60 So. 3d 1205
La.2011Background
- Residents of Oberlin sue city for sewerage overflow damages; Stenson petition filed Oct 20, 2003 against Oberlin.
- Consolidated plaintiffs filed First Supplemental and Amending Petition adding MMLH on Sep 22, 2004; class status petition Mar 11, 2005; MMLH served Mar 17, 2005.
- On July 20, 2006, Silton and Robin Fuselier filed an intervening petition with similar claims.
- MMLH filed an exception of prescription; trial court sustained; judgment dismissing Fuseliers’ claims against MMLH with prejudice.
- Court of Appeal reversed, applying Article 1153 (relation back) and Giroir factors to relate Fuseliers’ claim back to the Stenson petition.
- Louisiana Supreme Court holds Article 1067 governs incidental demands (interventions), and Fuseliers’ petition is prescribed; remands to permit amendment to remove prescription grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who governs prescription for interventions? | Fuseliers rely on Giroir/1153 for relation back. | 1067 governs incidental demands, including interventions. | Article 1067 governs incidental demands; 1153 not applicable to interventions. |
| Is Fuseliers’ intervention timely under Article 1067? | Intervention relates back to Stenson petition under Giroir. | Intervention must be within 90 days of service on the last defendant; it was not. | Intervention is prescribed; not timely under Article 1067. |
| Should Giroir factors apply to interventions? | Giroir factors allow relation back for interventions. | Giroir is limited to amendments; does not apply to interventions. | Giroir factors do not control; apply Article 1067 for interventions. |
Key Cases Cited
- Giroir v. South Louisiana Medical Center Div. of Hospitals, 475 So.2d 1040 (La. 1985) (established four-part Giroir test for relation back)
- Riddle v. Simmons, 626 So.2d 811 (La. App. 2d Cir.1993) (interventions may relate back; prescriptive notices context)
- Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979) (adequate notice to defendant; prescriptive purposes)
- Moore v. Gencorp, Inc., 633 So.2d 1268 (La.1994) (Article 1067 includes intervention as incidental demand)
- Duffie v. So. Pacific Transp. Co., 563 So.2d 933 (La.App. 1st Cir.1990) (distinguished Giroir applicability to interventions)
- Moisant v. Dominick, 609 So.2d 261 (La.App. 5th Cir.1992) (incidental demand vs. amended petition; Article 1067 control)
- Traylor v. Reliance Ins. Co., 715 So.2d 1253 (La.App. 4th Cir.1998) (interventions not always Giroir; relation back limited)
- In re: Matranga, 948 So.2d 261 (La.App. 4th Cir.2006) (post-prescription interventions may relate back under Giroir factors)
- Reggio v. E.T.I., 15 So.3d 951 (La. 2008) (timeliness of third-party demands; Moore/1067 context)