State Farm Mutual Automobile Ins. Co. v. Kenneth Forrestier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1391

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

VERSUS

KENNETH FORRESTIER, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20113404
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.

AFFIRMED.

Katherine Paine Martin
Martin Mayard, LLC
Post Office Box 81338
Lafayette, LA 70598-1338
(337) 291-2440
COUNSEL FOR PLAINTIFF/APPELLEE:
State Farm Mutual Automobile Insurance Company

James E. Brouillette
3330 Lake Villa Drive, Suite 202
Metairie, LA 70002-4300
(504) 378-0256
COUNSEL FOR PLAINTIFF/APPELLEE:
State Farm Mutual Automobile Insurance Company

Matt D. McConnell
Post Office Box 52024
Lafayette, LA 70505
(337) 347-6404
COUNSEL FOR INTERVENORS/APPELLANTS:
Brooke Loiseau
Ryan Loiseau

Erica R. Mayon
Simien & Miniex, APLC
Post Office Box 81918
Lafayette, LA 70598-1918
(337) 269-0222
COUNSEL FOR DEFENDANTS/APPELLEES:
Lafayette City-Parish Consolidated Government
Kenneth Forrestier

AMY, Judge.

The plaintiff, an insurance company, filed suit as subrogee of its insured in order to

enforce its subrogation rights. Thereafter, the insured and her husband intervened.

The intervenors sought damages for the insured’s personal injuries and for property

damage and for her husband’s loss of consortium. The defendants filed exceptions

of prescription and no right of action, which were granted by the trial court. The

intervenors appeal. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, State Farm Mutual Automobile Insurance Co., filed this action

on June 14, 2011, “as subrogee of Brooke Loiseau.” Therein, State Farm alleged

that on June 16, 2010, Ms. Loiseau’s automobile was negligently rear-ended by a

city bus driven by one of the defendants, Kenneth Forrestier.1 According to the

petition, Ms. Loiseau was injured as a result of the accident. State Farm also

alleged that the bus was owned by the Lafayette Consolidated Government

(LCG).2 State Farm contends that it issued an insurance policy to Ms. Loiseau and

that it paid for property damage and medical expenses and sought to recover those

amounts.

On January 17, 2012, Ms. Loiseau and her husband, Ryan Loiseau, filed a

petition of intervention alleging substantially the same facts. Ms. Loiseau sought

recompense for damages stemming from the accident, including “great bodily

injuries” and property damage, and Mr. Loiseau asserted a loss of consortium

claim.

1
Mr. Forrestier’s name is spelled as both “Forrestier” and “Forestier” in the record. We
use the spelling in the defendants’ answer.
2
The defendants note that the correct name for LCG is the “Lafayette City-Parish
Consolidated Government.”

The defendants filed an exception of prescription with regard to both of the

Loiseaus’ claims and an exception of no right of action with regard to Mr.

Loiseau’s claim. The Loiseaus’ attorney did not file an opposition to the

exceptions and did not appear at the hearing on the exceptions. Accordingly, the

trial court granted the exceptions and dismissed, with prejudice, the Loiseaus’

claims. Thereafter, the Loiseaus filed a motion for new trial. At the hearing on the

motion for new trial, the Loiseaus’ attorney asserted that he only learned about the

hearing on the exceptions when he received the order granting the exceptions.

After considering the parties’ arguments, the trial court denied the motion for new

trial.

The Loiseaus appeal, asserting that the trial court “committed prejudicial

legal error by applying La. C.C.P. art. 1067 and Stenson to sustain exceptions of

prescription and dismiss with prejudice appellants’ un-prescribed intervention

claims.”

Discussion

Prescription & the Applicability of La.Code Civ.P. art. 1067

The defendants filed exceptions of prescription and no right of action in this

case, which were granted by the trial court after a hearing. The Loiseaus argue that

they and State Farm are co-obligees, and thus, in their view, prescription is

interrupted as to their claims as well.3

In Wells v. Zadeck, 11-1232, pp. 6-7 (La. 3/30/12), 89 So.3d 1145, 1149-50,

the supreme court discussed the exception of prescription, stating:

3
The Loiseaus argue that, because the trial court granted both exceptions on the basis of
La.Code Civ.P. art. 1067, a determination that their claims had not prescribed necessarily
mandates that the grant of the exception of no right of action be reversed. Because we find that
Mr. Loiseau’s claim, which was the subject of the exception of no right of action, had prescribed,
we do not reach the Loiseaus’ argument in this regard.

