text:
    Tracy COLLINS v. GREAT LAKES DREDGE AND DOCK CO., LLC of Louisiana, et al.
    18-168
    Court of Appeal of Louisiana, Third Circuit.
    October 3, 2018
   Christopher Brent Coreil, Attorney at Law, P.O. Drawer 450, Ville Platte, LA 70586, (337) 363-5596, COUNSEL FOR PLAINTIFF/APPELLEE: Tracy Collins.

Jonathan Clyde Vidrine, West & Vidrine, 510 West Magnolia, Ville Platte, LA 70586, (337) 363-2772, COUNSEL FOR PLAINTIFF/APPELLEE: Tracy Collins.

Chad Patrick Pitre, Attorney at Law, 111 N. Court St., Opelousas, LA 70570, (337) 942-8587, COUNSEL FOR DEFENDANT/APPELLANT: Great Lakes Dredge and Dock Co., LLC.

Jefferson R. Tillery, Hansford P. Wogan, Jones Walker, L.L.P., 201 St. Charles Ave., 48th Fl., New Orleans, LA 70170, (504) 582-8616, COUNSEL FOR DEFENDANT/APPELLANT: Great Lakes Dredge and Dock Co., LLC

Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.

GREMILLION, Judge.

Appellant, Great Lakes Dredge and Dock Co., LLC, appeals the motion for summary judgment granted in favor of Mr. Tracy Collins in this matter brought pursuant to the Jones Act, 46 U.S.C.A. § 30104, and general maritime law. For the reasons that follow, we affirm the judgment as amended.

FACTS AND PROCEDURAL POSTURE

Procedural posture

On March 30, 2016, Mr. Collins filed a petition in the Thirteenth Judicial District (the trial court), Evangeline Parish, against Great Lakes alleging that he was injured on or about May 13, 2015, while performing deckhand duties aboard the vessel known as Derrick 62. Great Lakes sought to remove the case to federal district court. The federal court remanded the matter to the Thirteenth Judicial District Court. Great Lakes then answered the suit. The district court fixed the matter for jury trial to commence on November 20, 2017. Mr. Collins then filed a motion for partial summary judgment to have Great Lakes assessed with 100% fault in the accident that allegedly caused his injuries. The trial court originally fixed the hearing on this motion for June 27, 2017. Mr. Collins then filed an amendment to his motion, to which he attached various unsworn reports regarding the accident and an unsworn report from Dr. Thomas G. Fontenot, in which he relates that Mr. Collins presented at his office complaining of neck and low back pain. Great Lakes filed an opposition in which it objected to the exhibits to Mr. Collins's amended motion. It also attached depositions of two physicians who conducted independent medical examinations of Mr. Collins and concluded that his shoulder and neck complaints were not related to the incident.

An amended pretrial order issued by the district court moved the trial date to January 8, 2018. The hearing on Mr. Collins's motion for summary judgment was reset for December 13, 2017. The trial court entertained argument on Mr. Collins's motion and rendered judgment in his favor after striking the exhibits Mr. Collins had attached to his supplemental motion. In its written reasons, the trial court found that Mr. Collins was a Jones Act seaman injured in the course and scope of his duties and granted his motion for summary judgment "as to the issue of liability of this defendant...." The written reasons also provided:

The extent of plaintiff's injuries, along with the causal connection as to any alleged injury sustained as a result of the accident of May 13, 2015 is not an issue before this court at this time, and therefore, will not be addressed by this court pursuant to this Motion for Partial Summary Judgment.

On January 5, 2018, the trial court signed the judgment appealed, which found Great Lakes 100% at fault and liable to Mr. Collins.

Supporting evidence

In support of his motion, Mr. Collins attached an affidavit he executed and his own deposition. In his affidavit, Mr. Collins attested that he was working on the dredge Alaska near Venice, Louisiana. Three other employees were attempting to connect two pipes while on a rocky jetty in the Mississippi River. There was no ring stopper on the pipe, which Mr. Collins stated was supposed to have been welded to the pipe, so the crew was forced to use a portable ring stopper. The other crew members were unable to apply a chain binder to facilitate the attachment of the ring stopper, so, according to Mr. Collins, he was asked to help. As Mr. Collins was pulling on the chain binder with "all [his] strength and weight," another crewman, Carlo, struck the top of the binder with a bar. Mr. Collins "felt something sting [him] on [his] hand," removed his glove, and noticed that his thumb was injured. He left the jetty to seek medical attention.

Mr. Collins's deposition testimony tracked his affidavit. He opined that the crew was connecting pipes that were supposed to have ring stoppers welded onto them so they can be hoisted in order to be connected. Because Mr. Collins was the largest and strongest member of the crew, he testified that he was asked to cinch the chain binder when the others were not able to. Mr. Collins described himself as 6'6? in height and about 300 pounds. After he injured his thumb, Mr. Collins was directed to medical attention. Later that night, Mr. Collins testified, he began to experience pain in his neck and shoulders.

Opposition evidence

Great Lakes opposed the motion with the deposition of Relief Captain Bernie Garza, who was supervising Mr. Collins's crew at the jetty. Captain Garza testified that he, Mr. Collins, and Carlos and Mateo Salazar, brothers, were working on the jetty joining pipe. According to Captain Garza, not all pipes were fitted with welded ring stoppers. Whether one was fitted depended upon whether the pipe would be submerged beneath water. Captain Garza testified that when he originally attempted to clamp the chain binder, the chain was too tight. He loosened it by one chain link, but that proved too loose, so he attempted to tighten it one chain link tighter. Captain Garza was attempting to bind the chain when he was stopped by Mr. Collins, who, according to Captain Garza, volunteered because he was bigger and stronger. As Mr. Collins was attempting to close the binder, Carlo Salazar grabbed a bar and hit the binder a couple of times before Captain Garza stopped him. Mr. Collins grabbed his hand and began walking away. He took off his glove and revealed that his thumb had been injured. Captain Garza ordered Mr. Collins to seek medical attention.

Two physicians who conducted independent medical examinations of Mr. Collins, Dr. Gregor J. Hoffman, a New Orleans board-certified orthopedic surgeon, and Dr. Everett Gerard Robert, Jr., of Metairie, opined that Mr. Collins's neck and shoulder complaints were not related to the May 13, 2015 incident.

The trial court propounded extensive reasons for judgment in favor of Mr. Collins under the Jones Act. In its judgment, the trial court ruled (emphasis added):

IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for Partial Summary Judgment is granted, as there are no genuine issues or questions of material fact as to the liability of the Defendant to Plaintiff which resulted in the accident which caused bodily injury to Plaintiff on May 13, 2015. The court finds that Plaintiff was in the course and scope of his employment as a Jones Act Seaman with GREAT LAKES DREDGE & DOCK COMPANY, LLC OF LOUISIANA, and therefore, GREAT LAKES DREDGE & DOCK COMPANY is liable to Plaintiff for any injuries caused as a result of the accident of May 13, 2015.

By order dated January 30, 2018, the trial court designated the foregoing judgment as final and appealable pursuant to La.Code Civ.P. art. 1915. This appeal ensued.

ASSIGNMENTS OF ERROR

Great Lakes assigns the following as errors in the judgment:

1. The district court's Ruling was untimely under La. C.C.P. art. 966 which requires that "[t]he court shall render a judgment on the motion not less than twenty days prior to the trial." Here, the Court rendered its Ruling less than twenty (20) days prior to trial;
2. The district court's Ruling on GLDD's liability is legally erroneous because it makes determinations of liability without having made the requisite causation determinations;
3. The district court's Ruling on GLDD's liability is legally erroneous because it makes determinations regarding fault and causation that are improper for summary judgment and should have been decided by the fact-finder, the jury;
4. The district court's Ruling on comparative fault is legally erroneous because it is precluded from making determinations as to reasonableness and that issue was not properly presented for summary judgment; and
5. Genuine issues of fact regarding GLDD's liability and Plaintiff's comparative fault exist and/or were not adequately proven, thereby precluding granting summary judgment.
ANALYSIS
On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment must be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party's claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.
Material facts are those that determine the outcome of the legal dispute.
Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

Am. Zurich Ins. Co. v. Caterpillar, Inc. , 12-270, p. 4-5 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 742-43.

Louisiana Code of Civil Procedure article 966(C)(1)(a) provides, "A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date." Article 966(C)(3) provides, "The court shall render a judgment on the motion not less than twenty days prior to the trial." In the present matter, the trial date was January 8, 2018. The argument on the motion was held on December 13, 2017. The trial court issued its written reasons for judgment on December 21, 2017, and judgment was rendered on January 5, 2018.

Prior to 2015, the timing of motions for summary judgment was governed by La.Code Civ.P. art. 966(D), which required that the trial court render summary judgment at least ten days before trial. Great Lakes cites us to the fourth circuit's analysis of former Article 966(D) found in Environmental Operators, L.L.C. v. Natco, Inc. , 08-1183 (La.App. 4 Cir. 3/18/09), 7 So.3d 1232 (the EO case), in which the plaintiff was granted summary judgment the day before trial. On appeal, the fourth circuit examined many other cases in which the ten-day deadline was an issue. The court concluded, "The constraint imposed by La.Code Civ. Proc. Art. 966(D) is mandatory, rather than permissive. For this legal error alone, the district court judgment granting the motion for summary judgment is vacated, and the matter is remanded to the district court for reconsideration." Id. , at 1237.

