Damion Comeaux v. Austin J. Romero

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-473

DAMION COMEAUX

VERSUS

AUSTIN J. ROMERO, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 97404
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Daniel J. Balhoff
Perry, Atkinson, Balhoff,
Mengis, Burns & Ellis, LLC
Post Office Drawer 83260
Baton Rouge, LA 70884-3260
(225) 767-7730
COUNSEL FOR PLAINTIFF/APPELLANT:
Damion Comeaux

J. Chandler Loupe
McKernan Law Firm
5630 Bankers Avenue
Baton Rouge, LA 70808
(225) 767-2222
COUNSEL FOR PLAINTIFF/APPELLANT:
Damion Comeaux

Valerie T. Schexnayder
Robicheaux & Collins
450 Laurel Street, Suite 1701
Baton Rouge, LA 70801
(225) 382-5550
COUNSEL FOR DEFENDANT/APPELLEE:
Zurich American Insurance Company

Karen Day White
Louisiana Municipal Association
700 North Tenth Street, Suite 440
Baton Rouge, LA 70802
(225) 334-5001
COUNSEL FOR DEFENDANTS/APPELLEES:
City of Abbeville
The Louisiana Municipal Association
Austin J. Romero
Abbeville Police Department

AMY, Judge.

The plaintiff filed suit against the defendant driver and defendant

governmental entities following an automobile accident. The plaintiff also filed

suit against the uninsured motorist insurance provider for the vehicle he was

driving at the time of the accident. The initial suit, filed in an improper venue for

the governmental defendants, was allegedly only timely served on the insurer.

After the matter was transferred to the proper venue and, after the plaintiff filed a

second, separate suit in that venue, the defendant driver and the governmental

defendants filed exceptions of prescription. The trial court sustained the

exceptions, dismissing the plaintiff’s claim against the defendant driver and the

governmental defendants. The trial court further sustained exceptions of no cause

of action, dismissing a named municipal association. The plaintiff appeals.

Additionally, the UM insurance provider appeals the exception of prescription

rendered in the initial suit.

Factual and Procedural Background

These four, unconsolidated matters,1 stem from two separate, but factually

identical suits filed following a June 9, 2012 intersectional collision in Vermilion

1
We review the four judgments appealed collectively herein. However, we render four
separate decrees under four companion docket numbers, reflective of the specific judgment on
appeal under each docket number.

See Damion Comeaux v. Austin J. Romero, et al., 15-473 (La.App. 3 Cir. _/_/_), _ So.3d
_ (wherein this court affirms the judgment on the exception of no cause of action
rendered in trial court docket number 97404).

See Damion Comeaux v. Austin J. Romero, et al., 15-474 (La.App. 3 Cir. _/_/_), _ So.3d
_ (wherein this court affirms the judgment on the exception of prescription rendered
in trial court docket number 97404).

See Damion Comeaux v. Austin J. Romero, et al., 15-475 (La.App. 3 Cir. _/_/_), _ So.3d
_ (wherein this court affirms the judgment on the exception of no cause of action
rendered in trial court docket number 98981).

Parish. The plaintiff, Mr. Comeaux, alleges that he was injured when a vehicle

operated by Austin Romero and owned by the Abbeville Police Department and/or

the City of Abbeville failed to stop at a stop sign and collided with the vehicle he

was driving. The latter vehicle was owned by Mr. Comeaux’s employer, Eagleton

Engineering, LLC, and insured by Zurich American Insurance Company.

On May 16, 2013, Mr. Comeaux filed suit in East Baton Rouge Parish and

named as defendants Mr. Romero, the Abbeville Police Department, the City of

Abbeville, the Louisiana Municipal Association (the LMA), and Zurich. The

plaintiff alleged that the vehicle driven by Mr. Romero “was covered by an

automobile liability insurance policy which had been sold and delivered by [the

LMA].” Zurich was listed in its capacity as a UM insurance provider. The

plaintiff alleged that the defendants were solidarily liable for his injuries, which

included bodily injuries and associated general and special damages.

