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Jacobs v. Louisiana Farm Bureau Insurance Companies12/19/2001
AFFIRMED.
Gremillion, J., concurs and assigns written reasons.
On July 11, 2000, Ms. Connie Jacobs filed suit against Mr. Terry Scott and his insurer, Southern Farm Bureau Casualty Insurance Company (Southern Farm). She did not request citation and service. More than ninety days passed. The Defendants moved for an involuntary dismissal, which the trial court granted on December 21, 2000. That same day, Ms. Jacobs filed the same lawsuit, again, against the same defendants. This time, the Defendants filed an exception of prescription, which the trial court denied. They appeal. We affirm.
On July 11, 1999, Mr. Scott, the driver, allegedly, injured Ms. Jacobs in an automobile accident in Natchitoches, Louisiana. Southern Farm insured him. On July 11, 2000, she filed a lawsuit against Mr. Scott and Southern Farm - "Connie Jacobs v. Farm Bureau Insurance Companies, et al, Number 72,578A." Her counsel requested that service not be made at that time. Ninety days passed without service on the Defendants. Mr. Scott and Southern Farm moved for an involuntary dismissal. The trial court heard the motion on December 21, 2000 and rendered judgment, that day, dismissing Ms. Jacobs' petition without prejudice.
Later that day, she filed another petition (suit no. 73,076B), which is the basis for the claim before us. In response, Southern Farm and Mr. Scott sought an exception of prescription, contending that her second suit was filed more than one year after the automobile accident. The trial court heard the exception on May 31, 2001 and ruled in her favor, denying it.
Southern Farm and Mr. Scott appeal this ruling. They urge that the petition should have been dismissed, with prejudice, as being untimely.
Service Requirements
La.Code Civ.P. art. 1201(C). requires that a defendant be served within ninety days of the filing of the petition:
Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.
La.Code Civ.P. art. 1672(C). requires that an action be dismissed, without prejudice, when service is not requested within ninety days, unless good cause is shown why it could not have been requested:
A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. (Emphasis added).
Interruption of Prescription
The trial court correctly dismissed Ms. Jacobs' first lawsuit, on December 21, 2000, when she failed to timely request service on the Defendants within ninety days. Normally, the second suit, which she filed the same day, would be beyond the one year prescriptive period for her July 11, 1999 accident. However, she maintains that, under La.Civ.Code art. 3463, her original suit interrupted the running of prescription on her subsequent lawsuit. She, also, argues that the second sentence of La.Civ.Code art. 3463 does not apply, as she did not abandon her first suit, voluntarily dismiss it before the Defendants made an appearance, or fail to prosecute the suit at trial (no trial date had been scheduled); thus, prescriptio
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