As the court noted in the EO case, legal errors occur when the "trial court applies incorrect principles of law and such errors are prejudicial... Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights." Id. (quoting Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co. , 03-180, p. 4 (La.App. 4 Cir. 4/1/05), 901 So.2d 559, 564.

A panel of this court, in Finley v. Christus St. Frances Cabrini Hosp. , 12-149 (La.App. 3 Cir. 7/25/12), 96 So.3d 707, writ denied , 12-1932 (La. 11/9/12), 100 So.3d 843, took judicial notice of the impropriety of a summary judgment granted eight days before trial. We cited with approval the EO case, but found that, because the appellants had not raised the matter in brief, this "reversible error" would not be addressed. Finley , 96 So.3d at 709.

In Loconte Partners, LLC v. Montgomery and Assoc., Inc. , 12-691 (La.App. 4 Cir. 5/15/13), 116 So.3d 904, the fourth circuit declined to interpret the EO case as requiring reversal absent evidence of prejudice to the non-mover. In that case, the court noted that the purpose of the ten-day deadline is to prevent unnecessary trial preparation. Because the non-mover had failed to oppose the motion and stated on the record in open court that it had no evidence to oppose the motion, the fourth circuit found that the non-mover was not prejudiced by the violation of the ten-day rule.

Since the Loconte Partners case, the legislature has significantly amended La.Code Civ.P. art. 966, including amending the deadline for filing, serving, opposing, and rendering judgments on motions for summary judgment. 2015 La.Acts No. 422. Now, a trial court may not render judgment less than twenty days before trial. La.Code Civ.P. art. 966(C)(3). The official comments to Article 966 provide, "(h) Subparagraph (C)(3), which is new, changes the law. This time period requires the court to decide a motion for summary judgment sufficiently in advance of trial to allow a party to apply for supervisory writs without interrupting the trial setting."

In the context of the present matter, the trial court designated this judgment as final and appealable; there was no need for Great Lakes to seek supervisory writs. It was granted a suspensive appeal. The late grant of summary judgment did not deprive Great Lakes of a substantive right and does not constitute reversable error.

The remainder of Great Lakes' assignments of error substantively complain of the grant of summary judgment. Primarily, Great Lakes complains that the trial court's judgment made "determinations of liability without having made the requisite causation determinations."

As our colleagues on the first circuit have noted:

The Jones Act, 46 U.S.C.A.App. § 688, provides a cause of action against a maritime employer based on negligence when a seaman is injured in the course and scope of his employment. The Jones Act contains a liberal causation requirement that entitles a seaman to recover if negligence chargeable to the employer played any part in producing the injury. An employer's negligence may arise from a dangerous condition on or about the vessel, failure to use reasonable care to provide a seaman with a safe place to work, failure to inspect the vessel for hazards, and any other breach of the employer's duty of care. Under the Jones Act, both the employer and the seaman are obligated to act with ordinary prudence under the circumstances.
In contrast, liability under the doctrine of unseaworthiness does not rest upon fault or negligence. The owner's duty to furnish a seaworthy ship is absolute and completely independent of the duty under the Jones Act to exercise reasonable care. To be seaworthy, a vessel and its appurtenances must be reasonably suited for the use for which they were intended. A more stringent standard of causation is required to prevail on an unseaworthiness claim than on a Jones Act claim. Specifically, a plaintiff must prove that the unseaworthy condition played a substantial part in bringing about the injury and that the injury was either the direct result or a reasonably probable consequence of the unseaworthiness.
Although negligence and unseaworthiness are totally separate concepts, the same factual basis has been used to assert both theories of recovery.

Dorsey v. J. Ray McDermott, Inc. , 03-2264, pp. 7-8 (La.App. 1 Cir. 6/25/04), 886 So.2d 482, 487-88 (citations omitted).

Whether one is a "seaman" for Jones Act purposes is a mixed question of law and fact. Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). The United States Supreme Court established, in Chandris, Inc. v. Latsis , 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), a two-pronged test for determining whether a claimant enjoys the status as a seaman: First, the employee's duties must further the vessel's function or the accomplishment of its mission. Second, "a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Id. at 368, 115 S.Ct. 2172.

In the present matter, we find that reasonable minds could not disagree that Mr. Collins was a seaman. He was assigned to the Alaska as a deckhand at the time of his injury. Even after his injury, Mr. Collins was told by Captain Garza that he could return to work, if not on the Alaska , on another dredge owned by Great Lakes. The purpose of the Alaska was dredging, and Mr. Collins was connecting pipe that would transport dredged material at the time he was allegedly injured. The facts fairly parallel O'Donnell v. Great Lakes Dredge & Dock Co. , 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943), in which a deckhand, who was injured while onshore assisting in the repair of a land pipe, was found to have been a seaman.

Great Lakes correctly notes that liability in Jones Act claims is only established upon proof that the defendant owed the plaintiff a duty, that it breached that duty, and that the breach was the legal cause of the plaintiff's injuries. This would necessitate a determination that Mr. Collins's injuries were caused by the accident, and the trial court specifically stated in its reasons that it was not making such a determination. Nevertheless, the judgment found in favor of Mr. Collins on the issue of liability.

There clearly exists a genuine issue of material fact regarding whether Mr. Collins's neck and shoulder complaints are in any way related to smashing his thumb while attempting to buckle the chain binding. In fact, Mr. Collins's motion did not seek to establish a causal relationship. Great Lakes' opposition included medical opinion that calls into question the causal relationship between the incident and any complaints Mr. Collins may have beyond the obvious injury to his thumb. The trial court did err in finding in Mr. Collins's favor on the issue of liability.

The testimonies of Mr. Collins and Captain Garza confirm that the chain binder and other equipment provided by Great Lakes was inadequate for the job at hand. The chain was improperly sized to perform the task. Because of his superior size, Mr. Collins was called upon or volunteered-a distinction we find irrelevant, as Mr. Collins was part of the work crew assigned to join the pipe-to assist in locking the chain binder. Later, after Mr. Collins was sent to get his thumb cared for, the marsh buggy arrived and facilitated the joinder of the pipe with no further difficulty. Appropriate and adequate equipment was available, and the decision to proceed with the operation without them was negligent. Conversely, nothing in the submissions supporting or opposing the motion for summary judgment hints at any improper or substandard conduct on Mr. Collins's part. He struggled to lock the chain binder, a task integral to the joinder of the dredge pipes, which was the reason he was on the jetty.

Accordingly, we affirm the judgment of the trial court, but amend the judgment to find that Appellant, Great Lakes Dredge and Dock Co., LLC, is 100% at fault in the accident of May 13, 2015. All other issues, including causation, are reserved for trial on the merits. Costs of this appeal are taxed to Appellant, Great Lakes Dredge and Dock Co., LLC.

AFFIRMED AS AMENDED.

      Citing Bell v. Uniroyal, Inc. , 96-2838 (La.App. 4 Cir. 6/11/97), 696 So.2d 268.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Carolyn A. WATTS v. GOLDEN NUGGET LAKE CHARLES, LLC
    CW 18-4
    Court of Appeal of Louisiana, Third Circuit.
    October 31, 2018
    Philip A. Costa, Lance Stephen Ostendorf, John Gleason Alsobrook, Ostendorf, Tate, Barnett, LLP, 650 Poydras Street, Ste 1460, New Orleans, LA 70130, (504) 324-2244, COUNSEL FOR DEFENDANT/APPLICANT: Golden Nugget Lake Charles, LLC
    Craig Hunter King, The King Law Firm, 2245 Virginia St., Baton Rouge, LA 70802, (504) 460-0168, COUNSEL FOR PLAINTIFF/RESPONDENT: Carolyn A. Watts
    Court composed of Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   EZELL, Judge.

Relator, Golden Nugget Lake Charles, LLC (Golden Nugget), seeks review of the denial of its motion for summary judgment.

STATEMENT OF THE CASE

Plaintiff, Carolyn A. Watts, filed a petition against Golden Nugget alleging damages for injuries allegedly resulting from a slip and fall on a wet floor in the lobby of the casino on December 28, 2014. Ms. Watts alleged injuries to her right shoulder, neck, and back.

Golden Nugget filed a motion for summary judgment alleging that the accident occurred outside the casino, on the boardwalk, while it was raining such that Ms. Watts could not show that the walkway was a hazard or defective and/or that Golden Nugget's negligence or fault caused the incident in question. In support of its motion, Golden Nugget attached the transcript of Ms. Watts' deposition. Golden Nugget also attached the video surveillance that was taken of the incident. The affidavit of Justin Yelverton, Golden Nugget's Risk Manager, was also attached to the motion for summary judgment. Yelverton authenticated the surveillance video. Yelverton stated that it was raining most of the day on the date of the accident, December 24, 2014, and that Golden Nugget received no complaints or other notifications prior to or after Ms. Watts' alleged accident that anyone had slipped and fallen on the boardwalk.

