Opinion
NO. 2017 CW 0182
04-25-2017
JAN SHOLTY AND NICHOLAS SHOLTY v. AMERICAN ALTERNATIVE INSURANCE COMPANY (AAIC) AND LIVINGSTON PARISH FIRE PROTECTION DISTRICT NO. 4
In Re: American Alternative Ins. Corp. and Livingston Parish Fire Protection District No. 4, applying for supervisory writs, 21st Judicial District Court, Parish of Livingston, No. 152403. BEFORE: PETTIGREW, McDONALD, WELCH, CHUTZ AND PENZATO, JJ.
WRIT DENIED.
JTP
JEW
WRC
McDonald and Penzato, JJ., dissent and would have granted the writ in part and denied the writ in part. When an amended petition asserts the claims at issue, and it is prescribed on its face, the plaintiff bears the burden of proving the claim has not prescribed. See Guidry v. USAgencies Cas. Ins. Co., Inc., 2016-0562 (La. App. 1st Cir. 2/16/17), -- So.3d --, 2017 WL 658735; McKenzie v. Imperial Fire & Cas. Ins. Co., 2012-1648 (La. App. 1st Cir. 7/30/13), 122 So.3d 42, 47, writ denied, 2013-2066 (La. 12/6/13), 129 So.3d 534. An amendment adding or substituting a plaintiff should be allowed to relate back if (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. Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040, 1044 (La. 1985). Although plaintiff herein argues facts which she asserts prove these elements, she failed to introduce evidence to support her arguments. Therefore, we find that plaintiff failed to meet her burden of proving that the amended petition related back to the filing of the original petition, and therefore, failed to prove that her claim has not prescribed. Accordingly, we would have granted the writ application in part and reversed the district court ruling which denied the exception of prescription. We would have denied the writ application as to the remaining issue of the exception of no right of action. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT