Sheila Williams v. Angela [april] Montgomery, And

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #020
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 13th day of May, 2021 are as follows:
BY Weimer, C.J.:
2020-C-01120 SHEILA WILLIAMS VS. ANGELA [APRIL] MONTGOMERY, AND
FOREMOST INSURANCE COMPANY, ET AL. (Parish of Lafourche)
AFFIRMED IN PART, REVERSED IN PART AND REMANDED. SEE
OPINION.
Crichton, J., concurs in part, dissents in part and assigns reasons.

05/13/21
SUPREME COURT OF LOUISIANA
No. 2020-C-01120
SHEILA WILLIAMS
VS.
ANGELA [APRIL] MONTGOMERY, AND FOREMOST INSURANCE
COMPANY, ET AL.
ON WRIT OF CERTIORARI TO THE FIRST CIRCUIT COURT OF APPEAL,
PARISH OF LAFOURCHE
WEIMER, Chief Justice.
In this tort action, plaintiff timely filed suit against two defendants–a property
owner and her alleged liability insurer. The insurer was served with the petition, but
plaintiff withheld service on the property owner. The insurer filed an answer on its
own behalf within three years of suit being filed, but no action was taken in the suit
by any party relative to the property owner within that three years. This writ
application was granted to determine whether plaintiff’s action against the property
owner was abandoned pursuant to La. C.C.P. art. 561(A)(1), which provides an
“action ... is abandoned when the parties fail to take any step in its prosecution or
defense in the trial court for a period of three years.” The court of appeal found the
filing of an answer by the insurer within the three-year abandonment period was
effective to interrupt the abandonment period as to the property owner.
For the reasons that follow, this court holds the filing of the insurer’s answer
did not serve to interrupt the abandonment period as to the property owner.

Therefore, the ruling of the court of appeal is reversed because plaintiff’s original
action against the property owner was abandoned by operation of law pursuant to
Article 561. However, plaintiff’s underlying claims against the property owner, that
were subsequently reasserted by amended petition, are not necessarily prescribed due
to the potential interruption of prescription resulting from the pending suit against an
alleged solidary obligor. Because a determination regarding prescription cannot be
made based on the existing record, the court of appeal’s ruling on the property
owner’s exception of prescription is affirmed, and the matter is remanded to the
district court for an evidentiary hearing on that exception.
FACTS AND PROCEDURAL HISTORY
Sheila Williams filed suit on May 2, 2014, against April Montgomery and her
alleged liability insurer, Foremost Insurance Company, for injuries she sustained on
May 3, 2013, in a fall at a trailer she rented from Ms. Montgomery. Plaintiff served
Foremost with the petition, but withheld service on Ms. Montgomery. The record
reflects no action by any of the parties until Foremost filed its answer on February 2,
2017.
On August 4, 2017, Foremost filed a motion for abandonment pursuant to La.
C.C.P. art. 561 as to Ms. Montgomery, stating Ms. Montgomery had not been served
and asserting that no step had been taken in the prosecution or defense of the case as
to Ms. Montgomery in the three years since the suit was filed. On October 2, 2017,
Foremost filed exceptions of no cause of action and no right of action, combined with
a motion to dismiss, rooted in the assumption that plaintiff’s action against Ms.
Montgomery was abandoned by operation of law pursuant to Article 561. Foremost
asserted plaintiff had no cause of action against it because the petition failed to state
any specific allegations against Foremost. Foremost also asserted plaintiff had no
2