Ms. Watts opposed the motion for summary judgment. She attached the following documents to her writ application: (1) photographs of her shoulder purporting to show the surgical site necessitated by injuries allegedly sustained in the accident in question; (2) several photographs purporting to show the boardwalk where she fell; and (3) photographs of the shoes that Ms. Watts was allegedly wearing at the time of the accident. Ms. Watts alleged that there were genuine issues of material fact regarding "whether the space between the non-wooded slippery board walk[ ] created an unreasonable risk of harm in the dark after it had been raining on the defendant['s] hotel property."

The motion came for hearing on November 20, 2017. Counsel for Golden Nugget objected to introduction of the photographs offered by Ms. Watts in support of her opposition to the motion. The trial court overruled the exception stating that the objection might be appropriate if the proceedings moved beyond the summary judgment stage but that it did not need to "necessarily rule on admissibility at this moment." At the hearing, Ms. Watts offered the entire record into evidence and refined her argument to include an assertion that the accident may have occurred even if it was not raining because of the surface and the gap between the brick and the boardwalk. The trial court stated:

[T]his is a close case. It's one that really could go either way. You know, I actually probably lean in favor of granting the motion for summary judgment; however, just because of the time.... [I]f I were to grant the motion for summary judgment[,] and then writs were taken[,] and if I end up getting reversed at the appellate court, you know, sometime in the next six, eight months, ... then I would have to find another place[,] and I'd have to find another date to set this matter for trial....

The trial court then denied the motion for summary judgment in open court on November 21, 2017.

A written judgment was signed on November 30, 2017. On November 30, 2017, Golden Nugget timely filed its notice of intent to apply for writs. Golden Nugget asked the trial court to stay the proceedings pending this court's review of the denial of its motion for summary judgment. The trial court granted the request for a stay and set a return date of January 3, 2018. This writ application was timely filed. Ms. Watts filed her opposition to the writ application on March 21, 2018. Golden Nugget filed a reply to the opposition on April 11, 2018.

Before the granting of the stay, trial was scheduled to begin on December 11, 2017. After the stay was granted, the trial date was continued to September 10, 2018.

SUPERVISORY RELIEF

"[T]he denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possibly useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling." Breaux v. Cozy Cottages, LLC , 14-486, 14-597, p. 4 (La.App. 3 Cir. 11/12/14), 151 So.3d 183, 187. "Ordinarily, an application for supervisory writ is the appropriate vehicle for the review of an interlocutory judgment." McGinn v. Crescent City Connection Bridge Auth. , 15-165, p. 4 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148. Louisiana Code of Civil Procedure art. 2083, comment (b) (citation omitted) states "Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs."

DISCUSSION

The Supreme Court in Hines v. Garrett , 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam) (alteration in original), declared:

We review a district court's grant of summary judgment de novo , viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if "there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law." La.Code Civ. Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor.

See also Keeven v. Wen-Star, Inc. , 17-453, p. 3 (La.App. 3 Cir. 12/6/17), 258 So.3d 617, 2017 WL 6029702.

"The burden of proof rests with the mover." La.Code Civ.P. art. 966(D)(1). But where, as in this case, the burden of proof will not be borne by the mover:

then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Civ.Code art. 966(D)(1). Once this occurs, the burden shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

Keeven , 258 So.3d at 619.

Louisiana Revised Statutes 9:2800.6 provides the requisites for a plaintiff to recover against a merchant for a fall. Golden Nugget asserts that La.R.S. 9:2800.6 is inapplicable because the accident in question occurred outside of the hotel. Louisiana Revised Statutes 9:2800.6(C)(2) provides, in pertinent part: "[f]or purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn."

Assuming only for the sake of argument that La.R.S. 9:2800.6 is applicable, Golden Nugget asserts that it is entitled to summary judgment because "Watts has failed to submit any evidence that the walkway in question was a hazard or defective and/or that Golden Nugget's negligence or fault caused the incident in question." Golden Nugget cites Sellers v. Caddo Parish Commission , 503 So.2d 1073 (La.App. 2 Cir.), writ denied , 506 So.2d 1229 (La.1987), for the proposition that "[o]n an outdoor sidewalk, rainwater is not a foreign substance[ ]" and did not present an unreasonable risk of harm. The court in Sellers , id. , stated: "[w]e decline to hold that a customer is owed the same high standard of care when he is outdoors and can anticipate and plainly see that the paved surface has become wet with rainwater."

The video footage submitted by Golden Nugget shows that Ms. Watts was walking quickly on the pavers to catch up to her relatives before she stepped onto the boardwalk and slipped and fell. Ms. Watts admitted that the shoes she was wearing were old. There are two photographs taken by Ms. Watts' nephew on the night of the incident that are attached to Ms. Watts' deposition. The quality of the reproductions is poor, but no hole or gap is noted where Ms. Watts marked that she fell. Moreover, neither Ms. Watts' deposition testimony nor her petition contains any mention of a gap or hole between the concrete and the boardwalk. When asked "if there was something that caused [her] to slip and fall," Ms. Watts replied: "[i]t was wet." She agreed that both feet "slipped out from underneath" her. Her deposition testimony also makes clear that she knew it was raining, that it had been raining for a while, and that her family members had no difficulty traversing the same area.

"Generally, a trial court is afforded great discretion concerning the admission of evidence, and its decision to admit or exclude evidence may not be reversed on appeal absent the abuse of that discretion." Suire v. Oleum Operating Co. , 17-117, p. 15 (La.App. 3 Cir. 11/2/17), 235 So.3d 1215, 1227, writ denied , 18-279 (La. 4/6/18), 239 So.3d 827, writ denied , 18-271 (La. 4/6/18), 240 So.3d 841. According to La.Code Civ.P. art. 966(A)(4), "[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions."

The legislative comments to the amended version of Article 966 clarify that Subparagraph (A)(4), which is new, sets forth the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment, and intentionally does not allow the filing of documents that are not included in the exclusive list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached.

Dorsey v. Purvis Contracting Group, LLC , 17-369, 17-370 pp. 5-6 (La.App. 5 Cir. 12/27/17), 236 So.3d 737, 741, writ denied , 18-199 (La. 3/23/18), 239 So.3d 296.

This has been further explained in Sheffie v. Wal-Mart Louisiana, LLC , 11-1038, p. 7-8 (La.App. 5 Cir. 5/31/12), 92 So.3d 625, 629 (footnote omitted):

The court may also consider other documents or things which do not fall within the specifically enumerated categories of documents listed in La. C.C.P. art. 966(B). However, this Court has held that "unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence." Drury v. Allstate, Inc. [ ], 11-509 (La.App. 5 Cir. 12/28/11), 86 So.3d 634 ; Mitchell v. Kenner Regional Medical Center , 06-620 (La.App. 5 Cir. 1/30/07), 951 So.2d 1193, 1197. Further, although La. C.C.P. art. 966(B) provides an exception for specific documents a court may consider on a motion for summary judgment without the need to formally introduce such documents into evidence at hearing, generally all other documents or things not enumerated in the article but relied upon by the parties must be verified or authenticated and officially offered and introduced into evidence. See Denoux v. Vessel Mgmt. Services, Inc. , 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88 ; Rudolph v. D.R.D. Towing Co., LLC , 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277 ; and Drury v. Allstate, Inc. , et al. , 11-509 (La.App. 5 Cir. 12/28/11), 86 So.3d 634.
In this case, the trial judge apparently viewed and considered the video surveillance tape capturing Plaintiff's alleged accident. The video at issue does not fall within a category of the enumerated exceptions provided in La. C.C.P. art. 966(B) and was never officially offered and introduced into evidence. As such, we find the trial judge erroneously considered evidence not properly offered and introduced at the hearing on Wal-Mart's Motion for Summary Judgment.... and remand this matter for a new hearing on defendant's Motion for Summary Judgment.

The photographs attached to Ms. Watts' opposition to Golden Nugget's motion for summary judgment purport to show a gap. Golden Nugget objected to the admission of the photographs into evidence because they were not dated and were unverified and unauthenticated as required by La.Code Evid. arts. 802 and 901. The trial court recognized that Golden Nugget made "an appropriate objection for admissibility purposes" should the matter get beyond the summary judgment stage. The trial court also pointed out that there were "some discrepancies between the pictures that were attached to the [deposition] of Ms. Watts" which did not show any kind of gap and the pictures introduced as part of the opposition to the motion for summary judgment. The trial court stated: "for purposes of summary judgment, in looking at those pictures, it could be that the pictures that were shown at the deposition were not the correct pictures and that these are." The discrepancies in the pictures were the basis of the trial court's finding that there was "a genuine issue of material fact with regard to whether there was a hole there or not at the time Ms. Watts was walking in that area which could have been what actually caused her to fall rather than the wet or slippery surface of the boardwalk."

Counsel for Ms. Watts admitted that the photographs were not verified at the hearing: "we are going to have Mr. Marshal Simien come in to testify[,] if we get beyond this point[,] as to the photographs taken -- taking of the photographs, timeline, all the rest of that." In Reynolds v. Bordelon , 14-2371, p. 4 (La. 6/30/15), 172 So.3d 607, 611, (footnote omitted), the Louisiana Supreme Court noted that:

the photographs were not verified or authenticated in any way. The plaintiff did not introduce an affidavit or testimony by any person familiar with the photographs, the photographer or otherwise, in order to lay the foundation that the photographs were actually depictions of the plaintiff's vehicle or that the depictions were accurate. Accordingly, we agree that the lack of verification deems the photographs inadmissible at the summary judgment hearing."

