Juanita Rodriguez, Alejandro Fernandez and Wilmer Godoy Versus American Alternative Insurance Company, American Access Casualty Company, Kyle Kirkland, Edson Santos and City of Gretna C/W Joseph Lee, Individually and on Behalf of the Minor, Aubrie Lee and Leslie Owsley, on Behalf of the Minor, Aubrie Lee Versus Kyle Kirkland, City of Gretna, American Alternative Insurance Company, Edson Santos, and American Access Casualty Company

JUANITA RODRIGUEZ, ET AL NO. 23-CA-568 C/W
23-CA-569
VERSUS
FIFTH CIRCUIT
AMERICAN ALTERNATIVE INSURANCE
COMPANY, ET AL COURT OF APPEAL

C/W STATE OF LOUISIANA

JOSEPH LEE, ET AL

VERSUS

KYLE KIRKLAND, CITY OF GRETNA,
AMERICAN ALTERNATIVE INSURANCE
COMPANY, ET AL

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 832-690 C/W 823-425, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

September 25, 2024

SCOTT U. SCHLEGEL
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Scott U. Schlegel

AFFIRMED
SUS
SMC
JGG

COUNSEL FOR INTERVENOR/APPELLANT,
JOSE MANUEL RAMIREZ CANO, CELERINA CANO GALINDO,
INDIVIDUALLY, AND ERNESTO RAMIREZ AND CELERINA CANO
GALINDO, ON BEHALF OF THEIR MINOR CHILDREN, JONATHAN
REMIREZ CANO AND ERICA CANO GALINDO
Joseph R. McMahon, III

COUNSEL FOR DEFENDANT/APPELLEE,
KYLE KIRKLAND, CITY OF GRETNA, AND AMERICAN ALTERNATIVE
INSURANCE COMPANY
Leonard L. Levenson
Christian W. Helmke
Donna R. Barrios

SCHLEGEL, J.

Appellants/Intervenors, Jose Manuel Ramirez Cano, Celerina Cano Galindo,

Jonathan Ramirez Cano, and Erica Cano Galindo (“appellants’), appeal the trial

court’s August 29, 2023 judgment, which granted defendants-in-intervention’s

exception of prescription and dismissed appellants’ claims with prejudice. We find

that the trial court did not err in granting the exception of prescription and

dismissing the petition for intervention because appellants’ claims failed to satisfy

the requirements to assert a claim in intervention. For these reasons and those that

follow, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

This matter involves a multi-vehicle accident that occurred on September 8,

2021, at the intersection of Claire Ave. and the Westbank Expressway. One of the

plaintiffs who originally filed suit, Juanita Rodriguez, alleges in her petition that

she was traveling northbound on Claire Ave. in her 2016 Honda CRV when she

pulled up behind a 2004 Chevrolet Tahoe stopped at the redlight at the intersection

of Claire Ave. and the Westbank Expressway. At the same time, defendant, Edson

Santos, was operating a 2016 Ford Explorer and traveling eastbound on the

Westbank Expressway near the Claire Ave. intersection. Defendant, Kyle

Kirkland, was operating a 2017 Ford Explorer travelling southbound ‒ in the

wrong direction ‒ on Claire Ave. near the intersection with the Westbank

Expressway.1

According to Ms. Rodriguez, Mr. Kirkland’s vehicle entered the intersection

and struck Mr. Santos’ vehicle. This collision then caused a chain reaction that

resulted in Mr. Santos’ vehicle striking the 2004 Chevrolet Tahoe, which then

collided with Ms. Rodriguez’s Honda CRV. Ms. Rodriguez alleges that Mr.

1
Appellants allege in their petition for intervention that Claire Ave. is a one-way northbound
direction street.

23-CA-568 C/W 23-CA-569 1

Kirkland was acting in the course and scope of his employment with the City of

Gretna/Gretna Police Department at the time of the accident.

On September 7, 2022, Ms. Rodriguez and two passengers in her vehicle,

Alejandro Fernandez and Wilmer Godoy, filed suit against Kyle Kirkland, the City

of Gretna, its insurer, American Alternative Insurance Company, as well as Edson

Santos, and his insurer, American Access Insurance Company. On October 3,

2022, defendants City of Gretna, American Alternative and Mr. Kirkland filed an

answer to the petition. On October 12, 2022, appellants filed their petition for

intervention alleging that they were passengers in Mr. Santos’ vehicle at the time

of the accident. Appellants named the same defendants and raised the same factual

allegations as alleged in the petition filed by Ms. Rodriguez and the passengers in

her vehicle.

