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Corley Enterprises of Louisiana, Inc. v. Bear Creek Saloon, Inc.

Court of Appeals of Louisiana, First Circuit

February 28, 2019

CORLEY ENTERPRISES OF LOUISIANA, INC.
v.
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

          A. Todd Caruso Counsel for Plaintiff/Appellee, Denham Springs, LA Corley Enterprises of Louisiana, Inc.

          Andre C. Gaudin Joseph J. Valencino Metairie, LA Counsel for Defendants/Appellees, Bear Creek Saloon, Inc. and First Financial Insurance Company

          Sean M. Casey Mandeville, LA Counsel for Defendant/Appellee, Brassco, Inc.

          R. Todd Musgrave Counsel for Intervenor/Appellant, Brent J. Carbo Certain Underwriters at Lloyd's of New Orleans, LA London

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         Certain 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 further proceedings.

         FACTS AND PROCEDURAL HISTORY

         According 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.

         On 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[1] 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 fees.

         On July 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 Underwriters.

         On 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.[2] Brassco accordingly sought dismissal of the claims asserted in the Underwriters' petition for intervention with prejudice.

         Following 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.

         The 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 ...


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