Opinion
NO. 18-C-406
08-15-2018
KASHANNI JOHNSON, ET AL v. FOREMOST INSURANCE COMPANY, ET AL
Susan Buchholz
First Deputy Clerk IN RE PROGRESSIVE SECURITY INSURANCE COMPANY APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JOHN J. MOLAISON, JR., DIVISION "E", NUMBER 771-804 Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
WRIT GRANTED; TRIAL COURT JUDGMENT REVERSED; PEREMPTORY EXCEPTION OF PRESCRIPTION SUSTAINED
In this writ application, relator, Progressive Security Insurance Company, seeks review of the trial court's judgment overruling its exception of prescription. For the following reasons, we find that plaintiffs' claims against Progressive are prescribed as a matter of law and, thus, that the trial court erred in overruling its exception of prescription. Accordingly, we grant this writ application; reverse the trial court's judgment overruling Progressive's exception of prescription; grant Progressive's exception of prescription; and dismiss plaintiffs' claims against Progressive with prejudice.
On May 5, 2017, plaintiffs, Kashanni Johnson and Tamyra Duncan, filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson only against defendant Foremost Insurance Company for damages arising out of a June 3, 2016 accident. In their petition, plaintiffs alleged that Duncan was operating a vehicle owned by Cynthia Nelson, with plaintiff Johnson as a passenger, when the vehicle was struck by a passing vehicle operated by Justin A. Vance and owned by Sam Kendrick and Kelli Lilliman. In the petition, plaintiffs further contended that Justin Vance, Kelli Lilliman, and Sam Kendrick maintained an insurance policy with State Farm and that plaintiffs had reached a settlement with State Farm prior to filing suit, reserving the rights to file suit against any underinsured/uninsured motorist policies, including Foremost. In their petition, plaintiffs further "reserve[ed] all rights herein to amend and supplement the petition in the event that Justin A. Vance has liability insurance with another insurance company... ." Plaintiffs only named as a defendant and requested service of the original petition on Foremost.
The petition incorrectly referred to Sam Kendrick and Kelli Lilliman as "Kelli N. Sam."
On May 12, 2017, plaintiffs amended the settlement release agreement to include a reservation of rights as to "any other liability insurer."
On October 17, 2017, plaintiffs filed a first supplemental and amending petition, naming Progressive as a defendant, claiming that Progressive issued a policy of liability insurance to Justin A. Vance and that such policy was in effect at the time of the accident. In their supplemental petition, plaintiffs specifically reserved the "rights against any other liability insurer who may have coverage for Justin A. Vance," but, again, failed to name Justin A. Vance as a defendant in the supplemental petition.
On February 23, 2018, Progressive filed an exception of prescription, pointing out that plaintiffs' first supplemental and amended petition for damages arising out of the June 3, 2016 accident is prescribed on its face. Further, Progressive contended that the filing of the original petition for damages against only Foremost did not interrupt prescription as to Progressive because Foremost, the UM carrier for the plaintiff-vehicle, and Progressive, the tortfeasor's liability policy holder, are not solidarily liable.
On June 26, 2018, the trial court issued a written judgment, overruling Progressive's exception of prescription without reasons. Relator filed this timely writ application, seeking review of the trial court's June 26, 2018 judgment.
In this case, plaintiffs timely filed their original petition for damages against only the UM carrier, Foremost. However, plaintiffs filed their first supplemental and amending petition, naming Progressive, after the one-year prescriptive period for delictual actions. Thus, the supplemental petition is prescribed on its face. See La. C.C.P. art. 3492. Nevertheless, a timely filed suit against one solidary obligor interrupts prescription as to all solidary obligors. La. C.C. arts. 1799 and 3503. Thus, the question before this Court is whether Foremost, the UM carrier providing UM coverage for the plaintiff-vehicle, is a solidary obligor with the liability insurance carrier for the defendant-driver, Justin Vance.
The Louisiana Supreme Court, in Rizer v. American Sur. & Fid. Ins. Co., 95-1200 (La. 3/8/96), 669 So.2d 387, addressed the specific issue raised in relator's writ application. In that case, the Court granted certiorari to consider the issue of "whether an accident victim's uninsured motorist carrier is solidarily obligated with the tortfeasor's liability carrier." Rizer, 669 So.2d at 388. The Court thoroughly analyzed the issue and determined:
It is clear that the obligation of the uninsured motorist carrier does not begin until the obligation under the tortfeasor's motor vehicle liability policy ends; there is no overlap. Since an uninsured motorist carrier and a tortfeasor's motor vehicle liability insurer each has a separate obligation which is not coextensive, they are not liable for the same thing. Therefore, the two are not solidary obligors.
Rizer v. Am. Sur. & Fid. Ins. Co., 95-1200 (La. 03/08/96), 669 So.2d 387, 390.
The Louisiana Supreme Court ultimately held that "we find that a tortfeasor's motor vehicle liability carrier is not solidarily obligated with an accident victim's uninsured motorist carrier." Therefore, in this case, we find that the timely filing of suit against Foremost, the UM carrier, did not serve to interrupt prescription as to Progressive, the tortfeasor's motor vehicle liability carrier.
Compare cases in which the plaintiffs also named the defendant-tortfeasor individually and where the courts found that the defendant-tortfeasor and its liability insurer are solidarily liable with the plaintiffs' UM carrier. See Kelley v. General Ins. Co. of America, 14-0180 (La. App. 1 Cir. 12/23/14), 168 So.3d 528, 538 for an excellent discussion of Rizer; see also Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La. 1982) and Aguilar v. Transit Mgmt. of Southeast La., Inc., 900 So.2d 65. --------
Accordingly, we find the trial judge erred in overruling Progressive's exception of prescription. We therefore grant the writ, reverse the trial court judgment, sustain Progressive's exception of prescription, and hereby dismiss plaintiffs' claims against Progressive with prejudice.
Gretna, Louisiana, this 15th day of August, 2018.