On November 22, 2022, Mr. Santos filed a motion for leave to file a cross-

claim against co-defendants, City of Gretna, its insurer American Alternative, and

Mr. Kirkland. The trial court granted leave to file the cross-claim on November

27, 2022. Shortly thereafter, on December 1, 2022, appellants filed a motion for

leave to file their petition for intervention. In their motion, appellants explained

that at the time they filed their petition for intervention, they did not know that

three of the defendants had filed an answer. Appellants further acknowledged that

La. C.C.P. art. 1033 requires leave of court to file an incidental demand after an

answer to the principal demand is filed.2 On December 2, 2022, the trial court

2
La. C.C.P. art. 1033 provides:

An incidental demand may be filed without leave of court at any time up to and including
the time the answer to the principal demand is filed.

An incidental demand may be filed thereafter, with leave of court, if it will not retard the
progress of the principal action, or if permitted by Articles 1066 or 1092.

An incidental demand that requires leave of court to file shall be considered as filed as of
the date it is presented to the clerk of court for filing if leave of court is thereafter
granted.

23-CA-568 C/W 23-CA-569 2

granted leave to file the petition for intervention and ordered that the petition “shall

be considered filed as of October 12, 2022.”

On December 12, 2022, defendants City of Gretna, its insurer American

Alternative, and Mr. Kirkland (“defendants”) filed an exception of prescription

arguing that appellants’ claims raised in the petition for intervention are their own

independent claims for personal injuries allegedly sustained during the September

8, 2021 accident. Therefore, defendants argued that appellants’ claims are

untimely and prescribed on their face pursuant to La. C.C. art. 3492.3 Defendants

also anticipated that appellants would argue that their claims related back to the

date of filing of the original petition pursuant to La. C.C.P. art. 1153, and urged the

trial court to reject this argument because appellants are wholly new and unrelated

parties with separate claims.

In their opposition memorandum, appellants argued that in Stenson v. City of

Oberlin, 10-826 (La. 3/15/11), 60 So.3d 1205, the Louisiana Supreme Court

determined that La. C.C.P. art. 1041, rather than Article 1153 applied to petitions

of intervention. Appellants asserted that their petition for intervention was timely

based on the exception to prescription set forth in La. C.C.P. art. 1041, which

provides that an “incidental demand is not barred by prescription or peremption if

it was not barred at the time the main demand was filed and is filed within ninety

days of date of service of main demand.” Appellants argued that they filed their

petition for intervention within the 90-day period. In reply, defendants argued that

La. C.C.P. art. 1041 does not apply because appellants’ petition for intervention

failed to satisfy the requirements to intervene in a pending proceeding ‒

particularly the requirement that the intervenor’s interest must be so related or

3
La. C.C.P. art. 3492 was repealed by Acts 2024, No. 423, § 2, effective July 1, 2024. However,
Section 3 of Act 423 explains that the “Act shall be given prospective application only.”

23-CA-568 C/W 23-CA-569 3

connected to the object of plaintiffs’ claims in the original petition that a judgment

in the original action will have a direct impact on the intervenor’s claims.

Following oral argument on August 17, 2023, the trial court granted the

exception of prescription. No evidence was introduced at the hearing. The trial

court signed a written judgment on August 29, 2023, granting the exception of

prescription and dismissing appellants’ claims against defendants with prejudice.

This appeal followed.

DISCUSSION

On appeal, appellants argue that in granting defendants’ exception of

prescription, the trial court failed to follow the statutory authority in La. C.C.P.

arts. 1031, 1041 and 1091, as well as jurisprudence governing interventions.

Prescription statutes are strictly construed against prescription and in favor

of the obligation sought to be extinguished. Meggs v. Davis Mortuary Service,

Inc., 19-432 (La. App. 5 Cir. 8/5/20), 301 So.3d 1208, 1212. Of the possible

constructions of a prescriptive statute, the one that maintains enforcement of the

claim, instead of the one that bars enforcement should be adopted. Law

Enforcement District of Jefferson Parish v. Mapp Construction, LLC, 19-543 (La.

App. 5 Cir. 5/29/20), 296 So.3d 1260, 1263.