The City responded with an exception of improper venue, referencing

La.R.S. 13:5104(B). 2 The East Baton Rouge Parish trial court sustained the

exception of improper venue and ordered that the matter be transferred to the

Fifteenth Judicial District Court. However, it did so on the condition that the

defendants waive any defense regarding prescription. Upon the City’s application,

the First Circuit Court of Appeal granted the City’s application for supervisory

See Damion Comeaux v. Austin J. Romero, et al., 15-476 (La.App. 3 Cir. _/_/_), _ So.3d
_ (wherein this court reverses the judgment on the exception of prescription rendered
in trial court docket number 98981 and remands the matter to the trial court for
reinstatement of the plaintiff’s claims against the City of Abbeville, Abbeville Police
Department, and Austin J. Romero).
2
Louisiana Revised Statutes 13:5104(B) provides:

All suits filed against a political subdivision of the state or against an officer or
employee of a political subdivision for conduct arising out of the discharge of his official
duties or within the course and scope of his employment shall be instituted before the
district court of the judicial district in which the political subdivision is located or in the
district court having jurisdiction in the parish in which the cause of action arises.

2

writs and vacated “those portions of the trial court’s judgment . . . which ordered

that the defendants are required to waive any defense that they may have regarding

prescription.” Comeaux v. Romero, et al., 13-2057 (La.App. 1 Cir. 2/27/14) (an

unpublished writ decision). The first circuit maintained the sustaining of the

exception of improper venue and ordered the entirety of the case be transferred “to

Vermilion Parish pursuant to La. Code Civ. P. art. 121 in compliance with La. R.S.

13:5401(B).” Id. Upon transfer to Vermilion Parish, the East Baton Rouge suit

was assigned Fifteenth Judicial District Court docket number 98981.

Prior to the transfer, the plaintiff filed a corresponding suit in Vermilion

Parish. That suit, filed July 1, 2013 (assigned Fifteenth Judicial District Court

docket number 97404) involved the same parties as well as the repeated demands

against Zurich, as the UM provider. The cases proceeded alongside one another,

with corresponding filings under the separate docket numbers.

Under both docket numbers, the LMA filed exceptions of no cause of action

and noted that the plaintiff alleged that it was solidarily liable with the other

defendants under a right of direct action theory. See La.R.S. 22:1269. However,

the LMA asserted that the City is self-insured and participates in the Louisiana

Municipal Risk Management Agency (the LMRMA), created pursuant to La.R.S.

33:1345, which provides that:

An interlocal risk management agency is not an insurance company or
an insurer under the laws of this state and the development and
administration by such agency of one or more group self insurance
funds shall not constitute doing an insurance business.
Intergovernmental agreements providing for the creation and
maintenance of an interlocal risk management agency shall not be
deemed to constitute insurance as defined by [La.]R.S. 22:46, nor
shall the interlocal risk management agency or the development of a
group self insurance fund be subject to the provisions of Title 22,
Chapter 1, of the Louisiana Revised Statutes of 1950.

3

The LMA observed that, while its wholly-owned subsidiary is a service agent and

manager of the LMRMA, jurisprudence indicates that the LMRMA is “not

amenable to direct action under the provisions of La.R.S. 22:655 [renumbered to

La.R.S. 22:1269].” Quoting Lonzo v. Town of Marksville, 430 So.2d 1088, 1094

(La.App. 3 Cir.), writ denied, 438 So.2d 573 (La.1983), writ denied, 538 So.2d 576

(La.1983), writ denied, 438 So.2d 576 (La.1983) (citing Logan v. Hollier, 424

So.2d 1279 (La.App. 3 Cir. 1982)). Thus, the LMA argued in its exception that “if

there is no action against the LMRMA, then there is no action against the LMA,

who owns the entity that manages the LMRMA fund.”

Additionally, and in both cases, Romero, the City, and the Police

Department filed exceptions of prescription asserting that the matters had

prescribed pursuant to La.Civ.Code art. 3492 (providing that: “Delictual actions

are subject to liberative prescription of one year.”). With regard to docket number

98981 (transferred from East Baton Rouge Parish), the governmental defendants

referenced La.Civ.Code art. 3462, which provides that:

Prescription is interrupted when the owner commences action
against the possession, or when the obligee commences action against
the obligor, in a court of competent jurisdiction and venue. If action
is commenced in an incompetent court, or in an improper venue,
prescription is interrupted only as to a defendant served by process
within the prescriptive period.

