Major Patrick Calbert v. Orlando J. Batiste

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-852

MAJOR PATRICK CALBERT

VERSUS

ORLANDO J. BATISTE, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2008-4932
HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED.

Guy O. Mitchell, III
Mitchell Law Offices
225 Court Street
Ville Platte, Louisiana 70586-4492
(337) 363-0400
Counsel for Plaintiff/Appellant:
Major Patrick Calbert

Laura L. Putnam
Assistant Attorney General
556 Jefferson Street, Fourth Floor
Lafayette, Louisiana 70501
(337) 262-1700
Counsel for Defendant/Appellee:
State of Louisiana, through the Department of
Transportation and Development

Orlando J. Batiste
In Proper Person
135 Harrison Drive
Lafayette, Louisiana 70507
Defendant/Appellee

KEATY, Judge.

Plaintiff appeals from the trial court’s granting of exceptions of prescription

and insufficient service of process in favor of defendant. For the following reasons,

we affirm.

FACTS AND PROCEDURAL BACKGROUND

Raymond Calbert died on July 23, 2007, after his vehicle was struck by a

vehicle being driven by Orlando Batiste (Batiste). On July 14, 2008, the

deceased’s widow, Mary Ann Charles Calbert (Calbert), filed a wrongful death suit

individually and on behalf of her minor son, Rashaun Devon Calbert, against

Batiste.1 On August 28, 2008, Major Patrick Calbert (Major), the deceased’s son

and the sole plaintiff herein, filed a separate wrongful death and survival action

against Batiste, the State of Louisiana through the Department of Transportation

and Development (DOTD), and Lafayette Consolidated Government (LCG).2

Defendant, DOTD, filed exceptions of insufficient service of process and

citation, vagueness, no cause of action, and prescription. Following a hearing, the

trial court rendered judgment granting DOTD’s exceptions of prescription and

insufficient service of process and overruling DOTD’s exceptions of no cause of

action and vagueness, resulting in the dismissal of Major’s petition against DOTD.

Major appeals the trial court’s decision with respect to the granting of the

exceptions of prescription and insufficient service of process.

1
Calbert’s suit was docketed in the Fifteenth Judicial District Court, Lafayette Parish, as
Civil Docket No. 08-4022.
2
Major’s suit was docketed in the same judicial district as Civil Docket No. 08-4932.
Major’s suit against LCG was dismissed with prejudice according to the terms of a Consent
Judgment signed on September 13, 2010.

DISCUSSION

On appeal, Major contends the trial court erred when it sustained DOTD’s

exceptions of prescription and insufficient service of process.

In Louisiana, the standard of review regarding the exceptions of prescription

and insufficient service of process requires an appellate court to determine whether

the trial court’s finding of fact was manifestly erroneous. Taranto v. La. Citizens

Prop. Ins. Corp., 10-105 (La. 3/15/11), 62 So.3d 721, 726; JP Morgan Chase Bank

v. Smith, 07-1580 (La.App. 3 Cir. 5/21/08), 984 So.2d 209.

I. Prescription

In the present matter, because Major’s father died on July 23, 2007, Major

had one year to file a wrongful death and survival action under La.Civ.Code art.

3492.3 Since Major’s suit was not filed until August 28, 2008, Major’s action

prescribed. Thus, the issue on appeal is whether prescription was interrupted with

respect to Major’s suit when Calbert timely filed suit on July 14, 2008.

Major contends Louisiana law and jurisprudence provides that suit by one

plaintiff interrupts prescription as to all defendants in favor of all plaintiffs in

similar factual situations arising out of the same accident. In support of the

foregoing, Major cites Louisiana jurisprudence including Tureaud v. Acadiana

Nursing Home, 96-1262 (La.App. 3 Cir. 5/7/97), 696 So.2d 15.

In opposition, DOTD contends that Calbert asserts a wrongful death action

whereas Major asserts both a wrongful death and a survival action. Wrongful

death and survival actions are separate and distinct causes of action entirely

independent of each other. Guidry v. Theriot, 377 So.2d 319 (La.1979), abrogated

on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983). DOTD
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Louisiana Civil Code Article 3492 provides, in pertinent part: “Delictual actions are
subject to a liberative prescription of one year. This prescription commences to run from the day
injury or damage is sustained.”

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argues that even if prescription was interrupted by Calbert’s wrongful death action,

which it denies, the interruption had no bearing on the running of prescription on

Major’s survival action. Accordingly, DOTD alleges that Major’s survival action

is prescribed.

