Court of Appeals of Indiana.

JORDACHE WHITE AND AMERICAN TRANSPORT, LLC,

and

Canal Insurance Company, Appellants–Defendants,

v.

George REIMER, Appellee–Plaintiff.

No. 71A03–1602–CT–270.

|

Sept. 8, 2016.

NAJAM, Judge.

 

Statement of the Case

*1 [1] Jordache White, American Transport LLC (“American Transport”), and Canal Insurance Company (“Canal”) (collectively, “the Appellants”) appeal the trial court’s decision to deny their joint motion to set aside default judgment. The Appellants raise the following issues for our review:

1. Whether the trial court lacked jurisdiction over White due to allegedly insufficient service of process.
2. Whether the trial court lacked jurisdiction over American Transport due to allegedly insufficient service of process.

 

[2] We affirm.

 

 

Facts and Procedural History1

[3] On January 31, 2010, George Reimer and Jordache White were involved in a motor vehicle collision in Wayne County, Indiana. At the time, White was operating a semi-tractor within the scope of his employment for American Transport. As a result of the collision, Reimer sustained six fractured ribs, a fractured sternum, and torn ligaments in his left knee. He incurred $93,574.67 in medical bills and $20,800 in lost wages. Accordingly, on September 8, 2011, Reimer filed a complaint against White and American Transport for $750,000 in damages. White is not an Indiana resident and American Transport is not an Indiana company.

 

[4] On September 16, Reimer, through his counsel, attempted to serve White at a residential address, in Thebes, Illinois, that White had provided to Indiana law enforcement following the January 31 collision. According to three entries in the trial court’s chronological case summary (“CCS”): “Defendant Jordache White was served by confirmed delivery [at that address on] 09/16/11. Defendant Jordache White was not served by confirmed delivery refused. Not deliverable as addressed. Defendant Jordache White was served by confirmed delivery 09/16/11.” Appellants’ App. at 7. Due to that obvious confusion in the CCS, on September 23 the clerk of the court called Reimer and confirmed that the court file contained a signed return receipt for White at his Thebes, Illinois, address, although that receipt had been signed by a third party, Rhonda Powell. Following the clerk’s information, on November 21 Reimer filed a praecipe for summons for White to be served through the Indiana Secretary of State by certified mail at the same residential address in Illinois.

 

[5] On December 5, Reimer attempted service on American Transport at Route 1, Box 1877, Patton, Missouri, the address provided by White to Indiana law enforcement following the collision. Reimer’s attempted service on American Transport was returned undeliverable as addressed. On January 20, 2012, he filed a praecipe for summons on American Transport to be served through the Secretary of State by certified mail at that same address. On February 22, the Secretary of State issued an affidavit that stated that the summons on American Transport was returned undeliverable as addressed. On February 24, Reimer’s summons on White was also returned by the Secretary of State as undeliverable as addressed.

 

*2 [6] Reimer filed a motion for default judgment on September 5. Thereafter, the trial court entered judgment against White and American Transport for $750,000. Reimer filed a verified motion in proceedings supplemental against White and American Transport on March 5, 2013, which was also returned as undeliverable. Reimer then learned that White had recently moved to an address in Cairo, Illinois.

 

[7] Reimer served the proceedings supplemental on White at White’s Cairo address, and White called Reimer soon thereafter. Reimer asked White if White knew American Transport’s whereabouts. White stated that American Transport operated out of Pittsburgh, Pennsylvania. However, when Reimer attempted to serve the proceedings supplemental at an address for an American Transport business in Pittsburgh, a representative of that business responded and informed Reimer that he had the wrong American Transport business. The representative provided an address for another American Transport business located in Farmington, Missouri. But when Reimer attempted to serve the proceedings supplemental at that address, that mailing was returned as undeliverable.

 

[8] On November 26, Reimer hired two private investigators to find American Transport. Neither located American Transport, but one did locate American Transport’s apparent insurance carrier, Canal. Accordingly, on February 3, 2015, Reimer served the proceedings supplemental on Canal as a garnishee-defendant. On August 24, White and Canal filed a joint motion to set aside default judgment under Indiana Trial Rule 60(B)(6), which the trial court denied. This appeal ensued.

