WELCH, J.
The plaintiff, Thomas McKenzie, appeals a trial court judgment sustaining the peremptory exception raising the objection of prescription filed by defendant, the State of Louisiana, through the Department of Transportation and Development ("DOTD"), and dismissing the plaintiff's claims against DOTD with prejudice. For reasons that follow, we reverse and remand for further proceedings.
On October 19, 2008, the plaintiff was traveling westbound on Interstate 10 in St. Tammany Parish when Sharon Braud, who was traveling eastbound on the interstate, crossed over the median and collided with the vehicle driven by the plaintiff. The collision caused the plaintiff's vehicle to leave the paved roadway and ultimately crash on the embankment. As a result of
On November 24, 2008, the plaintiff filed a petition for damages in the Thirty-Fourth Judicial District Court ("34th JDC") for the Parish of St. Bernard, naming as defendants Sharon Braud;
On October 13, 2010, the plaintiff filed a supplemental and amended petition for damages in the 34th JDC. The amended petition copied the original petition "in extenso" and added an additional defendant, DOTD, which allegedly had responsibility for maintaining the median where the accident at issue took place. With regard to DOTD, the plaintiff alleged that DOTD was both negligent and strictly liable for the plaintiff's injuries, because it failed to provide an adequate barricade in the median of the interstate where the accident occurred.
Based on a settlement of claims with the plaintiff, on November 16, 2010, Imperial, Sharon Braud, and the Estate of Sharon Braud were dismissed with prejudice from the suit, with a reservation of rights against all remaining defendants. The DOTD then filed, in response to the plaintiff's petition, a declinatory exception raising the objection of improper venue. In the exception, DOTD sought a transfer of this suit to St. Tammany Parish, based on allegations that St. Bernard Parish was an improper venue pursuant to La. R.S. 13:5104(A)
On June 24, 2011, the trial court sustained the exception and ordered this case transferred to the Twenty-Second Judicial District Court ("22nd JDC") for St.
On appeal, the plaintiff contends that the trial court erred in sustaining the exception, because the defendants named in the original petition and the DOTD are joint tortfeasors. He argues that under La. C.C. arts. 2324(C) and 3462, his timely original suit against the defendants/joint tortfeasors named therein interrupted prescription as to all other joint tortfeasors, including DOTD. Accordingly, the plaintiff claims that his suit against DOTD was not prescribed.
Generally, the trial court's factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription begins to run, are reviewed on appeal under the manifest error-clearly wrong standard of review. Gilmore v. Whited, 2008-1808 (La.App. 1st Cir.3/31/09), 9 So.3d 296, 299. However, in this case, the issue of whether the plaintiff's action was prescribed involves the proper application and interpretation of La. C.C. arts. 2324(C) and 3462. The proper application and interpretation of a statute is a question of law. Gilmore, 9 So.3d at 299. Therefore, on review, this court must determine whether the trial court was legally correct or legally incorrect in determining that the plaintiff's claims against DOTD were prescribed.
A claim for personal injuries is a delictual action subject to a liberative prescriptive period of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. The objection of prescription may be raised by a peremptory exception. See La. C.C.P. art. 927(A)(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. However, when no evidence has been introduced at a hearing on an exception of prescription, as in this case, all allegations of the petition are to be accepted as true. Wheat v. Nievar, 2007-0680 (La.App. 1st Cir.2/8/08), 984 So.2d 773, 775.
Ordinarily, the party pleading the objection of prescription bears the burden of proving the claim has prescribed. Hogg v. Chevron USA, Inc., 2009-2632 (La.7/6/10), 45 So.3d 991, 998. However, if a petition has prescribed on its face, the burden shifts to the plaintiff to show that the action has not prescribed. Wheat, 984 So.2d at 775. In this case, DOTD was named as a defendant in the plaintiff's lawsuit by an amended petition filed almost two years after the accident. Thus, the plaintiff's claims against DOTD are prescribed on the face of the petition, and the plaintiff bears the burden of proving that his claim has not prescribed.
The plaintiff contends that DOTD is a joint tortfeasor with Sharon Braud, Imperial, and State Farm, that prescription was interrupted when he filed suit against Sharon Braud, Imperial, and State Farm in the 34th JDC, and thus, the interruption of prescription against Sharon Braud, Imperial, and State Farm interrupted prescription as to DOTD, citing La. C.C. art. 2324(C).
When the plaintiff's basis for claiming interruption of prescription is that the newly added defendant is a joint tortfeasor with a defendant who was timely sued, then the plaintiff bears the burden of proving that joint tortfeasor status. Wheat, 984 So.2d at 775. Additionally, the plaintiff will also bear the burden of establishing that prescription had been timely interrupted against a joint tortfeasor. Id. at 776.
