DODT Learns Abandonment Lesson the Hard Way in Acadia Parish Highway Accident

Due to the heavy demands on the court system, the Louisiana Code of Civil Procedure includes several provisions to ensure that litigants do not unduly delay the resolution of their disputes. One of these is the concept of abandonment, which refers to an excessive lapse of time without any forward progress in a case. Generally, the Code considers a case abandoned if “the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” Any party or interested person can file an affidavit stating that “no step has been timely taken” in the case, at which time the trial court will dismiss the action by order that is served on the parties by the sheriff. A motion to set aside the dismissal may be filed in the trial court within 30 days of service.

The Louisiana Department of Transportation and Development (DOTD) sued the owner, lessee, insurer, and driver of a truck that struck an overpass on I-10 in Acadia Parish. The truck’s owner, Oilfield Heavy Haulers, LLC (OHH), had leased the truck to Ace Transportation Co. Ace’s employee, David Vincent, was driving the truck at the time that its oversized load collided with and damaged the overpass. On May 21, 2010, Ace filed a motion for dismissal asserting that no step had been timely taken in the prosecution or defense of the action for a period of three years since March 15, 2007; therefore, the suit had been abandoned and should be dismissed. The trial court signed an order of dimissal on May 24, 2010. On June 18, 2010, DOTD filed a motion to set aside the dismissal, which resulted in a hearing on September 27, 2010. The trial court refused to overturn the dismissal, and DOTD appealed, arguing that two actions taken in 2007 demonstrated that the suit had not been abandoned. First, on April 24, 2007, counsel for OHH scheduled a discovery conference and notified all parties. Then, on May 10, 2007, DOTD sent discovery responses to OHH. DOTD relied on La. Code Civ. P. Art. 561(B), which provides that “[a]ny formal discovery … served on all parties … shall be deemed to be a step in the prosecution or defense of an action.” The court disagreed on both points. It reasoned that the scheduling of the discovery conference, which was necessary because of the DOTD’s delinquency in responding to OHH’s discovery requests and was accomplished via letter between the parties’ attorneys, was an “extrajudicial effort.” As such, it was not “formal discovery” sufficient to constitute a “step in the prosecution of the action” under the Code. With regard to the second point, DOTD admitted that it “inadvertently failed to send a copy of its formal responses to counsel for the remaining defendants [other than OHH].” Accordingly, the court held that “the discovery responses were not sufficient to interrupt abandonment given the lack of service on all parties.” It therefore affirmed the judgment of the trial court denying the DOTD’s motion to set aside the order of dismissal.

On appeal, the DOTD characterized the trial court’s ruling as an overly “strict and rigid interpretation” of the Code. Still, the court of appeal found that the “express requirements of the [Code] article itself and the jurisprudence interpreting” it mandated the trial court’s–and its own–conclusion. The complexity of the Code reveals the importance of a plaintiff’s retaining an experienced and skilled attorney who can confidently navigate the waters of litigation. Here, the DOTD lost the chance to recover for the damage to the I-10 overpass due to a procedural error–one that could have been avoided by closer attention to the Code and its requirements.

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