Generally, the party pleading an exception of prescription bears the burden

of proving that the action has prescribed. Baker v. Louisiana Citizens Property

Ins. Corp., 12-480 (La. App. 5 Cir. 5/16/13), 119 So.3d 69, 72. However, if the

petition is prescribed on its face, the burden shifts to the party opposing

prescription to show that the action has not prescribed. Id. When prescription is

evident on the face of the petition, the party opposing prescription must show that

the running of prescription was suspended or interrupted in some manner. Walker

on Behalf of Fried v. ACE American Insurance Corporation, 20-449 (La. App. 5

Cir. 5/26/21), 325 So.3d 1129, 1134, writ denied, 21-914 (La. 10/19/21), 326 So.3d

23-CA-568 C/W 23-CA-569 4

886. When no evidence is introduced at a hearing on an exception of prescription,

it is analyzed on the facts pled in the petition, which are accepted as true, and

review of the judgment is limited to whether the trial court’s decision was correct

legally. Med. Rev. Panel for Bush, 21-954 (La. 5/13/22), 339 So.3d 1118, 1123.

We agree with appellants that La. C.C.P. art. 1041 governs the determination

of whether a petition for intervention is timely.4 However, the issue before this

Court is whether appellants’ petition for intervention satisfies the requirements to

intervene in a pending proceeding or whether appellants were required to file their

own independent petition for damages. La. C.C.P. art. 1091 provides the

requirements to file a petition for intervention:

A third person having an interest therein may intervene in a pending
action to enforce a right related to or connected with the object of the
pending action against one or more of the parties thereto by:

(1) Joining with plaintiff in demanding the same or similar relief
against the defendant;

(2) Uniting with defendant in resisting the plaintiff's demand; or

(3) Opposing both plaintiff and defendant.

This Court has explained that the requirements for a third-party intervention

are twofold: the intervenor must have a justiciable interest in, and connexity to,

the principal action, and the interest must be so related or connected to the facts or

object of the principal action that a judgment on the principal action will have a

direct impact on the intervenor’s rights. ASI Fed. Credit Union v. Leotran

Armored Sec., LLC, 18-341 (La. App. 5 Cir. 11/7/18), 259 So.3d 1141, 1146;

Mangano Consultants, Inc. v. Bob Dean Enterprises, Inc., 05-449 (La. App. 5 Cir.

1/17/06), 921 So.2d 1081, 1085, writ denied, 06-437 (La. 4/28/06), 927 So.2d 295.

4
La. C.C.P. art. 1041 provides an exception to prescription for incidental demands:

An incidental demand is not barred by prescription or peremption if it was not barred at
the time the main demand was filed and is filed within ninety days of date of service of
main demand or in the case of a third-party defendant within ninety days from service of
process of the third-party demand.

23-CA-568 C/W 23-CA-569 5

A “justiciable interest” is defined as the right of a party to seek redress or a remedy

against either the plaintiff or defendant in the original action, or both, and where

those parties have a real interest in opposing it. ASI Fed. Credit Union, 259 So.3d

at 1146. If a justiciable interest exists, it must be so related or connected to the

facts or object of the principal action that a judgment on the principal action will

have a direct impact on the intervenor’s rights. Villarrubia v. Villarrubia, 18-320

(La. App. 5 Cir. 12/27/18), 264 So.3d 554, 559.

“It is well settled that an intervenor takes the proceedings as he finds them.”

IberiaBank v. Live Oak Circle Dev., L.L.C., 12-1636 (La. App. 1 Cir. 5/13/13), 118

So.3d 27, 32. “The intervenor cannot change the issue between the parties, and

can raise no new one.” Id. “The intervenor’s rights are confined to joining or

resisting either the plaintiff or defendant, or to opposing both.” Id.

Appellants contend that their petition for intervention is proper because their

claims arise from the same accident and involve the same facts against the same

defendants. Appellants contend that their claims comply with La. C.C.P. art. 1091

because they are simply joining the existing plaintiffs in demanding the same relief

under the same cause of action. Though appellants’ claims arose from the same

accident and they named the same defendants as the original plaintiffs, we do not

agree that their claims are so related and connected with the object of the pending

action to qualify as an intervention. First, appellants were passengers in a different

vehicle than the original plaintiffs. Appellants were involved in the initial collision

between Mr. Kirkland and Mr. Santos, while the original plaintiffs were in the last

vehicle affected by the chain reaction caused by the initial collision. More

significantly, appellants and the original plaintiffs do not seek the same relief.

Their personal injuries and resulting claims for damages are not the same. And

appellants’ damages claims are not dependent upon and will not be directly

23-CA-568 C/W 23-CA-569 6

impacted by any judgment entered in favor of the original plaintiffs for their

personal injuries.

In Theodore v. Johnson, 21-668 (La. App. 4 Cir. 3/30/22), 366 So.3d 211,

214, writ denied, 22-794 (La. 9/20/22), 346 So.3d 282, the Fourth Circuit

addressed a similar issue. In that case, the intervenor, Jarrell Taylor, was a

passenger in a vehicle driven by the original plaintiff, Jermar Theodore. Mr.