Similarly, it was an abuse of discretion for the trial court to admit the photographs submitted by Ms. Watts into evidence and consider them because they were indisputably undated, unauthenticated, and unverified by any affidavit or deposition. See La.Code Civ.P. art. 966(A)(4) ; La.Code Evid. arts. 802 and 901(A). Because the photographs submitted by Ms. Watts were inadmissible, that the trial court erred in using them as the basis for finding a genuine issue of material fact. Ms. Watts did not present any countervailing evidence to show that there was a condition that presented an unreasonable risk of harm or that Golden Nugget failed to exercise reasonable care. Since there are no material facts in dispute, we grant the motion for summary judgment and dismiss Ms. Watts' suit with prejudice.

For the foregoing reasons, we reverse the trial court's denial of the motion for summary and enter summary judgment in favor of Golden Nugget Lake Charles, LLC. Carolyn Watts' claims against Golden Nugget Lake Charles, LLC are dismissed with prejudice. All costs of these proceedings are assessed to Carolyn Watts.

WRIT GRANTED AND MADE PEREMPTORY.

      Ms. Watts is a resident of Houston, Texas.

      In deposition, Ms. Watts explained that the accident actually occurred on the boardwalk while she and her family were walking from Golden Nugget to L'Auberge Hotel and Casino (L'Auberge) and that the assertion in her petition that she was inside Golden Nugget when she fell was a "misprint." She says that she ate at a restaurant in Golden Nugget (Jack Daniels is in L'Auberge) and then they decided to walk over to L'Auberge.

      In her deposition, Ms. Watts disclosed that she injured her right shoulder, right hip, and back in a 2012 slip and fall at a Sears Department Store in Houston, Texas. She had surgery for a torn rotator cuff after that accident. She filed a lawsuit, but it was dismissed.

      Golden Nugget filed a reply brief in which it objected to the submission of the photographs without any affidavit authenticating or identifying them.

      Although the accident in this case occurred in 2014, the motion for summary judgment was filed and taken under consideration in late 2017. Therefore, La.Code Civ.P. art. 966 as it was amended in 2015 is applicable.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Roger P. WILLIAMS v. Kelly WOOD and Michael R. Wood, ABC Insurance Company, Paul Dileo and A Home Check by Paul Dileo, LLC
    NO. 2017-CA-1049
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 31, 2018
    REGEL L. BISSO, ROBERT G. MILLER, JR., BISSO & MILLER, L.L.C., Favrot & Shane Building, 3925 N. I-10 Service Road W., Suite 227, Metairie, Louisiana 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    KYLE S. SCLAFANI, THE LAW OFFICE OF KYLE S. SCLAFANI, 4130 Canal Street, Suite A, New Orleans, Louisiana 70119, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )
   JAMES F. MCKAY III, CHIEF JUDGE

This appeal stems from a redhibition action filed by the plaintiff/buyer, Roger P. Williams ("Mr. Williams"), against the defendants/sellers, Kelly and Michael R. Wood (the "Woods"). Mr. Williams seeks review of the October 23, 2017 judgment, which granted the Woods' exceptions of no cause of action and no right of action, and dismissed Mr. Williams' action with prejudice. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 2014, the Woods commenced construction of a residential double (the "Property") located at 6219-21 Vermillion Boulevard in New Orleans. Mr. Wood, a naval architect and marine engineer, prepared the plans and specifications. Upon completion on December 29, 2014, the Woods rented out the Property before selling it to Mr. Williams on January 19, 2016. A home inspection, performed prior to the sale by Paul DiLeo and A Home Check by Paul Dileo, LLC, found no evidence of any structural defects.

Subsequent to the purchase of the Property, Mr. Williams claims to have noticed vibrations and other signs of structural problems sufficient to cause him to hire a structural engineer to perform an inspection. He further claims that the inspection, conducted by Gurtler Bros. Consultants, Inc. on August 2, 2016, identified numerous structural defects in connection with the foundation.

On September 29, 2016, Mr. Williams filed a Petition in Redhibition, Breach of Contract, Breach of Duty and Negligence. Specifically, the petition alleges a claim against the Woods in redhibition, and individually against Mr. Wood for professional negligence, as the engineer responsible for the design.

In response, the Woods filed an exception of no cause of action arguing that Mr. Williams' exclusive remedy falls within the New Home Warranty Act ("NHWA"), not in redhibition. The Woods also filed an exception arguing that Mr. Williams has no right of action, and that the petition states no cause of action, against Mr. Wood for professional negligence.

The matter was heard October 6, 2017. The judgment rendered October 23, 2017, granted the exceptions and dismissed Mr. Williams' action with prejudice. This appeal followed.

On appeal, Mr. Williams asserts that the trial court erred: (1) in finding that the NHWA preempted the claim for redhibition despite the fact that the Property was not a "new home"; (2) in granting the exceptions and dismissing the negligence claim against Mr. Wood; and (3) in finding that the petition failed to allege any damage caused by Mr. Wood's defective design.

DISCUSSION

"Exceptions of no cause of action and no right of action present legal questions, and are reviewed under the de novo standard." Zeigler v. Housing Auth. of New Orleans , 2012-1168, p. 6 (La. App. 4 Cir. 4/24/13), 118 So.3d 442, 449 (citing St. Pierre v. Northrop Grumman Shipbuilding, Inc. , 2012-545, p. 7 (La. App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009 ).

As further explained by the Supreme Court in Badeaux v. Southwest Computer Bureau, Inc. , 2005-0612, 2005-719, pp. 6-7 (La. 3/17/06), 929 So.2d 1211, 1217,

The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927 ; Turner v. Busby , 03-3444, p. 4 (La. 9/9/04), 883 So.2d 412, 415. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.
In contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Cos. , 02-0665 at p. 6, 837 So.2d at 1213. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. In reviewing a district court's ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court's decision is based only on the sufficiency of the petition. Id. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id. at p. 7, 837 So.2d at 1213 ; Barrie v. V.P. Exterminators, Inc. , 625 So.2d 1007, 1018 (La. 1993). If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Everything on Wheels Subaru, Inc. v. Subaru South, Inc. , 616 So.2d 1234, 1236 (La. 1993). Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Industrial Cos. , 02-0665 at p. 7, 837 So.2d at 1213.

Application of the NHWA

The NHWA was introduced by the legislature to "promote commerce in Louisiana by providing clear, concise and mandatory warranties for the purchasers and occupants of new homes in Louisiana," and the act sets out "the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction." La. R.S. 9:3141 ; Shaw v. Acadian Builders and Contractors, LLC, 2013-0397, p. 6 (La. 12/10/13), 130 So.3d 914, 917. The NHWA "provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply." La. R.S. 9:3150.

The NHWA provides the following express warranties:

A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(3) Five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

La. R.S. 9:3144

The following definitions are set forth in La. R.S. 9:3143 :

For purposes of this Chapter the following words, phrases, and terms shall be defined and construed as follows:
(1) "Builder" means any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto, including a home occupied initially by its builder as his residence. A person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or any addition thereto, is a "builder", whether or not the consumer purchased the underlying real estate with the home.
(2) "Building standards" means the standards contained in the building code, mechanical-plumbing code, and electrical code in effect in the parish, city, or other local political subdivision where a home is to be located, at the time construction of that home is commenced, or, if the parish, city, or other local political subdivision has not adopted such codes, the Standard Building Code, together with any additional performance standards, if any, which the builder may undertake to be in compliance.
(3) "Home" means any new structure designed and used only for residential use, together with all attached and unattached structures, constructed by the builder whether or not the land was purchased from the builder. Such term includes structures containing multiple family dwellings or residences.
(4) "Initial purchaser" means any person for whom a home is built or the first person to whom a home is sold upon completion of construction.
(5) "Major structural defect" means any actual physical damage to the following designated load-bearing portions of a home caused by failure of the load-bearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable:
(a) Foundation systems and footings.
(b) Beams.
(c) Girders.
(d) Lintels.
(e) Columns.
(f) Walls and partitions.
(g) Floor systems.
(h) Roof framing systems.
(6) "Owner" means the initial purchaser of a home and any of his successors in title, heirs, invitees, or assigns to a home during the time the warranties provided under this Chapter are in effect.
(7) "Warranty commencement date" means the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first.

In granting the Woods' exception of no cause of action, the trial court reasoned that all of the elements required for the NHWA to apply were met, i.e. , Mr. Williams is an "owner," the Woods are "builders," and the property is a "home," as those terms are defined in La. R.S. 9:3143.

On appeal, Mr. Williams contends, as he did in the trial court, that the NHWA only applies to new homes, and that the home he purchased was not a new home because it was occupied as a rental for over a year before it was purchased. Rejecting this argument, the trial court reasoned that the NHWA applied given that "Mr. Williams acquired the home during the time the warranties provided under the NHWA were in effect."