right of action against an insurer alone under the direct action statute. In opposition,
plaintiff sought leave to file an amended petition to correct the omission of a specific
statement that Foremost is the liability insurer of Ms. Montgomery. Plaintiff further
argued that, even if her claims against Ms. Montgomery set forth in the original
petition were abandoned, they were not prescribed due to the pending suit against a
solidary obligor, Foremost. Plaintiff sought leave to file an amended petition to
reassert her claims against Foremost and Ms. Montgomery.
In a February 9, 2018 judgment, the district court granted Foremost’s motion
for abandonment and the exception of no cause of action,1 but also granted plaintiff
leave to amend her petition.2 Ms. Montgomery was subsequently served with the
original and amended petition, and Foremost was served with the amended petition.
In response, Ms. Montgomery filed exceptions of improper venue and res judicata,
and, alternatively, a motion to dismiss for abandonment. Ms. Montgomery argued
dismissal for abandonment was proper because plaintiff failed to prosecute the action
pursuant to La. C.C.P. art. 561 within three years after filing the original petition in
this suit. Plaintiff opposed the motion, arguing abandonment only applied to the
action brought in the original petition which was dismissed without prejudice.
According to plaintiff, her claims against Ms. Montgomery, reasserted in the amended
petition, were still viable because prescription was interrupted due to the pending suit
against the solidary obligor, Foremost.3
1 The judgment does not address the exception of no right of action.
2 The amended petition reasserted the claims against Ms. Montgomery and Foremost, and
specifically clarified that Foremost was Ms. Montgomery’s liability insurer.
3 Plaintiff also sought leave to amend her petition a second time to add two additional joint and/or
solidary obligors. These parties are medical malpractice defendants who allegedly rendered
negligent treatment to plaintiff following the accident, thus, aggravating her injuries. The district
court granted plaintiff leave to file the second amended petition on November 8, 2018. Plaintiff
states she was prohibited from filing suit against these defendants until August 3, 2018, due to
3

On January 8, 2019, the district court granted Ms. Montgomery’s motion to
dismiss for abandonment and denied the exceptions as moot.4 The court of appeal
reversed, finding Foremost’s answer was a formal action taken in the trial court and
was effective to interrupt abandonment as to all parties, including Ms. Montgomery.
The court of appeal found it immaterial that Ms. Montgomery was not served with the
original petition prior to expiration of the three-year abandonment period. Ms.
Montgomery also filed an exception of prescription in the court of appeal, arguing
that plaintiff’s claims against her as reasserted in the amended petition were
prescribed. Finding that plaintiff was entitled to demonstrate that a suspension,
interruption, or renunciation of prescription had occurred, the court of appeal
remanded the issue to the district court to permit the parties to develop evidence on
the prescription issue. Williams v. Montgomery, 19-0580 (La.App. 1 Cir. 8/18/20),
311 So.3d 411.
Upon Ms. Montgomery’s application, certiorari was granted to review the
correctness of the rulings below. Williams v. Montgomery, 20-1120 (La. 11/24/20),
304 So.3d 857.
DISCUSSION
Pursuant to La. C.C.P. art. 561(A)(1), an “action ... is abandoned when the
parties fail to take any step in its prosecution or defense in the trial court for a period
medical review panel proceedings.
4 The judgment erroneously dismissed plaintiff’s action against Ms. Montgomery with prejudice.
An action may be dismissed as abandoned under Article 561 only without prejudice. See, e.g.,
Johnson v. American Bell Federal Credit Union, 14-2551 (La. 3/27/15), 164 So.3d 183 (per
curiam); Juengain v. Tervalon, 17-0155, p. 17 (La.App. 4 Cir. 7/26/17), 223 So.3d 1174, 1186, writ
denied, 17-1648 (La. 11/28/17), 229 So.3d 934; Burgess, Inc. v. Parish of St. Tammany, 17-0153,
p. 3 n.1 (La.App. 1 Cir. 10/25/17), 233 So.3d 58, 61 n.1, writ denied, 17-2179 (La. 2/23/18), 237
So.3d 515; Claiborne Med. Corp. v. ABC Ins. Co., 15-489, p. 8 (La.App. 5 Cir. 1/27/16), 185
So.3d 216, 221, writ denied, 16-0374 (La. 4/15/16), 191 So.3d 1036; Reed v. Peoples State Bank
of Many, 36,531, p. 7 (La.App. 2 Cir. 3/5/03), 839 So.2d 955, 959; Total Sulfide Services, Inc. v.
Secorp Industries, Inc., 96-589, p. 4 (La.App. 3 Cir. 12/11/96), 685 So.2d 514, 515.
4

of three years.” In order to avoid abandonment: (1) a party must take some “step” in
the prosecution or defense of the action, (2) the step must be taken in the proceeding
and, with the exception of formal discovery, must appear in the record of the suit, and
(3) the step must be taken within three years of the last step taken by either party.
Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912,
pp. 4-5 (La. 12/6/11), 79 So.3d 978, 981. A “step” is a formal action before the court
intended to hasten the suit towards judgment or is the taking of formal discovery.
James v. Formosa Plastics Corp. of La., 01-2056, p. 4 (La. 4/3/02), 813 So.2d 335,
338. Sufficient action by either plaintiff or defendant will be deemed a step. See
Oilfield Heavy Haulers, L.L.C., 11-0912 at 5, 79 So.3d at 981.
This court explained in Oilfield Heavy Haulers, L.L.C. that the purpose of
Article 561 is the prevention of protracted litigation filed for purposes of harassment
or without a serious intent to hasten the claim to judgment. Abandonment is not a
punitive concept; rather, it balances two competing policy considerations: (1) the
desire to see every litigant have his day in court and not to lose same by some
technical carelessness or unavoidable delay, and (2) the legislative purpose that suits,
once filed, should not indefinitely linger, preserving stale claims from the normal
extinguishing operation of prescription. Id. Article 561 is to be liberally construed
in favor of maintaining a plaintiff’s action, and any reasonable doubt about
abandonment should be resolved in favor of allowing the prosecution of the claim and
against dismissal for abandonment. See id., 11-0912 at 5-6, 79 So.3d at 981-82.
However, while the intention of Article 561 is not to dismiss actions as abandoned
based on technicalities, abandonment is warranted where plaintiff’s inaction during
the three-year period has clearly demonstrated his abandonment of the action. Id., 11-
0912 at 5, 79 So.3d at 982. Abandonment functions to relieve courts and parties of
5

lingering claims by giving effect to the logical inference that a legislatively-
designated extended period of litigation inactivity establishes the intent to abandon
such claims. When the parties take no steps in the prosecution or defense of their
claims during that legislatively-ordained period, the logical inference is that the party
intends to abandon the claim and the law gives effect to this inference. Clark v.
State Farm Mut. Auto. Ins. Co., 00-3010, p. 10 (La. 5/15/01), 785 So.2d 779, 786-
87.
The court of appeal determined that Foremost’s answer (filed within three years
of suit being filed) “was a ‘step’ in the prosecution or defense that appeared in the
record, which adequately gave notice to the parties that the lawsuit had not been
abandoned.” Williams, 19-0580 at 8, 311 So.3d at 417. The appellate court held the
“answer was a formal action in the trial court and was effective as to all parties,
including [Ms.] Montgomery.” Id. The court of appeal further found it was
immaterial that Ms. Montgomery was not served until after the tolling of the
three-year abandonment period. “All that is relevant is whether a ‘step’ in the
prosecution of the case was taken within the three years by any party.” Id., 19-0580
at 6, 311 So.3d at 416.
“Whether a step in the prosecution or defense of a case has been taken in the
trial court for a period of three years is a question of fact subject to manifest error
analysis; by contrast, whether a particular act, if proven, [interrupts] abandonment is
a question of law that is examined by ascertaining whether the trial court’s conclusion
is legally correct.” Martin v. Nat’l City Mortg. Co., 52,371, p. 4 (La.App. 2 Cir.
11/14/18), 261 So.3d 144, 147, writ denied, 18-2046 (La. 2/11/19), 263 So.3d 435;
see Hinds v. Glob. Int’l Marine, Inc., 10-1452, p. 3 (La.App. 1 Cir. 2/11/11), 57
So.3d 1181, 1183. This court is tasked with determining whether Foremost’s act of
6