Theodore’s vehicle collided with a vehicle driven by Brenton Johnson on March

10, 2020. Mr. Johnson worked for IMC Holding, LLC at the time of the accident.

Mr. Theodore filed suit on March 10, 2021, against Mr. Johnson, his employer, and

the insurer of the vehicle driven by Mr. Johnson. On April 16, 2021, Mr. Taylor

filed a petition for intervention against the same defendants, as well as Mr.

Theodore and his insurer. Just as in this matter, the defendants filed an exception

of prescription arguing that Mr. Taylor’s petition was untimely because he filed it

more than a year after the accident. Following a hearing, the trial court granted the

exception.

On appeal, the Fourth Circuit affirmed the trial court’s judgment because

Mr. Taylor’s claims were not properly raised by means of intervention. Id. at 215.

Even though Mr. Taylor and Mr. Theodore were in the same vehicle, the court

reasoned that, although there may be some connection between their claims, the

two actions were not “so connected where a judgment in Mr. Theodore’s case

would affect the rights of Mr. Taylor.” Id. at 214. The connection between

appellants’ and the original plaintiffs’ claims in the present matter is even more

remote than the scenario in Theodore because they were in completely different

vehicles and involved in different phases of the accident.

Further, in Gonzalez v. Jimmerson, 18-480 (La. App. 3 Cir. 2/6/19), 2019

WL 462830, writ denied, 19-616 (La. 6/17/19), 274 So.3d 570, the plaintiff,

Dionisio Gonzalez, filed suit after a truck driven by defendant, Carey Jimmerson,

23-CA-568 C/W 23-CA-569 7

hit his truck. Over a year after the accident, a supplemental and amending petition

was filed, adding Gregario Gonzalez, who was a passenger in Dionisio’s truck at

the time of the accident. Defendants filed an exception of prescription, which the

trial court granted. On appeal, Gregario argued that the supplemental and

amending petition was actually an incidental demand ‒ an intervention ‒ governed

by the prescription exception provided in La. C.C.P. art. 1041. The Third Circuit

rejected this argument finding that Gregario’s claim was a wholly separate cause of

action. Id. at 3. The court further reasoned that Gregario’s claim was not

dependent on a judgment rendered in the principal action and La. C.C.P. art. 1041

did not apply. Id.

Appellants urge this Court to follow an older Fourth Circuit decision in

Jeansonne v. Canal Indem. Ins. Co., 98-240 (La. App. 4 Cir. 5/20/98), 714 So.2d

836. Jeansonne involved a motor vehicle accident that occurred on August 2,

1996, and resulted in the death of two individuals operating two different vehicles

‒ Adam Jeansonne’s vehicle, which stalled and Valencia Goodman’s vehicle,

which hit the stalled vehicle. On July 31, 1997, Mr. Jeansonne’s father filed suit

against the repair shop that rebuilt the engine of the stalled vehicle and its insurer,

as well as Valencia Goodman’s surviving spouse, Kenneth Goodman, Sr., and his

insurance company. Mr. Jeansonne also sued the State of Louisiana through the

Department of Transportation and Development for alleged improper design of the

highway where the accident occurred. On September 24, 1997, more than a year

after the accident, Mr. Goodman and his children filed a petition for intervention

asserting wrongful death and survival actions against the repair shop, its insurer,

the DOTD, and Mr. Jeansonne’s father.

The defendant repair shop and its insurer filed an exception of prescription

arguing that the Goodman children’s petition for intervention was prescribed

because the exception to prescription provided by La. C.C.P. art. 1067 (now

23-CA-568 C/W 23-CA-569 8

redesignated as Article 1041 by Acts 2017, No. 419, § 5) did not apply. They

argued that the Goodman action was wholly unrelated to the Jeansonne action

because they involved the death of different people. The trial court overruled the

exception and the Fourth Circuit agreed. The Fourth Circuit recognized that Mr.

