Dorothy Banish Madden v. Steven Ray Fairburn, K.S. Timber Company, Inc., Plaza Insurance Company, XYZ Insurance Company, & Capital Specialty Insurance Corporation

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DOROTHY BANISH MADDEN NO. 2022 CW 1206
VERSUS
STEVEN RAY FAIRBURN, K.S.
TIMBER COMPANY, INC., PLAZA
INSURANCE COMPANY, XYZ
INSURANCE COMPANY, & CAPITAL
SPECIALTY INSURANCE FEBRUARY 1, 2023
CORPORATION

In Re: Dorothy Banish Madden, applying for supervisory writs,
22nd Judicial District Court, Parish of Washington,
No. 111549.

BEFORE: GUIDRY, C.J., WELCH, HOLDRIDGE, WOLFE AND MILLER, JJ.

WRIT GRANTED. We find the trial court abused its
discretion in denying plaintiff leave to file the first amended
petition for damages. Amendment of pleadings should be liberally
allowed provided that the movant is acting in good faith, the
amendment is not sought as a delaying tactic, the opponent will
not be unduly prejudiced, and trial on the issues will not be
unduly delayed. Palowsky v. Cork, 2019-0148 (La. App. 1st Cir.
5/20/20), 304 So.3d 867, 875. We conclude those four factors
are satisfied in this case. Accordingly, that portion of the
trial court's October 5, 2022 judgment is reversed and we hereby
grant plaintiff's, Dorothy Banish Madden, motion for leave to
file the first amended petition for damages. The trial court
further denied as moot the exception of prescription filed by
defendant, Capitol Specialty Insurance Corporation. In light of
our granting plaintiff leave to amend, that portion of the trial
court's October 5, 2022 judgment is hereby vacated and the
peremptory exception raising the objection of prescription is
remanded to the trial court for further proceedings.

JMG
JEW
GH
SMM

Wolfe, J., dissents and would deny the writ. The criteria
set forth in Berlitz Constuction Co., Inc. v. Hotel Investors of
New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam) are not
met.

COURT OF APPEAL, FIRST CIRCUIT

DEPUTY CLERK OF COURT
FOR THE COURT