GUIDRY, Justice.
In this matter, the intervening plaintiffs, Silton and Robin Fuselier, seek to relate the date of the filing of their petition back to the date of the timely filing of the original petition against the defendant, Meyer, Meyer, LaCroix & Hixson, Inc. We granted the defendant's writ application to resolve a split in the circuits as to whether La.Code Civ. Proc. art. 1153, the so-called relation back doctrine, controls the Fuseliers intervening action or whether La.Code Civ. Proc. art. 1067, providing the time limitation exception for incidental demands, governs. For the reasons set forth herein, we find the petition of the intervening plaintiffs was not timely filed under La.Code Civ. Proc. art. 1067, reverse the judgment of the court of appeal, and reinstate the ruling of the trial court sustaining the defendants exception of prescription.
The relevant facts in this case are not in dispute. The case involves claims brought by a number of residents of the City of Oberlin for property damage and personal injury caused by sewerage overflow. On October 20, 2003, Robin and Corliss Stenson filed their original petition (hereinafter, "the Stenson petition") for damages against the City of Oberlin. On June 1, 2004, several other plaintiffs also filed original petitions for damages. In their petitions, these plaintiffs made allegations of sewerage overflow similar to those contained in the Stenson petition. All of these petitions were consolidated on September 22, 2004.
On that same date, these consolidated plaintiffs (hereinafter, the Stenson plaintiffs)
On July 20, 2006, Silton and Robin Fuselier, the plaintiffs herein, filed the instant Petition of Intervention. In the petition, the Fuseliers asserted allegations similar to those found in the consolidated petitions of the Stenson plaintiffs. Specifically, the Fuseliers claimed the problems with sewerage and water overflow commenced sometime in the summer and fall of 2003. They contended the City of Oberlin purposefully and knowingly misled and misinformed plaintiffs of the cause for the waste water and raw sewerage in their home. . . . Additionally, the Fuseliers claimed they continue to experience issues with the backup of waste water and raw sewerage into their home. Finally, they alleged the City of Oberlin contracted with MMLH to design a waste water sewerage treatment plant for the City of Oberlin.
MMLH filed a peremptory exception of prescription in response to the Fuseliers' petition of intervention. In the exception, MMLH maintained the Fuseliers petition of intervention is an "incidental demand" under La.Code Civ. Proc. art. 1031 and that it was untimely filed pursuant to La. Code Civ. Proc. art. 1067.
The court of appeal reversed the trial court's ruling maintaining the defendants exception of prescription. Stenson v. City of Oberlin, 09-1125 (La.App. 3 Cir. 3/10/10), 32 So.3d 1159. The appellate court looked to whether the Fuseliers claims related back to the original petition brought by the earlier plaintiffs, observing that La.Code Civ. Proc. art. 1153 governed the relation back of a related pleading to an original pleading. The court rejected the defendants reliance on La.Code Civ. Proc. art. 1067, reasoning that Article 1067 contemplates an action that ordinarily may have been subject to prescription and would not otherwise be subject to revival and concluding instead that La.Code Civ. Proc. art. 1153 governs in this case. Id., p. 4 n. 1, 32 So.3d at 1163 n. 1. The appellate court then applied the factors set forth in Giroir to find the Fuseliers petition of intervention asserting virtually identical tort claims against MMLH and the City of Oberlin related back to the date of the original filing by the Stenson plaintiffs. The court of appeal concluded the filing of the original petition by the Stenson plaintiffs had interrupted prescription for the benefit of the Fuseliers intervening suit. Id., p. 6, 32 So.3d at 1163.
As outlined below, there has been confusion in the jurisprudence in determining whether La.Code Civ. Proc. art. 1153 or La.Code Civ. Proc. art. 1067 applies to a petition filed by an intervening plaintiff; consequently, we granted the writ application to resolve the apparent split in the circuit courts. Stenson v. City of Oberlin, 10-0826 (La.6/25/10), 38 So.3d 359. After our review of the applicable code articles and jurisprudence, we find the court of appeal erred in applying La.Code Civ. Proc. art. 1153 to the Fuseliers intervening petition rather than La.Code Civ. Proc. art. 1067.
The defendant asserts the court of appeal erred in finding the Fuseliers petition of intervention is not barred by prescription by application of La.Code Civ. Proc. art. 1153 and the factors set forth in Giroir. Instead, the defendant argues, this court should give effect to the clear language of La.Code Civ. Proc. arts. 1067 and 1153, and conclude the Fuseliers intervening petition is governed by La.Code Civ. Proc. art. 1067.
The Fuseliers make no mention in their brief of Article 1067. Instead, they argue their claims have not prescribed under a theory of contra non valentem. Alternatively, they argue their petition satisfies all of the Giroir factors.
