Samuel D. Weaver, Susan Weaver, Individually and On Behalf of Their Minor Children Samantha and Luke Weaver VS The State Of Louisiana Through The Department of Transportation and Development
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 0282 SAMUEL D WEAVER AND SUSAN WEAVER INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILDREN SAMANTHA AND LUKE WEAVER VERSUS THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT On Appeal from the 17th Judicial District Court Parish of Lafourche Louisiana Docket No 114 Division B 874 Honorable Jerome J Barbera III Judge Presiding G Tm Jerry L Hermann An fy Attorney for Kopfler Plaintiffs Appellants Hermann L C Houma LA Samuel D Weaver and Susan Weaver et al lames D Buddy Caldwell Attorney General Susan H Lafaye Assistant Attorney General New Orleans LA Attorneys for Defendant Appellee The State of Louisiana through the Department of Transportation and Development BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J Judgment rendered SEP 9 0 2011 PARRO J Plaintiffs Samuel D Weaver and Susan Weaver individually and on behalf of their minor children Samantha and Luke Weaver appeal the judgment of the trial court dismissing their petition for damages without prejudice For the reasons that follow we affirm in part reverse in part and remand the matter to the trial court for further proceedings FACTUAL BACKGROUND AND PROCEDURAL HISTORY This matter involves a single vehicle accident that occurred in Lafourche Parish on June 1 2009 while Mr Weaver was traveling in a westerly direction on U S Highway 90 U 90 at its overpass of La Highway 182 S As Mr Weaver vehicle s proceeded in a lawful manner in the left lane of the overpass Mr Weaver allegedly encountered a large tire tread in his lane To avoid striking this debris Mr Weaver immediately veered to his left and onto the shoulder of U 90 However the shoulder S of U 90 allegedly had a major defect in a tie in joint which caused a huge elevation S difference from one side of the joint to the other When Mr Weaver left front tire s struck the defective tiein joint on the shoulder Mr Weaver lost control of his vehicle causing the vehicle to veer to the left and strike the barrier on the overpass As a result of the accident Mr Weaver allegedly sustained serious injuries On April 27 2010 the Weavers filed a petition in which Mr Weaver sought damages for the injuries he sustained in the accident In addition Mrs Weaver and the Weavers minor children sought damages for the loss of consortium they sustained as a result of Mr Weaver injuries The petition named the State of Louisiana through the s Department of Transportation and Development DOTD as the sole defendant and requested service on the DOTD through its secretary William Ankner andor Sherry LeBas Service was perfected on William Ankner on May 4 2010 On October 7 2010 without filing any additional responsive pleadings the DOTD filed a declinatory exception pleading the objection of insufficiency of service of process contending that the plaintiffs had failed to request service on the Attorney N General as required by LSA R 13 and LSAR 39 Specifically the DOTD S 5107 S 1538 argued that the plaintiffs had failed to request service on the Attorney General within ninety days of the date of the filing of the petition and that their failure to do so required the dismissal of the petition Once the DOTD raised the issue of insufficiency of service the plaintiffs allegedly served the Attorney General and the Office of Risk Management however there is no evidence of this service in the record After a hearing the trial court sustained the exception and dismissed the plaintiffs petition without prejudice apparently because of the plaintiffs failure to request service on the Attorney General within ninety days of the filing of the petition The plaintiffs filed a motion for new trial which the trial court denied The plaintiffs have appealed DISCUSSION The sole issue in this matter is whether the plaintiffs failure to request service on the Attorney General within ninety days of the date of the filing of the petition requires dismissal of the petition pursuant to LSA R 13 and LSAR 39 S 5107 S 1538 This issue was recently addressed by the Louisiana Supreme Court in Whitley v State ex rel Bd of Sup of Louisiana State University Agr Mechanical College 11 0040 La rs 711111 66 So 470 3d In Whitley the plaintiff was a patient at the Louisiana State University Health Sciences Center Medical Center of Louisiana at New Orleans University Campus Medical Center who received treatment at the Medical Center following an accident that occurred in May 2003 On July 7 2003 Ms Whitley delivered a stillborn infant Thereafter she filed a petition for medical malpractice against the Medical Center seeking damages arising from negligence in the medical care provided to her and her unborn child after the accident At the time of filing Ms Whitley requested service only 1 Although LSAR 39 S 1538 4also provides for service on the Office of Risk Management the issue of service on that entity was not raised by the DOTD in its exception before the trial court Furthermore the plaintiffs and the defendant have not raised the issue in their briefs to this court Therefore the issue is not before this court z The supreme court also dealt with this issue in a companion case Burnett v James Cons Groin 10 t 2608 La 7 66 So 482 However the facts of Burnett are different from those of the case 11 1 3d before this court therefore we will focus on the Whitley case 3 on the Chairman of the Louisiana State University Board of Supervisors More than two years later Ms Whitley counsel faxed copies of the citation and the pleadings to the s Attorney General and the Office of Risk Management The Medical Center then filed a declinatory exception pleading the objection of insufficiency of service of process seeking the dismissal of Ms Whitley ssuit based on her alleged failure to comply with the service requirements of LSAR 13 and LSAR 39 S 