Opinion
No. 10621.
October 4, 1979. Rehearing Denied December 17, 1979.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE LIONEL L. COLLINS, J.
Pierre F. Gaudin, Gretna, for plaintiff-appellant.
Dillon Cambre, Gerard M. Dillon and Carmelite M. Bertaut, New Orleans, for defendants-appellees.
Before REDMANN, LEMMON and BOUTALL, JJ.
The sole issue in plaintiff's appeal from a judgment maintaining an exception of prescription as to Freddy Palmisano in this tort action is whether a timely petition, which named as defendant's only plaintiff's corporate employer (subsequently dismissed by summary judgment), the employer's executive officers, "Mr. Brady Provozano, Mister `X', Mister `Y'", and "ABC Insurance Company", interrupted prescription as to Palmisano, who was not named as a defendant until plaintiff filed an amended petition filed more than one year after the accident.
The amended petition attempted to substitute Palmisano as a defendant in place of Provozano. However, an amendment to correct the name of a defendant, when the original name is a different name from that attempted to be substituted (rather than a mere misspelling of the same name), does not relate back to the time of the filing of the original petition. Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La. 1974); Roby v. Owens-Illinois, 357 So.2d 99 (La.App. 4th Cir. 1978).
Plaintiff's counsel points out in brief that he was not employed to file suit until the eve of the anniversary date, when he was given the executive officer's incorrect name, and that he could not develop further information because the factory where plaintiff had worked had since been closed. Nevertheless, absence of fault by the attorney and difficulty in developing information (where there is no concealment by the defendant) does not relieve the plaintiff of the necessity of filing a timely suit against the defendant.
Plaintiff argues there was such a close relationship between the employer (who was sued) and the executive officers (who were named incorrectly or with fictitious symbols) that Palmisano should have been adequately notified by the original petition of a suit against him. If adequate notice is a consideration in prescription cases, we still cannot conclude that a suit against a corporate employer notifies all of its supervisory and executive personnel of the action.
Nor does the original petition naming plaintiff's employer interrupt prescription against a co-employee, since the employer and employee are not solidary co-obligors. Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948). Moreover, no co-employee was named in the original petition, the naming of fictitious persons being of no effect, and the insurer of plaintiff's executive officers has never been sued.
A timely petition naming the insurer of the executive officers interrupts prescription against the executive officers who are joined more than one year after the accident. Payton v. Travelers Ins. Co., Associated Indem. Corp., et al., 373 So.2d 1324 (La.App. 4th Cir. 1979); Simmons v. Travelers Ins. Co., 295 So.2d 550 (La.App. 3rd Cir. 1974), cert. den. La., 299 So.2d 795, 796.
AFFIRMED.
LEMMON, J., concurs and assigns reasons.
The decisions in prescription cases, in which the wrong name is originally given for the right defendant, often yield harsh results, particularly when the wrong name was close enough to the correct name to inform that party that the suit asserted a claim against him. Believing that the penalty of dismissal is too harsh a result for an unsubstantial mistake in form, I disagreed with the Majesty and Roby decisions, but I respectfully yielded to the authority of the higher court. Those cases involved the incorrect name of a corporate defendant who actually received service shortly after the petition was filed. This case does not present a mere mistake in a corporate name, but it does present the total avoidance of liability by executive officers of a timely sued corporation, when the executive officers and the corporate employer were all covered by the same insurer and all represented by the same law firm. Again a harsh result is reached on a relatively technical basis.