A judgment was
rendered on March 16, 2016, and Ms. Love's claims against
Endymion were thereby dismissed with prejudice. Underwriters,
however, was not dismissed from the lawsuit.
BKA and Barry Daigle (collectively referred to herein as
"the Appellees") filed an exception of prescription
asserting that Ms. Love's suit against them prescribed
because they were not added as defendants until more than one
year after the alleged accident; and thereafter, the
original, timely sued defendants were dismissed from the suit
such that no joint or solidary obligation existed at the time
their exception was filed. Following a hearing, the district
court issued a judgment on January 31, 2017, granting the
Appellees' exception of prescription and dismissing Ms.
Love's claims with prejudice. In its Reasons for
Judgment, the district court explained that it took the
matter under advisement in order to determine whether there
was evidence in the record to support Ms. Love's
assertion that Underwriters insured both Endymion and BKA.
The district court held that no such evidence existed; thus,
it explained that there was no "identity of
interest" between Underwriters, Endymion and BKA, as Ms.
Love had asserted. She later filed a motion for new trial
from this judgment, which was also denied.
timely appeal followed. The sole assignment of error raised
by Ms. Love is that the district court erred in granting the
Appellees' exception of prescription by considering the
concept of relation back under La. Code Civ. Proc. art. 1153,
once she established that a joint tortfeasor had been timely