(Emphasis added.) Noting that the case had been filed in an improper venue, the

governmental defendants suggested that the applicable, one year prescriptive

period required service by June 10, 2013. Yet, the governmental defendants

represented in their supporting memorandum that the City and Police Department

were served on June 14, 2013, and Mr. Romero was served on June 19, 2013. As

4

no exceptor was served within the prescriptive period, they argued, the plaintiff’s

claims against them prescribed in that initial suit.

With regard to docket number 97404, the governmental defendants noted

that the underlying automobile accident occurred on June 9, 2012, yet the entirely

separate suit was not filed in Vermilion Parish until July 8, 2013. Again

referencing the one-year prescriptive period for delictual actions provided by

La.Civ.Code art. 3492, the governmental defendants urged dismissal of the suit as

prescribed.

In opposition to the exceptions of prescription in both cases, the plaintiff

asserted that Zurich had been served by process within the prescriptive period and

that East Baton Rouge was the correct venue for the UM insurer. The plaintiff

argued that since Zurich was alleged to be the solidary obligor of the tortfeasor,

prescription was interrupted as to all defendants. In support, the plaintiff

referenced Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982), wherein

the supreme court determined that the timely filing of suit against a tortfeasor

interrupted prescription as to a UM insurer, a solidary obligor. The plaintiff did

not make a distinction between the East Baton Rouge Parish matter, in which he

argued that the timely service arguably interrupted prescription, and the separately

filed Vermilion Parish suit filed more than one year after the accident. Instead, the

plaintiff urged the trial court to consider the records from both venues. The

matters were not, however, consolidated.

Additionally, the plaintiff filed motions for summary judgment in both cases

seeking a determination that Zurich’s “uninsured/underinsured motorist policy

provides first dollar coverage for Romero’s fault (i.e., Zurich will receive no credit

as a result of the Business Auto Coverage Agreement provided by LMRMA).”

5

The plaintiff argued that, because the LMRMA is not an insurer by the wording

La.R.S. 33:1345 and as urged by the LMA in its exceptions of no cause of action,

“the trial court must necessarily conclude that Romero was an uninsured motorist

on the date of the accident.” Thus, the plaintiff asserted, Zurich should be liable

for the “first dollar” attributable for Romero’s fault.

The trial court considered the exceptions of no cause of action and

prescription, as well as the motions for summary judgment at a November 2014

hearing. Following the plaintiff counsel’s concession that no cause of action

existed against the LMA, the trial court sustained the respective exceptions of no

cause of action. Turning to the exceptions of prescription, the governmental

defendants’ counsel first noted that the later-filed Vermilion Parish suit had

prescribed on its face as to them, since it was filed more than one year after the

accident.3 As for the initial suit, transferred from East Baton Rouge Parish, the

governmental defendants repeated their assertion that La.Civ.Code art. 3462

indicated that prescription was not interrupted as to them as it was in an improper

venue. They argued that “joint” liability of the tortfeasor and the UM provider

would only be established if the UM coverage is “triggered[,]” an issue counsel

noted was common to the plaintiff’s motion for summary judgment. Recognizing

the $500,000 statutory limitation of liability provided by La.R.S. 13:5106, the

governmental defendants rejected the plaintiff’s argument that Mr. Romero must

be considered uninsured for UM insurance purposes. Instead, the governmental

defendants asserted that they were self-insured due to participation in the

3
The governmental defendants did, however, acknowledge that suit was timely as to
Zurich as it was filed within the two-year prescriptive period applicable to UM insurers. See
La.R.S. 9:5629.

6

LMRMA. Following argument by counsel for both Zurich and the plaintiff, who

suggested that the plaintiff was still receiving treatment and that his claim could

exceed the statutory limitation of La.R.S. 13:5106, the trial court sustained the

exceptions of prescription. It further denied the plaintiff’s motion for summary

judgment, finding that genuine issues of material fact remained.

