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Kinchen v. Metropolitan Property and Casualty Insurance Co.9/23/2005
BEFORE: CARTER, C.J., DOWNING AND GAIDRY, JJ.
GAIDRY, J - CONCURS
The subject of this lawsuit is an accidental shooting that occurred at Marie Rome's residence on August 11, 2000. Plaintiff appeals a trial court judgment that granted an exception of prescription in favor of Stephen Rome and Metropolitan Property and Casualty Insurance Company (Metropolitan), which was sued in its capacity as his insurer. Stephen Rome was named for the first time in an amending petition filed January 15, 2004. Metropolitan, in its capacity as Marie Rome's insurer, was named on August 10, 2001, in the original petition. For the following reasons, we reverse the trial court judgment.
In the original petition for wrongful death, the named defendants were Marie Rome, Stephen's mother and owner of the house where the shooting occurred, her insurer Metropolitan, and Brandon Dean, the young man who actually fired the handgun. Dean and his insurer settled with plaintiff. Mrs. Rome and her insurer, Metropolitan, filed a motion for summary judgment on November 24, 2003.
On January 15, 2004, while the summary judgment motion was pending, plaintiff filed a third amending petition naming for the first time Stephen Rome and naming Metropolitan again in its capacity as Stephen Rome's insurer, asserting that they be held liable jointly and in solido with the other named defendants. On March 15, 2004, Mrs. Rome's motion for summary judgment was heard. The motion was granted, and judgment was signed March 17, 2004, dismissing Mrs. Rome and Metropolitan, in its capacity as her insurer, from the lawsuit. The judgment specifically reserved plaintiff's rights against Stephen Rome and Metropolitan insofar as it may be his insurer.
On April 16, 2004, Stephen Rome and Metropolitan filed an exception of prescription, alleging that plaintiffs were barred by the one-year prescriptive period established by LSA-C.C. art. 3492. The motion was heard on March 15, 2004. The trial court concluded as a matter of law that suit against Metropolitan in its capacity as Mrs. Rome's insurer did not interrupt prescription against Metropolitan in its capacity as Stephen Rome's insurer citing Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La. 1975). The trial court then found that the petition was prescribed on its face since Stephen Rome was not named in the original petition nor mentioned until January 15, 2004. The trial court found that plaintiff had not proved that the claim against Stephen Rome and the insurer related back to the original petition as specified under the Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983), factors. The trial court determined that Stephen Rome was a totally new party who would be unduly prejudiced in maintaining a defense on the merits by being brought into the lawsuit after so much time had elapsed.
Plaintiffs' only issue on appeal is whether the trial court erred in sustaining defendants' exception of prescription. Particularly, they first argue that prescription was interrupted because the amended petition was filed before Mrs. Rome, the other defendant had been dismissed and before Metropolitan had been partially dismissed. Appellants argue that the court relied erroneously on Trahan, in concluding that prescription was not interrupted. We agree.
LSA-C.C. art. 3503 provides the following in pertinent part:
When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors.
LSA-C.C. art. 2324 C provides:
Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.
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