 

 

Discussion

Overview

[1] [9] The Appellants contend that the trial court lacked jurisdiction to enter default judgment against White and American Transport due to insufficient service of process. Therefore, they argue that the judgment is void under Indiana Trial Rule 60(B)(6). Trial Rule 60(B)(6) provides that a court may relieve a party from a default judgment when the judgment is void. “In Indiana, ‘whether the judgment is void turns on whether the defendant was served with process effective for that purpose under the Ind[iana] Rules of Procedure.’ “ Anderson v. Wayne Post 64, 4 N.E.3d 1200, 1206 (Ind.Ct.App.2014) (quoting Glennar Mercury–Lincoln, Inc. v. Riley, 167 Ind.App. 144, 150, 338 N.E.2d 670, 675 (1975)), trans. denied.

 

[2] [3] [4] [10] Our standard of review in such appeals is as follows:

Personal jurisdiction is a question of law. Therefore, our review is de novo, and we do not defer to the trial court’s legal conclusion as to whether personal jurisdiction exists. However, to the extent that personal jurisdiction turns on disputed facts, the trial court’s findings of fact are reviewed for clear error.

Id. (quoting Seibring v. Air Equip. & Eng’g Inc., 988 N.E.2d 272, 274 (Ind.Ct.App.2013)). Further:

a trial court has no discretion on how to rule on a Trial Rule 60(B)(6) motion once a judgment is determined to be either void or valid. If a judgment is void, the trial court cannot enforce it and the motion under 60(B)(6) must be granted; if a judgment is valid, the trial court cannot declare it void and the motion must be denied.

*3 Id. at 1205.

 

[5] [6] [7] [8] [9] [10] [11] Notice of a lawsuit is a requirement of due process:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections…. But when notice is a person’s due, process which is a mere gesture is not due process.

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314–15, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (emphasis added; citations omitted). As we have recognized:

A trial court does not acquire personal jurisdiction over a party if service of process is inadequate. The existence of personal jurisdiction … is … a constitutional requirement to rendering a valid judgment, mandated by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Due Process Clause requires that, in order for constructive notice of a lawsuit to be sufficient, a party must exercise due diligence in attempting to locate a litigant’s whereabouts…. Our review requires scrutiny of the method of authorized service chosen in order to determine whether under the facts and circumstances of the particular case that method was best calculated to inform the defendant of the pending proceeding. An authorized method is sufficient if no other method better calculated to give notice is available but is insufficient if another method obviously better calculated to give notice is available.

Anderson, 4 N.E.3d 1206–07 (citations and quotations omitted).

 

[12] It is undisputed that the Appellants were nonresidents of Indiana at the time of the motor vehicle collision. Generally, a person may be served by sending a copy of the summons by registered or certified mail, delivering a copy of the summons personally, leaving a copy of the summons at his dwelling house or usual place of abode, or serving his agent. Ind. Trial Rule 4.1. And, with respect to nonresidents, Trial Rule 4.4(A)(2) provides:

Any person or organization that is a nonresident of this State … submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or her or his or her agent: [c]ausing personal injury or property damage by an act or omission done within this state.

 

[13] Trial Rule 4.4(B)(2) provides that a nonresident who is subject to our jurisdiction “shall be deemed to have appointed the Secretary of State as his agent upon whom service of summons may be made as provided in Rule 4.10.” And, under Trial Rule 4.10(A),2 litigants must file a praecipe for a summons; state the address, last known address, or that the address is unknown, of the person being served; and pay any fees along with providing copies of a summons, affidavit, and complaint to the clerk of the court in order to accomplish service through the Secretary of State. The Secretary of State is then to serve a copy of the summons and complaint; complete an affidavit showing the date of the mailing; send the clerk a copy of the return receipt with a copy of the summons; and retain a copy of the return receipt. T.R. 4.10(A).3

 

*4 [11] [14] Finally, Trial Rule 4.15(F) provides that “[n]o summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.” However, Trial Rule 4.15(F) “only cures technical defects in the service of process, not the total failure to serve process.” Anderson, 4 N.E.3d at 1210 (quoting LaPalme v. Romero, 621 N.E.2d 1102, 1106 (Ind.1993)).

 

[15] Indiana Code Section 34–33–3–1 is consistent with our Trial Rules regarding service of process but goes further, affirmatively appointing the Secretary of State as a nonresident motor vehicle operator’s attorney for service of process as a matter of law. In particular, that statute states in relevant part:

(b) The operation of a motor vehicle [in Indiana] by a [nonresident or its agent] is considered to be an appointment by the person of the secretary of state to be the person’s attorney upon whom process may be served in any action or proceeding against the person arising from an accident or collision in which the person may be involved while operating or permitting to be operated a motor vehicle on a street or highway or any other place in Indiana.

