258 So. 3d 846
La. Ct. App.2018Background
- Plaintiffs (Relators) are five state-employed physicians sued in a medical-malpractice action filed Feb. 27, 2018 after a medical review panel opinion.
- Plaintiff requested service of the petition directly on each physician at their work/home addresses rather than on statutorily mandated agents (Attorney General, Office of Risk Management, and department head).
- Relators filed declinatory exceptions of insufficiency of citation and insufficiency of service of process; the trial court denied those exceptions (Aug. 24, 2018).
- Relators sought supervisory review; this court found the trial court’s denial manifestly erroneous and considered whether service was requested on the proper parties under La. R.S. 39:1538 and La. R.S. 13:5107.
- The court concluded the defect was failure to request service on the required state agents (not mere insufficiency/erroneous service) and reversed, granting the exceptions without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service complied with statutes governing suits against state employees | Plaintiff attempted service directly on the named state-employed physicians at their addresses | Defendant argued the service request was timely and thus effective under La. R.S. 13:5107(D) even if erroneous | Court held service was improper because plaintiff failed to request service on the statutorily required agents (AG, ORM, department head); trial court erred |
| Whether La. R.S. 13:5107(D)’s timeliness proviso cures service on improper recipients | N/A (plaintiff relied on standard practice of serving defendant directly) | Defendant claimed timeliness language made the request timely notwithstanding improper recipient | Court rejected this: timeliness does not excuse failure to request service on the proper parties required by La. R.S. 39:1538 and 13:5107 |
| Whether actual notice of suit defeats insufficiency of citation/service exceptions | N/A | Defendant argued actual knowledge should cure defects | Court reiterated that actual knowledge does not cure failure of proper citation/service under Louisiana law |
| Remedy for defective service on state employees | N/A | Defendant implicitly opposed dismissal | Court granted exceptions without prejudice (dismissal as to those defendants for failure to request service on proper parties within statute) |
Key Cases Cited
- Davis v. Caraway, 164 So.3d 223 (La. App. 5 Cir.) (standard of review for insufficiency of service exception is manifest error)
- Velasquez v. Chesson, 151 So.3d 812 (La. App. 4 Cir.) (failure to serve the statutorily required agents for state health-care provider requires dismissal)
- Barnett v. Louisiana State Univ. Med. Ctr.-Shreveport, 841 So.2d 725 (La.) (plaintiffs strictly required to serve correct state agents and named state defendants within statutory time)
- First Nat. Bank of Jefferson Par. v. Rall, 607 So.2d 716 (La. App. 4 Cir.) (service on minor child found insufficient citation)
- Nationwide Acceptance Co. v. Alexis, 201 So.2d 21 (La. App. 4 Cir.) (service on a young child insufficient; proper citation required)
- Guar. Energy Corp. v. Carr, 490 So.2d 1117 (La. App. 5 Cir.) (defendant's actual knowledge does not supply want of citation)
- Fontenot v. Reddell Vidrine Water Dist., 836 So.2d 14 (La.) (courts presume legislature enacts statutes with knowledge of existing law)