Debra Miller v. Randall Lathers ( 2019 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DEBRA MILLER NO. 2019 CW 1140
VERSUS
RANDALL LATHERS, ET AL DEC 18 2019
In Re: Progressive Security Insurance Company as liability
carrier and Randall Lathers, applying for supervisory
writs, 21st Judicial District Court, Parish of
Tangipahoa, No. 2017- 3194.
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
WRIT GRANTED WITH ORDER. The district court' s October 31,
2018 ruling denying the exception of prescription filed by
Randall Lathers and Progressive Security Insurance Company, in
its capacity as the liability insurer for Randall Lathers, is
vacated. Louisiana Civil Code article . 3462 provides that "[ i] f
a suit is commenced in an incompetent court, or in an improper
venue, prescription is
interrupted only as to a defendant served
by process within the prescriptive period." Herein, none of the
defendants were served within the one- year prescriptive period
for del.ictual actions, as by Louisiana
provided Civil Code
article 3492. Thus, in determining whether this suit was timely
initiated, the 21st judicial District Court must make an
independent determination of whether venue was proper in East
Baton Rouge Parish, where the suit was originally filed. See
Land v. Vidri,ne, 2010- 1342 ( La. 3/ 15/ 11) 62 So. 3d 36, 42; but
cf. Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L. L. P.,
47, 186 ( La. App. 2d Cir. 8/ 22/ 12), 120 So. 3d 281, 288 ( finding
that transfer of venue by consent judgment is a" legal barrier"
that precludes independent consideration of the venue issue by
the transferee court), overruled on other grounds by Lomont v.
Bennett, 2014- 2483 ( La. 6/ 30/ 15), 172 5o. 3d 620, cert. denied,
U. S. _, 136 S. Ct. 1167, 194 L. Ed. 2d 178 ( 2016). This matter
i shereby remanded to the 21. st Judi,c.i,al, District Court for
consideration in accordance with this ruling.
JEW
GH
McClendon, J., concurs.
COURT OF APPEAL, FIRST CIRCUIT
DEPUT LERK OF COURT
FOR THE COURT