Following the hearing, the trial court signed separate judgments, sustaining

the exceptions of no cause of action and prescription in both cases. The plaintiff

appealed the four judgments, resulting in the four docket numbers now before this

court. The cases remain unconsolidated.

The rulings in trial docket number 97404, filed in Vermilion Parish, are now

before this court under appellate docket numbers 15-473 and 15-474. In his

appellate briefs to this court, the plaintiff challenges the sustaining of the exception

of prescription as to the City, Police Department, and Mr. Romero. The plaintiff

does not challenge the sustaining of the exception of no cause of action.

The rulings in trial docket number 98981, transferred from East Baton

Rouge, are now before this court under 15-475 and 15-476. Under these docket

numbers, the plaintiff again addressed his objection to the prescription ruling and

does not challenge the sustaining of the exception of no cause of action. Zurich

also appeals in numbers 15-475 and 15-476, questioning the dismissal of the other

defendants.4 It joins the plaintiff in arguing that its timely service in the East Baton

Rouge Parish matter interrupted prescription against the defendant driver and

governmental defendants.

4
Subsequent to the trial court’s sustaining of the exceptions, and upon joint motion of the
plaintiff and Zurich, the trial court granted Zurich’s exception of lis pendens, dismissing the
plaintiff’s action against Zurich in 97404 and reserving the plaintiff’s “rights to proceed with suit
number 98,981[.]”

7

Discussion

15-473 and 15-474 (Vermilion Parish)

Although these docket numbers address the second suit, filed anew in

Vermilion Parish, the plaintiff argues that the first-filed suit in East Baton Rouge

Parish interrupted prescription as to the governmental defendants as it was timely

served against Zurich. This argument is appropriately addressed below, however,

in this court’s discussion of the transferred cases. Under these two docket numbers

the record plainly establishes that the Vermilion Parish suit was filed on July 1,

2013, more than one year after the June 9, 2012 accident. See La.Civ.Code art.

3492.

Louisiana Code of Civil Procedure Article 927(A)(1) provides for the

objection of prescription by peremptory exception. While the exceptor ordinarily

bears the burden of proof on such an exception, if prescription is evident on the

face of the petition, the burden shifts to the plaintiff to demonstrate that

prescription has been suspended or interrupted. Rizer v. American Sur. & Fid. Ins.

Co., 95-1200 (La. 3/8/96), 669 So.2d 387. If the plaintiff claims that prescription

has been interrupted due to solidary liability between two or more parties, the

plaintiff bears the burden of proving that solidarity exists. Id.

On appellate review, the supreme court has recently reiterated that, in the

absence of evidence, a trial court must decide an exception upon the facts alleged

in the petition with all of the allegations accepted as true. Lomont v. Bennett, 14-

2483 (La. 6/30/15), 172 So.3d 620. However, if evidence is introduced at the

hearing on the exception, an appellate court reviews the trial court’s findings of

fact under the manifest error-clearly wrong standard of review. Id. If those

findings are reasonable in light of the record reviewed in its entirety, an appellate

8

court cannot reverse the ruling, even if it is convinced that it would have weighed

the evidence differently. Id.5

As stated above, the Vermilion Parish suit was prescribed on its face as to

the governmental defendants. Notwithstanding any ancillary arguments regarding

the timeliness of the suit as to Zurich under either suit (recall that Zurich concedes

that suit was timely as filed within the period applicable to UM insurers), the

prescriptive period against the governmental defendants had tolled for this separate

suit. 6 Of course, jurisprudence indicates that after prescription extinguishes a

cause of action, it cannot be interrupted. Rizer, 669 So.2d 387, citing Bustamento

v. Tucker, 607 So.2d 532, n.5 (La.1992). A timely suit against one solidary obligor

does not interrupt prescription that has tolled against another solidary obligor. Id.,

quoting Noggarath v. Fisher, 557 So.2d 1036 (La.App. 4 Cir. 1990). Thus, the

burden shifted to the plaintiff to demonstrate that the matter had not prescribed. In

this case, the plaintiff attempted to do so under a theory of solidary liability.7

