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George v. ABC Insurance Co.

Court of Appeals of Louisiana, Fourth Circuit

May 8, 2019

ROSE GEORGE AND MELVIN GEORGE
v.
ABC INSURANCE COMPANY AND SOUTHERN UNIVERSITY NEW ORLEANS

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-04164, DIVISION "E" Honorable Melvin C. Zeno, Judge.

          Don A. Rouzan Dana Henry DON A. ROUZAN & ASSOCIATES, LLC COUNSEL FOR PLAINTIFFS/APPELLANTS

          William David Coffey ASSISTANT ATTORNEY GENERAL LOUISIANA DEPARTMENT OF JUSTICE LITIGATION DIVISION COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase.

          Tiffany G. Chase Judge.

         Rose and Melvin George, (hereinafter "plaintiffs"), seek review of the trial court's October 1, 2018 judgment sustaining the Board of Supervisors of Southern University and Agricultural and Mechanical College's, (hereinafter "Board of Supervisors"), exception of insufficiency of service of process. After consideration of the record before this court and the applicable law, we reverse the decision of the trial court sustaining the exception of insufficiency of service of process.

         FACTS AND PROCEDURAL HISTORY

         The underlying claim in this matter involves injuries plaintiff Rose George allegedly suffered as a result of fainting while inside a facility located on the campus of Southern University New Orleans on June 25, 2016. Plaintiffs filed a petition for damages on May 2, 2017, naming Southern University New Orleans and ABC Insurance Company as defendants. Plaintiffs contemporaneously requested service on Southern University New Orleans, at its principle place of business, through the Chancellor's Office. Southern University New Orleans was served with the original petition for damages on May 15, 2017.

         On January 24, 2018, plaintiffs filed a request for leave to file a first amended and supplemental petition for damages, which was granted by the trial court on February 1, 2018. Plaintiffs sought to add, as defendants to the litigation, the Board of Supervisors of Southern University and Agricultural and Mechanical College; State of Louisiana; and Southern University System. On the same date, service of the original and first amended and supplemental petitions for damages was requested on (1) the Board of Supervisors, Southern University and Agricultural and Mechanical College, through the Office of the Attorney General (service effectuated on February 2, 2018); (2) Southern University System Office of the Chancellor, through the Office of the Attorney General (service effectuated on February 2, 2018); (3) Office of the Chancellor, Southern University New Orleans (service effectuated on February 20, 2018); (4) State of Louisiana Office of Risk Management (service effectuated on February 8, 2018[1]); and (5) State of Louisiana Office of the Attorney General (service effectuated on February 5, 2018).

         The Board of Supervisors filed an exception of insufficiency of service of process on December 14, 2017.[2] A hearing on the exception was held on August 10, 2018, and by judgment dated October 1, 2018, the trial court sustained the Board of Supervisors' exception dismissing plaintiffs' case without prejudice. The judgment was designated a final judgment and this appeal followed.

         DISCUSSION

         Plaintiffs present the following assignments of error: (1) the trial court erred in granting the Board of Supervisors' exception of insufficiency of service of process and (2) the trial court erred in dismissing their case rather than allowing an opportunity to cure the service defect.

         A trial court's judgment dismissing a matter for failure to timely request service is reviewed under a manifest error standard of review. Llopis v. Louisiana State Bd. of Dentistry, 2013-0659, p. 5 (La.App. 4 Cir. 6/11/14), 143 So.3d 1211, 1214.

         Plaintiffs acknowledge that service upon the Attorney General, Office of Risk Management and Board of Supervisors was requested more than 90-days after the filing of the original petition for damages. However, they argue the trial court erred in granting defendant's exception of insufficiency of service of process because service on the primary defendant, Southern University New Orleans, was requested through the Chancellor's Office within 90-days of commencement of the action. Plaintiffs also maintain that service was requested on the Attorney General, Office of Risk Management and Board of ...


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