Henry Gardner VS T & T Barge and Marine, Inc. and XYZ Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2503 HENRY GARDNER VERSUS T BARGE AND MARINE INC T AND XVZ INSURANCE COMPANY On Appeal from the 18th Judicial District Court Parish of Iberville Docket No 61 912 Honorable J Robin Free Baton Henry Williams Rouge Judge Presiding Plaintiff Appellant Gardner Attorneys for Defendant W Brett Mason Breazeale Sachse B Attorney for Gregory J Miller Miller Hampton Baton Rouge LA Douglas K Louisiana Division Wilson LLP TT Appellee Cleaning Mile Barge LA BEFORE PARRO McCLENDON AND WELCH JJ Judgment rendered 183 Inc PARRO J Henry Gardner appeals against defendant prescription had TT a judgment dismissing Barge Cleaning Mile 183 before this defendant run his personal injury claims Inc on a finding that served and that his amended was petition did not relate back to his timely filed original petition against a similarly named defendant We affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND On January 3 2004 Gardner injured when he slipped and fell was premises owned by T T Barge Cleaning Mile 183 Inc 2004 Gardner filed Inc and Service a unsuccessful Barge and Marine Inc Several filed were TT succeeded none In March 2005 the through Inc Barge Cleaning Mile 183 but T On December 29 Barge and Marine requested service through its registered agent was pleadings T personal injury suit against Finally attempts to on petition was Secretary of State through the Barge Cleaning Mile 183 the serve Alan R but Sacks on T served the correct company August 21 2007 the petition T responsive no registered agent correct on were was TT made served on through its registered agent Raymond B Inc Greenwell TT the Barge Cleaning Mile 183 Inc filed objection of defendant no cause the Gardner filed on exception of petition a there no cause was Inc as a no ruling on December 21 2007 substitute defendant TT exception and dismissed Gardner in a not name it as the The trial of action and allowed Gardner leave s the prescription objection petition to add T T and the court Barge Cleaning Mile 183 Inc exception raising the objection of prescription Inc petition did motion and order to amend his Cleaning Mile 183 order because the peremptory exception raising exception also raised the objection of prescription court maintained the to amend his of action a claims signed the re urged its The trial court sustained the against T T Barge Cleaning Mile 183 judgment signed March 28 2008 2 Barge Gardner appealed claiming the district court erred in that the amended concluding that his claims TT petition which substituted defendant Mile 183 Inc for defendant T the date of the prescribed and in finding were T Marine Inc Barge Barge Cleaning did not relate back to filing of the original petition ANALYSIS Louisiana Code of Civil Procedure article action or defense asserted in the amended conduct transaction The or case of Ray v arises out of the or answer attempted to be set forth in the the amendment relates back to the date of original pleading pleading petition forth or occurrence set 1153 states that when the filing Alexandria Mall 434 So 2d 1083 La the original 1983 set out the four factor test for relation back under Article 1153 The amended claim must arise out of the 1 or occurrence set 2 The forth in the same transaction original pleading purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits purported substitute defendant must know or should but for a mistake concerning the identity of the proper party defendant the action would have been brought against him and 3 The have known that The 4 new or purported substitute defendant must not be unrelated defendant assertion of a new cause a wholly since this would be tantamount to of action which would have otherwise prescribed TT not met Barge Cleaning Mile 183 Inc contends that factors 2 and because it is a over wholly two years after the new Barge and Marine Inc Inc In defendant with prescriptive period had absolutely no formation registered offices dates and and T support of these claims T T Barge Cleaning Mile submitted evidence from the Louisiana demonstrated that the two run relationship to T Secretary of State showing the registration information for both corporations different were because it did not receive notice of the institution of the action until August 21 2007 well 183 4 companies officers and are 3 Office These documents completely separate entities with directors registered agents s An articles affidavit of incorporation from Greenwell confirmed that the corporations averred that the first notice received Gardner suit had been filed s original petition served was not related were Barge Cleaning Mile 183 Inc that August 21 2007 when was on him on TT by linked in any way and or as its copy of the a registered agent for service of process Gardner argues that the prescription statutes a defendant in filing against non Inc had the burden of 475 SO 2d 1040 La 1990 In La 1985 However these filed petition against have stated a cause a of action motor vehicle accident was one year whether a Ctr it compensation insurer was s eventually found not to seeking damages arising out of the The court noted that the initial suit by legal demand that a timely gave claim albeit by a Allstate 376 So 2d at injuries to the worker us the correct defendant had case the correct defendant plaintiffs related back court stated