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Green v. Southern United Fire Insurance Co.6/23/2000
This appeal challenges the retroactive application of a legislative enactment that shortened the period of inactivity constituting an abandonment of a cause of action from five to three years. We hold that the provision may be applied retroactively, and we affirm the dismissal of this personal injury lawsuit on the grounds of abandonment.
BACKGROUND
Plaintiff, Lola Green, filed this personal injury lawsuit on June 28, 1995, seeking damages arising out of an automobile accident. She named as defendants Barron Magee and Rita Jones, the driver and owner of the other vehicle involved in the collision, and various automobile insurers, including Southern United Fire Insurance Company and Safeway Insurance Company.
On August 7, 1998, Safeway filed a motion to dismiss the suit on the grounds of abandonment of the action pursuant to article 561 of the Code of Civil Procedure. Safeway asserted that the only action taken by plaintiff in the suit was the filing of the original petition on June 28, 1995, and more than three years had elapsed since that date without any step in the prosecution of the matter.
At the time the lawsuit was filed, article 561 provided for dismissal of actions on the basis of abandonment where the parties failed to take a step in its prosecution or defense in the trial court for a period of five years. In 1997, by La. Acts No. 1221, the legislature shortened the time period provided for in article 561 from five to three years. The amendment was approved by the governor on July 15, 1997, and was published in the official journal of the state on August 5, 1997. Section 2 of the amending provision states that " his Act shall become effective on July 1, 1998, and shall apply to all pending actions."
The trial court issued an order dismissing the suit for non-prosecution as no action had been taken in the matter for over a three-year period. Plaintiff filed a motion to set aside the order of dismissal, arguing that the retroactive application of the amendment to her suit was unconstitutional. The trial judge denied the motion and maintained the previous order of dismissal. This appeal, taken by plaintiff, followed.
DISCUSSION
As a general rule, application of a new law is prospective only, unless it is procedural or it specifically states that it should be applied retroactively. Marionneaux v. Talbot, 625 So.2d 760, 761 (La. App. l Cir. 1993). Thus, to determine whether to apply a new law retroactively, a court must first ascertain whether the enactment expresses legislative intent regarding retrospective or prospective application of the enactment. If such intent is expressed, the judicial inquiry is at an end unless the enactment impairs contractual obligations or disturbs vested rights. Keith v. U.S. Fidelity & Guaranty Company, 96-2075, p. 6 (La. 5/9/97), 694 So.2d 180, 183.
In this case, the amendment that reduced the period of inactivity from five to three years was approved on July 15, 1997. In Section 2 of the amending provision, the legislature specified that the amendment was to have a delayed effective date of July 1, 1998. The legislature further specified that the amendment applied to all pending actions. This language evidences a clear legislative intent that article 561, as amended, be applied retroactively. Coe v. State of Louisiana, Health Care Authority, 32,635, p.____ (La. App. 2 Cir. 2/1/00), ____ So.2d _____, _____; Dempster v. Louisiana Health Services & Indemnity Company, 98-1112, p. 3 (La. App. 5 Cir. 3/10/99), 730 So.2d 524, 525, writ denied, 99-1319 (La. 7/2/99), 747 So.2d 20. Because this suit was pending on the effective date of the amendment, it falls within the c
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