As referenced above, the plaintiff suggests that filing suit in East Baton

Rouge Parish interrupted prescription in the later-filed Vermilion Parish suit. He

does so, however, without reference to the fact that the Vermilion Parish suit was

an entirely separate suit. The plaintiff does not dispute that the petition was

5
While the trial court in this case did not articulate reasons for its ruling, it merits
observing that the plaintiff introduced only the Zurich policy and the defendants’ answers to
interrogatories.
6
Even La.Civ.Code art. 1799, the plaintiff’s point of reliance for the interruption of
prescription for solidary obligors, references only “interruption.” It does not anticipate the
revival of a prescribed matter. See also La.Civ.Code art. 3462, addressing only “interruption by
filing of suit or by service of process[.]” (Emphasis added.)
7
The plaintiff did not attempt to demonstrate that the matter was not prescribed under a
theory of joint liability. See La.Civ.Code art. 2324(C) (providing that “[i]nterruption of
prescription against one joint tortfeasor is effective against all joint tortfeasors.”) Instead, the
plaintiff maintained that the defendants were solidary obligors and correspondingly advanced the
motion for summary judgment whereby he sought a determination that Zurich owed “first dollar”
coverage due to the unique nature of the LMRMA.

9

prescribed on its face. We do not find the plaintiff’s suggestion that the trial court

take judicial notice of the East Baton Rouge Parish record to satisfy his respective

burden of proof on the facially-prescribed Vermilion Parish matter. Accordingly,

we find that the trial court appropriately sustained the governmental defendant’s

exception of prescription filed in the Vermilion Parish suit (lower docket number

97404) and affirm that ruling. We additionally affirm the trial court’s sustaining of

the exception of no cause of action as the plaintiff has appealed, but neither briefed

nor otherwise challenged that ruling. See Uniform Rules of Court—Courts of

Appeal, Rule 2-12.4(B)(4).

These appeals lack merit.

15-475 and 15-476 (East Baton Rouge Parish)

The remaining appeals relate to the initial suit filed in East Baton Rouge

Parish on May 16, 2013 and subsequently transferred following a finding of

improper venue. As referenced above, the governmental defendants successfully

argued that the matter was prescribed, as they were served with notice of the suit,

more than one year after the June 9, 2012 accident. See La.Civ.Code art. 3462

(quoted above and providing, in part that: “If action is commenced in an

incompetent court, or in an improper venue, prescription is interrupted only as to a

defendant served by process within the prescriptive period.”)

The plaintiff challenges the trial court’s determination that the matter was

prescribed and, as he did below, asserts that a tortfeasor and UM insurer are

solidary obligors, and that Zurich was served with process within the prescriptive

period. See La.Civ.Code art. 1799 (providing “[t]he interruption of prescription

against one solidary obligor is effective against all solidary obligors and their

heirs.”); See also La.Civ.Code art. 3503 (providing “[w]hen prescription is

10

interrupted against a solidary obligor, the interruption is effective against all

solidary obligors and their successors.”).

In its separate appeal, Zurich also advances the theory of solidary liability

and interruption of prescription due to its own timely service of process. It further

suggests that, to the extent there may be conflict in this case between La.Civ.Code

arts. 3462 and 1799, this court should consider the former article to create an

interruption as to a party, and the latter article to extend the interruption to

solidarily liable parties.

Upon consideration under the applicable burden of proof, we conclude that

the record does not support the trial court’s ruling. As stated above, the party

advancing the exception of prescription bears the burden of proof. In this case, it

cannot be said that the East Baton Rouge Parish suit was prescribed on its face.

Rather, the suit was filed on May 16, 2013, within the one-year prescriptive period.

Thus, it was the exceptors’ burden to demonstrate prescription. Notably, while

they state in the memorandum in support of the exception of prescription that they

were not served with process within the prescriptive period, the record on appeal

does not reflect any evidence regarding service. Additionally, the defendants did

not introduce evidence at the hearing. Neither does the record reveal that the

plaintiff has admitted or confessed to such a fact. Instead, the plaintiff was silent

on the issue and instead maintained throughout only that prescription was

interrupted due to the parties’ alleged solidary obligor status. While the

distinction of this silence is a fine one, it is not insignificant given the factual

background of this case or upon consideration of the respective burdens of proof.

