McDaniels v. Allison , 1998 La. LEXIS 153 ( 1998 )

In re McDaniels, Gwendolyn J.;—Plaintiffs); applying for writ of certiorari and/or review, supervisory and/or remedial writ; to the Court of Appeal, Fourth Circuit, No. 97CW-1358; Parish of Orleans, Civil District Court, Div. “F”, No. 88-22770.

Granted. Plaintiff met her burden of proving an interruption of prescription based on solidary liability, since the allegations of her petition establish that there was a single injury to her children for which all defendants were liable. Defendant offered no evidence to controvert these allegations. Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court denying the exception of prescription is reinstated at this time. However, if, after trial on the merits, it turns out that under the facts proven by plaintiff there is no solidary liability because the timely filed defendant is not found liable to plaintiff at all, then defendant may re-raise the exception of prescription. Younger v. Marshall Industries, 618 So.2d 866 (La.1993). Case remanded to the trial court for further proceedings.

TRAYLOR, J., would deny the writ. LEMMON, J., not on panel.