We commence our analysis with a survey of the conflicting decisions applying these articles to intervening petitions. In deciding to apply Article 1153 and the doctrine of relation back, the Third Circuit below relied on Calbert v. Batiste, 09-514 (La.App. 3 Cir. 11/4/09), 23 So.3d 1031. In Calbert, the decedents son from a previous marriage sought to intervene in the wrongful death suit filed by the decedents widow and her son. The Calbert court applied Giroir to find the intervening petition related back to the date of the original filing by the widow. The court held that [the Giroir] test was originally used to determine whether an amended petition adding or substituting a plaintiff should be allowed to relate back to the date of the filing of the original petition, but multiple courts have used the same test in considering prescribed intervening suits. 23 So.3d at 1035 (citing Harvill v. Arnold, 34,409 (La.App. 2 Cir. 1/26/01), 777 So.2d 1271; Riddle v. Simmons, 626 So.2d 811 (La. App. 2d Cir.1993), writ denied, 93-2920 (La.4/29/94), 637 So.2d 459).
In Riddle, the Second Circuit found that the timely filing of the main demand interrupted prescription with respect to the challenged intervention. 626 So.2d at 814. The Riddle court noted prescriptive statutes are strictly construed in favor of maintaining rather than barring actions. Id. (citing Taylor v. Liberty Mutual Ins. Co., 579 So.2d 443 (La.1991); Montminy v. Jobe, 600 So.2d 121 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992)). The Riddle court further noted that consistent with that precept, recent decisions have tended to allow interventions, or claims by or against additional parties, to relate back to the filing of the original demand, so that, in effect, prescription is interrupted. Id. (citing Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1990); Giroir v. South La. Med. Center, 475 So.2d 1040 (La.1985); Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979); Montminy, supra; Smith v. Williams, 535 So.2d 959 (La.App. 2d Cir.1988)). The Riddle court found no merit to having different tests for interventions or amendments and reasoned as follows:
626 So.2d at 814.
The Riddle line of reasoning was apparently based in part on the Second Circuit's appreciation of this courts opinions in Giroir and Allstate v. Theriot. In Allstate v. Theriot, Allstate, a workers' compensation
376 So.2d at 954.
In Giroir, this court applied Article 1153 and allowed an amending petition in a survival action to relate back to the date of a timely filed original petition, when the amending petition added major children as plaintiffs and changed the husbands capacity from administrator of the estate to an individual. As previously noted, the Giroir court specified four criteria that must be satisfied in order for an amending petition to relate back to the date of the filing of the original petition. See Note 3, supra.
The Second Circuit in Riddle also relied on several other cases to find the original demand had interrupted prescription for purposes of the subsequent petition of intervention. The court reasoned as follows:
Riddle, 626 So.2d at 814-15 (footnotes omitted).
As the Riddle court acknowledged, other circuits have ruled that the prescriptive period for intervening actions is controlled by Article 1067. See Duffie v. So. Pacific Transp. Co., 563 So.2d 933, 935 (La.App. 1st Cir.1990); Moisant v. Dominick, 609 So.2d 261, 263 (La.App. 5th Cir.1992). In Duffie, the mother of the deceased minor child, killed in an automobile/train collision, timely filed her survival and wrongful death actions against the defendants. More than twenty-three months following the accident, the father of the deceased child filed a petition of intervention seeking to join his wrongful death claim and survival action with the mothers original petition. The First Circuit in Duffie declined to apply the Giroir factors to the fathers intervening petition, noting the mother did not ask to amend her claim to add her ex-husband and have it relate back to her timely filed petition. 563 So.2d at 935. Had she done so, the court observed, then Giroir might be applicable. The Duffie court did not believe the notice requirement in Giroir would have been satisfied, at any rate, reasoning that the defendant was not required to attempt to track down ex-spouses. The Duffie court distinguished Allstate v. Theriot on the basis that the defendant there had received actual notice of the possibility the injured employee might intervene in the workers compensation carriers suit against the defendant motorist. Id. at 936.
