Henry Fisher v. City of Alexandria

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-391

HENRY FISHER, ET AL.

VERSUS

CITY OF ALEXANDRIA, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 221,989
HONORABLE F. RAE SWENT, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

EXCEPTION OF PRESCRIPTION GRANTED; JUDGMENT REVERSED.

Edward A. Kaplan
Attorney at Law
Post Office Box 12386
Alexandria, Louisiana 71315
(318) 448-0831
Counsel for Plaintiff:
Henry Fisher

Timothy D. Shumate
Attorney at Law
Post Office Box 86
Alexandria, Louisiana 71309
(318) 561-7280
Counsel for Plaintiff/Appellee:
Wanda Fisher

Paul D. Oberle, Jr.
Richie, Richie & Oberle, L.L.P.
Post Office Box 44065
Shreveport, Louisiana 71134
(318) 222-8305
Counsel for Defendant/Appellant:
Imperial Fire and Casualty Insurance Company

Mark F. Vilar
Faircloth, Vilar & Elliott, L.L.C.
Post Office Box 12730
Alexandria, Louisiana 71315
(318) 442-9533
Counsel for Defendant/Appellee:
City of Alexandria

SULLIVAN, Judge.

Imperial Fire & Casualty Insurance Company (Imperial) appeals a judgment

rendered against it and in favor of Plaintiff, Wanda Blue Fisher, following trial on the

merits. Imperial also files an exception of prescription. For the following reasons,

we grant the exception of prescription and reverse the judgment of the trial court.

FACTS

An automobile accident involving a vehicle driven by Henry Fisher and a

vehicle driven by Police Officer Scott Clark, an employee of the City of Alexandria

(the City), occurred on August 22, 2005, in Alexandria, Louisiana. Henry’s wife,

Wanda, was a guest passenger in the car at the time of the accident. On September 2,

2005, a petition for damages was filed by both Henry and Wanda naming the City as

the only defendant and alleging that the accident was caused solely by the fault of

Officer Clark. On August 28, 2006, after more than a year had elapsed since the date

of the accident, Wanda filed a first supplemental and amending petition naming

Imperial as an additional defendant in its capacity as insurer of Henry and alleging

that the accident was caused by the combined fault of her husband and Officer Clark.

The matter proceeded to bench trial on June 13, 2007. The trial court issued

written reasons for judgment on August 3, 2007, in which it concluded that Henry

Fisher was solely at fault in causing the accident in which his wife was injured. The

reasons indicated that judgment would be rendered in favor of Wanda Fisher and

against Imperial, awarding her the general and special damages that she had proved

at trial.

On September 5, 2007, Imperial filed an exception of prescription, which the

trial court set for contradictory hearing. Wanda filed an opposition to the exception.

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At the hearing on the exception, counsel for Imperial argued, citing La.Code Civ.P.

art. 928,1 that the trial court retained jurisdiction and could rule on the exception

because no judgment had been signed in the matter. The trial court refused to

consider the exception, however, insisting that it had rendered a decision and

instructing counsel for Imperial to appeal the judgment once it was rendered and to

file the exception with this court. The trial court “denied” the exception in open

court.

A written judgment on the merits was rendered on December 4, 2007. A

separate judgment denying Imperial’s exception of prescription was rendered on

December 17, 2007. Imperial timely filed a petition for suspensive appeal of the

December 4, 2007 judgment. After the appeal was lodged, Imperial filed an

exception of prescription in this court.

Louisiana Code of Civil Procedure Article 2163 provides, in pertinent part, that

an appellate court may consider a peremptory exception filed for the first time in that

court, if plead prior to submission of the case for decision, and if proof of the ground

of the exception appears in the record. Because the trial judge refused to consider

Imperial’s exception based upon the fact that the case had already been submitted for

decision, we will treat the exception as having been filed for the first time in this

court, and we will consider the exception on the merits.

In its sole assignment of error, Imperial asserts that the trial court erred as a

matter of law in denying its exception of prescription.

1
Louisiana Code of Civil Procedure Article 928 provides, in pertinent part:

B. The peremptory exception may be pleaded at any stage of the proceeding
in the trial court prior to submission of the case for a decision . . . .

2

DISCUSSION

An appellate court may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La.1989). If the trial court’s findings are reasonable in light of the record

reviewed in its entirety, a court of appeal may not reverse even though it is convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently. Id.

