Summary
In Liberty Mutual v. Noble, 2004-727 (La. App. 5th Cir. 11/30/04), 889 So.2d 1158, 1159, counsel for an insurer argued that " the clerk [of court] dropped the ball on this one and then I might have fouled up a little bit, but the point is, we followed the requirements of the Civil Code and it just didn't get served."
Summary of this case from Methvien v. Our Lady of LakeOpinion
No. 04-CA-727.
November 30, 2004.
Appeal from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 588-292, Jo Ellen V. Grant, J.
Alfred V.P. Boudreaux, Opelousas, LA, for Appellant, Liberty Mutual Insurance Company.
Marianne S. Pensa, Metairie, LA, for Appellees, Barbara Noble and State Farm General Insurance Company.
Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
Appellant, Liberty Mutual Insurance Company (hereinafter "Liberty"), appeals the district court judgment granting the motion for involuntary dismissal in favor of appellees, Barbara Noble and State Farm General Insurance Company (hereinafter "State Farm"). For the reasons that follow, we affirm the district court's judgment.
Facts
In November of 2001, Gretchen Rodriguez and Aimee Fortier were renting an apartment on Helios Avenue that was owned by Barbara Noble. On November 23, 2001, a water leak in another apartment caused significant damage to Rodriguez's and Fortier's property. On the date of the incident, Rodriguez was insured pursuant to a renter's insurance policy issued by appellant, Liberty. Liberty paid for the damages incurred by their insured.
Procedural History
On November 25, 2002, Liberty filed a Petition for Damages in Subrogation against Barbara Noble, her tenant, and Noble's insurer, State Farm. The first paragraph of the petition included the names and street addresses of Noble and her tenant. The same paragraph named State Farm as defendant and "a foreign corporation authorized to do and doing business in the State of Louisiana who may be served through the Secretary of State for the State of Louisiana." In the final paragraph of the petition, Liberty prayed, among other things, "that the defendants herein be served with a copy of these pleadings. . . ." The petition did not contain further service instructions.
On November 14, 2003, Barbara Noble was served with the petition. State Farm was served with the petition on November 24, 2003.
On January 16, 2004, based on Liberty's failure to timely request service as required by La. C.C.P. article 1201(C), Noble and State Farm filed a Motion for Involuntary Dismissal pursuant to La. C.C.P. article 1672(C). On April 21, 2004, the district court signed a judgment granting Noble and State Farm's motion and dismissed Liberty's claims against Noble and State Farm without prejudice. Liberty now appeals that judgment.
Discussion
Pursuant to La. C.C.P. art. 1201(C), "[s]ervice of the citation shall be requested on all named defendants within ninety days of the commencement of the action." If service is not requested within the time period provided by La. C.C.P. art. 1201(C), La. C.C.P. art. 1672(C) mandates that the action be dismissed without prejudice, "unless good cause is shown why service could not be requested." "Good cause" is not defined by article 1672(C). However, it is well established in our jurisprudence that mere confusion or inadvertence or mistake in requesting service on the part of the plaintiff's counsel is not a sufficient basis for good cause. Norbert v. Loucks, 01-1229 (La. 6/29/01), 791 So.2d 1283; Lewis v. Spence, 00-0648 (La.App. 2 Cir. 11/02/00), 772 So.2d 354; Ayers v. Goodwill Industries, 03-1576 (La.App. 4 Cir. 3/10/04), 870 So.2d 348; Anderson v. Norfolk Southern Railroad Co., 02-0230 (La.App. 4 Cir. 3/27/02), 814 So.2d 659.
In its brief, Liberty contends, as it did in the lower court, that "the petition in question specifically requested service and followed all requirements as to how service should be perfected." Further, "in no place on the petition did the plaintiff, Liberty Mutual Insurance Company, request that service be withheld." At the hearing on State Farm's motion to dismiss, Liberty's counsel stated, "I think the clerk [of court] dropped the ball on this one and then I might have fouled up a little bit, but the point is, we followed the requirements of the Civil Code and it just didn't get served." At the hearing on the motion to dismiss, the trial judge, in granting the dismissal, noted that service instructions should be "made very clear at the end after the prayer or . . . the signature of the attorney. . . . I'm not going to require any clerk or clerk's office, to read through an entire petition to find where the service information is. Its[sic] always put at the end. It's not in this one."
After reviewing the record, we find that the record reflects that eleven months passed between the filing of the petition and service of the petition on Noble and State Farm. Moreover, Liberty took no action on the record during this period of time. In fact, plaintiff's counsel explained that he only learned that the defendants had not been served after he contacted the clerk of court in response to his client's request for a status report on the case. In this case, plaintiff's counsel did not explain why he could not have ascertained the status of citation until after the statutory period had run. Under the circumstances, we find that this type of inadvertence or mistake is clearly not "good cause" for the failure to request service within ninety days. Accordingly, we conclude that the district court properly dismissed Liberty's claims pursuant to La. C.C.P. articles 1201(C) and 1672(C).