The record reveals that Mr. Wood completed construction of the Property and received a Certificate of Occupancy and Completion on December 29, 2014. Thereafter it was occupied by renters until purchased by Mr. Williams in January 2016. Thus, when Mr. Williams acquired the Property, the one-year warranty provided by the NHWA had expired and the two-year and five-year warranties had partially expired.

Mr. Williams argues that for the NHWA to apply, the owner should have full benefit of the one, two, and five-year warranties at the time of purchase. Mr. Williams' argument is not supported by the jurisprudence. In Shaw , 2013-0397, p. 10, 130 So.3d at 920, the Supreme Court recognized that the NHWA applies when a home is purchased after some of the warranty periods have elapsed. In the Shaw case, the builder, Acadian, sold the home to the Rakoskys on September 27, 2005. Shaw purchased the home from the Rakoskys in 2006, and filed suit against Acadian on June 24, 2009, approximately four years and eight months after the warranty commencement date. The Court determined that while the one and two-year warranties had expired, Shaw's action under the NHWA could proceed on the claim of structural defects under the five-year warranty period, which was yet to expire.

In the present case, Mr. Williams, similar to the successor in title in Shaw , purchased the Property with only some of the warranty periods remaining. After reviewing the record and the applicable law, we conclude, as did the trial court, that the NHWA applies here and precludes Mr. Williams' redhibition claim.

Accordingly, for the foregoing reasons, we affirm the trial court's judgment sustaining the exception of no cause of action as to Mr. Williams' redhibition claim. However, La. C.C.P. art. 934 provides that "[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court." Since there are additional facts that may be pleaded, which may support a cause of action under the NHWA, the trial court erred in failing to allow Mr. Williams the opportunity to amend his petition to set forth sufficient allegations to state a valid cause of action under the NHWA. Therefore, that part of the trial court's judgment dismissing Mr. Williams' action with prejudice is reversed, and the matter is remanded to allow Mr. Williams an opportunity to amend the pleadings.

Professional Negligence

In his second and third assignments of error, Mr. Williams maintains that the trial court erred in dismissing his claims for professional negligence against Mr. Wood. We find merit in Mr. Williams' argument.

Mr. Williams asserted a professional negligence claim against Mr. Woods in his capacity as an engineer. In support of their peremptory exceptions to this claim, the Woods asserted the following two contentions in the trial court: (i) there was no contract between Mr. Williams and Mr. Wood to provide engineering services; and (ii) as Mr. Williams alleges to have sustained no damage other than a purported defective performance of a non-existent contract, he has not stated a cause of action in tort.

Mr. Williams acknowledges that he has no privity of contract with Mr. Woods, and is, therefore, restricted to suing for the damage caused by the faulty plans. He asserts that his petition, specifically paragraph 6, alleges damages caused by the defective design and construction.

The petition states, in pertinent part:

6.

The defects found by Gurtler Bros. Consultants, Inc. include, but are not limited to the following:
c. Obvious and discernable flexing of the floor framing that results in vibration of the flooring system and cracks in sheetrock , which conditions are far in excess of flexing and vibrations that are encountered in residential construction and which manifest a structural defect; (emphasis added).

As this Court has observed, the jurisprudence of this state "recognizes the existence of a duty of care owed by design professionals to persons with whom the design professional does not have privity. In such a case, this Court has concluded that 'absent privity of contract a cause of action cannot be asserted based on breach of contract; however, this does not preclude asserting a claim for damages based on the wrongdoer's tort.' " MR Pittman Grp., LLC v. Plaquemines Par. Gov't , 2015-0396, p. 5, n. 1 (La. App. 4 Cir. 12/2/15), 182 So.3d 291, 294 (citing Gurtler, Hebert and Co., Inc. v. Weyland Machine Shop, Inc. , 405 So.2d 660, 662 (La. App. 4th Cir. 1981) ).

Articulating the standard for determining the circumstances in which a tort claim is proper in this context, this Court, in N. Clark, L.L.C. v. Chisesi , 2016-0599, p. 10 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1020 (internal citations omitted), stated as follows:

Where the damage sued for is the defectively performed work itself, the action is strictly a contractual one and only those who are in privity with the contractor have an action against him. However, where the damage sued for is not the defective work but is instead damage caused by the defective work, a tort action against the contractor is proper when the elements for delictual recovery are present.

The trial court applied this test and found that it was not met here, reasoning as follows:

The only damages alleged in the petition relate to the defective design of the plans and specifications by Mr. Wood and fails to allege any damages that were sustained, other than those related to the defective performance by Mr. Wood; therefore, Mr. Williams fails to state a cause of action in negligence.

We find this conclusion to be in error. While the petition predominately refers to the defective design, it states at least one discernable element of damage that was caused by the defective design. Paragraph 6(c) states that the flexing in the floor framing resulted in "cracks in the sheetrock." This allegation can reasonably be interpreted to state a cause of action for professional negligence as it refers to damage caused by the defective design. Thus, we find that Mr. Williams has stated a right of action and a cause of action for professional negligence. Accordingly, we reverse the trial court's judgment granting the exceptions of no cause and no right of action as to a claim for professional negligence.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment sustaining the exception of no cause of action as to Mr. Williams' redhibition claim. However, we reverse that part of the judgment dismissing Mr. Williams' action with prejudice, and remand with instructions that Mr. Williams be allowed to amend his petition to plead a claim under the NHWA. We further reverse the trial court's judgment granting the exceptions of no cause of action and no right of action as to the claim for professional negligence.

AFFIRMED IN PART, REVERSED IN PART; REMANDED

LOMBARD, J., DISSENTS WITH REASONS

LEDET, J., DISSENTING IN PART WITH REASONS

LOMBARD, J. DISSENTS WITH REASONS

For policy reasons, I find the application of the New Home Warranty Act ("NHWA") in the instant matter to be patently unfair to the Plaintiff/Appellant Roger P. Williams. Mr. Williams purchased his home from the Woods, who constructed and designed the home. The Woods then rented the home out for over a year prior to selling it to Mr. Williams. Mr. Williams alleges that he later discovered the existence of structural defects in the home; therefore, he sued the Woods, raising redhibition and negligence claims.

The stated purpose of the NHWA, originally enacted in 1986, is "to promote commerce in Louisiana by providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana." La. Rev. Stat. 9:3141. The NHWA "provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply." La. Rev. Stat. 9:3150.

The NHWA provides for three warranties ranging in length from one to three years pursuant to La. Rev. Stat. 9:3144 :

(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards.
(3) Five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards.

The "warranty commencement date" is the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first. La. Rev. Stat. 9:3143(7). In the instant matter, the record indicates that the home was first occupied at the end of 2014 or beginning of 2015, by a tenant.

Under the unique facts presented, the warranty and prescription clock began tolling during the tenants' occupancy although they derived no benefit or coverage under the NHWA. La. Rev. Stat. 9:3143(4). Moreover, Mr. Williams is penalized as the initial purchaser and barred from recovering for any defect "due to noncompliance with the building standards" under the one-year warranty because it had expired by the time he purchased the home. La. Rev. Stat. 9:3143(7). He was also left with very little time under the two-year warranty by the time he discovered the alleged structural defects of the home. Id. The fact that some of the warranties had fully expired also evidences that the home at issue was technically not "new" as a result of being rented out for approximately a year. La. Rev. Stat. 9:3143(3). It is unconscionable that a home buyer purchasing a used "new" home is essentially limited to the protections remaining after another individual has enjoyed actually living in a home when it was indeed new . La. Rev. Stat. 9:3143(4).

The application of the NHWA here leads to absurd consequences and solely inures to the benefit of the builders/contractors, the Woods, who became more shielded from liability with the passage of time, regardless of who occupies or has occupied the home. If the NHWA is applied in this matter, future home buyers similarly situated, will also be left at a disadvantage with little warranty protection. For instance, if a newly constructed home is rented out by its builder for four years and later sold, should the initial homebuyer be solely limited to recovering for damages under the unexpired term of the five-year warranty? I think not.

The NHWA on its face is an oxymoron as it is not possible to have an old "new" house. The better alternatives under these circumstances are for either: 1) the NHWA to be deemed inapplicable because the "home" at issue is not new under La. Rev. Stat. 9:3143(3) and the original occupants were not the initial purchaser under La. Rev. Stat. 9:3143(4) ; or 2) for Mr. Williams to have procured his own warranty directly from the Woods or from a third party. The purpose of a just law is to promote just results and just outcomes. Finding that the application of the NHWA in this instance is unjust and belies its purpose to "promote commerce" and to provide "clear" warranties, I respectfully dissent.

LEDET, J., DISSENTING IN PART WITH REASONS

I agree with the majority's decision in all but one respect. I disagree with the majority's decision to reverse the trial court's judgment sustaining the peremptory exceptions of no cause of action and no right of action as to Mr. Williams' professional negligence claim against Mr. Woods in his capacity as an engineer. In support of their peremptory exceptions to this claim, the Woods asserted the following two contentions in the trial court: (i) there was no contract between Mr. Williams and Mr. Woods to provide engineering services; and (ii) as Mr. Williams alleges to have sustained no damage other than a purported defective performance of a non-existent contract, he has not stated a cause of action in tort. Finding this argument persuasive, the trial court granted the exceptions.