Louisiana Civil Code article 2323(A), which instituted comparative fault, provides that "[i]n any action for damages where a person suffers injury, death, or loss," the fault of "all persons causing or contributing to the injury, death, or loss shall be determined." In determining whether liability for damages is a solidary or a joint and divisible obligation, La. C.C. art. 2324(A) provides that "[h]e who conspires with another person
According to the record, the plaintiff alleged in his original petition that Sharon Braud was negligent and that, as a direct and proximate result of her negligence, the plaintiff suffered injuries and damages for which the defendants were liable. In the supplemental and amended petition, the plaintiff alleged that DOTD was negligent and strictly liable to the plaintiff for his injuries. In both the original and supplemental petition, the plaintiff alleged specific acts (or failures to act) by Sharon Braud and DOTD, that, when taken as true, are sufficient to establish some fault on the part of both Sharon Braud and DOTD for the plaintiff's injuries, thereby making Sharon Braud and DOTD joint tortfeasors. For example, reading both petitions together, the plaintiff alleged that Sharon Braud's negligence in driving her vehicle off of the eastbound lane of the interstate, across the median, and into the westbound lane of the interstate, combined with DOTD's failure to provide an adequate barricade in the median strip of the interstate for the purpose of separating the oncoming lanes of traffic, were the cause of the plaintiff's damages. Thus, based on the allegations of the petitions, we must conclude that, for purposes of this exception, that plaintiff has established that Sharon Braud (and her liability insurer) and DOTD are joint tortfeasors.
According to La. C.C. art. 2324(C) "[i]nterruption of prescription against one joint tortfeasor is effective against all joint tortfeasors." Thus, we must next determine whether the plaintiff established that prescription was timely interrupted against a joint tortfeasor, thereby interrupting prescription against DOTD.
Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bailey v. Khoury, 2004-0620 (La. 1/20/05), 891 So.2d 1268, 1275. Prescription may be renounced, interrupted, or suspended. See La. C.C. arts. 3449 through 3472.
According to La. C.C. art. 3462, "[p]rescription is interrupted when ... the obligee commences action against the obligor, in a court of competent jurisdiction and venue[;]" however, "[i]f action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period." (Emphasis added.) An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. La. C.C. art. 3463.
DOTD argued in its exception that this suit was commenced against it in an improper venue, based on La. R.S. 13:5104(A), which provides:
Given that venue was improper with respect to DOTD, DOTD contends that since it was not served within the first year of the accident, under La. C.C. art. 3462, interruption of prescription as to DOTD never occurred, that La. C.C. art. 2324(C) is inapplicable, and that the plaintiff's claims against it are prescribed.
However, the plaintiff contends that it timely commenced the action in a court of competent jurisdiction and venue, that the suit interrupted prescription as to the defendants named therein, and since one (or more) of those defendants are alleged joint tortfeasors with DOTD, La. C.C. art. 2324(C) mandates that interruption of prescription also occurred with respect to DOTD. The plaintiff further argues that under La. C.C. art. 3463, the interruption of prescription has remained in effect because the suit was still pending when it filed the amended petition, and thus, the amended petition was filed within the prescriptive period and his claims are not prescribed. We agree.
According to the plaintiff's petition, both the plaintiff and the defendant, Sharon Braud, were domiciled in St. Bernard Parish, and the accident occurred in St. Tammany Parish. Thus, this action, initially filed in the 34th JDC for the Parish of St. Bernard, satisfied proper jurisdictional and venue requirements when suit was commenced. See La. Const. art. V, § 16(A) and La. C.C.P. arts. 42(1), 73(A), and 76. With regard to the interruption of prescription, La. C.C. art. 3462 "looks to whether venue was proper at the time suit was commenced, not whether venue is currently proper." Moore v. Kmart Corporation, 884 F.Supp. 217, 219 (E.D.La.1995); see also La. C.C. art. 3463, comment (f) ("[i]ssues of interruption of prescription are determined as of time of filing of the suit sought to be dismissed"). This comports with the standard of strict construction required of prescription statutes and the clear wording of La. C.C. art. 3462, and does not lead to absurd consequences.
Although the plaintiff's petition was subsequently amended on October 13, 2010, to include DOTD (an alleged joint tortfeasor) as a defendant, and the action then became subject to the mandatory venue provisions set forth in La. R.S. 13:5104(A) and was transferred to the 22nd JDC for St. Tammany Parish (where the accident occurred), this does not change the fact that when the suit was commenced, jurisdiction and venue were proper, and thus, prescription had already been interrupted when the petition was amended.
In this case, we are not presented with the situation where suit was initially commenced in an improper venue.