filing an answer prevented abandonment of plaintiff’s action against Ms.
Montgomery. This issue presents a question of law subject to de novo review. See
id.
It has generally been recognized that, when any party takes a step in the
prosecution or defense of the action in the trial court, the abandonment period is
interrupted as to all parties. See, e.g., James, 01-2056 at 6, 813 So.2d at 339; Delta
Dev. Co., Inc. v. Jurgens, 456 So.2d 145, 146 (La. 1984); 1 FRANK L. MARAIST,
LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE § 10:4, p. 344 (2d ed. 2008).
However, in cases involving more than one defendant, the question of whether a step
taken by or against one defendant is effective against another unserved defendant is
unresolved. There is conflicting jurisprudence from the courts of appeal on this issue.
The Fourth Circuit has held an action taken with respect to any one defendant
interrupts the abandonment period as to all other defendants regardless of whether
they have been served, while jurisprudence from the First, Second and Fifth Circuits
has distinguished between served and unserved defendants.5
5 See, e.g., Murphy v. Hurdle Planting & Livestock, Inc., 331 So.2d 566, 568 (La.App. 1 Cir.),
writ denied, 334 So.2d 434 (La. 1976) (“The [three years] required to constitute abandonment begins
to accrue at the time of filing, not when citation is made, and any steps taken to ‘hasten the matter
to judgment’ are ineffective as to defendants not served.”); Stevens v. Chen, 11-1486 (La.App. 1
Cir. 6/8/12) (unpublished), 2012 WL 2060878, *5, writ denied, 12-1590 (La. 10/12/12), 98 So.3d
876 (the court found Murphy was still controlling in the First Circuit); Bridges v. Wilcoxon,
34,660, p. 6 (La.App. 2 Cir. 5/9/01), 786 So.2d 264, 268 (“[I]f no steps are timely taken in the
prosecution of a suit as to an unserved defendant, then abandonment is not interrupted as to that
defendant, even if steps are taken by or against a served defendant.”); Wicker v. Coca-Cola
Bottling Co., 418 So.2d 1378, 1381-82 (La.App. 5 Cir.), writ denied, 423 So.2d 1148 (La. 1982)
(“In Murphy v. Hurdle Planting and Livestock, Inc. ... the First Circuit...held ‘any steps taken
to hasten the matter to judgment are ineffective as to defendants not served.’ We agree.”). But see
Fourth Circuit cases: Guarino v. Pendleton Memorial Methodist Hospital, 94-1264, 94-2064,
p. 3 (La.App. 4 Cir. 2/23/95), 650 So.2d 1243, 1245 (“An action taken with respect to any one
defendant is considered step in the prosecution of other defendants regardless of whether they have
been served.”); Sprowl v. Wohl, 576 So.2d 638, 639 (La.App. 4 Cir.), writ denied, 580 So.2d 928
(La. 1991) (“After review of the cited jurisprudence we are satisfied that action taken with respect
to one defendant interrupts the [three-year] period as to all defendants, and that the rule of law, at
least in this circuit, does not make a distinction between served or unserved defendants.” (Footnotes
omitted.). The First Circuit in this case did not follow its prevailing jurisprudential rule.
7

Although this court has not directly addressed this issue, broad statements set
forth in earlier opinions of this court may have implied support for the position taken
by the court of appeal in this case. In Delta Dev. Co., this court stated: “When any
party to a lawsuit takes formal action in the trial court, it is effective as to all parties.”
Id., 456 So.2d at 146. The issue of service was not raised or discussed, but it was
noted that all nine defendants in that case were served except one. Id., 456 So.2d at
145 n.5. In James, this court stated: “it is clear that when all the parties were
litigating this suit in the trial court prior to that court’s ruling granting [one
defendant’s] exception of prescription, the abandonment period was interrupted as to
all parties when any party took formal action in the trial court.” Id., 01-2056 at 6, 813
So.2d at 339. Importantly, there is no indication that any of the James defendants
were unserved, and the issue was not raised or discussed.
Now, considering the issue directly for the first time, this court finds it logical
that a distinction be made between served and unserved defendants. Implicit in the
abandonment jurisprudence is the necessity of notice and the right of a defendant to
adequately defend himself. For instance, in determining whether a particular act
constitutes a “step” in the prosecution of an action, this court, in Clark, explained
that “the rule requiring a party’s action be on the record is designed to protect a
defendant. The rule is intended to ensure notice to the defendant of actions taken that
interrupt abandonment.” Id., 00-3010 at 17, 785 So.2d at 790. Moreover, the
language of Article 561 itself provides support for relating abandonment to the lack
of notice. Article 561(B) allows for certain discovery that is not filed in the record
to qualify as a “step in the prosecution ... of an action” as long as it is “served on all
parties.” (Emphasis added.) “This requirement of service is in keeping with the
concept of notice.” Paternostro v. Falgoust, 03-2214, p. 6 (La.App. 1 Cir. 9/17/04),
8