On appeal, Mr. Williams challenges this finding. His position is that the alleged defectively performed work is Mr. Wood's defective design and that the defects alleged in his petition are the damages he sustained as a result of Mr. Wood's defective design. The majority finds that Mr. Williams has stated a cause of action and a right of action. Contrary to the majority, I find the allegations in the petition are insufficient to state a tort claim against Mr. Wood. Rather, as the trial court found, the petition fails to allege any damages apart from those related to the defective performance.

Illustrating the distinction between damages related to defective performance and damages caused by the defective performance, this court in Lumber Products, Inc. v. Hiriart , 255 So.2d 783, 787-88, n. 7 (La. App. 4th Cir. 1971), cited the following three cases: Marine Ins. Co. v. Strecker , 234 La. 522, 100 So.2d 493 (1957) ; Kendrick v. Mason , 234 La. 271, 276, 99 So.2d 108, 110 (1958) ; and Truxillo v. Gentilly Med. Bldg., Inc. , 225 So.2d 488, 489 (La. App. 4th Cir. 1969). This court observed the following regarding each of those cases:

• In Strecker , "the tenant could not have sued for the repair of defectively hung cabinets, but she was allowed to sue for the damage caused by this defect," which was damage to the tenant's property (loss of glassware broken when the cabinet fell). Lumber Products , 255 So.2d at 786 ;
• In Kendrick , "the plaintiff could not have sued the contractor for the cost of remedying defects in the installation of the town sewer system, but his tort action against the contractor was allowed for damage to his come caused by defects in the installation of the sewer system even though he was no privy to the contract." Lumber Products , 255 So.2d at 787 ; and
• In Truxillo , "the business visitor to a building could not have sued the building's janitorial contractor for breach of contract in failing to properly eliminate excess cleaning water from a hallway, but his suit against that contractor was allowed when the excess water precipitated his fall and caused him bodily injury." Lumber Products , 255 So.2d at 787-88.

In this case, as the trial court reasoned, "[t]he only damages alleged in the petition relate to defective design of the plans and specifications by Mr. Woods" and not to "any damages that were sustained, other than those related to the defective performance by Mr. Wood." Thus, I agree with the trial court that the facts alleged in the petition fail to state a cause of action against Mr. Wood for professional negligence.

Additionally, "[w]hen, as here, the petition fails to state a cause of action, there can be no right of action." Chisesi , 16-0599, p. 12, 206 So.3d at 1021 (citing NOLA 180 v. Harrah's Operating Co., Inc. , 12-0072, p. 7 (La.App. 4 Cir. 5/16/12), 94 So.3d 886, 890 ). Thus, I would affirm the trial court's judgment granting the exceptions of no cause and no right of action as to the professional negligence claim.

For these reasons, I dissent in part.

      Paul DiLeo and A Home Check by Paul DiLeo, LLC, originally named defendants in this action, were dismissed by joint motion of the parties on September 25, 2017.

      Indus. Companies, Inc. v. Durbin, 2002-0665 (La. 1/28/03), 837 So.2d 1207.

      We note that the structural defects alleged in the petition fall within the five-year warranty period.

      Specifically, Mr. Wood designed the home.


text:
    DEMS PARTNERSHIP v. RAM AUTOMOTIVE, INC. and Richard A. Friedrichs
    NO. 2018-CA-0774
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 31, 2018
   Kelly L. Staples, Michael L. DeShazo, Taylor M. Burnham, KINNEY, ELLINGHAUSEN, RICHARD & DeSHAZO, 1250 Poydras Street, Suite 2450, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLEE

Michael A. Britt, 4640 Rye Street, Suite 200, Metairie, LA 70006, COUNSEL FOR DEFENDANTS/APPELLANTS

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano )

Judge Daniel L. Dysart Ram Automotive, Inc., and Richard A. Friedrichs, appeal a summary judgment granted in favor of DEMS Partnership, dismissing appellants' reconventional demand, with prejudice. For the reasons that follow, we dismiss the appeal.

BACKGROUND:

DEMS Partnership ("DEMS") filed suit against Ram Automotive, Inc., and Richard A. Friedrichs (collectively "Ram") for unpaid rent and ad valorem taxes due pursuant to a lease agreement. Ram filed exceptions and a Petition in Reconvention against DEMS. DEMS answered the Petition in Reconvention, and subsequently filed a Motion for Summary Judgment seeking to have the Petition in Reconvention dismissed.

After a hearing on April 20, 2018, the trial court rendered judgment, which states in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that DEMS's Motion for Summary Judgment is granted and that all claims by Ram Automotive, Inc., and Richard Friedrich's contained in the Reconventional Demand against DEMS Partnership are dismissed with prejudice.

Ram thereafter filed a Petition for Appeal that was signed by the trial court on September 15, 2018. DEMS filed a Motion to Dismiss arguing that the grant of a partial summary judgment without the trial court's express certification that the partial summary judgment is final, and that there is no just reason for delay, is not a final, appealable judgment. We agree.

Louisiana Code of Civil Procedure art. 1915B provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the trial court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The judgment rendered by the trial court does not adjudicate all the claims between the parties, and does not dismiss Ram from the suit. Further, it is not certified as final, with an express determination that there is no just reason for delay.

Accordingly, the judgment from which Ram appeals is not final and appealable, and we therefore dismiss the appeal.

APPEAL DISMISSED


author: Judge Daniel L. Dysart

text:
    Jamal WRIGHT, et al. v. The STATE of Louisiana, o/b/ of Jamie Alleyn, M.D., Ashley Van Wormer, M.D., Monique Sutherland, M.D., Megan Bina, Do.O and Ashley M. Hirsch, M.D.
    NO. 2018-C-0825
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 31, 2018
    Jeff Landry, Louisiana Attorney General, P. O. Box 94005, Baton Rouge, LA 70804-9005, Lucie Thornton, Assistant Attorney General, 1450 Poydras Street, Suite 900, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/RELATOR
    Danatus N. King, 2475 Canal Street, Suite 308, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/RESPONDENT
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase, Judge Dale N. Atkins )
   Judge Daniel L. Dysart

Drs. Jaime Alleyn, Monique Sutherland, Ashley Van Wormer, Megan Bina, and Ashley Martin Hirsch (hereafter, "Relators"), seek review of the trial court's August 24, 2018 judgment denying their declinatory exceptions of insufficiency of citation and insufficiency of service of process. We find that the trial court's judgment is manifestly erroneous. See Davis v. Caraway , 14-264, pp. 4-5 (La. App. 5 Cir. 10/29/14), 164 So.3d 223, 225 ("[t]he standard of review for an appellate court regarding an exception of insufficient service of process is manifest error.").

FACTUAL BACKGROUND

This medical malpractice matter commenced with the February 27, 2018 filing of a Petition for Damages ("Petition"), after a medical review panel issued its opinion. Service of the Petition was requested on each of the Relators, individually, at various addresses in New Orleans, Louisiana (with the exception of Dr. Van Wormer, for whom service of process was requested in Gretna. Louisiana). In response to the Petition, Relators filed declinatory exceptions of insufficiency of citation and service of process. A hearing was held on the exceptions on August 9, 2018 and by judgment dated August 24, 2018, the trial court denied the exceptions.

Relators filed a notice of intent to file an application for a supervisory writ with this Court and a return date of October 24, 2018 was provided. This application was timely filed on September 24, 2018.

DISCUSSION

Louisiana Code of Civil Procedure article 925 provides that objections which may be raised through the declinatory exception include the objection of insufficiency of citation and insufficiency of service. Subpart A (2) specifically includes the "failure to request service of citation on the defendant within the time prescribed by Article 1201(C)," as an objection which may be raised by the declinatory exception of "[i]nsufficiency of service of process."

Under La. R.S. 39:1538 :

(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 ... 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....
* * * * *
(4) In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107....

When suit is brought against the state or any state actor, La. R.S. 13:5107 provides, in pertinent part:

A. (1) 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.
(2) Service shall be requested upon the attorney general within ninety days of filing suit. This shall be sufficient to comply with the requirements of Subsection D of this Section and also Code of Civil Procedure Article 1201(C)....
* * * * *
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 ninety days of 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. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Section, notwithstanding insufficient or erroneous service.
(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 1672(C), 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.

While Respondent did not file a response to the application for a supervisory writ, his position is evident from his Memorandum in Opposition to the Exceptions filed in the trial court. Respondent does not contest that all of the Relators are employed by the State of Louisiana. His contention is that, although he improperly requested service, his request was timely pursuant to that portion of La. R.S. 13:1507 D which provides that "a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Section, notwithstanding insufficient or erroneous service." He cites no case law for his position and we are not persuaded by his argument.

