Delta American Corporation and Liberty Mutual Insurance Company VS Reliant Technologies, Inc., Trinity Universal Insurance Companies, Ashland Chemical Company, a/k/a Ashland Oil, Inc., ABC Fiberglass Tank Manufacturer and XYZ Insurance Company (2009CA1895 Consolidated With 2009CA1896)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1895 DELTA AMERICAN CORPORATION AND LIBERTY MUTUAL INSURANCE COMPANY VERSUS RELIANT TECHNOLOGIES INC TRINITY UNIVERSAL INSURANCE COMPANIES ASHLAND CHEMICAL COMPANY ak ASHLAND OIL a INC ABC FIBERGLASS TANK MANUFACTURER AND XYZ INSURANCE COMPANY Consolidated With 2009 CA 1896 DELTA AMERICAN CORPORATION VERSUS n RELIANT TECHNOLOGIES INC TRINITY UNIVERSAL INSURANCE COMPANIES ASHLAND CHEMICAL COMPANY a k ASHLAND OIL a INC ABC FIBERGLASS TANK MANUFACTURER AND XYZ INSURANCE COMPANY jJudgment rendered MAY 1 1 2010 On Appeal from the Nineteenth Judicial District Court Parish of East Baton Rouge State of Louisiana Suit Numbers 461318 c 461513 Division N 27 w The Honorable Todd W Hernandez Judge Presiding Elliott W Atkinson Jr Counsel for Plaintiff Appellant Dorsey C Martin III Baton Rouge LA Delta American Corporation Walton J Barnes II Counsel for Defendants Appellees Greenwell Springs LA Reliant Technologies Incorporated Bradley C Meyers Baton Rouge LA Ashland Chemical Company BEFORE DOWNING GAIDRY AND McCLENDON JJ t DOWNING J appellant Plaintiff Delta American Corporation hereinafter Delta appeals a trial court judgment that dismissed its claims against Reliant Technologies Inc hereinafter Reliant pursuant to the abandonment statute LSA C art 561 P For the following reasons we reverse the trial court judgment PERTINENT FACTS AND PROCEDURAL HISTORY On June 16 1999 Delta instituted suit against Reliant and Ashland Chemical Company a Ashland Oil Inc hereinafter Ashland after a tank k Delta purchased from Reliant collapsed spilling sodium hydroxide supplied by Ashland onto the Delta location s Delta insurer Liberty Mutual Insurance Company filed a subrogation action against Reliant its insurer Trinity Universal Insurance Co and also named Ashland as a defendant on June 10 1999 Liberty Mutual and Trinity placed their respective pollution exclusion clause exceptions at issue The cases were consolidated for trial purposes only on August 20 1999 The insurers were dismissed under the pollution exclusion clauses in their respective policies on April 12 2000 Reliant appealed the dismissal of Trinity On April 19 2000 Delta also appealed Trinity dismissal s On December 18 2000 the appeals were dismissed by this court which concluded that the judgment was a non appealable partial judgment No writs were taken from this decision The case proceeded forward without either insurance company participating as parties The following pertinent documents appear in the record April 19 2002 Requests for interrogatories and requests for production propounded by Delta to Reliant May 1 2002 Service was perfected on Reliant for this request April 23 2002 Requests for interrogatories and requests for production propounded by Liberty to Ashland The matter was assigned to Div A of the 19 i Judicial District Court docket 461513 Fhat 2 matter was assigned to Div N of the 19i Judicial District Court docket 461318 2 e April 29 2002 Service was perfected on Ashland for this request March 9 2005 Motion to Compel filed by Delta to Ashland March 15 2005 Service was perfected on Ashland for this request March 9 2005 Notice sent to Melinda Leonard on behalf of Reliant Notice sent to Bradley Myers on behalf of Ashland March 7 2008 March 25 2008 Request for interrogatories and propounded by Delta to Reliant Service was perfected April 30 2008 Reliant filed ex parte motion to dismiss alleging abandonment Jan 26 2009 The matter was heard by the trial court March 17 2009 Judgment was rendered dismissing Reliant April 14 2009 Judgment was signed From that judgment Delta appeals alleging that the trial court erred in failing to recognize formal steps taken by filing in the record and obtaining service of discovery as governed by LSAC art 561 P C DISCUSSION In this case Delta asserts that there was no three year gap that would cause its action against Reliant to be