DOTD alleges that Tureaud is inapplicable. DOTD further contends that

notice within the prescriptive period is necessary when resolving prescription

issues. Since DOTD did not receive notice of a claim for the deceased’s wrongful

death within one year of his death, Major’s wrongful death claim against DOTD

prescribed.

In the present case, we find that the trial court was not manifestly erroneous

in granting DOTD’s exception of prescription for the following reasons. First,

prescription runs against all persons unless they fall within an exception provided

by law. La.Civ.Code art. 3467. The filing of a tort suit by one party generally

does not affect the running of prescription against other parties who sustained

separate damages in the same accident. Louviere, 440 So.2d 93. There are three

exceptions to the general rule: (1) La.Code Civ.Proc. art. 1153 allows an

amending petition to relate back to the date of filing the original pleading; (2)

La.Code Civ.Proc. art. 1067 allows an additional ninety days for incidental

demands; and (3) when parties share a single cause of action. Louviere, 440 So.2d

93. Each exception has limited application.4 The underlying rationale for these

exceptions is lack of prejudice to the defendant and/or full recovery to a plaintiff

who timely filed suit. Neither rationale is applicable in this case.

4
Louisiana Code of Civil Procedure Article 1153 only applies if the late-added action or
defense arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading. Louisiana Code of Civil Procedure Article 1067 is applicable only if the
demand is filed within ninety days of the date of service and only if the demand had not
prescribed at the time the main demand was filed.
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Second, notice to the defendant within the prescriptive period is an essential

element when an untimely plaintiff, such as Major, seeks to defeat prescription

based on another plaintiff’s, Calbert’s, timely filed suit. Giroir v. S. La. Med. Ctr.,

Div. of Hosps., 475 So.2d 1040 (La.1985); Nini v. Sanford Bros., Inc., 276 So.2d

262 (La.1973). In Warren v. Louisiana Medical Mutual Insurance Co., 07-492 (La.

12/2/08), 21 So.3d 186, reversed on other grounds on rehearing, the supreme court

detailed the statutes and jurisprudence relating to prescriptive issues for additional

plaintiffs. Summarizing the issues, the supreme court explained that the focus is

on whether the defendant knew or should have known of the existence and

involvement of the new plaintiff. Id.

In the present case, Calbert’s timely filed wrongful death suit named only

Batiste as a defendant; whereas, Major’s untimely wrongful death and survival

action named Batiste, DOTD, and LCG as defendants. Since DOTD was not

named in Calbert’s timely suit, it did not know of the existence of the new plaintiff,

Major, within one year of the decedent’s death. As such, Major’s wrongful death

and survival action prescribed against DOTD, and the trial court’s finding was not

manifestly erroneous.

This assignment of error is without merit.

II. Improper Citation

Regarding DOTD’s exception of insufficient service of process and citation,

Major contends that the requirement of citation has been waived by DOTD’s

repeated responses in the trial and appellate courts. Major alleges that, in any

event, the exception can be cured by serving the parties mentioned by DOTD.

DOTD contends that Major has not satisfied the service requirements of

La.R.S. 39:1538. Although Major served the attorney general, he failed to serve

DOTD’s department head and the Office of Risk Management (ORM) as required
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by La.R.S. 39:1538. DOTD alleges that Major should be required to serve the

department head and the ORM in order to maintain his action. See Whitley v. State,

Bd. of Supervisors of La. State Univ. Agric. Mech. College, 11-40 (La. 7/1/11), 66

So.3d 470.

Louisiana Revised Statutes 39:1538 provides, in pertinent part:

(4) In actions brought pursuant to this Section, process shall be
served upon the head of the department concerned, the office of risk
management, and the attorney general, as well as any others required
by R.S. 13:5107. However, there shall be no direct action against the
Self-Insurance Fund and claimants, with or without a final judgment
recognizing their claims, shall have no enforceable right to have such
claims satisfied or paid from the Self-Insurance Fund.

In the present case, Major was required to serve the head of DOTD, the

ORM, and the attorney general. The record shows that Major only served the

attorney general. Since Major failed to serve the head of DOTD and the ORM as

required by the statute, service was incomplete. Thus, the trial court’s ruling

granting DOTD’s exception of insufficient service of process and citation was not

manifestly erroneous.

This assignment of error is without merit.

DECREE

The judgment of the trial court is affirmed. All costs of this appeal are

assessed against Major Patrick Calbert.

AFFIRMED.

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