Meyers v. La. Dep't of Transp. & Dev.

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BENJAMIN T. MEYERS, ET AL. v. LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, ET AL.

No. 20-621

Court of Appeals of Louisiana, Third Circuit

November 24, 2021

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA NO. 131010 HONORABLE VINCENT JOSEPH BORNE, DISTRICT JUDGE

Jo Ann Nixon

COUNSEL FOR PLAINTIFFS/APPELLANTS:

Benjamin T. Meyers

Doreathea M. Viltz

Jeannie C. Prudhomme

Assistant Attorney General

COUNSEL FOR DEFENDANT/APPELLEE:

Louisiana Department of Transportation & Development

Hoai T. Hoang

Special Assistants Attorney General

COUNSEL FOR DEFENDANT/APPELLEE:

Louisiana Department of Transportation & Development

Lauren Camel Begneaud

Caffery, Oubre, Campbell & Garrison, L.L.P.

COUNSEL FOR OTHER DEFENDANT:

Louisiana Farm Bureau Insurance Company

Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville Wilson, Judges.

PERRET, JUDGE.

Plaintiffs-Appellants appeal the trial court's December 17, 2019 Judgment granting Defendant-Appellee's, State of Louisiana through the Department of Transportation and Development ("DOTD"), Peremptory Exception of Prescription. The 2019 Judgment dismissed all claims asserted by Doreathea^[1]Viltz against the DOTD. On appeal, we affirm.

FACTS AND PROCEDURAL HISTORY:

The majority of the factual and procedural history of this case has been set forth in the companion opinion, Meyers v. Louisiana Department of Transportation & Development, 20-620, pp. __ (La.App. 3 Cir. __/__/21) (unpublished opinion):

Benjamin Meyers avers that on October 19, 2016, he was traveling in a 2005 Cadillac DeVille owned by Doreathea[] Viltz^[2]when he hit a "sink hole" with "boulders which protruded out of the hole" on Louisiana Highway 675. Meyers claims that this boulder hit the undercarriage of the car, which caused property damage and caused Mr. Meyers personal injuries. On October 19, 2017, Mr. Meyers filed suit against Louisiana Department of Transportation and Development ("DOTD"), Office of Risk Management, Farm Bureau Insurance Company, and "XYZ" to represent any other unknown or unidentified defendants. Mr. Meyers asserted that the DOTD failed to maintain the state highway and that Farm Bureau issued a policy of comprehensive insurance coverage for the vehicle. He asserted that all Defendants were liable for the damages he set forth, including pain and suffering, medical and pharmaceutical expenses, loss of use of the vehicle, cost of preservation of the vehicle pending repairs, and all other associated costs that will be demonstrated. In a separate paragraph, Mr. Meyers sought property damage to the vehicle.

The DOTD and Office of Risk Management responded by filing a Declinatory Exception of Insufficiency of Service of Process and Dilatory Exception of Lack of Procedural Capacity on November 9, 2017. The exceptions alleged that the Office of Risk Management lacked the procedural capacity to be sued and that La.R.S. 13:5107 and La.R.S. 39:1538 require that the Secretary of the Department of the DOTD, the Office of Risk Management, and the Attorney General's Office be served, which had not occurred. Prior to a hearing on the above exceptions, the DOTD also filed a Peremptory Exception of No Right of Action alleging that Mr. Meyers has no right to assert damage claims for Ms. Viltz's vehicle.

Farm Bureau similarly responded, filing a Declinatory Exception Pleading Insufficiency of Citation and Service of Process and Peremptory Exception of No Cause and/or Right of Action. Farm Bureau alleged there was no company/corporation known as "Farm Bureau Insurance Company" as stated in the Petition for Damages and that service was attempted at an address other than the address for service listed with the Louisiana Commissioner of Insurance. Lastly, Farm Bureau argued that Mr. Meyers failed to state facts in his petition showing that he was the owner of the vehicle, the named insured under the policy, had a contractual relationship with Farm Bureau, or was a third party beneficiary to the policy. Thus, Mr. Meyers had no right of action to bring this suit and failed to assert a cause of action against Farm Bureau.

After the hearing on the above exceptions, the trial court signed a judgment on April 19, 2018, granting the DOTD's exception of insufficiency of service of process, exception of no right of action, and exception of lack of procedural capacity. The judgment dismissed the Office of Risk management with prejudice. The judgment also granted Farm Bureau's exception of insufficiency of citation and service of process and exception of no cause and no right of action. Despite granting the exceptions, the trial court permitted Mr. Meyers to correct the citation/service of process and no right/cause of action deficiencies within sixty days of the judgment.