In Bell v. Kreider, 2003-0300 (La.App. 5th Cir.9/16/03), 858 So.2d 58, writ denied, 2003-2875 (La.1/9/04), 862 So.2d 986, the fifth circuit court of appeal addressed a similar issue. Therein, the plaintiffs were involved in an automobile accident on the Greater New Orleans Expressway, commonly referred to as the "causeway bridge." Id. at 59. Almost a year after the accident, the plaintiffs filed two identical suits against the alleged tortfeasor in two different venues — one suit was filed in the Civil District Court for Orleans Parish ("the CDC suit") and the other was filed in the Twenty-Fourth Judicial District Court for the Parish of Jefferson ("the first 24th JDC suit"). Id. at 60. Apparently, all three defendants were served and subsequently filed answers in response to the CDC suit; however, no service was requested or any other action taken against the defendants in the first 24th JDC suit. Id.
Almost four years after the original petitions were filed, on May 14, 2002, the plaintiffs amended both the CDC suit and the first 24th JDC suit to add as defendants, the Greater New Orleans Expressway Commission ("GNOEC"), Timothy Fondren (GNOEC's executive director), and John Brock (a GNOEC policeman). Id. In the CDC suit, these newly added defendants filed a declinatory exception raising the objection of improper venue, based on La. R.S. 13:5104, which the trial judge in the CDC suit sustained, and the case was then transferred to Jefferson Parish, where it remained pending. Id. In the first 24th JDC suit, the newly added defendants filed a motion to dismiss the suit on the basis of abandonment, which the trial judge in the first 24th JDC suit granted; however, the plaintiffs moved to vacate that order of dismissal, and that issue was taken under advisement by the trial judge in that matter. Id.
Contemporaneous with the filing of the amended petitions, the plaintiffs also filed a separate new suit in the Twenty-Fourth Judicial District Court for Jefferson Parish ("the second 24th JDC suit"), involving the same accident and same defendants as the other suits. Id. In the second 24th JDC suit, GNOEC and Brock filed peremptory exceptions raising the objection of prescription, which the trial judge in the second 24th JDC suit sustained, and the plaintiffs appealed. Id. at 60-61.
On appeal, the plaintiffs argued that prescription had been interrupted by the timely filed CDC suit as to the original defendants, and pursuant to La. C.C. art. 2324(C), interruption of prescription also timely occurred with respect to joint tortfeasors GNOEC and Brock. Id. at 63-64. And since the interruption of prescription remained in effect against all defendants throughout the pending litigation
The fifth circuit court of appeal affirmed the ruling of the trial judge in the second 24th JDC suit. Relying on La. C.C. art. 3462, the court concluded that since the action was not originally filed in a court of proper venue as to GNOEC and Brock, prescription was not interrupted as to those defendants, who were not served within the one-year prescriptive period. Accordingly, interruption of prescription had never occurred as to those defendants, and the claims against them had prescribed. Id. at 64-65.
Although we respect the opinions expressed by our brethren in the fifth circuit court of appeal, we disagree with their opinion in Bell and decline to adopt their reasoning on this issue. First, we note that the sole issue before the court in Bell related to the trial judge's ruling on the issue of prescription as to the second 24 JDC suit; the decision did not disclose the ultimate outcome of either the first 24th JDC suit or of the CDC suit after it was transferred to the 24th JDC, which is the situation more factually similar to the case before us.
Additionally, the fifth circuit, despite noting that "the CDC suit[,] which was brought against the original defendants[,] satisfied proper jurisdictional and venue requirements," Id. at 63, failed to recognize that once the suit was commenced in a proper jurisdiction and venue, prescription was interrupted. In concluding that interruption of prescription never occurred, the fifth circuit reasoned that the unique circumstances of this case exposed a conflict between La. C.C. arts. 2324(C) and 3462, and that La. C.C. art. 3462 ultimately controlled, because that article directly addressed the issue of prescription with respect to suits filed in the wrong venue. While we agree with the underlying premise espoused by the court (that where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail, see Guitreau v. Kucharchuk, M.D., 99-2570 (La.5/16/00), 763 So.2d 575, 579), we do not find a conflict between La. C.C. arts. 2324(C) and 3462. Louisiana Civil Code article 3462 sets forth the rule that prescription is interrupted either (1) by filing a suit in a competent court and proper venue, or (2) by service of process within the prescriptive period. Once the interruption of prescription occurs as provided in La. C.C. art. 3462, as between joint tortfeasors, then interruption of prescription is effective against all joint tortfeasors under La. C.C. art. 2324(C). Furthermore, even if there were a conflict between the two articles, we find that La. C.C. art. 2324(C) is the statute directly addressed to the issue of interruption of prescription with regard to joint tortfeasors, whereas La. C.C. art. 3462 simply addresses the interruption of prescription by the filing of suit in general. Thus, in the event of a conflict, La. C.C. art. 2324(C) would ultimately control.