This Court addressed a similar issue in Velasquez v. Chesson , 13-1260 (La. App. 4 Cir. 10/8/14), 151 So.3d 812, writ denied , 14-2361 (La. 2/27/15), 159 So.3d 1067. Like the instant matter, the plaintiff in Velasquez requested service on a state-employed physician, the only named defendant in the action, at his work address, rather than through one of the mandated agents for service of process. The Court noted that "[a] suit against a qualified state health care provider requires service to be effected on: (1) the head of the department for the Board of Supervisors of Louisiana State University Agricultural and Mechanical College; (2) the Office of Risk of Management; [and] (3) the Attorney General of Louisiana." Id. , p. 4, 151 So.3d at 814. The Court likewise cited Barnett v. Louisiana State Univ. Med. Ctr.-Shreveport , 02-2576, p. 1 (La. 2/7/03), 841 So.2d 725, 726 for the principle that "[P]laintiffs are strictly held to the obligation of serving the correct agent for service of process, [ ] as well as to the obligation of serving the named state defendants within the time period specified by La. R.S. 13:5107(D)(1)." Id. pp. 4-5, 151 So.3d at 814. Finding that the trial court erred in failing to sustain an exception insufficiency of service of process of without prejudice, the Velasquez Court held:

Dr. Chesson was a qualified state health care provider at the time the alleged malpractice occurred; therefore, La. R.S. 13:5107 and La. R.S. 39:1538 are applicable. Plaintiff's failure to timely effectuate service on the proper parties warranted dismissal of the suit as plaintiff advanced no compelling reason for her failure to ascertain proper service.

Id. , p. 5, 151 So.3d at 815.

"[I]t is presumed the Legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject." Fontenot v. Reddell Vidrine Water Dist ., 02-0439, p. 13 (La. 1/14/03), 836 So.2d 14, 24. Accordingly, we give effect to La. R.S. 39:1538's requirement that service on a state employee must be requested on one of the three designated parties for service of process, as the Velazquez Court found.

Respondent's reliance on La. R.S. 13:1507 D is misplaced. While we note that the statute was amended in 2014 to add the provision on which Respondent relies, the timeliness of the service of process is not the underlying issue in this case. The issue concerns the failure to request service on the proper party or parties. Here, it is not an issue as to whether service of process was "insufficient" or "erroneous," as for example, service on a child (See , e.g ., First Nat. Bank of Jefferson Par. v. Rall , 607 So.2d 716, 717 (La. App. 4 Cir. 1992) ), which held that service on an eleven year old was insufficient, and citing Nationwide Acceptance Co. v. Alexis , 201 So.2d 21, 23 (La. App. 4 Cir. 1967), which found service on a five year old to be insufficient, noting that "[p]roper citation is the foundation of the action and that it is fundamental that no valid judgment can be rendered in any case unless the defendant has been informed of the suit against him by citation in strict compliance with the law." In both cases, this Court rejected the notion that the defendants' actual knowledge of the lawsuit rendered the exceptions moot. See also Guar. Energy Corp. v. Carr , 490 So.2d 1117, 1120 (La. App. 5 Cir. 1986) ("[k]nowledge of the existence of an action on the part of the defendant, no matter how clearly brought home to him, cannot supply the want of a citation.").

On this basis, we find that the trial court erred in failing to grant the exceptions of insufficiency of citation and service of process. We therefore reverse the trial court's judgment and grant the exceptions without prejudice.

BELSOME, J., DISSENTS

BELSOME, J., DISSENTS

I would deny the writ.

      The medical malpractice claim was first presented to the medical review panel on October 7, 2015, seeking review of the treatment of Nicole Phillips. The claim was amended on October 15, 2015 to reflect the identity of the parties who submitted the claim. After Ms. Phillips' death on June 4, 2016, a second amended claim was filed on February 7, 2017 to name the father of Ms. Phillips' minor child, Jamal Wright, as the claimant, on behalf of the child (hereafter, "Respondent"). The lawsuit was filed by Mr. Wright, on behalf of the minor child.

      La. C.C.P. art. 1201 (C) states, in pertinent part, that "[s]ervice of the citation shall be requested on all named defendants within ninety days of commencement of the action."

      Necessarily, timeliness is an issue. Clearly, service of process in this matter was not requested on the proper party/parties. Thus, service was not requested "on all named defendants within ninety days of commencement of the action." La. C.C.P. art. 1201 (C). To hold otherwise would be to allow a plaintiff to request service on anyone within 90 days of filing an action and technically comply with the requirement of the article.


author: AMY, Judge.

text:
    Randall Scott ILES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    18-276
    Court of Appeal of Louisiana, Third Circuit.
    November 7, 2018
    Brad M. Boudreaux, Schutte, Terhoeve, Richardson, Eversberg, Cronin, Judice, & Boudreaux, 501 Louisiana Avenue, Baton Rouge, LA 70802 (225) 387-6966, COUNSEL FOR DEFENDANT/APPELLEE: State Farm Fire and Casualty Company
    Remy A.M. Jardell, 625 St. John Street, Lafayette, LA 70501-5711, (337) 267-0985, COUNSEL FOR PLAINTIFF/APPELLANT: Randall Scott Iles
    Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.
   AMY, Judge.

The plaintiff filed timely suit against his automobile liability provider to recover damages resulting from an automobile accident under the policy's uninsured motorist provision. He noted that the alleged tortfeasor's automobile liability insurance had provided him with its entire policy limit for his injuries. Almost five years following the accident, the plaintiff filed a supplemental and amending petition naming his personal liability umbrella policy provider as an additional defendant. The defendant umbrella policy provider filed an exception of prescription, alleging that it was not a solidary obligor with the plaintiff's automobile liability and UM policy provider. The trial court sustained the exception. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Randall Scott Iles, instituted this matter on June 20, 2014, with the filing of a petition by which he sought damages associated with a June 20, 2012 automobile accident. He alleged that the accident occurred when a vehicle driven by Gregory Hall "failed to stop for some reason and rear ended the vehicle operated by [the plaintiff.]" He explained that his vehicle was forced forward into another vehicle stopped at a light. The plaintiff alleged that, as a result of this accident, his vehicle was deemed a total loss and that he sustained serious personal injuries, as well as loss of wages. Noting that Mr. Hall's personal automobile insurer, Louisiana Farm Bureau, provided him its entire policy limits, the plaintiff named his automobile liability insurance provider, State Farm Mutual Automobile Insurance Company (State Farm Mutual), as the sole defendant. He asserted that the State Farm Mutual policy included UM coverage and alleged that it was indebted to him "for damages sustained as a result of this accident above and beyond the coverage afforded to the tortfeasor, Gregory Hall."

The record indicates that, after the filing of the petition, the litigation continued between the plaintiff and State Farm Mutual as evidenced by filings related to trial dates and to the parties' exchange of expert witness and exhibit lists. Following a March 2016 continuance of that litigation, the present matter arose with the plaintiff's May 10, 2017 filing of a first supplemental and amending petition by which he added State Farm Fire and Casualty Company (State Farm Fire) as a defendant. Therein, the plaintiff maintained that, as his personal liability umbrella policy provider, State Farm Fire is a solidary obligor of previously-named defendant, State Farm Mutual. The plaintiff re-urged all allegations of the original petition, including those related to general damages, medical expenses, lost wages, and future lost wages and/or earning capacity.

Subsequently, the plaintiff and State Farm Mutual filed a joint motion and order of partial dismissal, seeking the dismissal of State Farm Mutual "with full prejudice." The trial court signed the order of partial dismissal on June 27, 2017, dismissing the automobile liability insurer "with prejudice, reserving plaintiff's rights to pursue all claims against State Farm Fire ...."

By its July 2017 answer, State Farm Fire acknowledged that, at the time of the subject accident, it had in place a personal liability umbrella policy. However, it denied the amending petition's allegation that it is solidarily liable with State Farm Mutual, asserting that the two are separate legal entities. State Farm Fire also advanced a number of defenses, including an allegation that the plaintiff's claims were prescribed and/or preempted.

The following month, State Farm Fire filed the exception of prescription now under review, framing the single inquiry of whether State Farm Mutual and State Farm Fire are solidary obligors for the alleged injuries stemming from the June 20, 2012 accident. At the close of the related hearing, the trial court explained that it would sustain the exception of prescription, "finding that more than two (2) years had passed" and that the entities are not solidarily liable "because there's two (2) separate numbers." It thereafter entered a judgment in that regard, dismissing the plaintiff's claims against State Farm Fire.

The plaintiff appeals, first asserting that the trial court erred in sustaining the exception of prescription when timely suit had been filed against State Farm Mutual, an entity he contends was the solidary obligor of State Farm Fire. The plaintiff also argues that the trial court should have concluded that the latter-filed suit related back to the timely suit against State Farm Mutual.

Discussion

Exception of Prescription

Louisiana Code of Civil Procedure Article 927(A)(1) provides for the peremptory exception of prescription. Although the party urging the exception typically bears the burden of proving such an exception, if prescription is evident on the face of the petition, the burden shifts to the plaintiff to demonstrate that the matter has not prescribed. Lomont v. Bennett , 14-2483 (La. 6/30/15), 172 So.3d 620, cert. denied , --- U.S. ----, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016). In the event the plaintiff asserts that prescription has been interrupted due to solidary liability between two parties, the plaintiff bears the burden of proving that solidarity. Rizer v. Am. Sur. & Fid. Ins. Co. , 95-1200 (La. 3/8/96), 669 So.2d 387.