2

An exception of prescription must be specifically pleaded and
may not be supplied by the court. LSA-C.C.P. art. 927(B).
Generally, prescription statutes are strictly construed against
prescription and in favor of the claim sought to be extinguished by it;
thus, of two possible constructions, that which favors maintaining, as
opposed to barring an action, should be adopted. Carter v. Haygood,
04-0646 (La. 1/19/05), 892 So.2d 1261, 1268; Bailey v. Khoury, 04-
0620 (La. 1/20/05), 891 So.2d 1268.

The rules of prescription are designed to prevent old and stale
claims from being prosecuted. Ordinarily, the exceptor bears the
burden of proof at the trial of the peremptory exception. Campo v.
Correa, 01-2707, p. 7 (La. 6/21/02), 828 So.2d 502, 508. However,
if prescription is evident on the face of the pleadings, the burden shifts
to the plaintiff to show the action has not prescribed. Campo, 01-2707
at p. 7, 828 So.2d at 508; Williams v. Sewerage & Water Bd. of New
Orleans, 611 So.2d 1383, 1386 (La.1993). In the absence of
evidence, the objection of prescription must be decided upon the facts
alleged in the petition, and all allegations contained therein are
accepted as true.

Our review of the record does not indicate that evidence was introduced at

either the original hearing on the exceptions or at the hearing on the motion for

new trial. Accordingly, the allegations in the petition are accepted as true, and the

exception must be decided upon those facts. Wells, 89 So.3d 1145. Both the

Loiseaus and State Farm allege in their petitions that the accident occurred on June

16, 2010. State Farm filed its main demand on June 14, 2011, within the one-year

prescriptive period for delictual actions. See La.Civ.Code art. 3492. However, the

Loiseaus filed their petition of intervention on January 17, 2012, well after the one-

year period had expired. Thus, the Loiseaus’ petition had prescribed on its face

and the burden of proof shifted to them to show that their claims had not

prescribed.

3

According to the record, the trial court dismissed the Loiseaus’ claims on the

basis of La.Code Civ.P. art. 1067.4 That article 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 or in
the case of a third party defendant within ninety days from service of
process of the third party demand.

The Loiseaus assert that La.Code Civ.P. art. 1067 is not applicable and rely on

Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979), to argue that, because State

Farm brought its action as a subrogee of Ms. Loiseau, prescription is interrupted as

to the Loiseaus’ claims as well.5

However, the application of La.Code Civ.P. art. 1067 was more recently

discussed in Stenson v. City of Oberlin, 10-826 (La. 3/15/11), 60 So.3d 1205. We

find that Stenson, 60 So.3d 1205, and not Allstate, 375 So.2d 950, is applicable to

the facts herein. In Stenson, 60 So.3d 1205, the supreme court addressed whether

La.Code Civ.P. art. 1067 or the “relation back” doctrine delineated in La.Code

Civ.P. art. 1153 applied to petitions of intervention. The Stenson plaintiffs were a

group of homeowners who filed suit against the defendants, alleging that they

suffered damages due to sewerage overflow. After the prescriptive period had

4
Although the original hearing on the exceptions was granted after the Loiseaus’ counsel
did not submit any opposition to the defendants’ exceptions and did not appear at the hearing, we
observe that the defendants submitted a memorandum in support of their exceptions relying on
La.Code Civ.P. art. 1067 and that, after the Loiseaus filed a motion for new trial, the trial court
conducted a full hearing on the Loiseaus’ arguments.
5
In Allstate, 376 So.2d 950, the plaintiff, a workers’ compensation insurance company,
filed suit seeking to recover workers’ compensation benefits and medical expenses from a
defendant who negligently caused an automobile accident that exacerbated the work-related
injuries of one of the plaintiff’s claimants. The claimant subsequently intervened in the suit.
However, the plaintiff’s claims were dismissed on an exception of no cause of action. The
defendants filed an exception of prescription, alleging that the claimant’s action had been
brought after the expiration of the prescriptive period. On appeal, the supreme court found that
the claimant’s action was not barred by prescription, stating “[n]one of these basic prescriptive
values are offended when a subsequent claimant, closely connected in relationship and interest to
the original plaintiff, enters the timely-filed suit to assert a claim based upon the same factual
occurrence as that initially pleaded.” Id. at 954.