5107 S 1538 The exception was overruled by the trial court and the appellate court denied the Medical Center s application for a supervisory review of the trial court ruling s The supreme court subsequently granted the Medical Center sapplication for a supervisory writ in order to determine whether the request for service on the Medical Center alone was sufficient under LSAR 13 and LSA R 39 or whether service on the Attorney S 5107 S 1538 General and the Office of Risk Management was also required Whitley 66 So at 3d 470 73 At the time Ms Whitley filed her petition and the judgment in her case was rendered by the trial court LSA R 13 provided in pertinent part S 5107 A In all suits filed against the state of Louisiana or a state agency citation and service may be obtained by citation and service on the attorney general of Louisiana or on any employee in his office above the age of sixteen years or any other proper officer or person depending upon the identity of the named defendant and in accordance with the laws of this state and on the department board commission or agency head or person depending upon the identity of the named defendant and in accordance with the laws of this state and on the department board commission or agency head or person depending upon the identity of the named defendant and the identity of the named board commission department agency or officer through which or through whom suit is to be filed against D 1 In 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 days of ninety the commencement of the action or the filing of a supplemental or amended petition which initially names the state a state agency or political subdivision or any officer or employee thereof as a party This requirement may be expressly waived by the defendant in such action by any written waiver 2 If service is not requested by the party filing the action within that 3 This version of the statute applicable in Whitley was the same version applicable at the time the Weavers filed their petition in this matter on April 27 2010 4 period the action shall be dismissed without prejudice after contradictory motion as provided in Code of Civil Procedure Article 1672 as to the C state state agency or political subdivision or any officer or employee thereof who has not been served E 3 When the state a state agency or a political subdivision or any officer or employee thereof is dismissed as a party pursuant to this Section the filing of the action even as against other defendants shall not interrupt or suspend the running of prescription as to the state state agency or political subdivision or any officer or employee thereof however the effect of interruption of prescription as to other persons shall continue After a thorough interpretation of the language of LSA R 13 the S 5107 A Wh itlev court determined that the phrase may be obtained modified all of the phrases after it including those appearing after the conjunctive and The supreme court therefore concluded that from a grammatical standpoint the statute should read that citation and service 1 may be obtained by citation and service on the attorney general of Louisiana or on any employee in his office above the age of sixteen years or any other proper officer or person depending upon the identity of the named defendant and in accordance with the laws of this state and 2 may be obtained by citation and service on the department board commission or agency head or person depending upon the identity of the named defendant and in accordance with the laws of this state and 3 may be obtained by citation and service on the department board commission or agency head or person depending upon the identity of the named defendant and the identity of the named board commission department agency or officer through which or through whom suit is to be filed against Whitley 66 So at 477 The court further concluded that p permission to 3d roviding request service on the Attorney General and the head of the agency does not impose a requirement that the plaintiff srequest for service pertain to both Id In support of this conclusion the court focused on the legislature use of the permissive term may s 4 Paragraph D has since been amended to provide as follows 2 If service is not requested by the party filing the action within the period required in Paragraph 1 of this Subsection the action shall be dismissed without prejudice after contradictory motion as provided in Code of Civil Procedure Article C 1672 as to the state state agency or political subdivision or any officer or employee thereof upon whom service was not requested within the period required by Paragraph 1 of this Subsection Although the earlier version of this paragraph was in effect when the Weavers filed their petition in the matter currently before this court it was the amended version of the paragraph that was in effect when the judgment at issue was rendered 5 rather than the mandatory terms shall or must Id The supreme court also noted that pursuant to LSA R 13 when S 5107 2 D service is not requested by the plaintiff within ninety days of the commencement of the action the action shall be dismissed without prejudice after contradictory motion as provided in LSAC art 1672 When such a dismissal occurs prescription is not P C C interrupted as to the state defendants LSA R 13 Considering this harsh S 5107 3 D consequence and the policy favoring maintaining actions the court concluded that if the legislature word choice made LSA R 13 susceptible to two possible s S 5107 A constructions the statute should be construed in such a manner as to maintain the claim Id at 478 Accordingly the court determined that Ms Whitley request for s service of citation on the Medical Center satisfied the requirement of LSA R S A 5107 13 and D and afforded the Medical Center an opportunity to request the legal representation to which it was entitled Id at 479 The court then addressed the provisions of LSAR 39 to determine S 1538 whether the Medical