that where a or South Louisiana Med workers although and amendment changing the capacity in which the brings the action v distinguishable wrongful death and survivorship action as showing actual prejudice no notice of the prescriptive period Similarly in the Giroir adding children he contends T T being made against him for his negligence in the was In the matter before suit within the all in the suit automobile accident that caused 953 54 protect sufficed to interrupt prescription in favor of the notice to the correct defendant different claimant to City of Baton Rouge 570 So 2d 1168 v tortfeasor injured worker who intervened same Findley cases are question in Allstate Giroir 1979 La and The timely designed support of his argument Gardner cites Allstate Ins 376 So 2d 950 Theriot Therefore prescriptive period his claim within the which it has failed to do v not prejudicial pleading mistakes that his opponent makes Barge Cleaning Mile 183 Co are plaintiff seeks to the to the issue plaintiff named in the was whether an asserted his claims and filing of the initial petition change only the capacity in which the defendant is sued 4 was The in which he because there is no in the change parties and because all parties which the claim arose notice of the facts out of are on amendment will relate back to the date of the an pleading absent prejudice due to the delay in original Regarding the children filing s wrongful death and survival actions the court noted that each action added by amendment stemmed clearly set forth in the occurrence from the conduct same transaction the defendants knew original pleading and should have known of the existence and involvement of the children As in the Allstate 475 So 2d at 1044 45 always in the Giroir suit and was always aware or Giroir the correct defendant case or of the nature of the claims was being made In the received Findley the case at one of the plaintiff sued the City of Baton Rouge for injuries and later amended the city s recreational facilities petition to add the correct defendant the Baton Rouge Recreation and Parks Commission BREC In the court noted that the BREC and there defendant and was the determining that the amendment would relate back city investigation of the claim s party the plaintiff actually intended to against one served to the other the amendment related back In the matter before us provide notice of the litigation Interestingly Gardner also cites the 01 1646 Ray case were not met on there was a new and T was no of Renfroe State v 809 So 2d 947 2 5 ex although and rei two and Inc Dep t of in that case 4 elucidated in notice to the correct defendant named defendant 53 at 1171 Barge Cleaning Mile 183 wholly unrelated entity to Barge and Marine Inc did the basis that factors filing of suit against the originally defendant to T T case Because identity of interest between the against T La 2 26 02 the court denied relation back the no sue provide notice of the litigation Findley 570 So 2d there is entities and institution of the lawsuit Transp and Dev communicated to identity of interest between the originally named an institution of the action not was the by the substitute Renfroe 809 So 2d at 951 Gardner claims this petition simply contained Alexandria Mall noted there is as a only a analogous is case misnomer to In the because the Ray Ray defendant instead of Alexandria Mall one mall in Alexandria and its the case original petition named The court Company general manager received copy of the petition from its insurer also named in the petition before the year prescriptive period had case before us evidence that Ray 434 SO 2d run despite the similarity in defendant and had it is names notice of the action until no wholly a one The facts in the at 1087 Barge Cleaning Mile 183 in that T T differ a Inc new presented and unrelated approximately three and one half years after the accident occurred Gardner Cleaning court to consider the fact that T T also urges this Mile 183 change the address of its registered agent Inc did not as We find no required by law thus frustrating his attempts to achieve service merit in this made argument because the first attempts to long after prescription had already run on serve no were not met notice of the suit of the claims as a in this result of the factor of the four factor test companies named other link other TT to T T are 2004 was original petition and until therefore August 21 not satisfied in this notice to one Barge Cleaning Mile 183 did not Inc is a were conclude that the Barge Cleaning Mile 183 case serve to wholly new Inc had in fact did not learn as 2007 separate and distinct entities with described in the Thus the second Additionally no the two identity of interest provide notice to the defendant unrelated Barge and Marine Inc Accordingly the amended petition in this is tantamount to the assertion of have we arising out of the January 3 2004 accident petition filed December 29 or TT case Greenwell the claim Having considered the arguments of both parties Ray criteria Barge a new cause case of action which otherwise would prescribed CONCLUSION Based on the foregoing the judgment of March 28 2008 dismissing all 6 of Henry Gardner s claims against T T Barge Cleaning Mile 183 prejudice is affirmed All costs of this Gardner AFFIRMED 7 appeal are assessed Inc with against Henry
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