The Clock is Still Ticking: Louisiana Case Explores Prescription

When filing a complaint, the attorney needs to make sure that they are bringing in the correct parties and including the right claims with their legal action. Mistakes can result in losing the entire case before it even begins thus focusing on even the smallest details can save a complaint from utter failure.

As careful as one may try to be in forming a complaint, mistakes do happen. This aspect was explored in Glasgow v. Par Minerals Corporation, where an oilfield explosion and subsequent fire at a wellsite near Kinder, Louisiana, significantly injured a direct employee of Therral Story Well Service (TSWS). Par Minerals had contracted with several companies to drill the well for oil and gas, one of the companies being TSWS. The employee who was injured initially filed a tort suit against Par Minerals alone, including Avery Graves as the on-site supervisor for Par. The latter part of the petition was wrong as Avery Graves was the president and sole-shareholder of Pipe Services.

This mistake resulted in two supplemental and amended petitions, leaving Par as the sole defendant. Over one year later, a third supplemental and amended petition added to Par, Pipe Services and its insurer, Colony Insurance Company. Thus, the final petition had three defendants, one named within one year of the accident, and two named over one year after the accident. The timing of the amendments and petitions are extremely important, because had the latter of the two defendants been named within one year of the accident, the entire result of the case may have come out differently. Again, focusing even on the smallest details can help save a case from failure.

Overlooking details, including dates of decisions rendered within the case, can have enormous consequences. Specifically, the direct employee/appellant mistakenly appealed the wrong judgment in the motion for devolutive appeal, the employee stated he had been “aggrieved by the ruling rendered and signed on December 28, 2009, where the Court granted Pipe Services exception to prescription.” The only problem with that appeal was that December 28, 2009, was not the grant of an exception to prescription. Rather, the exception to prescription was granted on December 5, 2009.

The appellant did catch a lucky break, however, when the Court ruled that the situation was analogous to Kirkby – Natus, where the defendant also appealed the wrong decision. The Court held that appeals are highly favored by the courts, and should not be dismissed unless there is substantial cause and, unless the grounds urged for dismissal are free from doubt, the appeal will be maintained. So, the question was whether or not appealing a decision based on the wrong date of decision could still be maintained even though there was a blatant mistake in the appeal. The court held that the appellant was clearly intending to appeal from a judgment different than the one identified in the petition for appeal, and both parties treated the appeal as if it were taken against the intended judgment, and it is apparent that the error was neither misleading nor prejudicial to either party.

Timing is everything in a case, and whether or not the time requirements are met determines the life span of the case. Louisiana has specific time requirements that must be met in order for a complaint to survive. For example, for a delictual action, there is a liberative prescription period of one year. Essentially, this means that if a complaint has not been made with all relevant parties within one year of the incident in question, prescription may bar the suit. Prescription may be interrupted, however, by filing suit in a court of competent jurisdiction, and this interruption is granted for the solidary obligor as well as their successors. But, it is important to note that the parties must be named in order for the prescription to be interrupted. This was the problematic issue the Court explored as well in Glasgow v. Par Minerals Corporation. The appellant added parties after one year, thus failing the necessary time requirement to interrupt prescription when he filed the initial suit. The appellant attempted to rely on the argument that since he filed a tort suit against his statutory employer, Par Minerals, the running of prescription in favor of the sub contracted company, Pipe Services, was interrupted. However, there is absolutely no case law to support his argument, in fact, case law holds to the contrary.

Courts have allowed interruption of prescription when the initial claim was failed as a worker’s compensation suit. This was the case in Williams v. Sewage & Water Board of New Orleans, when an employee was killed after his crane came into contact with a power line, and electrocuted him to death. The successors of the deceased employee filed a worker’s compensation claim and then subsequently, past the one year prescriptive time period, attempted to add the manufacturer of the crane he had operated at the time of the incident. The Court held that the timely filed worker’s compensation suit interrupted prescription as to the following claims against the third party tort-feasor for damages. After the Williams decision, Louisiana’s jurisprudence has maintained (Layman v. City of New Orleans, 753 So.2d 254, 98-705 (La.App. 4 Cir. 1998),; and Williams v. Holiday Inn Worldwide, 816 So.2d 998, 02-762 (La.App. 4 Cir. 2002)) that a tort suit filed against a statutorily immune employer does not interrupt prescription as to third party tort-feasors. Thus, the court will not allow a party to add parties after the one year prescriptive period when they initially filed a tort suit.

Thus, the Courts may forgive but they do not easily forget. Human error, such as making the mistake in terms of a date of a decision, is one thing. However, attempting to circumvent prescriptive periods are another. Therefore, as mentioned at the beginning of this piece, do not overlook the small details as it may be the small things that can destroy a case before it even begins. By hiring an experienced attorney that is careful with these matters and makes sure to cover these issues, you can make sure that you do not fall victim to these problems.

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