The Fifth Circuit in Moisant addressed whether Article 1067 governed an incidental demand asserted in a cross-claim. There, the original suit was filed by the plaintiff, a guest passenger in Moisant's car, against various defendants, including Moisant. Moisant filed a cross-claim within 90 days of the main claim against the other defendants, who excepted on prescription grounds arguing the prescription issue was governed by Giroir. The Fifth Circuit in Moisant declined to
The Fourth Circuit in Traylor v. Reliance Ins. Co., 98-1379 (La.App. 4 Cir. 7/1/98), 715 So.2d 1253, writ denied, 98-2048 (La.11/6/98), 728 So.2d 392, has also held that Article 1153 applies only to amending petitions. There, the mother of the injured plaintiffs illegitimate daughter sought to intervene in the tort suit filed two years earlier by the plaintiff, his wife, and their son. The appellate court found the petition of intervention was an incidental demand to the original suit and, furthermore, it was barred by prescription because it was not timely filed pursuant to Article 1067, which applies to incidental demands. The Traylor court further found the intervening suit could not be considered an amendment to the principal demand; therefore, it declined to apply Article 1153 and Giroir. Though it discussed Giroir at length and observed the defendants could not reasonably foresee the possibility of an illegitimate child being added to the original suit, the Traylor court found Giroir is "limited to ... an amended petition adding an additional party plaintiff after the expiration of the prescriptive period. . . ." 715 So.2d at 1255. In finding the intervening petition in Traylor was not an amendment in substance to the principal demand, the appellate court reasoned: An amendment to a pleading cannot be made unilaterally without the participation of the party or parties to the pleading sought to be amended. The original plaintiffs did not participate in the intervention. Id. at 1256-57.
However, subsequent to its decision in Traylor, a different panel of the Fourth Circuit did apply the Giroir factors to a petition of intervention when it concluded the intervening petition related back to the filing of the original petition. In re: Matranga, 06-0604, 06-0605 (La.App. 4 Cir. 12/20/06), 948 So.2d 261. There, the mother of the deceased child sought to intervene as a co-plaintiff in the fathers medical malpractice action against the health care providers. The intervenor relied on this courts decisions in Allstate v. Theriot and Giroir. The appellate court found that all four of the Giroir factors were satisfied, and distinguished the earlier decision in Traylor as unique to its own set of facts in that the intervenor, who was an alleged illegitimate child, could not have reasonably been foreseen as a party plaintiff in the suit. 948 So.2d at 268. The court held as follows: [P]ost-prescription amendments and interventions in which a person seeks to join or substitute parties will relate back to the original petition, if: (1) the new person has an interest in the original claim pursuant to La. C.C.P. art. 1091;
Since our decisions in Giroir and Allstate v. Theriot, more recent decisions also suggest Article 1067 controls intervening petitions, rather than the relation back doctrine of Article 1153 and Giroir. See Moore v. Gencorp, Inc., 633 So.2d 1268 (La.1994); Reggio v. E.T.I., 07-1433 (La.12/12/08), 15 So.3d 951.
This court in Moore first determined the plaintiffs amended principal demand related back to the date of the filing of her original petition pursuant to Article 1153. This court then examined the wife's petition of intervention in the context of Article 1067, stating:
Moore, 633 So.2d at 1270-71 (citations omitted). This court reversed, finding Article 1067 does apply to the wife's petition of intervention. Because this court found that Article 1067 permitted the filing of the wife's intervening petition, it expressly declined to address whether the intervening petition could relate back to the filing of the principal demand under Article 1153 and Giroir. 633 So.2d at 1271.
With this jurisprudential backdrop, we turn to the language of the civil
Article 1067, entitled When prescribed incidental or third party demand is not barred, provides:
Article 1031, Incidental demands allowed, reads:
Article 1153, Amendment relates back, states:
Article 1067 clearly provides an exception to prescription or preemption for incidental demands. An intervention is an incidental demand, see La.Code Civ. Proc. art. 1031, and thus Article 1067 is the applicable statute governing the exception to prescription or preemption for an intervention. See Moore v. Gencorp, Inc., 633 So.2d at 1269, 1270. Article 1153, by contrast, provides a means for determining when an amendment adding a plaintiff, claim, or defendant relates back to the date of an earlier filed pleading for prescriptive purposes. See Id. at 1270. As the Duffie and Traylor courts reasoned, Article 1153 allows a plaintiff to amend his petition to add a plaintiff, claim, or defendant, but no code article allows a party or potential party to amend another party's pleading to do so. In sum, we find that applying Article 1153 and the factors enunciated in Giroir to petitions seeking to intervene in the main demand would expand Article 1153 beyond the scope intended by the legislature. Accordingly, we find the court of appeal below erred in applying Article 1153 and the Giroir factors to the instant petition of the Fuseliers seeking to intervene in the Stenson plaintiffs petition, rather than Article 1067 governing incidental demands such as interventions.
Applying Article 1067, we find the Fuseliers petition of intervention has prescribed. Even if we assume their petition was not barred by prescription at the time the Stensons filed the original petition, the intervening petition was not filed within 90 days of service on the last defendant, MMLH. Accordingly, the trial court did not err in sustaining the defendants exception of prescription.
For the reasons set forth above, we find the court of appeal erred in not applying
La.Code Civ. Proc. art. 1067, entitled When prescribed incidental or third party demand is not barred, provides:
Giroir, 475 So.2d at 1044 (citations omitted).