If the exception of prescription is asserted prior to trial, the parties may introduce evidence to support or controvert the objection pleaded. La.Code Civ.P. art. 931. Absent such evidence, the trial court must decide the exception upon accepting the facts as alleged in the petition as true. Duckworth v. La. Farm Bureau Mut. Ins. Co. , 11-2835 (La. 11/2/12), 125 So.3d 1057. However, in the event evidence is introduced at the hearing, an appellate court considers the trial court's factual findings pursuant to the manifest error-clearly wrong standard of review. Lomont , 172 So.3d 620.

Interruption of Prescription - Solidary Obligors

Turning to the circumstances of this matter, it is noteworthy that the plaintiff brought this action against both State Farm Mutual and State Farm Fire in their capacities as UM providers. As to such suits, La.R.S. 9:5629 provides that: "Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained."

As reported, the plaintiff filed the original petition against State Farm Mutual on June 20, 2014, two years after the underlying June 20, 2012 accident. Yet, the plaintiff did not file the amending petition naming State Farm Fire until approximately five years after the accident. Only at that time did the plaintiff plead the existence of an applicable personal liability umbrella policy as issued by State Farm Fire. In opposition to the exception, the plaintiff contended that the two State Farm entities are solidary obligors and, therefore, suit as to State Farm Mutual interrupted the prescriptive period as to State Farm Fire. He maintains that argument before this court. Given the fact that the action against State Farm Fire was prescribed on its face, that burden of proving interruption of prescription due to solidary liability was the plaintiff's. Rizer , 669 So.2d 387. Following review, we maintain the underlying determination that the plaintiff failed to do so.

Louisiana Civil Code Article 1793 foundationally provides that: "Any act that interrupts prescription for one of the solidary obligees benefits all the others." Determinative as to the relationship of these defendants, however, La.Civ.Code art. 1794 instructs that: "An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee." Furthermore, La.Civ.Code art. 1796 provides that: "Solidarity of obligation shall not be presumed. A solidary obligation arises from a clear expression of the parties' intent or from law." Simply, the nature of the respective contracts issued to the plaintiff by State Farm Mutual and State Farm Fire indicates that neither was liable for the whole performance pursuant to La.Civ.Code art. 1794.

The plaintiff refers this court to the supreme court ruling in Hoefly v. Government Employees Insurance Co. , 418 So.2d 575 (La.1982), for the proposition that an UM provider is a solidary obligor. However, in Hoefly , 418 So.2d at 576, the supreme court framed the question before it as "whether an automobile accident victim's uninsured motorist carrier is solidarily obliged with the tortfeasor so that the victim's timely suit against the latter interrupts prescription with regard to the insurer." That question is not posed by the present proceeding.

Standing apart from Hoefly , 418 So.2d 575, the plaintiff did not file a timely suit against the tortfeasor in the present matter. Thus, even if State Farm Mutual and State Farm Fire are each the solidary obligor of Mr. Hall, the alleged tortfeasor in this case, prescription was not interrupted by the filing of suit against him. Thus, as urged, the relevant purported solidary obligation is not between the tortfeasor and the UM provider as in Hoefly , but is, instead, between the automobile liability provider and the personal liability umbrella policy, both of which provide UM coverage.

This matter is further distinguishable from Hoefly , 418 So.2d at 578, as the supreme court found the nature of the relationship between the tortfeasor and the UM provider in that case to be solidary in nature as they "are obliged to the same thing." In the present case, the purported solidary obligors are not obliged to the same thing. Rather, their relationship is more analogous to that in Rizer , 669 So.2d 387. In that case the supreme court considered whether an accident victim's UM coverage was solidarily liable with the tortfeasor's liability carrier so that the victim's timely-filed suit against the latter interrupted prescription as to the victim's UM carrier. Id. Focusing on the respective obligations of the purported solidary obligors, the supreme court explained that:

It is clear that the obligation of the uninsured motorist carrier does not begin until the obligation under the tortfeasor's motor vehicle liability policy ends; there is no overlap. Since an uninsured motorist carrier and a tortfeasor's motor vehicle liability insurer each has a separate obligation which is not coextensive, they are not liable for the same thing. Therefore, the two are not solidary obligors.
Applying these precepts to the present case, we find that USAA, the injured plaintiff's uninsured motorist carrier, and LIGA as successor to American Surety, the tortfeasor's motor vehicle liability insurer, were not liable to the same thing. Accordingly, they are not solidary obligors.

Id. at 390.

Similar to the separate obligations identified in Rizer , 669 So.2d at 390, there is no "overlap" in the obligation of State Farm Mutual and that of State Farm Fire. Rather, the personal liability umbrella policy issued by the latter is clearly one of excess, providing plain language in that regard. Pointedly, the declarations page of the State Farm Fire personal liability umbrella policy lists various "Required Underlying Insurance Policies," including a policy of "automobile liability[.]" And, in its "Other Conditions" section, the umbrella policy sets forth a number of items, including an "Other Insurance" condition providing that: "This policy is excess over all other valid and collectible insurance." Recall that La.Civ.Code art. 1796 provides that a solidary obligation "shall not be presumed." But it is instead one that "arises from a clear expression of the parties' intent or from law." Id. By this provision, the parties provided a clear expression of intent for the personal liability umbrella policy to act in excess of the underlying automobile liability policy.

Such distinct language contravenes the plaintiff's contention that the insurers were each liable for the whole performance as is required by La.Civ.Code art. 1794. Rather, following the reasoning expressed by the supreme court in Rizer , 669 So.2d 387, we maintain the finding that the plaintiff failed in his burden of proving that prescription was interrupted due to the existence of a solidary obligation. Simply, the insurers were not "obliged to the same thing." Rizer , 669 So.2d at 389 (quoting Hoefly , 418 So.2d at 579 ).

This assignment lacks merit.

Capacity of the Parties

By his second assignment of error, the plaintiff contends that the trial court alternatively erred in failing to find that the amendment of his petition to name State Farm Fire did not relate back to the timely filed suit against State Farm Mutual.

Louisiana Code of Civil Procedure Article 1153 provides that: "When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing the original pleading." The plaintiff argues that this provision is applicable to the amending petition in this case in light of the supreme court's expression in Ray v. Alexandria Mall , 434 So.2d 1083 (La.1983). On review, we do not find that extension of Ray is appropriate in the matter at hand. Rather, in Ray , 434 So.2d at 1086-87, the supreme court explained that:

[W]e establish the following criteria for determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The 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;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

In contrast to the criteria of Ray , 434 So.2d 1083, it is apparent that the amending petition in this case did not seek to merely change the identity of the party sued. Rather, the wholly separate legal entity of State Farm Fire was named for the first time by the amending petition. There is no indication that State Farm Fire "received notice of the institution of the action[,]" or that it was merely a "substitute defendant" who must have known or should have known that "but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him." Id. at 1087. Instead, the amending petition introduced a new party and alleged liability under a newly identified policy. Such an occurrence is contrary to Ray 's criteria that "[t]he purported substitute defendant must not be a wholly new or unrelated defendant" as such an extension of La.Code Civ.P. art. 1153"would be tantamount to assertion of a new cause of action which would have otherwise prescribed." Id.

Accordingly, we find no merit in the plaintiff's contention that the amending petition related back to the timely filed original petition pursuant to La.Code Civ.P. art. 1153.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned to the plaintiff-appellant, Randall Scott Iles. AFFIRMED.

Saunders, J., dissents and assigns written reasons.

Saunders, J., dissents and assigns written reasons.

I disagree with the majority's opinion to affirm the trial court's ruling that Plaintiff's petition does not relate back to the timely filed original petition pursuant to La.Code. Civ.P. art. 1153. In my view, Plaintiff meets all of the criteria necessary to have his amending petition relate back to his original petition. Ray v. Alexandria Mall, Through St. Paul Prop. & Liab. Ins. , 434 So.2d 1083 (La. 1983).

A reading of the Ray case suggests strongly that consideration of equity and public policy underlie the reasoning of the court. In my view, those same considerations would dictate a reversal of the trial court in the matter at hand. Accordingly, I respectfully dissent.

      Pursuant to La.Civ.Code art. 3492, delictual actions are subject to a one-year prescriptive period, which "commences to run from the day injury or damage is sustained." The supreme court has explained that once a cause of action is extinguished by the running of such a prescriptive period, "a subsequent timely suit against alleged solidary obligors will not revive the prescribed action." Denoux v. Vessel Mgmt. Servs., Inc. , 07-2143, p. 7 (La. 5/21/08), 983 So.2d 84, 89.

      The declarations page of the State Farm Mutual automobile liability policy reports UM coverage limits of $250,000 "each person" and $500,000 "each accident" coverage.

      Further, jurisprudence provides that: "The whole theory of umbrella insurance is that the insured protects himself against catastrophic loss by the procurement of insurance coverage which takes up where his primary policy leaves off. Thus, umbrella coverage is to be regarded as true excess over and above any type of primary coverage." Lee v. USAA Cas. Ins. Co. of Am. , 571 So.2d 127, 129, n.3 (La.1990) (quoting Coates v. Northlake Oil Co. , 499 So.2d 252, 255 (La.App. 1 Cir. 1986), writ denied , 503 So.2d 476 (La.1987) ).