84 So. 3d 757
La. Ct. App.2012Background
- Plaintiff Norma Marcel, mother of Timothy Hill, sues for wrongful death and survival after a 2009 single-car crash on Highway 90 near Iberia Parish.
- Hill was ejected from a 2008 Toyota Tundra; he later died from injuries.
- Defendants named include Toyota Motor North America entities and the Louisiana DOTD.
- DOTD filed a declinatory exception of insufficiency of citation and service of process, arguing service did not comply with La.R.S. 13:5107 and La.R.S. 39:1538.
- Trial court granted the exception and dismissed the suit against DOTD without prejudice.
- Appellate court must address whether service defects can be cured under subsequent service rules and corresponding statutory authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on the head of the DOTD and risk management is required or curable. | Marcel cannot cure by serving others not initially served. | DOTD requires service on head of department and risk management within time. | Service on head and risk management was defective but curable; dismissal reversed in part. |
| Whether the trial court properly dismissed the claims against DOTD after defective service. | Service could be cured by later service on required entities. | Defect warranted dismissal under statute. | Dismissal reversed to permit curing of service; proceedings remanded. |
| What is the proper remedy given Whitley/Burnett decisions and service rules? | Rules allow curing of service defects. | Court must affirm dismissal for insufficiency. | Affirm in part, reverse in part, remand with cure period. |
Key Cases Cited
- Whitley v. State, Board of Supervisors of Louisiana State University Agricultural Mechanical College, 66 So.3d 470 (La. 2011) (serving only attorney general may satisfy 13:5107 if legislature permits; service on other entities can be cured under 39:1538(4))
- Burnett v. James Construction Group, 66 So.3d 483 (La. 2011) (double service not required; failure to serve additional entities within 90 days can be cured; 39:1538(4) not time-barred)