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Blackburn v. Green

Court of Appeals of Louisiana, Fifth Circuit

February 27, 2019

WANDA BLACKBURN
v.
ANGELAN GREEN, RASIER LLC, RASIER-CA, RASIER-DC LLC, AND JAMES RIVER INSURANCE COMPANY

          Counsel for Plaintiff/Appellant, Wanda Blackburn Eric M. Carter, Sr.

          Counsel for Defendant/Appellee, Angelan Green, R. Todd Musgrave, Amanda H. Aucoin.

          Counsel for Defendant/Appellee, Rasier, LLC; Rasier - DC and Rasier - CA, LLC, Paula M. Wellons.

          Counsel for Defendant/Appellee, James River Insurance Company, James A. Prather, Jason M. Freas.

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 776-704, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          MARC E. JOHNSON, JUDGE.

         Plaintiff seeks review of a judgment sustaining an exception of prescription and dismissing her petition for damages with prejudice. Plaintiff initially filed suit on April 27, 2017 for injuries she sustained on April 29, 2016 when Defendant, Angelan Green, allegedly struck her with Defendant's vehicle while Plaintiff was standing behind her own vehicle. Plaintiff filed a second lawsuit on October 10, 2017 for the same injuries based on the same accident. The first suit was dismissed with prejudice on November 16, 2017 for insufficient service of process. Thereafter, Plaintiff's second lawsuit was dismissed based on prescription. We find that Defendants failed to carry their burden of proving Plaintiff's second lawsuit was prescribed, and the trial court erred in sustaining the exception of prescription. Therefore, we reverse the ruling of the trial court and remand the matter for further proceedings.

         FACTS & PROCEDURAL HISTORY [1]

         On April 27, 2017, Plaintiff, Wanda Blackburn, filed a petition for damages in the 24th Judicial District Court, Docket No. 771-537, Division "B," against Ms. Green; Ms. Green's employer, Rasier LLC; and their liability insurer, James River Insurance, for injuries resulting from an April 29, 2016 automobile accident that occurred in Jefferson Parish when Ms. Green's vehicle allegedly struck Ms. Blackburn, while she was standing behind her own vehicle. On September 13, 2017, Defendants filed a Declinatory Exception of Insufficiency of Service of Process and Motion for Involuntary Dismissal.

         While the declinatory exception was pending in the first lawsuit, Ms. Blackburn filed a second petition for damages on October 10, 2017 in the same court - 24th Judicial District Court, Docket No. 776-704, Division "E" - seeking the same damages for the same April 29, 2016 accident.

         Shortly after the filing of the second lawsuit, the trial court held a hearing in the first lawsuit on the declinatory exception of insufficiency of service of process. In a judgment signed on November 16, 2017, the trial court sustained the exception and motion to dismiss and dismissed all of Ms. Blackburn's claims in the first lawsuit with prejudice. Ms. Blackburn did not appeal the November 16, 2017 judgment.

         Three months later, on February 16, 2018, Defendants filed an exception of prescription, or alternatively, an exception of res judicata, in the second lawsuit - which is at issue in this appeal. Defendants argued that Ms. Blackburn's second lawsuit was prescribed because it was filed more than one year after the accident. They maintained that under La. R.S. 9:5801, Ms. Blackburn's first lawsuit did not interrupt prescription because her failure to timely request service of the lawsuit was in bad faith. Defendants further urged that the dismissal of the first lawsuit with prejudice resulted in the second lawsuit being barred under the doctrine of res judicata. After a hearing, the trial court sustained the exception of prescription and dismissed Ms. Blackburn's second lawsuit with prejudice. Ms. Blackburn appeals this judgment, which was signed on July 9, 2018.[2]

         ISSUES

         On appeal, Ms. Blackburn challenges the trial court's ruling sustaining Defendants' exception of prescription. She argues that her first lawsuit, which was timely filed in a competent court of proper venue, interrupted prescription as to the current lawsuit because the trial court never found ...


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