Dorothy Banish Madden v. Steven Ray Fairburn, K.S. Timber Company, Inc., Plaza Insurance Co., Xyz Insurance Co., & Capitol Specialty Insurance Corporation

Supreme Court of Louisiana
May 29, 2025
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
DOROTHY BANISH MADDEN
VS.
STEVEN RAY FAIRBURN, K.S. TIMBER
COMPANY, INC., PLAZA INSURANCE
CO., XYZ INSURANCE CO., & CAPITOL
SPECIALTY INSURANCE
CORPORATION
No. 2025-C-00122
_ _ _ _
_ _
IN
RE: Dorothy Banish Madden - Applicant Plaintiff; Applying For Writ Of
Certiorari, Parish of Washington, 22nd Judicial District Court Number(s) 111549,
Court of Appeal, First Circuit, Number(s) 2024 CA 0513;
_ _ _ _ _ _
May 29, 2025
Writ application granted. See per curiam.
Gui
dry, J., recused.
PDG
JLW
JDH
WJC
JBM
CRC
05/29/2025 "See News Release 025 for any Concurrences and/or Dissents."

1
SUPREME COURT OF LOUISIANA
No. 2025-C-00122
DOROTHY BANISH MADDEN
VS.
STEVEN RAY FAIRBURN, K.S. TIMBER COMPANY, INC., PLAZA
INSURANCE CO., XYZ INSURACE CO., & CAPITOL SPECIALTY
INSURANCE CORPORATION
On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of Washington
PER CURIAM
This suit arises from a motor vehicle accident between vehicles driven by John
Seibert and Steven Ray Fairburn. Plaintiff, a guest passenger in the Seibert vehicle,
sued Fairburn, his employer, its liability insurer, and her uninsured/underinsured
motorist (“UM”) insurer, seeking damages for injuries sustained in the accident. The
UM insurer filed an answer and cross claim, admitt ing issuance of the policy. The
UM insurer additionally alleged the sole cause of the accident was the negligence of
Seibert, or others for whom it had no responsibility.
Fairburn then filed a motion for summary judgment alleging Seibert was the
sole cause of the accident. The trial court granted summary judgment and dismissed
plaintiff’s claims against Fairburn, his employer, and its liability insurer with
prejudice.
While the appeal of that judgment was pending, plaintiff amended her petition
to allege Seibert was the cause of the accident and her injuries, and that her UM
insurer was liable. The UM insurer then filed an exception of prescription. The trial
court sustained the exception and dismissed plaintiff’s claims against the UM insurer
with prejudice.
The court of appeal affirmed, finding prescription was not interrupted under
La. Civ. Code art. 3462. Article 3462 provides prescription is interrupted when the
obligee commences action against the obligor, in a court of competent jurisdiction

2
and venue. The court of appeal reasoned the original petition only gave the UM
insurer notice plaintiff was claiming damages caused by Fairburn , not Seibert. La.
Code Civ. P. art. 1153 provides, “[w] hen the action or defense asserted in the
amended petition or answer arises out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the amendment relates
back to the date of filing the original pleading.” Relying on Kling v. Hebert, 2023-
00257 (La. 1/26/24), 378 So. 3d 54 and Trahan v. Liberty Mutual Ins. Co., 314 So.
2d 350 (La. 1975), the court of appeal found Article 1153 inapplicable, reasoning it
only applies where the identity of a defendant is changed or where a plaintiff is
added. However, both Kling and Trahan involved issues of prescription relative to
a second, subsequently-filed suit. Here, there is only one suit.
In both the original and amended petitions, plaintiff asserted claims against
the UM insurer under the same policy, arising from the same accident. The
difference in the original and amended petitions is the allegation of which driver was
at fault. “[W]here there is only one suit, the same plaintiff, the same defendant …
although in different capacities, the same insurer, the same vehicle, and the same
accident[,]” there is “sufficient factual connexity between the original and amended
assertions, togethe r with some identity of interest between the original and the
supplemental party” such that the amended petition relates back. Langlinais v.
Guillotte, 407 So. 2d 1215, 1219 (La. 1981) (interpreting La. Code Civ. P. art. 1153
and distinguishing Trahan as the issue therein was “whether prescription has been
interrupted, so as to allow plaintiff to file a second suit against different defendants”);
see also Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So. 2d
1040, 1044 (La. 1985) (“Where a plaintiff only seeks to change the capacity in which
the action is brought, or in which defendant is sued, because there is no change in
the parties, and because all parties are on notice of the facts out of which the claim
arose, an amendment wi ll relate back to the date of the original pleading absent

3
prejudice due to the delay in filing. ”); Courmier-Trahan v. Service Cab Co., Inc. ,
546 So. 2d 513 (La. App. 4 Cir.), writ denied, 551 So. 2d 1325 (La. 1989) (finding
plaintiff’s amended petition alleging negligence on the part of an unknown hit-and-
run driver related back to the original petition as “plaintiff [was] the insured in both
instances, and her UM policy cover[ed] any uninsured motorist who negligently
injure[d] her”). Here, we have the same plaintiff and the same defendant— the UM
carrier. The claims arise out of the same accident. Thus, we find plaintiff’s amended
petition relates back to the date plaintiff filed her original petition.
We grant the writ, reverse the trial court’s judgment sustaining the exception
of prescription, and remand for further proceedings.
REVERSED AND REMANDED.