Jones v. Sewerage & Water Board of New Orleans
Jones v. Sewerage & Water Board of New Orleans
Opinion of the Court
Plaintiffs appeal the trial court’s granting of Defendant Transit Management of Southeast Louisiana’s Exception of Prescription. For the reasons that follow, the trial coui't’s judgment is reversed.
On July 8, 2003, Plaintiffs were passengers on a streetcar owned and operated by Defendant Transit Management of Southeast Louisiana, Inc. (“TMSEL”) when the streetcar was struck by a Sewerage and Water Board truck.
On June 29, 2004, Plaintiffs filed a petition for damages in Civil District Court of Orleans Parish, bearing docket number 04-9545, against TMSEL and Sewerage and Water Board of Louisiana claiming to have suffered injuries due to the collision. Plaintiffs requested service on the defendants, but did not pay filing or service fees as they had applied to proceed in forma pauperis. On or about July 2, 2004, Plaintiffs’ in forma pauperis application was denied.
On September 1, 2004, an Act recognizing Defendant Transit Management as a political subdivision went into effect.
In October 2006, the plaintiffs paid the filing and service fees for the petition for damages against TMSEL and Sewerage and Water Board of Louisiana; the citations were issued on November 17, 2006.
On February 26, 2007, Plaintiffs filed a second petition for damages in Civil District Court of Orleans Parish, bearing docket number 07-1791, against the same Defendants, arising out of the same accident and making nearly identical allegations.
On November 13, 2007, Plaintiffs’ first suit was dismissed without prejudice.
On April 1, 2009, TMSEL filed an Answer to Plaintiffs’ second suit. TMSEL’s Answer also included the Peremptory Exception of Prescription that is presently at issue in this appeal. Following the hearing on the exception, the trial court requested post-trial memoranda from the parties and granted the exception. This appeal followed.
STANDARD OF REVIEW
When no evidence is introduced at the hearing on an exception of prescription, “the reviewing court simply determines whether the trial court’s finding was legally correct.”
DISCUSSION
TMSEL’s exception of prescription was based on Plaintiffs’ second suit being prescribed on its face and prescription not being interrupted by Plaintiffs filing of the first suit against Defendants.
Under Louisiana law, a party typically has one year after injury or damage is sustained to file a law suit or the claim is prescribed.
The instant suit was filed by Plaintiffs on February 26, 2007, over three years after the injuries complained of in the petition were incurred. Because the cause of action has prescribed on its face, the burden shifts to Plaintiffs to negate prescription.
Plaintiffs argue that the prescription was interrupted by the timely filing of their first petition for damages against Defendants. The injuries alleged in the petition occurred on July 3, 2003. Plaintiffs filed the first petition on June 26, 2004 and applied to proceed in forma pauperis. The application was denied shortly thereafter, but Plaintiffs did not pay the required fees to effectuate service until over two years later. The first petition was dismissed without prejudice on November 13, 2007.
Defendant TMSEL excepted to the instant petition on the grounds that the claim had prescribed, arguing that pursuant to La. R.S. 13:5107(D) prescription was not interrupted by the filing of the first petition due to Plaintiffs failure to serve the first petition within ninety days of TMSEL being designated as a political subdivision.
On September 1, 2004, the Louisiana State Legislature amended La. R.S. 13:6102 to designate TMSEL as a political subdivision for litigation purposes.
The issue on appeal is whether La. R.S. 13:5107(D) applies retroactively to a lawsuit filed prior to an entity being designated as a political subdivision. We find that it does not.
Defendant TMSEL argues that the filing of the first petition did not interrupt prescription because service of that petition was not perfected within ninety days of TMSEL being designated as a political subdivision. While this Court has determined that the timely filing of a petition does not serve to interrupt prescription as to a political subdivision where service is not effectuated within the ninety-day time period required by La. R.S. 13:5107, this Court has not had occasion to consider the implications where an entity is designated
TMSEL cites to the case Pate v. Regional Transit Authority
TMSEL further cites to Cole v. Celotex Corporation in support of its contention that La. R.S. 13:5107(D) should be applied retroactively to a suit filed prior to TMSEL’s designation as a political subdivision.
■While TMSEL is correct in stating the Louisiana Supreme Court has found that the service requirements of La. R.S. 13:5107(D) apply retroactively regardless of when the cause ■ of action arose, the
Applying the reasoning of the cases cited to above, the service requirements set forth in La. R.S. 13:5107(D) do not apply to suits filed against TMSEL prior to its designation as a political subdivision. La. R.S. 13:5102(B)(2) includes no language concerning the retroactivity of the statute. The legislative history of the statute also provides no indication of any intent that political subdivision status of TMSEL should be applied retroactively. The requirements imposed by La. R.S. 13:5107(D) became effective as to TMSEL on September 1, 2004, and thus only apply to suits filed after that date.
In this case, the imposition of the ninety-day service requirement as to TMSEL for suits filed prior to its political subdivision designation would serve to divest Plaintiffs of right to sue on their cause of action. We therefore find that Plaintiffs filing of the first petition against Defendants served to interrupt prescription. Thus, the trial court erred in granting TMSEL’s exception of prescription. The trial court’s judgment and dismissal of the ease is reversed. The matter is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED
. See La. R.S. § 13:5102.
. The record does not include the judgment from the dismissal of the first suit.
. Felix v. Safeway Ins. Co., 2015-0701, p. 6 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 631— 32 (citing Bulliard v. City of St. Martinville, 2014-140, p. 2 (La.App. 3 Cir. 6/4/14), 139 So.3d 1269, 1271).
. Id.
. Id. at 631.
. La. C.C. Art. 3492. "Delictual actions are subject to a liberative prescription of one
. La. C.C. ArL. 3467.
. Bordelon v. Med. Ctr. of Baton Rouge, 2003-0202, p. 3 (La. 10/21/03), 871 So.2d 1075, 1077-78, as corrected (Jan. 28, 2004).
. La. C.C. Art. 3462.
. The record indicates that Plaintiffs paid the filing and service fees for the first petition in October 2006, yet did not request service until November 17, 2007, after the petition had been dismissed by the trial court.
.See La. R.S. § .13:5102.
. Pursuant to La. R.S. 13:5107(D)(1), "[i]n all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action. ...” If service is not requested within the required time period, the suit must be dismissed after a contradictory motion. The statute further states that when a political subdivision is dismissed because it was not timely served, the filing of the petition does not suspend the running of prescription as to the political subdivision.
. Pate v. Reg'l Transit Auth., 2008-1147 (La. App. 4 Cir, 3/11/09), 8 So.3d 744.
. Id. at 745.
. Id.at 745-46.
. Id. at 746.
. Id.
. Id. at 747.
. Id.
. Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992).
. Id. at 1063,
. Id.; La. C.C. Art. 6 states that "[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”
. Cole, 599 So.2d at 1063.
. Id.
. Naquin v. Titan Indem. Co., 2000-1585, pp. 4-5 (La. 2/21/01), 779 So.2d 704, 708 [emphasis added].
. Id. (citing Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 6 (La. 5/9/97), 694 So.2d 180, 183. (“Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws.”)).
. Id.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.