(c) The operation is an agreement that process against the person has the same legal force and validity as if served upon the person personally.

Ind.Code § 34–33–3–1 (2010).

 

[16] With that legal framework in mind, the Appellants argue on appeal that Reimer failed to provide adequate service to either White or American Transport. We address the Appellants’ arguments with respect to White and American Transport separately.

 

 

Issue One: Service On White

[12] [17] The Appellants first assert that Reimer’s service on White was insufficient. Specifically, the Appellants contend that the CCS entries were inconsistent and, as such, could not demonstrate that sufficient service on White had occurred.4 Further, the Appellants contend that White was never served even though Reimer received a return receipt, signed by a third party, from the address that White provided on the police report. Finally, because the Appellants contend that White was not served at that address, they further contend that service on White through the Secretary of State was not reasonably calculated to reach him there.

 

[13] [18] We reject the Appellants’ arguments. As a matter of law, White had sufficient notice of Reimer’s lawsuit. “Service delivered by United States mail, postage prepaid, as certified mail with a return receipt satisfies the method requirement of due process…. [A]ctual delivery to the party is not jurisdictionally necessary.” Buck v. P.J.T., 182 Ind.App. 71, 73, 394 N.E.2d 935, 937 (1979), trans. denied. There is no question that Reimer satisfied that burden here when he served White at the Thebes, Illinois, address, which White had provided to Indiana’s law enforcement following the collision, and that service was received and signed for by a party at that address, albeit someone other than White. And the Appellants do not suggest on appeal that “another method obviously better calculated to give notice [wa]s available” to Reimer.5 Anderson, 4 N.E.3d at 1206–07. Indeed, the fact that, in an abundance of caution, Reimer took the additional step of serving White through the Secretary of State is irrelevant. We hold that White had sufficient notice of the lawsuit and, as such, we affirm the trial court’s denial of the Appellants’ motion to set aside the default judgment with respect to White.

 

 

Issue Two: Service On American Transport

*5 [14] [19] The Appellants next contend that Reimer’s service on American Transport through the Secretary of State was insufficient. Specifically, the Appellants assert that, because Reimer did not exercise due diligence to ascertain American Transport’s whereabouts before attempting service through the Secretary of State, that service did not comport with the demands of due process. We cannot agree.

 

[20] In support of their argument, the Appellants rely on Munster v. Groce, 829 N.E.2d 52 (Ind.Ct.App.2005). In Munster, all the parties were Indiana residents. The plaintiff, Munster, twice attempted to serve the defendant, Groce, at addresses that resulted in a return of service. When those attempts failed, rather than attempt service by publication Munster instead attempted to serve Groce through the Secretary of State at those same addresses. We held that Munster’s attempt at constructive service through the Secretary of State failed to satisfy the requirements of due process. Id. at 61. In particular, we stated:

in order for such service [on the Secretary of State pursuant to Trial Rule 4.10] to be constitutionally effective[,] there must be a showing by the plaintiff or party who sought such service that due diligence to ascertain the defendant’s current whereabouts was exercised and service through the Secretary of State was reasonable under the circumstances.

Id. at 60–61.

 

[21] Appellants’ reliance on Munster is misplaced. In Munster, the defendant was a person and a resident of Indiana. Yet, when attempts at actual service on the defendant failed, the plaintiff eschewed “[t]he textbook example of constructive service and notice … by publication.” Id. at 58. Instead, the plaintiff sought constructive service through the Secretary of State. We were openly critical of the plaintiff’s apparent decision to “sidestep the due diligence requirements of notice by publication and simply ask for service through the Secretary of State.” Id. at 61. In other words, in Munster there appeared to be “another method obviously better calculated to give notice” available to the plaintiff than the method of service actually chosen by the plaintiff. See Anderson, 4 N.E.3d at 1206–07.

 

[22] That is not the case here, however, where it is undisputed that the defendant, American Transport, is a nonresident company. As a nonresident that authorized its agent, White, to operate its motor vehicle in Indiana, as a matter of law the Secretary of State was American Transport’s “attorney upon whom process may be served in any action … arising from an accident or collision” in Indiana. I.C. § 34–33–3–1(b). Further, when American Transport operated its vehicle in Indiana, it agreed “that process against [the Secretary of State] has the same legal force and validity as if served upon [American Transport] personally.” I.C. § 34–33–3–1(c).