Furthermore, even assuming that the defendants initially established the

tolling of prescription due to untimely service of process, the plaintiff’s burden of

11

demonstrating his theory of solidary status is not resolved given the current

procedural posture of the case. Certainly, in Hoefly, 418 So.2d 575, the supreme

court determined that a UM insurance provider is a solidary obligor with the

tortfeasor so that a victim’s timely suit against the tortfeasor interrupted

prescription with regard to the insurer. As commented upon in Rizer, however, the

first element of solidarity is that the obligors must be “obliged to the same thing.”

Rizer, 669 So.2d at 389, quoting Hoefly, 418 So.2d at 389. The court in Rizer, 669

So.2d at 390, explained that UM insurance coverage is “excess” in nature and does

not begin until the obligation under the tortfeasor’s motor vehicle liability policy

ends. Thus, the supreme court determined that each had a separate obligation

which was not coextensive and that they were not solidary obligors. Id.

Significantly, La.Civ.Code art. 1799—the Article on which the plaintiff lodges his

objection to the exceptions of prescription—specifically addresses solidary

obligors.8

In this case, of course, the analysis is not between a liability insurer and UM

insurance provider as was the case in Rizer. Rather, it involves a tortfeasor

purporting to be self-insured, but only to a legislatively-defined limit of liability.

Additionally, the plaintiff urged the trial court, by a motion for summary judgment,

to determine that the UM insurance policy provides “first dollar” coverage as he

asserts that the governmental defendants must be considered uninsured. He

suggested that, if the governmental defendants were truly self-insured, he could

8
In this regard, La.Civ.Code art. 1790 provides that: “An obligation is solidary for the
obligees when it gives each obligee the right to demand the whole performance from the
common obligor.” In contrast, La.Civ.Code art. 1788 provides, in part, that: “When different
obligors owe together just one performance to one obligee, but neither is bound for the whole,
the obligation is joint for the obligors.” Finally, addressing several obligors, La.Civ.Code art.
1787 provides, in part, that “When each of the different obligors owes a separate performance to
one obligee, the obligation is several for the obligors.”

12

theoretically execute a judgment against them. However, the plaintiff notes that

the City participates in the LMRMA, against which there is no cause of action, as

seen in the ruling on the exception of no cause of action. He further contends that

the City has not reserved assets that could be seized to pay a judgment. The

plaintiff argued in the motion for summary judgment that such an arrangement

implicates the purposes of UM insurance, and, thus, the court should allow pursuit

of “first dollar” recovery. As mentioned, the trial court denied the motion for

summary judgment, finding genuine issues of material fact and leaving that

question unresolved in the record. The plaintiff has not sought review of that

ruling. Thus, the plaintiff’s question as posed, but unanswered, is fundamental to

consideration of the plaintiff’s burden of proving interruption due to solidary

obligor status.

Simply, given the state of the parties’ submissions and their respective

burdens of proof, the record does not support the trial court’s determination that

the matter transferred from East Baton Rouge Parish has prescribed. Accordingly,

we reverse that ruling in the matter submitted under docket number 15-476,9 and

remand this matter to the trial court for reinstatement of the plaintiff’s claims

against the governmental defendants and for further proceedings.

As with the Vermilion Parish suit, however, we affirm the sustaining of the

exception of no cause of action. The defendant has appealed that ruling, but has

not briefed that issue. See Uniform Rules of Court—Courts of Appeal, Rule 2-

12.4(B)(4).

9
See Damion Comeaux v. Austin J. Romero, 15-476 (La.App. 3 Cir. _/_/_), _ So.3d _.

13

DECREE

For the reasons expressed above, the judgment of the trial court sustaining

the exception of no cause of action of the Louisiana Municipal Association is

affirmed. Costs of this proceeding, docket number 15-473, are assessed to the

plaintiff-appellant, Damion Comeaux.

AFFIRMED.

14