897 So.2d 19, 23, writ denied, 04-2524 (La. 12/17/04), 888 So.2d 870. In Bridges
v. Wilcoxon, the appellate court noted two defendants were not served until after the
abandonment period had run. In finding the actions against them were abandoned,
the court focused on the unserved defendants’ lack of awareness of the litigation:
Further, the record does not show any steps by them or against them
during that time that would constitute a step in the prosecution of the
case. Also, there is no showing that these parties were made aware that
the plaintiffs were actively pursuing the lawsuit. Because the record
fails to indicate [the unserved defendants] were ever made aware of the
litigation in which they were made defendants, the action taken by or
against any other served defendant did not interrupt the running of the
abandonment period against [the unserved defendants].
Id., 34,660, p. 7 (La.App. 2 Cir. 5/9/01), 786 So.2d 264, 269.
By recognizing notice as an integral component underlying the concept of
abandonment, it is equally clear that a lack of service on a defendant will not result
in abandonment where sufficient steps are taken in the prosecution of the action
against that unserved defendant. In Bissett v. Allstate Ins. Co., 567 So.2d 598 (La.
1990), this court reversed the court of appeal’s finding that a suit was abandoned as
to an unserved defendant, adopting the reasons of the dissenting judge of the court
of appeal, Judge Shortess, who found that although the defendant was unserved, she
was served with a notice of deposition, was physically present at a deposition with
counsel, and was questioned at length about the facts of the case. See Bissett v.
Allstate Ins. Co., 560 So.2d 884, 887 (La.App. 1 Cir. 1990) (Shortess, J., dissenting).
“Although her deposition may not constitute a general appearance under LSA-C.C.P.
art. 7, it was clearly a step in the prosecution of the action, and she was clearly on
notice of the lawsuit.” Id. Noting that abandonment proceedings should be given a
liberal interpretation, Judge Shortess stated that there was “absolutely no indication
that either side intended to abandon the case.” Id.; see also Bridges, 34,660 at 6, 786
9

So.2d at 268 (“If there is no service of process against a defendant, but steps in the
prosecution of the suit are taken against that defendant, then the period of
abandonment is also interrupted.”).
In sum, where no step has been taken in an action against a particular
defendant, the lack of service of process on that defendant not only eliminates the
necessary notice of the legal action, but also indicates a lack of intent to pursue that
action. In such a situation, any steps taken by or against a served defendant to hasten
the matter to judgment are ineffective as to defendants not served. Here, it is
undisputed there was no step taken in the prosecution or defense of the original action
against Ms. Montgomery that operated to interrupt the abandonment period. Further,
since Ms. Montgomery was not served with the original petition within the
abandonment period, any step taken by or against Foremost did not operate to
interrupt the abandonment period as to Ms. Montgomery. Finding plaintiff’s original
action against Ms. Montgomery was abandoned by operation of law under Article
561, the ruling of the court of appeal is reversed.
Nonetheless, plaintiff argues that even if her original action against Ms.
Montgomery is deemed abandoned, her claims remained viable because her pending
suit against Foremost and the medical malpractice defendants served to interrupt
prescription. Thus, plaintiff avers that her first amended petition that was served on
Ms. Montgomery, in which plaintiff reasserted her claims against Ms. Montgomery,
remains viable. Plaintiff is correct that an action may be deemed abandoned and yet
the substantive claim has not prescribed. In Melancon v. Cont’l Cas. Co., this court
recognized the distinction between prescription of a claim and dismissal of an action
for abandonment:
10

