CORLEY ENTERPRISES OF LOUISIANA, INC.
BEAR CREEK SALOON, INC., FIRST FINANCIAL INSURANCE COMPANY, BRASSCO, INC., AND XYZ INSURANCE COMPANY
Appealed from the Twenty-First Judicial District Court In and
for the Parish of St. Helena State of Louisiana Docket Number
22685 Honorable Charlotte H. Foster, Judge Presiding
Todd Caruso Counsel for Plaintiff/Appellee, Denham Springs,
LA Corley Enterprises of Louisiana, Inc.
C. Gaudin Joseph J. Valencino Metairie, LA Counsel for
Defendants/Appellees, Bear Creek Saloon, Inc. and First
Financial Insurance Company
M. Casey Mandeville, LA Counsel for Defendant/Appellee,
Todd Musgrave Counsel for Intervenor/Appellant, Brent J.
Carbo Certain Underwriters at Lloyd's of New Orleans, LA
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
Underwriters at Lloyd's of London (collectively "the
Underwriters"), as insurers of a property owner, appeal
a judgment of the trial court maintaining a peremptory
exception of prescription in favor of defendant/appellee,
Brassco, Inc., ("Brassco") and dismissing the
Underwriters' petition for intervention with prejudice.
For the reasons that follow, we reverse the judgment of the
trial court and remand this matter to the trial court for
AND PROCEDURAL HISTORY
to the pleadings filed herein, Bear Creek Saloon, Inc.
("Bear Creek") entered into a lease agreement with
Corley Enterprises of Louisiana, Inc. ("Corley") to
lease property owned by Corley located at 36031 Highway 16 in
Montpelier, Louisiana. The lease agreement provided for a
term commencing on January 1, 2014 and terminating on
December 31, 2018. On April 26, 2014, Bear Creek, which
operated a restaurant and bar on the property, hosted a
country music concert at the bar. Thereafter, the bar closed
at 1:30 a.m. and all employees left the bar by shortly after
2:00 a.m. At some point thereafter, a fire started on the
premises, which ultimately rendered the building and contents
a total loss.
April 27, 2015, Corley filed a petition for damages against:
Bear Creek; First Financial Insurance Company, Bear
Creek's insurer; Brassco, and Brassco's insurer. In
the petition, Corley averred that Bear Creek, as lessee of
the property, was negligent in failing to maintain the
premises in a good and safe condition pursuant to the terms
of the lease, and that the fire and resulting damages were
caused by the acts, carelessness, and negligence of Bear
Creek. As to Brassco, Corley averred that Bear Creek had the
sprinkler system inspected annually by Brassco, and that at
Brassco's last inspection, on March 20, 2014, inspector
Brian Berthalot found the system to be in working order.
Corley further alleged that after the fire in June of 2014,
however, the Fire Marshall advised Elmus Corley that the main
inlet valve on the system was found to be in the
"closed" position at the time of the fire, such
that the sprinkler system did not work as intended.
Accordingly, Corley sought damages and reimbursement for
restoration and replacement of its damaged property and all
associated ancillary costs, as well as damages for loss of
business income and use of the property, and attorney's
17, 2017, the Underwriters, as subrogee to the rights of
Corley, filed a petition for intervention against Bear Creek,
First Financial Insurance Company, Brassco, and its insurer,
contending that the Underwriters provided commercial property
insurance to Corley under Policy No. HIS 13-488, which
included certain insurance coverage on the property. The
Underwriters contended that they paid $550, 000.00 in
benefits to Corley in connection with this claim, and that
under the provisions of the policy, they were legally and/or
conventionally subrogated to the rights of Corley to obtain
reimbursement and/or indemnification for the negligence of
the defendants. The Underwriters contended that, in the event
Corley was awarded damages against the defendants, such
recovery should be apportioned in the judgment such that the
claims of the Underwriters for reimbursement and/or indemnity
for all amounts paid by the Underwriters to or for the
benefit of Corley should take precedence over Corley's
claims, to the full extent of such payments made by the
September 21, 2017, Brassco filed an exception of
prescription as to the Underwriters' petition for
intervention, contending that the incidental demand was
prescribed as it was not filed until almost two years after
Brassco was served with Corley's petition for damages,
and not within ninety days of the date of service of the main
demand purportedly required by LSA-C.C.P. art.
1041. Brassco accordingly sought dismissal of
the claims asserted in the Underwriters' petition for
intervention with prejudice.
a trial on the exception, the trial court granted
Brassco's exception of prescription and subsequently
issued reasons for judgment finding that the
Underwriters' petition for intervention was untimely
pursuant to LSA-C.C.P. art. 1041 (formerly LSA-C.C.P. art.
1067) and Stenson v. City of Oberlin, 2010-826 (La.
3/15/11), 60 So.3d 1205. The trial court concluded that the
claims asserted by the Underwriters in their petition for
intervention should be dismissed with prejudice. The trial
court signed a written judgment in conformity with its
reasons on April 23, 2018.
Underwriters then filed the instant appeal, contending that
the trial court erred in maintaining Brassco's exception
of prescription and in finding the Underwriters' petition
for intervention was untimely based on LSA-C.C.P. art. 1041
and Stenson, where they aver neither applies to the