 

[23] In other words, unlike in Munster, here the Secretary of State was, as a matter of law, American Transport’s attorney for purposes of service of process, and service on the Secretary of State was service on American Transport. I.C. § 34–33–3–1(b), (c). Thus, Reimer’s reliance on Trial Rules 4.4(B) and 4.10(A) was reasonable under the circumstances when he served American Transport’s attorney pursuant to Indiana Code Section 34–33–3–1, using the business address provided by American Transport’s employee to Indiana law enforcement officers who were investigating the collision. And, unlike in Munster, here there was not “another method obviously better calculated to give notice” to American Transport than the method actually employed by Reimer.6 See Anderson, 4 N.E.3d at 1206–07.

 

 

Conclusion

*6 [24] In sum, we agree with the trial court that, under the facts and circumstances of this case, Reimer’s service on White at his Thebes, Illinois, address and service on American Transport through the Secretary of State was reasonably calculated to inform the Appellants that an action had been instituted against them, was effective under the Indiana Trial Rules, and was consistent with due process. Accordingly, we affirm the trial court’s order denying the Appellants’ joint motion to set aside the default judgment.

 

[25] Affirmed.

 

ROBB, J., and CRONE, J., concur.

All Citations

— N.E.3d —-, 2016 WL 4698963

 

 

Footnotes

1

We held oral argument on July 27, 2016.

2

There is no subdivision (B) to Trial Rule 4.10.

3

In its order denying the Appellants’ motion to set aside the default judgment, the trial court relied on Professor Harvey’s assessment that, when a nonresident defendant does not receive actual service, due process is satisfied when service is made upon the Indiana Secretary of State pursuant to Trial Rule 4.10. See 1 William F. Harvey, Ind. Prac. § 4.10 at 367–70 (3rd ed.1999).

4

Although the CCS entries were inconsistent, at oral argument counsel for the Appellants acknowledged that the CCS entries read “refused to sign” as opposed to “not at this address” or “unclaimed.” Only the latter two notations would have suggested that the person upon whom service had been attempted did not live at the residence served. T.R. 4.16(A)(2) (“A person who has refused to accept the offer or tender of the papers being served thereafter may not challenge the service of those papers.”).

5

At oral argument, counsel for the Appellants suggested that Reimer could have utilized an online search engine or online social media to ascertain White’s location. But there was no evidence presented at trial that such efforts, even if minimal, would have revealed or otherwise indicated White’s location. Accordingly, we do not consider this argument in this appeal.

6

Indeed, while it is not disputed that American Transport is not an Indiana company, its precise whereabouts are wholly unknown, which would make notice by publication, discussed in Munster, impossible to achieve with respect to American Transport.

Court of Appeal of Louisiana,

First Circuit.

Gallagher Bassett Services, Inc./National Union Fire Insurance Company as Subrogee of April Celestine

v.

Canal Insurance Company and April Celestine and OM Logistics, LLC

2016 CA 0088

|

September 16, 2016

On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana, Trial Court No. 626,588, Sec. 26, The Honorable Donald R. Johnson, Judge Presiding

Attorneys and Law Firms

Archie P. Joseph, Breaux Bridge, Louisiana, Attorney for Appellant/Cross-Plaintiff, April Celestine

Terry T. Dunlevy, W.L. West, Johanna Posada Kyles, Baton Rouge, Louisiana, Attorneys for Appellee/Cross-Defendant, Canal Insurance Company

Robert W. Fenet, Baton Rouge, Louisiana, Attorney for Appellees/Plaintiffs, Gallagher Bassett Services, Inc. and National Union Fire Insurance Company

BEFORE: PETTIGREW, MCDONALD, AND DRAKE, JJ.

Opinion

DRAKE, J.

 

*1 **1 April Celestine, cross-plaintiff, filed a cross-claim against several defendants, including Canal Insurance Company (Canal), cross-defendant, after being named as a defendant in a lawsuit filed by Gallagher Bassett Services, Inc. and National Union Fire Insurance Company (collectively referred to as “Gallagher Bassett”). Gallagher Bassett sought to recover, as subrogee, the amount it paid to Celestine pursuant to an insurance policy following an automobile accident that occurred in Olympus, Washington. Canal filed a peremptory exception raising the objection of prescription to the cross-claim filed by Celestine, which the trial court granted and from which Celestine appeals. For the following reasons, we affirm the judgment of the trial court. Canal filed in this court an exception pleading res judicata, which for the following reasons, we dismiss as moot.

