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Kinchen v. Metropolitan Property and Casualty Insurance Co.9/23/2005
irst suit had gone to final judgment; those six named executive officers and their insurers, in that capacity, were absolved, and could not, therefore, be solidary debtors with [defendant]; those executive officers had never been indebted to plaintiffs. The Court then noted that 36 La.L.Rev. 382, 386, properly interpreted Trahan in saying that it "led to the conclusion that a timely suit against an `answerable' defendant, financially responsive for the acts of a tortfeasor, will interrupt prescription as to that tortfeasor even though he might not himself be sued until well after the prescriptive period has expired...."
We observe that in the instant case, as in Baker, the insurer was never dismissed from the lawsuit, whereas in Trahan there was a valid judgment dismissing all the named defendants. In Baker, as here, the judgment retained the insurer in the lawsuit. In Baker, as here, the insurer was being sued in its capacity as insurer of the new defendants. Accordingly, we conclude that the holding in Trahan is inapplicable to the matter before us under the facts presented.
We recognize it may be good policy to have the insurers' solidarity be based on that insurers' capacity with its insured, but we can find no legislation or jurisprudence to support this interpretation of the law. At the time Stephen Rome was added as a party defendant, Metropolitan was already a named defendant. The amended petition asserts Stephen Rome's solidary liability with Metropolitan, regardless of whether the other named defendants with whom solidarity was alleged were later dismissed.
Under Trahan, a filing of suit against Metropolitan and Stephen Rome after Metropolitan and the other named defendants had been dismissed would not have interrupted prescription against either. Here, however, under the Louisiana Civil Code and interpretive jurisprudence, we must reach a result contrary to Trahan. Mrs. Rome and Metropolitan were named defendants against whom suit was timely filed. Stephen Rome was sued as a solidary obligor with Metropolitan while prescription was interrupted against Metropolitan. Therefore, suit against Stephen Rome and Metropolitan had not prescribed when the amended petition was filed.
We respect defendant's argument that Metropolitan's capacity rather than its personality should control interruption of prescription, as pertinent here. However, we find no basis in law for doing so. Perhaps the legislature should amend the law so that an insurer's capacity controls interruption of prescription. But without such legislation, we are constrained to apply the law as it relates to interruption of prescription against solidary obligors.
Because we conclude that the suit against Stephen Rome and Metropolitan was timely filed, we pretermit discussion of whether plaintiffs' claims against Stephen Rome and Metropolitan relate back to the original petition under the Ray v. Alexandria Mall factors. Accordingly, the assignment of error has merit, and we reverse the trial court judgment.
DECREE
For the above reasons, the judgment of the trial court sustaining the exception in favor of Stephen Rome and Metropolitan is reversed. The costs of this appeal are assessed against the defendants, Stephen Rome and Metropolitan Property and Casualty Insurance Company.
REVERSED
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