77 So. 3d 264
La. Ct. App.2011Background
- Plaintiff Hunter was allegedly injured at University Hospital in New Orleans on November 17, 2008.
- He filed suit on November 17, 2009 naming the wrong defendant and requested service on the Attorney General and LSUHSC's proper agent address, but LSUHSC was never served.
- LSUHSC moved to dismiss the action for insufficiency of service of process under La. R.S. 13:5107 and La. R.S. 39:1538(4).
- Trial court granted the exception and dismissed Hunter's claims against LSUHSC without prejudice.
- This Court affirmed, applying Whitley, Burnett, Barnett, and related authorities to require proper service on the correct agent within 90 days or show good cause.
- On rehearing, the court reaffirmed the holding in light of Whitley and Burnett, concluding Hunter failed to timely serve the correct agent and could have amended but did not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service complied with 13:5107 and 39:1538 | Hunter argued timely service on the Attorney General satisfied 13:5107; 39:1538 not applicable. | LSUHSC urged necessity of serving both the Attorney General and LSU Board of Supervisors as the proper agent. | Service insufficient; failure to serve correct agent within 90 days. |
| Whether good cause excused late service | Good faith attempts and notice by risk management should excuse delay. | No good cause; plaintiff could have ascertained proper agent by simple diligence. | No good cause; dismissal proper. |
| Effect of the Whitley/Burnett decisions on this case | Whitley/Burnett allow service on Attorney General alone for the correct defendant. | Whitley/Burnett do not salvage here because wrong defendant was named and initial service was on improper agent. | Whitley/Burnett applied; however Hunter still failed to name the correct defendant or timely request proper service. |
| Whether dismissal should be with or without prejudice | Dismissal should be with prejudice to finality of claim against LSUHSC. | Statutory dismissal without prejudice for failure to timely request service; cure not possible here. | Dismissal without prejudice; preserved prescription implications per 13:5107(D). |
Key Cases Cited
- Igbinoghene v. St. Paul Travelers Insurance Company, 58 So.3d 452 (La. 2011) (strict requirement to timely request proper service; knowledge does not substitute for service)
- Barnett v. Louisiana State University Medical Center-Shreveport, 841 So.2d 725 (La. 2003) (strict good cause standard; need proper agent when service is timely)
- Whitley v. State, Board of Supervisors of Louisiana State University Agricultural Mechanical College, 66 So.3d 470 (La. 2011) (permissive service on attorney general and agency head can satisfy 13:5107; 39:1538(4) considerations)
- Burnett v. James Construction Group, 66 So.3d 482 (La. 2011) (limiting a harsh dismissal to allow cure under 932(A) when service can be perfected)
- Norbert v. Loucks, 791 So.2d 1283 (La. 2001) (good cause not presumed from mere inadvertence or confusion)