Goodman’s claims in the petition for intervention qualified as a reconventional

demand and cross-claim since he was already joined as a defendant to the

proceedings by Mr. Jeansonne. Id. at 838. The Fourth Circuit did not separately

analyze the Goodman children’s intervention claims pursuant to the requirements

established under La. C.C.P. art. 1091, but simply reasoned that all the Goodman

family’s claims arose out of the same action, transaction or occurrence, and alleged

the same claims against the same defendant.5

Consequently, we do not find the Jeansonne decision to be persuasive. The

requirement is not that the claims arise out of the same transaction or occurrence,

but rather they must be so related or connected to the facts or object of the

principal action that a judgment on the principal action will have a direct impact on

the intervenor’s rights. And in its more recent decision in Theodore, supra, the

5
We observe that the prerequisites for a previously named defendant to bring a reconventional
demand pursuant to La. C.C.P. art. 1061 or a cross-claim pursuant to La. C.C.P. art. 1071, are less
stringent than those required for a new third party to intervene in a proceeding pursuant to La.
C.C.P. art. 1091. In fact, La. C.C.P. art. 1061(B) requires a defendant to bring all reconventional
demands arising out of the same transaction or occurrence at issue in the principal demand:

A. The defendant in the principal action may assert in a reconventional demand any
causes of action that the defendant may have against the plaintiff in the principal action,
even if these two parties are domiciled in the same parish and regardless of connexity
between the principal and reconventional demands.

B. Except as otherwise provided in Article 3657, and except in an action for divorce
under Civil Code Article 102 or 103 or in an action under Civil Code Article 186, the
defendant in the principal action shall assert in a reconventional demand all causes of
action that the defendant may have against the plaintiff that arise out of the transaction or
occurrence that is the subject matter of the principal action.

La. C.C.P. art. 1071 governing cross-claims also applies the less stringent same transaction or
occurrence standard:

A party by petition may assert as a cross-claim a demand against a co-party arising out of
the transaction or occurrence that is the subject matter either of the original action or a
reconventional demand or relating to any property that is the subject matter of the
original action. The cross-claim may include a demand that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of the demand asserted in
the action against the cross-claimant.

23-CA-568 C/W 23-CA-569 9

Fourth Circuit applied the correct standard ‒ that is, whether the third-party’s

interest is so related or connected to the facts or object of the principal action that a

judgment on the principal action will have a direct impact on the intervenor’s

rights ‒ to determine that the third party could not bring his claims by means of a

petition for intervention.

Finally, appellants argue that the trial court erred by failing to follow the

Louisiana Supreme Court’s decision in Moore v. Gencorp, Inc., 93-814 (La.

3/22/94), 633 So.2d 1268. However, just as in Jeansonne, the Moore court did not

analyze the issue of whether the intervenors’ claims satisfied the requirements of

La. C.C.P. art. 1091. Rather, the issues before the court were procedural: 1)

whether Article 1067 (now redesignated as Article 1041) applied to interventions

and 2) whether the incidental demand must be filed within 90 days of the original

petition or whether it could be filed within 90 days of service of an amended

petition that related back to the original petition. Id. at 1270-72. In addition, the

Moore case is distinguishable because the original plaintiffs and intervenors were

all children of the decedent involved in the accident. The Supreme Court further

observed that denial of an exception of prescription was appropriate where the

subsequent claimants were “closely connected in relationship and interest” to the

original plaintiffs. Id. at 1272.

Here, no close connection or relationship exists between the original

plaintiffs and appellants. There is no familial relationship between them, and they

were in separate vehicles involved in different stages of the accident. The original

plaintiffs and appellants each seek his or her own separate relief for the personal

injuries sustained during the accident. The only common factors are that their

claims arise out of the same accident and they sued the same defendants for

negligence. Thus, we find that the trial court did not err in granting the exception

of prescription. Appellants have failed to satisfy their burden to establish that their

23-CA-568 C/W 23-CA-569 10

claims are so related or connected to the facts or object of the principal action that

a judgment on the principal action will have a direct impact on the intervenors’

rights. As a result, their claims do not qualify as claims in intervention and the

exception to prescription provided by La. C.C.P. art. 1041 does not apply here.

CONCLUSION

Accordingly, we affirm the trial court’s judgment granting the exception of

prescription filed by defendants, City of Gretna, its insurer American Alternative,

and Mr. Kirkland, and dismissing appellants’ claims with prejudice.

AFFIRMED

23-CA-568 C/W 23-CA-569 11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 25, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-568
C/W 23-CA-569
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
BRIAN V. BUCHERT (APPELLEE) JOSEPH R. MCMAHON, III (APPELLANT) CRISTIAN P. SILVA (APPELLEE)
CHRISTIAN W. HELMKE (APPELLEE) LEONARD L. LEVENSON (APPELLEE) W. J. LEBLANC, JR. (APPELLEE)

MAILED
HONORABLE PAUL A. BONIN (DISTRICT KEVIN O. LARMANN (APPELLEE) DONALD A. MAU (APPELLEE)
JUDGE) ATTORNEY AT LAW ATTORNEY AT LAW
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