abandoned Reliant argues however that the action was abandoned as to them since no action was taken involving Reliant between April 2002 and April 2008 a period of more than three years Abandonment actions are governed by Louisiana Code of Civil Procedure article 561 which provides that an action is abandoned when the parties fail 1 A to take any step in its prosecution or defense in the trial court for a period of three years Article 561 is self executing it occurs automatically upon the passing of three years without either party taking a step and it is effective without a court order Compensation Specialties L v New C England Mutual Life Insurance Company 08 1549R p 5 La 1 Cir 26 So 275 279 App 09 13 3d writ denied 09 0575 La 4 7 So 1200 09 24 3d Article 561 imposes three 3 These documents appear in the supplemental record Reliant acknowledges that they were filed in the record and there is no dispute on this issue 3 requirements on plaintiffs First plaintiffs must take some step towards prosecution of their lawsuit In this context a step is defined as taking formal action before the court that is intended to hasten the suit toward judgment or the taking of a deposition with or without formal notice Second the step must be taken in the proceeding and with the exception of formal discovery must appear in the record of the suit Third the step must be taken within the legislatively prescribed time period of the last step taken by either party Clark v State Farm Mutual Automobile Insurance Company 00 3010 pp 56 La 5115101 785 2d So 779 784 Reliant argues citing James v Formosa Plastics Corporation of Louisiana 01 2056 La 4 813 So 335 that since it was not served with 02 3 2d the propounded discovery to Ashland or the motion to compel said discovery s Delta action against Reliant was not being pursued in the trial court At the hearing on the motion to dismiss Reliant said that James answered the question about whether action against one codefendant interrupts as to another and it asserts that the answer is no Reliant further stated that the policy behind that was to protect the unnoticed defendant Emphasis added We disagree Reliant is misconstruing the James holding The Court ruled in James that steps taken in the appellate court do not count as steps taken in the district court to preclude abandonment as required by the statute James 01 2056 at p 6 813 So at 339 Moreover the discovery Delta propounded to Ashland 2d was filed into the record Also Delta motion to compel Ashland to answer the s discovery was also filed into the record Thus as Delta explained at the hearing the focus is not directed to whether a party received notice the focus is whether a step was taken in the prosecution ofthe lawsuit by any party It is well settled that when any party to a lawsuit takes formal action in the trial court it is effective as to all parties Delta Development Company Inc v 2 Jurgens 456 So 145 146 La 1984 2d The court in Delta Development concluded that the abandonment period was interrupted as to all codefendants when only one defendant had been served with interrogatories that had been filed into the record See Id Abandonment is not meant to dismiss actions on mere technicalities but to dismiss actions that in fact clearly have been abandoned article 561 is to be liberally construed in favor of maintaining a plaintiff suit Clark v State Farm s 00 3010 p 9 785 So at 786 2d We therefore conclude that Delta motion to compel Ashland to answer its s previously propounded discovery on March 9 2005 was a step in the prosecution that appeared in the record which adequately gave notice to the codefendants that the lawsuit has not been abandoned Accordingly since we have concluded that the trial court erred in ruling that Delta claims against Reliant were abandoned s for non prosecution the judgment dismissing Delta on grounds of abandonment is hereby reversed DECREE Based on the foregoing the judgment of the trial court dismissing Delta American Corporation claims against Reliant Technologies is reversed s The costs of this appeal are assessed to defendant Reliant Technologies Inc appellee REVERSED 5
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