4

passed, the intervenors filed a petition of intervention asserting allegations similar

to those made by the other plaintiffs. One of the defendants filed an exception of

prescription with regard to the intervenors’ petition. The trial court sustained the

exception of prescription on the basis that the intervenors’ petition was not filed in

compliance with La.Code Civ.P. art. 1067. The appellate court reversed, finding

that the intervenors’ petition “related back” to those of the original plaintiffs.

However, the supreme court reversed the appellate court’s decision and

reinstated the trial court’s judgment. Stenson, 60 So.3d 1205. In reaching that

determination, the supreme court noted that there had been “confusion in the

jurisprudence in determining whether La.Code Civ.P. art. 1153 or La.Code Civ.P.

art. 1067 applies to a petition filed by an intervening plaintiff.” Id. at 1208. Thus,

the supreme court reviewed the existing jurisprudence on that issue, including

Allstate, 376 So.2d 950. In its review, the supreme court noted the four-part

“relation back” test expressed in Giroir v. South Louisiana Medical Center,

Division of Hospitals, 475 So.2d 1040 (La.1985), and quoted the portion of

Allstate that used an analysis similar to that of Giroir. Ultimately, the supreme

court concluded that La.Code Civ.P. art. 1067 is the appropriate article to apply

when considering whether incidental demands, such as a petition to intervene, had

prescribed. Stenson, 60 So.3d 1205. The supreme court stated:

Article 1067 clearly provides an exception to prescription or
preemption for incidental demands. An intervention is an incidental
demand, see La.Code Civ.Proc. art. 1031, and thus Article 1067 is the
applicable statute for governing the exception to prescription or
preemption for an intervention. See Moore v. Gencorp, Inc., 633
So.2d at 1269, 1270. Article 1153, by contrast, provides a means for
determining when an amendment adding a plaintiff, claim, or
defendant relates back to the date of an earlier filed pleading for
prescriptive purposes.

5

Id. at 1214 (emphasis added). On this basis, the supreme court found that the

petition of intervention had prescribed and that the trial court did not err in

sustaining the exception of prescription. Id.

Our review of the record reveals that the Loiseaus’ petition of intervention

does not satisfy the requirements of Article 1067. Although the main demand, that

of State Farm, was not barred by prescription when it was filed, the Loiseaus filed

their petition of intervention after the one-year prescriptive period had run, see

La.Civ.Code art. 3492, but failed to file their intervention within ninety days of the

date of service of the main demand.6 Thus, the Loiseaus’ claims have prescribed

pursuant to La.Code Civ.P. art. 1067.

Further, we find no merit to the Loiseaus’ claims that prescription was

interrupted as a result of State Farm’s filing of the main demand. In Stenson, 60

So.3d at 1214, the supreme court stated that “Article 1067 is the applicable statute

governing the exception to prescription or preemption for an intervention.” As

already discussed, the Loiseaus have failed to establish that their petition of

intervention fits within the parameters of Article 1067.

Therefore, we find no merit to the Loiseaus’ assignment of error.

Accordingly, we find no error in the trial court’s grant of the exceptions and affirm

the trial court’s judgment.

6
Although the record does not contain a return of service indicating when the defendants
were served with the main demand, the defendants assert in their memorandum in support of
their exceptions that they were served on June 23, 2011. Further, the Loiseaus did not contest
that their petition of intervention was filed more than ninety days after service of the main
demand.

6

DECREE

For the foregoing reasons, we affirm the trial court’s grant of the exceptions

with regard to all claims asserted by the intervenor-appellants, Brooke and Ryan

Loiseau. Costs of this appeal are allocated to Brooke and Ryan Loiseau.

AFFIRMED.

7