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Theriot v. Archer Construction, L.L.C.

Court of Appeals of Louisiana, First Circuit

April 30, 2018

LANA AND BRITT THERIOT
v.
ARCHER CONSTRUCTION, L.L.C. AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

          On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana No. 178, 464 The Honorable John R. Walker, Judge Presiding

          Philip A. Spence Houma, LA Attorney for Plaintiffs/Appellants Lana Theriot and Britt Theriot

          Frederic C. Fondren George O. Luce Houma, LA Attorneys for Defendant/Appellee State Farm Mutual Automobile Insurance Company

          BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.

          HOLDRIDGE, J.

         In this personal injury action, plaintiffs, Lana Theriot and her husband, Britt Theriot, appeal a judgment sustaining a peremptory exception raising the objection of prescription filed by defendant, State Farm Mutual Automobile Insurance Company (State Farm), and dismissing their lawsuit with prejudice. We reverse and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         On July 15, 2013, Mrs. Theriot was involved in an automobile accident occurring in Terrebone Parish, in which her vehicle was struck by a vehicle owned by Archer Construction, L.L.C. and operated by Brandon Archer. On July 3, 2014, the Theriots filed a lawsuit in the 32nd Judicial District Court (JDC) seeking damages arising from the accident against Archer Construction and its insurer, State Farm (sometimes referred to as "the original lawsuit.") The Theriots failed to effectuate service of the petition within the ninety-day time period provided for in La. C.C.P. art. 1201. In the original lawsuit, State Farm filed a declinatory exception raising the objection of insufficiency of service of process. The Theriots and State Farm entered into a consent judgment on State Farm's exception of insufficiency of service of process. On November 2, 2016, the trial court entered a "Consent Judgment on Exception of Insufficiency of Service of Process." The consent judgment was made the judgment of the court, and in accordance therewith, the trial court entered judgment granting State Farm's exception and dismissing State Farm from the litigation without prejudice, at the Theriots' cost.

         Several days later, on November 7, 2016, the Theriots refiled their lawsuit against Archer and State Farm in the 32nd JDC, seeking damages arising from the July 15, 2013 automobile accident.[1] On January 9, 2017, State Farm filed a peremptory exception raising the objection of prescription with respect to the refiled petition. In the exception, State Farm maintained that the lawsuit was prescribed on the face of the pleading, shifting the burden to the Theriots to establish that prescription had not run. State Farm insisted that the Theriots could not carry this burden because the consent judgment operated as a voluntary dismissal of the Theriots' lawsuit under La. C.C. art. 3463, which provides that interruption of prescription resulting from the filing of a lawsuit in a court of competent jurisdiction and in the proper venue is considered never to have occurred if the plaintiff voluntarily dismisses the action at any time. State Farm maintained that because the Theriots voluntarily dismissed their lawsuit, the filing of the original lawsuit against it did not interrupt prescription, and all claims arising from the July 15, 2013 accident would have prescribed before the Theriots refiled their petition on November 7, 2016.

         In opposition to the exception, the Theriots maintained that prescription was interrupted by the filing of the original lawsuit in a court of competent jurisdiction and venue under La. C.C. art. 3462 and continued as long as that lawsuit was pending under La. C.C. art. 3463. The Theriots argued that they did not voluntarily dismiss their original lawsuit, but merely consented to the involuntary dismissal of that petition pursuant to State Farm's exception of insufficiency of service. According to the Theriots, prescription was interrupted as to all defendants on July 3, 2014, when the original lawsuit was filed, continued until November 2, 2016, when the original lawsuit was dismissed, and commenced anew for one year thereafter, making the filing of the second petition within that one-year period timely.

         Following a hearing, the trial court rendered judgment on March 30, 2017, sustaining State Farm's peremptory exception of prescription and dismissing the lawsuit with prejudice. The court found that the consent judgment of dismissal in the original lawsuit constituted a voluntary dismissal by the Theriots of their cause of action.

         This appeal followed. In a single assignment of error, the Theriots contend that the trial court erred in finding that the consent judgment entered on November 2, 2016, constitutes a voluntary dismissal of their cause of action for the purposes of La. C.C. art. 3463.

         DISCUSSION

         Prescription statutes are strictly construed against prescription and in favor of maintaining the cause of action. Roberts v. USAA Casualty Insurance Company, 2014-0384 (La.App. 1st Cir. 11/7/14), 168 So.3d 418, 420. Thus, if there are two possible constructions, the one which favors maintaining an action, as opposed to barring, should be adopted. Id. Ordinarily, the burden is on the party raising the objection of prescription to prove the facts necessary to support the objection. However, if it appears on the face of the petition that prescription has run, the burden shifts to ...


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