 

 

FACTS AND PROCEDURAL HISTORY

This matter arises out of an automobile accident that occurred on February 14, 2011, in Olympus, Washington. Celestine was a tractor-trailer driver and was injured by Brenda Fowler, the driver of the other tractor-trailer, involved in the collision. At the time of the accident, Fowler was operating a tractor-trailer, which was leased to OM Logistics, LLC (OM Logistics) and insured with a policy of liability insurance by Canal.

 

Gallagher Bassett filed this suit on December 4, 2013, against Celestine, OM Logistics, and Canal, seeking reimbursement for the amounts it paid Celestine pursuant to a Truckers Occupational Accident Insurance policy, which provided accidental, health, and disability insurance. Gallagher Bassett alleged that its claims arose through legal subrogation as a result of paying Celestine’s medical costs and medical leave benefits due to the negligence of Fowler. Gallagher Bassett alleged, alternatively, that the claims against Celestine, its own insured, **2 were based on the contractual obligations of Celestine to reimburse Gallagher Bassett out of any recoveries related to the accident Celestine received from third parties for the amount Gallagher Bassett paid on behalf of Celestine.

 

After Gallagher Bassett filed this lawsuit, Celestine filed a lawsuit on February 13, 2014, in the Superior Court for Thurston County, Washington (Washington case), where the accident occurred, naming as defendants, Canal, OM Logistics, and Fowler. On July 10, 2014, in response to the present suit, Celestine filed an answer and cross-claim, naming as cross-defendants, Canal, OM Logistics, and Fowler. Canal filed a peremptory exception raising the objection of prescription to the cross-claim of Celestine.

 

On November 14, 2014, the Washington case was dismissed for failure to timely serve the defendants within the statutory period. The court stated that Celestine’s “claims arising from the February 14, 2011 accident [were] barred by the statute of limitations.” Her lawsuit in Washington was dismissed with prejudice.

 

After a hearing on Canal’s prescription exception, the trial court sustained the exception and dismissed Celestine’s cross-claim against Canal, with prejudice. The trial court entered judgment on October 14, 2015. It is from this judgment that Celestine appeals.

 

 

ERROR

*2 Celestine claims that the trial court erred in finding that there was no interruption of prescription in accordance with La. C.C. arts. 2324(C) and 3462, resulting in the dismissal of her cross-claim.

 

 

LAW AND DISCUSSION

Prescription

Generally, the trial court’s factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription begins **3 to run, are reviewed on appeal under the manifest error-clearly wrong standard of review. Gilmore v. Whited, 2008–1808 (La.App. 1 Cir. 3/31/09), 9 So.3d 296, 299. However, in this case, Celestine asserts that the issue of whether her cross-claim was prescribed involves the proper application and interpretation of Articles 2324(C) and 3462. The proper application and interpretation of a statute is a question of law. Gilmore, 9 So.3d at 299. Therefore, on review, this court must initially determine whether the trial court was legally correct or legally incorrect in its interpretation of Articles 2324(C) and 3462 and in its application of those statutes to this case. See Gilmore, 9 So.3d at 299.

 

We first note that delictual actions are subject to liberative prescription of one year commencing from the day of injury or day damage is sustained. La. C.C. art. 3492. Prescription is interrupted by the filing of suit in a court o f competent jurisdiction and venue. La. C.C. art. 3462. The interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. La. C.C. art. 2324(C). Similarly, the interruption of prescription is effective against all so lidary obligors. La. C.C. arts. 1799 and 3503. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue within the prescriptive period continues as long as the suit is pending. La. C.C. art. 3463. The interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made an appearance of record or thereafter, or fails to prosecute the suit at trial. La. C.C. art. 3463.

 

Prescription runs against all persons unless they fall within an exception provided by law. La. C.C. art. 3467. The filing of a tort suit by one party generally does not affect the running of prescription against other parties who sustained separate damages in the same accident. Louviere v. Shell Oil Co., 440 So.2d 93, 95 (La. 1983). There are exceptions to the general rule: (1) **4 La. C.C.P. art. 1153 allows an amending petition to relate back to the date of filing the original pleading; (2) La. C.C.P. art. 1067 allows an additional ninety days for an incidental demand; and (3) when parties share a single cause of action. Calbert v. Batiste, 2012–852 (La.App. 3 Cir. 2/6/13), 109 So.3d 505, 507 (citing Louviere, 440 So.2d at 93).

