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Love v. Certain Underwriters at Lloyd's London

Court of Appeals of Louisiana, Fourth Circuit

March 21, 2018

LILLIE LOVE
v.
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, ET AL

          APPEAL 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

          Andre C. Gaudin Scott O. Gaspard BURGLASS & TANKERSLEY, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods

          Edwin A. Lombard Judge

         The 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.

         Facts and Procedural History

         The 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 Orleans.

         In 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.

         During 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.

         In 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.

         Thereafter, 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.

         This 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 sued.

         Standard ...


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