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Bogus Lusa Waterworks Dist. v. Louisiana Dep't of Environmental Quality12/17/2004
cal Center, Division of Hospitals, 475 So.2d 1040, 1044 (La.1985), the Louisiana Supreme Court held that an amendment adding or substituting a plaintiff should be allowed to "relate back" to the original petition if: 1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; 2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; 3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and 4) the defendant will not be prejudiced in preparing and conducting his defense. Giroir, 475 So.2d at 1044. Moreover, this court has pronounced that the relation back theory also applies to claims governed by the peremptive period. Southside Civic Association, Inc. v. Warrington, 93-0890 (La.App. 1 Cir. 4/8/94), 635 So.2d 721, 724, writ denied, 94-1219 (La.7/1/94), 639 So.2d 1168.
The court in Giroir related back the addition of two major children to the surviving spouse's survival action and wrongful death action for damages against several physicians and South Louisiana Medical Center. It was observed that the actions by the children of Mrs. Giroir stemmed from the same conduct, transaction, or occurrence set forth in the original pleading relative to the medical malpractice and resulting death of the children's mother. Moreover, the defendants knew and had record of, or should have known of, the existence and involvement of the children. Finally, it was noted that the amendment was filed only ten days after the original petition. Giroir, 475 So.2d at 1045.
Contrarily, in Spencer-Wallington, Inc. v. Service Merchandise, Inc., 562 So.2d 1060 (La.App. 1st Cir.1990), writ denied, 567 So.2d 109 (La.1990), the original corporate plaintiff filed an action alleging damages for breach of contract. This court did not construe an amending pleading by an individual party who alleged damages, ex delicto, to relate back to the purported breach of contract between two corporations. Spencer-Washington, Inc., 562 So.2d at 1063-1064. In Delmore v. Hebert, 99-2061 (La.App. 1 Cir. 9/22/00), 768 So.2d 251, a supplemental and amending petition filed by an additional guest passenger against a defendant was also deemed not to relate back sufficiently for the purpose of defeating prescription. So too, in Baton Rouge Association of School Employees, Local 100 Service Employees International Union v. East Baton Rouge Parish School Board, 98-0526 (La.App. 1 Cir. 4/1/99), 729 So.2d 1154, 1157, writ denied, 1999-1278 (La.7/2/99), 747 So.2d 19, this court upheld an exception raising the objection of prescription in a case in which the amending petition by an individual was filed more than two years after the petition by other individuals to which it attempted to relate back. The belated filing of the amending petition was construed by the court to fail the fourth prong of the Giroir test because it would prejudice the defendant in conducting its defense.
In the case sub judice, the amending petition on behalf of Dr. and Mrs. Palazzo sought to add the two individuals who constituted the backbone of WARN. Their claims against WPEC paralleled the allegations presented in the original petition by WARN. The first three criteria established in Giroir, supra, are satisfied.
The single protective purpose of the peremptive statute that might be impacted is the fact that the amending petition was not filed until approximately two years after WARN filed its petition. Compare Giroir, 475 So.2d at 1045. The passage of time between the filing of the original petition and the amended petition generally weighs against the relating back of the amendment d
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