For the reasons stated herein, the district court judgment granting Liberty's motion to dismiss is affirmed. Costs of this appeal are to be paid by Liberty.
AFFIRMED.
DALEY, J., dissents with reasons.
LSA-C.C.P. art. 891 requires that a civil petition set forth the name, domicile, and a service address of the parties. LSA-C.C.P. art. 1201 requires service of citation be requested on all named defendants within ninety days of commencement of the action. In the instant case, plaintiff, Liberty Mutual Insurance Company, in their petition, requested service on the defendants and gave the proper domiciles and service address. The Petition for Damages in Subrogation stated in pertinent part:
Made defendants herein are: (1) BARBARA NOBLE, a person of the full age of majority and a resident of St. Charles Parish, who may be served at 116 Oak Manor Lane, St. Rose, LA 70087, (2) THOMAS HARTER, a person of the full age of majority and a resident of Jefferson Parish, Louisiana who may be served at 436 Helios Ave., Metairie, LA and (3) STATE FARM MUTUAL INSURANCE COMPANY, a foreign corporation authorized to do and doing business in the State of Louisiana who may be served through the Secretary of State for the State of Louisiana.
* * *
WHEREFORE, PETITIONER, LIBERTY MUTUAL INSURANCE COMPANY, PRAYS that the defendants herein be served with a copy of these pleadings and after due proceedings had, that there be Judgment herein, in favor of Liberty Mutual Insurance Company, against Barbara Noble, Thomas Hartner and State Farm Mutual Insurance Company. . . .
While I acknowledge it is the customary practice to provide service instructions at the end of the petition, I have found no statute or rule that requires the request for service be made at the bottom of the last paragraph of the petition. In Parker v. Rite Aid Corporation, 03-0208 (La.App. 4 Cir. 3/26/03), 843 So.2d 1140, writ denied, 03-1152 La.6/20/03), 847 So.2d 1237, the Fourth Circuit Court of Appeal found that plaintiff's request for service of process to the Clerk at the time of filing his petition was sufficient despite the custom that service requests were made to the civil sheriff in that district court. Louisiana Attorney General opinion number 99-276 describes what constitutes a request for service of the citation pursuant to LSA-C.C.P. art. 1201(C):
Code of Civil Procedure Article 1201(C) requires that service of citations be requested on all named defendants within ninety (90) days of commencement of the action. Regarding the form of the petition and its' specific requirements regarding names and addresses of defendants, Code of Civil Procedure Article 891(A) states as follows:
The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation; shall designate an address, not a post office box, for receipt of service of all items involving the litigation; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative. (Emphasis added).
Per Article 891, the petition must set forth the name, surname, domicile and a service address of the parties. Code of Civil Procedure Article 853 further requires that "the title of the action shall state the name of the first party on each side with an appropriate indication of other parties." Clearly, the petition or pleading must state the name and address of the parties. However, in accordance with Code of Civil Procedure Article 854, "no technical forms of pleading are required." In accordance with the above cited articles, there must clearly be a request for service. The ultimate issue of what exactly constitutes a "request for service" must be determined by the court on a case by case basis. Louisiana Acts 1997, No. 518, amended article 1201, adding paragraph C which requires a request for service to be made within 90 days of filing. We are not aware of any court decisions interpreting exactly what constitutes a request for service.
In this case, the plaintiff has filed suit for damages in subrogation to its insured's rights. An insurer stands in the shoes of the insured when subrogated to his rights acquiring the independent right to assert the insured's actions and rights. Barreca v. Cobb, 95-1651 (La. 2/28/96), 668 So.2d 1129.
Article 1, Section 2, of the Louisiana Constitution of 1974, provides that "No person shall be deprived of life, liberty, or property, except by due process of law." Exxon Pipeline Co. v. Hill, 00-2535 (La. 5/15/01), 788 So.2d 1154, 1166. Laws in derogation of these established rights in long standing must be strictly construed. Touchard v. Williams, 617 So.2d 885, 892 (La. 1993). Statutes are to be interpreted giving the effect which makes the least change in the existing body of law, where there is any doubt about the intent or meaning of laws in derogation of common law or common right. Id.
Because the dismissal of the petition pursuant to LSA-C.C.P. art. 1672(C) is in derogation of plaintiff's rights, it is not favored. Since plaintiff's in this case have requested service sufficiently to comply with LSA-C.C.P. art 891 and LSA-C.C.P. art 1201, I would reverse the trial court's dismissal and reinstate plaintiff's petition.