In re Bernard, Hazel S.; -Plaintiff(s); Applying for Writ of Certiorari and/or Review; to the Court of Appeal, First Circuit, Number CA89 1339; Parish of St. Mary 16th Judicial District Court Div. “E” Number 74,527.

Prior Report: La.App., 572 So.2d 161.

Denied.

concurring in the denial of the application.

The purpose of La.Code Civ.Proc. art. 1067 is to permit a party, who is sued at or near the end of the prescriptive period and who would not have asserted a claim for his or her own damages as long as no claim was made against him or her, an additional ninety-day period within which to claim his or her own damages, as long as his or her claim was not prescribed at the time of the filing of the initial claim.

Here, relator’s cross-claim arguably might fall, except that she was notified early in the litigation that other parties injured in the accident were seeking recovery of their damages.1 Relator had ample opportunity to assert claims for her own damages within ninety days of the service of the original petition, and her claim was prescribed when it was not asserted until over two years later.

would grant the writ application.

Applicant’s incidental demand was not barred by prescription at the time the main demand (in which she was not named as a defendant) was filed, and was filed within ninety (90) days of date of service of the third-party demand (in which she was made a party for the first time). Under LSA-C. C.P. Art. 1067, the incidental demand is not barred by prescription.