In Nunnery v. Elmore, 2001-1766 (La. App. 1st Cir.10/2/02), 835 So.2d 645, this court was also faced with a similar, but distinguishable, situation. In Nunnery, the plaintiffs, who were guest passengers in an automobile owned by Bernard Carr and driven by Willie Nunnery, were involved
On June 21, 1999, a joint motion to transfer the plaintiffs' lawsuit from the Hammond City Court to the 21st JDC was filed in the city court. This was apparently done for the convenience of the parties, and the motion noted that the plaintiffs' claims were not in excess of the jurisdictional amount of the Hammond City Court. Id. The motion was granted. Additionally, pursuant to a motion filed by Elmore and her liability insurer in the 21st JDC following the transfer, the plaintiffs' lawsuit and Nunnery's lawsuit were consolidated. The plaintiffs then filed an amending and supplemental petition on November 19, 1999, naming the City of Hammond as a defendant. Id. The City of Hammond responded by filing a peremptory exception raising the objection of prescription, which the trial court sustained, and the plaintiffs then appealed. Id. at 646-47.
On appeal, this court affirmed the ruling of the trial court that the plaintiffs' claims against the City of Hammond were prescribed. Id. at 648. In doing so, this court found that the plaintiffs had commenced their action against Carr, Nunnery, Elmore, and her liability insurer in the Hammond City Court — a court that had no jurisdiction over the City of Hammond (a political subdivision of the state), according to La. C.C.P. art. 4847(A)(6). Id. Since the Hammond City Court was not a court of competent jurisdiction, and because the plaintiffs could not establish that the City of Hammond was served within the prescriptive period, this court concluded that, under La. C.C. art. 3462, the plaintiffs' claims against the City of Hammond were untimely. Id.
We find that Nunnery is factually distinguishable from the case before us, and therefore, is inapplicable to this case. Although this court recognized in Nunnery, 835 So.2d at 647, that the interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors, this court's decision that the initial suit in Hammond City Court did not serve to interrupt prescription as to the City of Hammond was based solely on the fact that the Hammond City Court ultimately lacked subject matter jurisdiction over the action, that this lack of jurisdiction could not be waived, and that "the parties could not by their consent confer jurisdiction upon the Hammond City Court." Id. at 648; see also La. C.C.P. art. 3.
In this case, the suit was initially commenced in a court of competent jurisdiction and venue; however, the action subsequently became subject to the mandatory venue provisions of La. R.S.
Accordingly, we find that the plaintiff established that when he commenced suit on November 24, 2008 (approximately one month after the accident) in the 34th JDC for the Parish of St. Bernard against the defendants named therein, jurisdiction and venue were proper. Under the clear language of La. C.C. art. 3462, prescription was thus timely interrupted as to the defendants named therein, i.e., Sharon Braud, Imperial (her liability insurer), and State Farm (the plaintiff's uninsured/underinsured motorist insurer). Because the plaintiff also alleged that Sharon Braud (and her liability insurer) and DOTD are joint tortfeasors, this interruption of prescription as to Sharon Braud (and her liability insurer) was effective against all joint tortfeasors, including DOTD. La. C.C. art. 2324(C). Furthermore, this interruption of prescription continues as long as this suit is pending. See La. C.C. art. 3463. Accordingly, when the plaintiff filed the amended petition to include DOTD, prescription had already been interrupted, and thus, the amended petition was timely.
For all of the above and foregoing reasons, the May 2, 2012 judgment of the trial court, sustaining the peremptory exception raising the objection of prescription filed by the State of Louisiana, through the Department of Transportation and Development, and dismissing the plaintiff's claims against the State of Louisiana, through the Department of Transportation and Development, is reversed, and this matter is remanded for further proceedings.
All costs of this appeal, in the amount of $1,099.78, are assessed to defendant/appellee, the State of Louisiana, through the Department of Transportation and Development.
Additionally, based on our conclusion that prescription was interrupted by commencement of suit in a court of proper jurisdiction and venue, we need not determine whether prescription was interrupted by service of process on a defendant within the prescriptive period. See La. C.C. arts. 1799, 2324(C), and 3503 and Wimberly v. Brown, 2007-0559 (La. App. 5th Cir. 11/27/07), 973 So.2d 75, 77-80 (the timely filing of a suit in a court of improper venue interrupts prescription as to the defendant or his solidary obligors served by process within the prescriptive period, thus, the timely filing and service of process on two solidary obligors interrupted prescription as to the service on the third solidary obligor, who was not served until almost two years after the accident; as such, prescription remained interrupted while suit was pending, and service on the third solidary obligor occurred within the prescriptive period.)