Accordingly, on June 15, 2018, Mr. Meyers filed Plaintiff's First Supplemental and Amended Petition for Damages. This pleading amended the first paragraph to read, "The petition of BENJAMIN T. MEYERS and DOREATHER [sic] M. VILTZ, persons of full age and both majority and domiciled in Iberia Parish, Louisiana." The amended petition deleted the Office of Risk Management as a defendant but failed to make an amendment to Farm Bureau. Additionally, the amended petition made changes to allege that Farm Bureau was liable to Ms. Viltz, specifically, under its policy of comprehensive insurance coverage for damages to the vehicle, and that both Defendants were liable to Ms. Viltz for the vehicle's property damage. Mr. Meyers maintained his claims that the DOTD was also liable to him, as well as Ms. Viltz for its failure to maintain a state highway and maintained the personal injury damages he suffered. The petition no longer asserted that Farm Bureau was liable for Mr. Meyers' personal injury damages. The amended petition is signed by both Mr. Meyers and Ms. Viltz.

The DOTD filed a motion to dismiss, citing again Mr. Meyers' failure to properly and timely serve the DOTD and failure to assert a right of action against it for Ms. Viltz's claims. Similarly, Farm Bureau also filed a motion to dismiss for Mr. Meyers' failure to correct the prior deficiencies in his Petition for Damages within sixty days.^[3]

Additionally, Farm Bureau filed a Dilatory Exception of Lack of Procedural Capacity and Peremptory Exception of Prescription asserting Mr. Meyers "lacks procedural capacity to add Doreathea M. Viltz as a plaintiff" and that any claims of Ms. Viltz have prescribed. Farm Bureau notes that no relationship was alleged between Mr. Meyers and Ms. Viltz, other than her ownership of the vehicle that he was operating on the date of the incident. Furthermore, Farm Bureau argued that as a competent major, Ms. Viltz must bring her own suit, and Mr. Meyers cannot simply add Ms. Viltz as a plaintiff via an amending petition. Farm Bureau suggested that to assert her claims, Ms. Viltz must either file a separate suit or intervene in Mr. Meyers' suit, which she can no longer do because her claims are prescribed.

Once the DOTD was served with the supplemental and amended petition, it filed a motion to strike the pleading as untimely due to Mr. Meyers' failure to serve the DOTD within the sixty-day extension set by the April 19, 2018 Judgment.

Appellant did not submit any opposition to the motions. Both motions to dismiss, Farm Bureau's exceptions of procedural capacity and prescription, and DOTD's motion to strike were heard on December 17, 2018. In a judgment signed January 11, 2019, the motions to dismiss were denied and the DOTD's motion to strike was passed at the request of counsel. However, Farm Bureau's exceptions of lack of procedural capacity and prescription were granted, and all claims asserted against Farm Bureau were dismissed with prejudice.

Appellants appealed the January 11, 2019 Judgment dismissing all claims against Farm Bureau, which is the issue in docket number 20-620. Thereafter, the case against the DOTD continued in the trial court.

After discovery was unsuccessfully attempted by the DOTD, the DOTD filed a Peremptory Exception of Prescription on September 16, 2019, alleging that Ms. Viltz's claims for property damage had prescribed for the same reasons set forth by Farm Bureau in its prior and successful motion. The DOTD re-urged that Ms. Viltz's property damage claims prescribed one year from the accident and, therefore, could not be brought in an amended petition adding her as a plaintiff. The DOTD attached Farm Bureau's procedural capacity and prescription motion and memorandum to its motion. Appellants, again, did not submit an opposition.

The exception of prescription and a motion to dismiss for failure to respond to discovery were both heard on November 12, 2019. In a judgment signed December 17, 2019, the trial court denied the DOTD's motion to dismiss, but awarded it legal expenses incurred in preparing and filing the motion. However, the trial court granted the DOTD's exception of prescription and dismissed Ms. Viltz's claims with prejudice.

Appellants appeal the November 12, 2019 Judgment asserting two assignments of error: (1) the trial court erred in granting the exception of prescription and (2) the trial court erred in taking evidence in the exception and later on the motion for summary judgment.

DISCUSSION:

We will first discuss Appellants' second assignment of error as it alleges the trial court was divested of jurisdiction to hear the exception of prescription while docket 20-620 was pending on appeal. We note that Appellants also assert that a motion for summary judgment should not have been heard while the appeal was pending, however that summary judgment does not appear in our record and, thus there is nothing regarding...