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Howard v. Edmon2/27/2002
In this suit arising from an auto collision, intervenor Mary Helen Robinson appeals from trial court judgments granting exceptions of prescription filed by the defendants. We affirm.
FACTS
On April 8, 2000, a vehicle in which Ms. Robinson, Amelia Howard, and Veria Howard were guest passengers was involved in a collision with another auto. Betty Howard, on behalf of minors Amelia Howard and Veria Howard, filed a petition for damages on July 21, 2000. Ms. Robinson - who was neither a relative of the original plaintiffs, nor had any relationship with them other than being a guest passenger - filed a petition for intervention on April 11, 2001, seeking personal injury damages.
Peremptory exceptions of prescription were filed in response to Ms. Robinson's intervention. In separate judgments rendered in July 2001, the trial court sustained the exceptions, dismissing Ms. Robinson's demands and holding that her claims did not relate back to the filing of the petition by the original plaintiffs. She appeals.
DISCUSSION
Delictual actions are subject to a liberative prescription of one year; this prescription commences to run from the day injury or damage is sustained. La. C.C. art. 3492. The party pleading a peremptory exception of prescription bears the burden of proof. However, where the cause of action is prescribed on the face of the petition, the petitioner bears the burden of rebutting the plea of prescription. McGill v. Thigpen, 34,386 (La. App. 2d Cir. 2/28/01), 780 So. 2d 1224.
In the case at bar, the accident occurred on April 8, 2000, but the petition for intervention was not filed until more than one year later on April 11, 2001. Thus, the issue presented here is whether the intervention related back to July 21, 2000, when the original petition for damages was filed.
In Giroir v. South Louisiana Medical Center, 475 So. 2d 1040 (La. 1985), the Louisiana Supreme Court set forth a four-part test for determining whether an amendment adding new plaintiffs would relate back to the date of the filing of the original petition. The four Giroir factors allowing relation back are: (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 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.
In Riddle v. Simmons, 626 So. 2d 811 (La. App. 2d Cir. 1993), writ denied, 93-2920 (La. 4/29/94), 637 So. 2d 459, we concluded that the Giroir four-part test, although concerning amended petitions, should be applied in determining whether an original petition interrupted prescription to the benefit of an intervenor. In Riddle, a joint venturer sought to intervene in a fraud action brought by co-venturers against the remaining joint venturer. When focusing on the third factor concerning whether the new and old plaintiffs are sufficiently related, we noted that one of the original plaintiffs and the intervenor were actually co-owners of the property in question and that in an earlier decision, we had determined that the original petition alleged the existence of a joint venture for the management of immovables. Under these circumstances, we concluded that the appellant-intervenor could not be considered wholly new and unrelated to the earlier petitioner.
In the recent case of Harvill v. Arnold, 34,409 (La. App. 2d Cir. 1/26/01), 777 So. 2d 1271, we again applied the Giroir test to a petition in interv
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