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Delmore v. Hebert9/22/2000
In this action for damages, plaintiffs-appellants Jacqueline Delmore and Tammy Christy appeal from a judgment granting an exception of prescription in favor of defendant-appellee State Farm Insurance Company (State Farm), which dismissed the claims of plaintiffs' amended petition. For the following reasons, we affirm.
PROCEDURAL HISTORY
On November 17, 1998, Jacqueline Delmore filed suit against several defendants for damages arising from an accident which occurred January 3, 1998, in which she was a passenger in an automobile owned and operated by Yolanda Lawson. Defendant State Farm filed an answer and jury request on December 21, 1998. On January 26, 1999, a first supplemental and amending petition was filed, adding Tammy Christy, another guest passenger, as a plaintiff, to which State Farm excepted on grounds of prescription and no right of action. The trial court ruled in favor of defendant State Farm, and it is from this judgment that plaintiff appeals. The only issue before the court is whether Ms. Christy's claim prescribed.
DISCUSSION
An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal or after the close of evidence, but prior to its submission after trial. LSA_C.C.P. arts. 927 and 928(B). LSA_C.C.P. art. 929 provides when a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case. LSA_C.C.P. art. 931 allows the introduction of evidence at the trial of all peremptory exceptions, except the objection of no cause of action. The trial court is not bound to accept as true the allegations of plaintiff's petition in its trial of the peremptory exception. Bowers v. Orleans Parish School Bd., 95_2530, p. 7 (La.App. 4 Cir. 5/29/96), 694 So.2d 967, 972.
When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions. Id.
The issue presented is whether plaintiff meets all of the necessary factors enunciated in Giroir v. South Louisiana Medical Center, 475 So.2d 1040, 1044 (La. 1985), particularly the third factor, which requires that the new plaintiff and the original plaintiff be sufficiently related so that the added plaintiff is not wholly new or unrelated. More specifically, does the amended petition adding a new plaintiff, who was a guest passenger in an automobile accident which is the subject of the lawsuit filed by another guest passenger, relate back to the original petition for prescriptive purposes?
LSA-C.C.P. art.1153 provides that:
When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.
The scope of this article has been jurisprudentially expanded to include late- added parties. In Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983), the court looked beyond the plain language of this article, recognizing that Article 1153 was based on Rule 15(C) of the Federal Rules of Civil Procedure. After conducting an exhaustive survey of federal jurisprudence which dealt with "relating back" issues, the court established the criteria to be met under Article 1153 in order for the addition or substitution of a defendant to relate back to the original filing date of the petition. Ray, 434 So.2d at 1086-1087.
Then, in Giroir, the court was faced with the converse situation where the plaintiff wished to add
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