The former is interrupted by the filing of suit in a court of competent
jurisdiction. However, if, under article 561 of the Code of Civil
Procedure, the plaintiff is later found to have abandoned his suit, the
interruption is considered as never having happened, and it must then be
determined whether the substantive claim is prescribed also. [Internal
citations omitted.]
307 So.2d 308, 311 n.1 (La. 1975), abrogated on other grounds by Oilfield Heavy
Haulers, L.L.C., 11-0912, 79 So.3d 978.
As aptly explained in Walker v. Archer, 16-0171, 16-0172, 16-0173 (La.App.
4 Cir. 10/5/16), 203 So.3d 330, 334-35:
Importantly, when a suit is dismissed under Article 561 A(3) of
the Louisiana Code of Civil Procedure, the dismissal is “without
prejudice” not “with prejudice.”
The only prescriptive effect on a claim asserted in a suit which is
dismissed without prejudice on the grounds of abandonment is that the
pendency of the abandoned suit does not interrupt the prescriptive
period for the claim.
Thus, a dismissal without prejudice, or non-suit, merely restores
matters to the status occupied before the suit and leaves the party free to
again come into court with his complaint. Because the parties are
restored to the position they had before the pendency of the abandoned
lawsuit, a plaintiff may re-file his lawsuit or re-assert his claim in a new
proceeding “provided prescription has not run on [the] claim.” ...
“In other words, the abandonment which results as a consequence
of a plaintiff’s failure to take any action in his suit during a period of ...
three ... years merely bars his right to continue with the prosecution of
that suit.” Importantly for our purposes, however, “[i]t does not prevent
his bringing another suit for the same cause of action; but, if he brings
another suit for that same cause of action, the question of whether his
right of action is barred by prescription must be determined as if no suit
had been theretofore brought.” [Internal citations omitted.]
See also Jones v. Jones, 16-536, pp. 5-6 (La.App. 5 Cir. 4/26/17), 220 So.3d 855,
860, writ denied sub nom., Jones v. Junes, 17-0883 (La. 9/29/17), 227 So.3d 291.
Plaintiff’s claims against Ms. Montgomery are governed by the one-year
liberative prescription period for delictual actions set forth in La. C.C. art. 3492,
which began to run from the date of the accident–May 3, 2013. Plaintiff timely filed
11

suit against Ms. Montgomery on May 2, 2014, thus, interrupting prescription pursuant
to La. C.C. art. 3462.6 However, because that action was deemed abandoned pursuant
to La. C.C.P. art. 561, the interruption “is considered never to have occurred.” La.
C.C. art. 3463.7 Thus, in order for plaintiff’s claims against Ms. Montgomery to be
viable, plaintiff must demonstrate some other basis of interruption of prescription.
Plaintiff timely filed her original petition against Ms. Montgomery and her
alleged liability insurer, Foremost. An insurer is solidarily liable with its insured.
Etienne v. Nat’l Auto. Ins. Co., 99-2610, p. 7 (La. 4/25/00), 759 So.2d 51, 56;
Wimberly v. Brown, 07-559, p. 5 (La.App. 5 Cir. 11/27/07), 973 So.2d 75, 78; see
Pearson v. Hartford Acc. & Indem. Co., 281 So.2d 724, 725 (La. 1973). “The
interruption of prescription against one solidary obligor is effective against all
solidary obligors.” La. C.C. art. 1799. Thus, if Foremost provided liability insurance
coverage to Ms. Montgomery for claims arising out of plaintiff’s accident, plaintiff
and Foremost are solidary obligors, and prescription would be interrupted as to
plaintiff’s claims against Ms. Montgomery because plaintiff’s suit against Foremost
remains pending.8 However, that determination cannot be made on the existing
6 La. C.C. art. 3462 states: “Prescription is interrupted when the owner commences action against
the possessor, or when the obligee commences action against the obligor, in a court of competent
jurisdiction and venue. If 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.”
7 In pertinent part, La. C.C. art. 3463 provides: “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. Interruption is considered never to have
occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the
defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.”
8 Although dismissing plaintiff’s action as abandoned yet allowing plaintiff to continue to pursue
those claims in a second action appears to create an anomaly, it is legally required. As a
consequence of the dismissal of the action without prejudice as a result of abandonment, the parties
are placed in the same position in which they were before the action was filed. Thus, it is certainly
possible that a plaintiff’s substantive claim may not be prescribed. For example, such a situation
may occur in claims involving a longer prescriptive period for the cause of action, or in cases such
as this one, where there is a pending suit against a potential solidary obligor which may have served
to interrupt prescription.
12