Center was entitled to dismissal of Ms Whitley sclaim pursuant to LSAC art 1672 for failure to also serve the Attorney General and the Office of P C C Risk Management as required by LSA R 39 within ninety days of the S 1538 4 commencement of her action See LSA R 13 Louisiana Revised Statute S 5107 D 1538 39 provides 1 Claims against the state or any of its agencies to recover damages in tort for money damages against the state or its agencies for injury or loss of property personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the state or such agency if a private person would be liable to the claimant in accordance with the general laws of this state may be prosecuted in accordance with the provisions specified in this Chapter However immunity for discretionary acts of executive legislative and judicial officers within the scope of their legally defined powers shall not be abridged 2 The state and its agencies shall be liable for claims in the same manner and to the same extent as a private individual under like circumstances 3 A judgment may be settled in accordance with R 39 S 1535 6 4 In actions brought pursuant to this Section process shall be of risk served the office upon the head of the department concerned management and the attorney general as well as any others required by S 5107 R 13 However there shall be no direct action against the Self Insurance Fund and claimants with or without a final judgment recognizing their claims shall have no enforceable right to have such claims satisfied or paid from the SelfInsurance Fund The Wh itl court noted that the legislature used the mandatory term shall in LSA R 39 S 1538 4which clearly required that service of process be effected on three entitiespersons 1 the department head 2 the Attorney General and 3 the Office of Risk Management Ms Whitley initially requested service only on the Medical s Center department head Therefore the Medical Center contended that Ms Whitley s action should have been dismissed because of her failure to request service on the Attorney General and the Office of Risk Management within ninety days from the filing of the petition Id at 479 The supreme court noted that while the language of LSA R 39 S 1538 4clearly required that all three entitiespersons be served nothing in that statutory provision required that service be requested on them within the ninety period immediately day following the commencement of the action Indeed the court noted that LSA R S 4 1538 39 addressed service as opposed to request for service and concerned service of process as opposed to service of citation The court further noted that unlike the provisions of LSA R 13 LSAR 39 did not mandate S 5107 D S 1538 4 that service of citation be requested within ninety days of the filing of the petition or that the failure to do so warranted the dismissal of the action pursuant to LSA C P art 1672 C Id at 480 81 The facts of the matter currently before this court are nearly identical to those in the Whitley case The Weavers filed a petition naming the DOTD as the sole defendant The Chairman of the Louisiana State University Board of Supervisors was referred to as the department head by the supreme court 6 The court further noted that the requirement for service or request for service within ninety days and the corresponding dismissal for failure to do so found in LSA C art 1672 P Cand other articles in the Louisiana Code of Civil Procedure is limited to named defendants The Attorney General and the Office of Risk Management were not defendants and the department head was not a named defendant Whitley 66 So at 481 3d VA and properly requested service on the DOTD through its secretary There is no dispute that this service was properly effected Only after the ninetyday period had elapsed did the DOTD file any challenge to the lack of service or request for service on the Attorney General Based on the supreme court holding in Whitley it is clear that the s Weavers request for service on the DOTD was sufficient under the provisions of LSA S 5107 R 13 and D and LSA R 39 A S 1538 However while LSA R 39 does not mandate that service be requested S 1538 4 on the Attorney General within ninety days following the commencement of the action the plaintiffs are required to effect service on the Attorney General in this matter Failure to do so entitles the DOTD to have its declinatory exception pleading the objection of insufficiency of service of process sustained by the trial court as occurred in this matter See LSA C art 925 Nevertheless the trial court erred in P 2 A dismissing the plaintiffs action because LSA R 39 does not establish a time S 1538 limit within which service pursuant to the statute must be made nor does it set forth a sanction for failure to effect such service Therefore the DOTD objection of s insufficiency of service of process on the Attorney General may be cured by the plaintiffs service of process on the Attorney General Whitley 66 So at 481 3d CONCLUSION Accordingly that portion of the trial court judgment sustaining the declinatory exception of insufficiency of service of process as to the Attorney General filed by the State of Louisiana through the Department of Transportation and Development is affirmed while that portion of the judgment dismissing the plaintiffs petition without prejudice is reversed This matter is remanded to the trial court for further proceedings The costs of this appeal in the amount of 368 are assessed equally to 50 the parties AFFIRMED IN PART REVERSED IN PART AND REMANDED As noted previously the Weavers contend that they have already served the Attorney General and the Office of Risk Management While the defendant has not contested this allegation there is no evidence in the record to support it Accordingly we are constrained by the evidence in the record to affirm the judgment of the trial court insofar as it sustained the DOTD exception of insufficiency of service of s process 8
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