Brown v. Borg
2011 La. App. LEXIS 30
| La. Ct. App. | 2011Background
- Brown filed a petition for damages on Aug 18, 2005 naming Borg and State Farm for injuries from a 2004 collision.
- Discovery responses were delivered to defendants on July 17, 2006; defense letters in 2007 sought responses and proposed a Rule 10.1 conference.
- There was no further formal action by either party after July 17, 2006.
- Defendants moved to dismiss for abandonment on Oct 16, 2009; the district court dismissed Oct 19, 2009.
- Brown moved to set aside the dismissal; the district court denied on Feb 4, 2010; appellate review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense letter constitutes a step in prosecution or defense | Brown argues the letter was a discovery action and a step nullifying abandonment. | State Farm argues the letter was not a formal step and did not interrupt abandonment. | Letter not a step; abandonment period not waived; judgment affirmed. |
Key Cases Cited
- Moore v. Eden Gardens Nursing Center, 850 So.2d 998 (La.App.2d Cir. 2003) (letters about discovery not a fresh step in prosecution)
- James v. Formosa Plastics Corp. of Louisiana, 813 So.2d 335 (La. 2002) (defining ‘step’ for abandonment)
- Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779 (La. 2001) (two exceptions to abandonment; discovery actions recognized)
- Jones v. Phelps, 665 So.2d 30 (La. App. 1st Cir. 1995) (waiver of abandonment when defendant acts inconsistent with abandonment)
- State v. White, 954 So.2d 291 (La. App. 2d Cir. 2007) (abandonment principles applied in jurisprudence)