 

A cross-claim is an incidental demand. La. C.C.P. art. 1031. An incidental demand is not barred by prescription if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of the main demand. La. C.C.P. art. 1067.

 

Celestine first argues that Gallagher Bassett’s filing suit in Louisiana on December 4, 2013, interrupted prescription as to all joint tortfeasors, OM Logistics, Fowler, and Canal, because that suit was filed within the three year statute of limitations for Washington state. Wash. Rev. Code 4.16.080. We find that the Gallagher Bassett suit filed in Louisiana was subject to the prescription of Louisiana, not the statute of limitations of Washington state, as argued by Celestine. The general rule is that substantive rights are governed by the lex loci or the place where the action arose, while the procedural rights are governed by the lex fori or the place of the forum. Davis v. Gravois, 2013–0439 (La.App. 4 Cir. 9/25/13), 125 So.3d 541, 545 n. 2 (citing Matney v. Blue Ribbon, Inc., 12 So.2d 249 (La.App. 1 Cir. 1942); Patterson v. Patterson, 436 So.2d 603 (La.App. 4 Cir.1983)). Prescriptive statutes including those governing interruption and suspension of prescription are procedural, rather than substantive in nature. Davis, 125 So.3d at 546. Prescription is governed by the laws of the forum. Kleckley v. Hebert, 464 So.2d 39, 44 (La.App. 3 Cir.1985).

 

*3 When the lawsuit filed by Gallagher Bassett was filed on December 4, 2013, Celestine’s claim against Canal was prescribed on its face. Celestine claims that Gallagher Bassett’s lawsuit interrupted prescription as to all solidary obligors. **5 Generally, the burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the plaintiff’s petition shows on its face that the prescriptive period has run, and the plaintiff contends there is a suspension or interruption of prescription, the burden is on the plaintiff to prove suspension or interruption. Toomer v. A–1 Fence & Patio, Inc., 2008–2197 (La.App. 1 Cir. 10/27/09), 29 So.3d 609, 612, writ denied, 2009–2564 (La. 2/5/10), 27 So.3d 302. Moreover, when the plaintiff’s basis for claiming an interruption of prescription is solidary liability between two or more parties, the plaintiff bears the burden of proving that a solidary relationship exists. Toomer, 29 So.3d at 612.

 

Celestine argues that the filing of the Gallagher Basset suit interrupted prescription and that interruption remained effective against all joint tortfeasors. La. C.C. arts. 3462 and 2324(C). Celestine cites Trahan v. Liberty Mutual Ins. Co., 314 So.2d 350, 355–56 (La. 1975), which states, “there must be a solidary obligation to plaintiff of a defendant of the first suit and a defendant of the second suit as to the claim asserted in the first suit.” However, the suit first filed in this matter was on December 4, 2013, after prescription had run on Celestine’s claim against Canal. As stated in Noggarath v. Fisher, 557 So.2d 1036, 1037 (La.App. 4 Cir. 1990),

Interruption of prescription against joint tortfeasor A occurs by a timely lawsuit against joint tortfeasor B only as to conduct for which tortfeasors A and B are responsible, and only if the cause of action against tortfeasor A was not prescribed when the suit against tortfeasor B was filed. Once prescription occurs it cannot be interrupted. Timely suit against one solidary obligor does not interrupt prescription that has run against another solidary obligor. (Citations omitted).

 

Similar to the present case, is Matthews v. State Farm Auto. Ins. Co., 2002–1108 (La.App. 4 Cir. 9/11/02), 828 So.2d 620, 622, where Clarcia Matthews filed a lawsuit against State Farm and its insured. The employer of Matthews, Louisiana Gas Service Company, filed an intervention seeking reimbursement of **6 workers’ compensation paid to Matthews and his guest passenger, Tino Lyons. Lyons then filed “Plaintiff Amendment to Intervention” seeking to recover damages for his own personal injuries. State Farm filed an exception pleading prescription to the amendment/intervention of Lyons. Lyons argued that the filing of a petition for damages by an injured employee interrupted prescription in favor of the employer’s claim for recovery of workers’ compensation benefits paid to the employee for injuries caused by a third party. The fourth circuit noted that Louviere, upon which Lyons relied, held that “a timely petition by an employer’s workers’ compensation carrier … interrupts prescription, thereby permitting the employee to file an action for his own damages after the anniversary date of the accident.” Matthews, 828 So.2d at 622 (quoting Louviere, 440 So.2d at 95). Unlike Louviere, Lyons’s claims had prescribed by the time the intervenor filed its claim.

