66 So. 3d 482
La.2011Background
- Burnett sued DOTD and other state entities for an automobile-accident claim; he filed by fax and requested service on the attorney general.
- DOTD sought involuntary dismissal and insufficiency of service for not naming the secretary of DOTD as a required service target under LSA-R.S. 13:5107(A).
- LG argued Burnett failed to request service on the department head within 90 days as required by LSA-R.S. 13:5107(D)(1), leading to dismissal under 13:5107(D)(2).
- The trial court rejected DOTD’s dismissal and the appellate court later reversed, holding double service was required; the Supreme Court granted a supervisory writ.
- The court held that service on the attorney general alone satisfied 13:5107(A) and Burnett could pursue service under LSA-R.S. 39:1538(4); the case was remanded to cure service defects.
- The Whitley decision was cited to guide cure of insufficient service and opportunity to cure under 932(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on the attorney general alone satisfies 13:5107(A). | Burnett contends no double service is required under 13:5107(A). | DOTD argues service must include the department head per 13:5107(A) and D and possibly other parties. | Yes; service on the attorney general alone suffices. |
| Whether failure to serve the DOTD secretary or risk management requires dismissal under 39:1538(4). | Incomplete service can be cured by later service on required entities. | Incomplete service triggers dismissal under 39:1538(4). | Not required to dismiss; defect may be cured by service on secretary and risk management; remand for cure. |
| Whether the appellate court erred by not allowing a cure period and by affirming some dismissals. | Appellate court should have allowed curing service defects. | Court properly sustained insufficiency of service. | Remand for cure; amend to allow service on required parties; reverse in part, remand. |
Key Cases Cited
- Whitley v. State, Board of Supervisors of LSU A&M College, 66 So. 3d 470 (La. 2011) (guides cure of service deficiencies under 932(A) and 39:1538 context)
- Barnett v. Louisiana State University Medical Center-Shreveport, 841 So. 2d 725 (La. 2003) (double service not required when service on attorney general suffices under 13:5107(A))
- Thomas v. Louisiana Department of Public Safety and Corrections, 848 So. 2d 635 (La. App. 1st Cir. 2003) (supports interpretation of service requirements under 13:5107(A))
- Johnson v. University Medical Center of Lafayette, 968 So. 2d 724 (La. 2007) (addressed sufficiency of service information and related concerns)
- Taylor v. LSU Medical Center, 892 So. 2d 581 (La. App. 2nd Cir. 2004) (noting service of process standards in state action against agencies)