record. Foremost’s answer to the original petition generally denied all of plaintiff’s
allegations based on a lack of information. In its answer to plaintiff’s first amended
petition, Foremost denied being Ms. Montgomery’s liability insurer. In its answer to
plaintiff’s second amended petition, Foremost admitted it issued a policy of insurance
to Ms. Montgomery, but generally denied there was coverage under the terms of the
policy and pled the policy was subject to certain exclusions. In argument before this
court, counsel for Ms. Montgomery could not confirm whether Foremost provided
coverage, noting the lack of discovery on this issue. Being unable to make the
necessary determination of whether Foremost provided liability insurance coverage
to Ms. Montgomery for claims arising out of plaintiff’s accident, this court agrees
with the court of appeal and affirms its ruling that the prescription issue be remanded
to the district court for an evidentiary hearing.9
CONCLUSION
For the above reasons, for purposes of abandonment pursuant to La. C.C.P. art.
561 under the facts of this case, any steps taken by or against Foremost, which was
served, to hasten the matter to judgment are ineffective as to Ms. Montgomery, who
was not served. Thus, the filing of an answer by Foremost did not interrupt the
abandonment period as to Ms. Montgomery. Because no step was taken in the
prosecution or defense of plaintiff’s original action against Ms. Montgomery within
three years of the filing of the original petition, that action was abandoned by
operation of law pursuant to Article 561. However, abandonment is separate and
distinct from the prescription of the substantive claim itself. When an action is
9 Likewise, there is insufficient evidence in the record regarding plaintiff’s medical malpractice
claims for us to make a determination regarding whether prescription may have been interrupted due
to alleged solidary liability of these additional defendants. If the district court determines that
Foremost does not provide liability insurance to Ms. Montgomery in this case, the court should
determine whether plaintiff’s medical malpractice claims served to interrupt prescription as to
plaintiff’s claims against Ms. Montgomery.
13

dismissed without prejudice as abandoned, a plaintiff may reassert and pursue the
claim, as already done in this case by amended petition, provided prescription has not
run on the claim. Based on the lack of evidence in the record related to prescription,
this issue is remanded to the district court for an evidentiary hearing.
DECREE
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
14

05/13/21

SUPREME COURT OF LOUISIANA

No. 2020-C-01120

SHEILA WILLIAMS

VS.

ANGELA [APRIL] MONTGOMERY, AND FOREMOST INSURANCE
COMPANY, ET AL.

ON WRIT OF CERTIORARI TO THE 1ST CIRCUIT
COURT OF APPEAL, PARISH OF LAFOURCHE

Crichton, J., concurs in part, dissents in part and assigns reasons:
I agree with the majority’s holding that the plaintiff’s suit against Ms.
Montgomery is abandoned. I dissent with respect to the majority’s conclusion that
La. C.C. art. 1799 may nevertheless revive plaintiff’s case against Ms. Montgomery
even though it has been abandoned. Irrespective of the relationship between the
insured and insurer, La. C.C. art. 3463 does not carve out any exceptions for solidary
obligors. Id. (“Interruption is considered never to have occurred if the plaintiff
abandons, voluntarily dismisses the action at any time either before the defendant
has made any appearance of record or thereafter, or fails to prosecute the suit at the
trial.”). When a case abandons, it abandons for all purposes, including the
interruption of prescription. Guillory v. Pelican Real Est., Inc. , 2014-1539 (La.
3/17/15), 165 So. 3d 875, 878 (finding “absolutely no authority for engrafting the
general rules of prescription into the law of abandonment.”).