Mary Sanders v. New Orleans Aviation Board, Et Al.

Supreme Court of Louisiana
March 19, 2024
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
MARY SANDERS
VS.
NEW ORLEANS AVIATION BOARD, ET
AL.
No. 2023-CC-01719
_ _
_ _ _ _
IN
RE: The City of New Orleans, by and through The New Orleans Aviation Board
- A
pplicant Defendant; Applying For Supervisory Writ, Parish of Orleans Civil,
Orleans Civil District Court Number(s) 2021-00720, Court of Appeal, Fourt h
C
ircuit, Number(s) 2023-C-0672;
_ _ _ _ _ _
March 19, 2024
Writ application granted. See per curiam.
Hughes, J., dissents and would deny.
Griffin, J., dissents and would deny.
JLW
SJC
JTG
WJC
JBM
03/19/2024 "See News Release 012 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No.
2023-CC-01719
M
ARY SANDERS
VS.
NEW ORLEANS AVIATION BOARD, ET AL.
On S
upervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil
PER CURIAM
On
January 25, 2021, plaintiff filed suit against the City of New Orleans, by
and through the New Orleans Aviation Board (“City”) and its insurer, Ace Property
and Casualty Insurance Company (“Ace”). Plaintiff alleged she was injured on
January 26, 2020 when she slipped on a foreign substance in the Louis Armstrong
New Orleans International Airport.
The City filed a Declinatory Exception of Insufficiency of Service of Process,
asserting that plaintiff failed to request service of the petition within ninety days as
required by La. R.S. 13:5107(D). The district court granted the City’s exception on
February 17, 2022, dismissing the plaintiff’s claims against the City without
prejudice.
On February 15, 2023, plaintiff filed a First Supplemental and Amending
Petition for Damages adding the City as a defendant to the original suit that was still
pending against Ace. As in the original petition, plaintiff alleged that the City was
a joint and solidary obligor with Ace.
The City filed a peremptory exception of prescription, arguing that plaintiff’s
claims were prescribed on their face because they were brought over three years after
the January 2020 accident. Citing La. R.S. 13:5107(D)(3), the City asserted that
because it had been previously dismissed due to insufficient service, the action could
not interrupt or suspend the running of prescription against the City.
03/19/24

2

The district court denied the City’s exception. The court of appeal denied the
City’s application for supervisory writs, with one judge dissenting. The City now
seeks review in this court.
Plaintiff argues interruption of prescription is governed by La. Civ. Code
articles 1799 and 3503, which provide interruption of prescription against one
solidary obligor is effective against all solidary obligors. For purposes of
prescription, the City is solidarily liable with its insurer, Ace. Baker v. Payne and
Keller of Louisiana, Inc., 390 So.2d 1272 (La. 1980). Therefore, plaintiff takes the
position the timely filed suit against Ace serves to interrupt prescription as to the
City, notwithstanding the City’s prior dismissal without prejudice.
However, the City asserts La. R.S. 13:5107 is the specific statute governing
service and interruption of prescription for suits against a political subdivision such
as the City. The district court previously found that plaintiff failed to comply with
the service requirements and dismissed her claims against the City without prejudice.
Subsection (D)(3) of the statute governs interruption of prescription under such
circumstances:
When the state, a state agency, or a political subdivision,
or any officer or employee thereof, is dismissed as a party
pursuant to this Section, the filing of the action, even as
against other defendants, shall not interrupt or
suspend the running of prescription as to the state,
state agency, or political subdivision, or any officer or
employee thereof; however, the effect of interruption of
prescription as to other persons shall continue. [emphasis
added]
In Davis v. State through Louisiana Racing Comm’n , 2020 -01020 (La.
3/13/21), 320 So.3d 1028, we held that the specific provisions of La. R.S.
13:5107(D)(3) controlled over the general codal articles governing interruption of
prescription. A plain reading of La. R.S. 13:5107(D)(3) reveals that when, as here,
the political subdivision is dismissed as a party, the filing of the suit “even as against
other defendants” shall not interrupt or suspend the running of prescription as to the

3

political subdivision. By use of this language, the legislature unequivocally rejected
the idea that the pendency of the suit against other solidarily liable defendants would
serve to interrupt prescription as to a political subdivision which had been dismissed
due to a plaintiff’s failure to properly request service.
Any other interpretation would frustrate the intent of the statute. As we
observed in Davis, “plaintiff's interpretation would largely eviscerate any
consequences for failing to comply with the 90-day service requirement, permitting
the plaintiff to make an end-run around the legislative prerogative to require service
on the state as set forth in the statute, and render meaningless the purpose of the
statute in the Governmental Claims Act.” Id. at 1035.
Accordingly, we find the district court erred in denying the City’s exception
of prescription. That judgment must be reversed.

DECREE
For the reasons assigned, the writ is granted and made peremptory. The
judgment of the district court is reversed, and the peremptory exception of
prescription filed by the City of New Orleans, by and through the New Orleans
Aviation Board, is granted.