The law in Louisiana is clear that a timely filed suit against one joint tortfeasor

interrupts prescription as to the remaining joint tortfeasors. Gioustover v. Progressive

Am. Ins. Co., 561 So.2d 961 (La.App. 4 Cir. 1990), writ not considered, 566 So.2d

973 (La.1990); La.Civ.Code art. 2324(C). “The law is equally clear that where no

liability is found on the part of a timely sued alleged tortfeasor, prescription will not

be interrupted as to another joint tortfeasor, who is not timely sued, since no joint or

solidary obligation exists.” Gioustover, 561 So.2d at 964. See also Martin v. City of

Baton Rouge, 00-896 (La.App. 1 Cir. 6/22/01), 858 So.2d 440.

Imperial asserts that Plaintiffs’ claims against it are prescribed for the

following reasons: (1) the motor vehicle accident in question occurred on August 22,

2005; (2) the original petition that was filed on September 2, 2005, named only the

City as a defendant; (3) no claim or allegation of fault was asserted against Imperial

or its insured, Henry, until August 28, 2006, when Wanda filed a first supplemental

and amending petition naming Imperial as an additional defendant; and (4) the trial

court ultimately found that the City had no liability in causing the accident and that

Imperial’s insured, Henry, was entirely at fault in causing the accident.

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In its appellee brief, the City offers no argument against Imperial’s assertion

that Plaintiffs’ claims against it have prescribed. Rather, it argues that the trial court’s

allocation of fault should not be disturbed on appeal because its factual findings have

not been shown to be an abuse of discretion or manifestly erroneous.

A review of the reasons for judgment issued by the trial court discloses that the

court went to great lengths to determine who was at fault in causing the subject

accident. In fact, the trial judge personally visited the scene of the accident in order

to determine which version of the accident, i.e., that of Plaintiffs or that of Officer

Clark, should prevail. Ultimately, the trial court determined that Henry failed to see

what he should have seen, thus causing the accident, and conversely, that Officer

Clark was not at fault in causing the accident. We have thoroughly reviewed the

record, including the evidence submitted in conjunction with the trial on the merits

and the trial transcript, and we conclude that there is ample support for the trial

court’s factual conclusions.

In Gioustover, 561 So.2d 961, the passenger of a vehicle being driven by her

mother filed suit against Donald Bonanno and Progressive American Insurance

Company, the driver and insurer of the other vehicle involved in the accident. Those

original defendants filed a third-party demand against Allstate Insurance Company,

the mother’s insurer, more than one year after the date of the accident, and five days

later, the plaintiff filed a supplemental and amending petition naming Allstate as an

additional principal defendant. Following a trial, the original defendants were found

free of fault, and judgment was rendered in favor of the plaintiff and against Allstate.

All of the plaintiff’s claims against the original defendants were dismissed. The

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plaintiff and her mother appealed, and Allstate filed an exception of prescription in

the court of appeal.

The appellate court reviewed the evidence and testimony adduced at trial, along

with the trial court’s reasons for judgment, and concluded that there was no manifest

error in the trial court’s factual determination that the plaintiff’s mother was solely

at fault in causing the accident. Accordingly, the court of appeal affirmed the trial

court’s dismissal of the original defendants, Bonanno and Progressive. In addressing

Allstate’s exception of prescription, the court of appeal ruled that because no joint or

solidary liability existed between Bonanno and the plaintiff’s mother, prescription

was not interrupted as to Allstate when suit was timely filed against Bonanno and

Progressive. Thus, the court of appeal maintained Allstate’s exception of

prescription, reversed the trial court’s judgment, and dismissed all of the plaintiff’s

claims against it.

This matter is on all fours with Gioustover. We agree with the trial court’s

factual determination that Officer Clark was free from fault in causing the accident.

Accordingly, because there is no joint liability between Officer Clark and Henry,

prescription was not interrupted as to Imperial when Plaintiffs filed suit against the

City, Officer Clark’s employer. Wanda Fisher’s suit against Imperial was not filed

until more than one year had elapsed since the date of the accident, and thus her

claims against Imperial had prescribed. Accordingly, we maintain Imperial’s

exception of prescription, reverse the judgment of the trial court, and dismiss all

claims against Imperial with prejudice. Plaintiff/appellee, Wanda Fisher, is cast with

all costs of this appeal.

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EXCEPTION OF PRESCRIPTION GRANTED; JUDGMENT

REVERSED.

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