Hermo v. Amerisure Mutual Insurance Co.
Hermo v. Amerisure Mutual Insurance Co.
Opinion of the Court
| jDefendants-Appellants appealed the trial court’s denial of their Motion for Summary Judgment, which was declared final on April 9, 2010. Pursuant to La. C.C.P. art. 1915, however, that interlocutory judgment could not be certified as final. Accordingly, we have converted the appeal in the above-captioned matter into a supervisory writ.
Plaintiff-Appellee Joseph Hermo owned a truck and trailer
In January 2010, the trial court granted Mr. Hermo’s motion to file an amended petition adding Sunrise as a party plaintiff. Appellants opposed the amendment, filing a motions and exceptions to dismiss Mr.
The Louisiana Supreme Court has established a four-part test when determining whether an amended petition adding a plaintiff can relate back to the original petition pursuant to La. C.C.P. art. 1153.
la(l) 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 the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.
Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040, 1044 (La. 1985).
Appellants’ three assignments of error essentially assert that the trial court erred by allowing Mr. Hermo to amend his petition to add Sunrise as a plaintiff because the third prong of the test articulated in Giroir is not met.
Applying the Giroir test, we find that the amendment relates back to Mr. Hermo’s original petition. The amendment plainly stems from the same conduct, transaction, or occurrence set forth in the original pleading: the damage to Mr. Her-mo’s truck on January 19, 2006. The facts in the original petition plainly put Appellants on notice of the reasonable possibility that Mr. Hermo’s business losses were tied to an actual business. See Giroir, 475 So.2d at 1044. Furthermore, Sunrise is “sufficiently related” to Mr. Hermo, as Mr. Hermo and his wife are not only the only corporate officers, but are also the only registered agents of Sunrise. Additionally, as previously noted herein, Mr. Her-mo’s personal truck and trailer were used to conduct Sunrise’s business. Finally, Appellants also “failed to show that they were in any way injured or impaired in their ability to investigate, ^preserve evidence, and prepare defenses,” as Appel
For the foregoing reasons, the writ is hereby denied.
WRIT DENIED.
. The truck and trailer were both registered and insured in Mr. Hermo’s name. Mr. Her-mo insured the truck and trailer with Progressive Insurance Company.
. "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.” La. C.C.P. art. 1153.
. (citing Ray v. Alexandria Mall, 434 So.2d 1083, 1087; Leachman v. Beech Aircraft Corp., 694 F.2d 1301 (D.C.Cir. 1982); Hockett v. American Airlines, 357 F.Supp. 1343 (N.D.Ill. 1973); Williams v. United States, 405 F.2d 234 (5th Cir. 1968); Paskuly v. Marshall Field & Co., 494 F.Supp. 687 (N.D.Ill. 1980); Bujtas v. Henningsen Foods, Inc., 63 F.R.D. 660 (S.D.N.Y. 1974); 3 Moore’s Federal Practice § 15.15[4-1] at 15-220 (1982)).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.