Traylor v. Reliance Ins. Co.Traylor v. Reliance Ins. Co.
BYRNES, Judge.
This personal injury action arises out of a March 21, 1995 automobile accident. Plaintiffs, Robert Traylor and Amy Traylor, individually and on behalf of their minor child, Brandon Traylor, filed this suit on January 18, 1996, seeking damages incurred as a result of injuries sustained by Mr. Traylor in the accident. Named as defendants were relators, Jeffery Smith, the driver of the other vehicle involved in the accident, his employer, Westinghouse Electric Company, and its insurer, Reliance Insurance Company, along with other defendants, State Farm Mutual Automobile Insurance Company, plaintiffs’ UM carrier, and Reliance National Indemnity Co., also providing UM coverage for the vehicle driven by Mr. Traylor. On June 18, 1997, plaintiffs filed a First Supplemental and Amending Petition, adding defendants Barriere Construction Company, Inc. and Barriere Construction, L.L.C., against whom defendants had filed a third-party demand.
On February 17, 1998, while trial of the main demand was in progress, the trial court granted leave to Merrie Lee Kraemer to file a petition of intervention on behalf of her minor child, nine-year old Laura Lynn Kraemer, alleging that Laura Lynn Kraemer was the illegitimate, acknowledged child of Mr. Traylor, and praying for damages for loss of consortium. Relators filed a peremptory exception of prescription, which was denied by the trial court in an oral ruling on May 15, 1998. The relators ask this Court to reverse this ruling in their writ application.
Delictual actions are subject to a liberative prescription of one year.
Relators aver that, pursuant to
An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.
A petition of intervention is an incidental demand.
Original plaintiffs’ first supplemental and amending petition contains a certificate of service dated June 17, 1997. Ms. Kraemer‘s intervention was filed on February 17, 1998, over eight months later. Therefore,
Subsequently, Act 86 of 1974 amended
Therefore, the fact that Article 1067 does not apply in this case (because it is uncontested that the intervention was not filed within ninety days after service of the main demand and the supplemental demand) is not necessarily fatal to the respondent‘s intervention.
The respondent-intervenor asserts that as Robert Traylor‘s acknowledged daughter, her claim for loss of consortium arising out of her father‘s injuries puts her in the same category of plaintiff as Traylor‘s legitimate son Brandon who asserted a similar claim in the original and supplemental petitions in the main demand. The respondent asserts that: “The respondent intervenor relies upon the Supreme Court decision in Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040 (La. 1985), which held that prescription was interrupted on behalf of the intervenors by the timely filing of an original petition by their relatives who were in substantially the same position as to the decedent.” Giroir made no such general statement. Giroir was limited to a holding that an amended petition adding an additional party plaintiff after the expiration of the prescriptive period would be allowed under
(1) the amended claim arises out of the same conduct, transaction, or occurrence
set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.
Where these criteria are met the Giroir court reasoned2 that “no essential protective purpose of the prescriptive statute is violated by permitting relation back of the post prescription amendment based on the same factual situation pleaded in the original timely petition,” because:
The fundamental purpose of prescription statutes is only to afford a defendant economic and psychological security if no claim is made timely, and to protect him from stale claims and from loss of non-preservation of relevant proof. They are designed to protect him against pleading mistakes that his opponent makes in filing the formal claim within the period.
The first and third of the above delineated Giroir criteria are clearly met by the respondent‘s intervention, and we will assume for purposes of argument that the fourth has also been met. However, it cannot be said that the second was met. In Giroir the court noted that:
“The defendants knew or should have known of the existence and involvement of the Giroir children: First, because the facts in the original petition gave defendants notice of, and did not negative, the reasonable possibility that a surviving child of the deceased 55 year old married woman would be entitled to recover as a survivor or wrongful death beneficiary under Civil Code article 2315 and might later assert a claim; Second, because SLMC received actual notice that Mrs. Giroir had children and grandchildren ...”
[Emphasis added.]
It is significant that the Giroir court found that the defendant had actual notice of the potential additional plaintiffs. In the instant case the respondent-intervenor does not contend that the relators-defendants had timely actual notice of the existence of Traylor‘s illegitimate daughter. Moreover, the defendants would not have inferred the possible existence of the illegitimate intervenor in the instant as the Giroir court suggested might be done under the facts of that case. In this case, where Robert Traylor filed suit not only on behalf of himself, but also on behalf of his minor son, any reasonable defendant would infer (in a manner analogous to the legal maxim, “inclusio unius est exclusio alterius”) that had Traylor had additional progeny he would have included them in the suit. Of course, the existence of additional illegitimate children is always a possibility, but only in the sense that anything is possible. The fact that there is always the vague and remote possibility of the existence of unknown illegitimate offspring is not such notice of the “existence and involvement of the new plaintiff” as would satisfy the second Giroir requirement. Nor is there any indication that “the facts in the original petition gave defendants notice” as the court in Giroir found to be the case.
Of even greater significance is the fact that in Giroir the court was dealing with
In her opposition to this writ application, intervenor also contends that because she is an illegitimate minor she could not proceed until such time as a tutor had been appointed for her.
Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation. [Emphasis added.]
Intervenor has cited no exception “established by legislation” that would suspend the time for filing the intervention until such time as a tutor has been appointed to represent the minor intervenor, and this Court is aware of no such exception. Moreover, we note that the intervenor makes no allegation that the relators did anything to prevent her from filing her intervention on a more timely basis. Of even greater importance is the fact that if we were to adopt intervenor‘s theory of contra non valentem regarding the suspension of prescription during minority it would make a mockery of
For the foregoing reasons we find that the relators’ exception of prescription is well founded. Accordingly, we reverse the judgment of the trial court and render judgment in favor of the relators, dismissing the intervention at intervenor‘s cost.
WRIT GRANTED; JUDGMENT REVERSED AND RENDERED.
MURRAY, J., concurs.