 

We also find instructive Touro Infirmary v. Henderson, 92–2720 (La.App. 4 Cir. 12/28/95), 666 So.2d 686, which involved Touro Infirmary filing suit against Henderson, who then filed a third-party demand against Blue Cross Blue Shield of Louisiana (Blue Cross). Blue Cross alleged that the claim had prescribed. Henderson claimed that because she was solidarily liable with Blue Cross to Touro, Touro’s suit interrupted prescription as to Blue Cross. Relying on Noggarath and Bustamento v. Tucker, 607 So.2d 532, 536–37 n. 5 (La. 1992), the court held that Henderson’s claim prescribed prior to the institution of the Touro suit, and that suit could not interrupt prescription against Blue Cross. Touro Infirmary, 666 So.2d at 688–89.

 

*4 After prescription extinguishes a cause of action, it cannot be interrupted. A timely suit against one solidary obligor does not interrupt prescription that has tolled against another solidary obligor. Rizer v. American Surety and Fidelity Ins. Co., 95–1200 (La. 3/8/96), 669 So.2d 387, 390–91. We find that because **7 Celestine’s claim against Canal had prescribed when Gallagher Bassett filed its suit, prescription was not interrupted against Canal.

 

Celestine cites to numerous cases holding that when a judicial demand is filed in an incompetent court or in an improper venue, prescription is interrupted as to the defendant served by service of process. We find that none of the cases cited by Celestine have any application to the facts before us where Gallagher Bassett filed a subrogation claim. Furthermore, the issue of whether the suit filed by Gallagher Bassett was in an incompetent court or improper venue has never been raised at the trial court level, and that issue is not before this court.

 

Canal argues, and we agree, that Celestine’s cross-claim does not qualify for the exception to prescription pursuant to Article 1067. Generally speaking, delictual actions are subject to a liberative prescription of one year pursuant to Article 3492. However, Article 1067 creates a limited exception for incidental demands. See Reggio v. E.T.I., 2007–1433 (La. 12/12/08), 15 So.3d 951, 956. Louisiana Code of Civil Procedure article 1067 provides:

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

A cross-claim is classified as an incidental demand by Article 1031.

 

Canal avers that when Gallagher Bassett filed the main demand on December 4, 2013, the cross-claim was time barred. Canal claims that since the Louisiana prescriptive period for delictual actions is one year pursuant to La. C.C. art. 3492, Celestine’s claim was prescribed as of February 13, 2012, since the accident occurred on February 14, 2011. Celestine did not file her cross-claim until July 10, 2014. We agree that the claim of Celestine against Canal was already time barred by the time the main demand (the Gallagher Bassett suit) was filed. There is no service information in the record as to when Celestine was **8 served with the main demand and whether her cross-claim was filed within the ninety days. However, even if she filed the cross-claim within ninety days of service of the main demand, if it was barred at the time the main demand was filed, it is prescribed. Therefore, Article 1067 does not relieve Celestine of the effect of prescription.

 

Celestine also argues that the filing of the Washington case on February 13, 2014, operated to interrupt prescription. Prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. An obligee’s action against an obligor timely brought in a court of competent jurisdiction and venue in Louisiana or another state will interrupt prescription. Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446 (La. 1991). If prescription is interrupted, “the time that has run is not counted [and] [p]rescription commences to run anew from the last day of interruption.” La. C.C. art. 3466. If prescription is interrupted by the filing of suit, the interruption continues as long as the suit is pending. La. C.C. art. 3463. However, “[i]nterruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at trial.” La. C.C. art. 3463.

 

*5 Celestine relies upon the case of Taylor to claim that the filing of the Washington case interrupted prescription of her cross-claim against Canal. In Taylor, an automobile accident occurred in Arkansas between a Louisiana resident and a Texas resident. The Louisiana resident filed suit in Arkansas, settled that suit, and voluntarily dismissed it. Before the Arkansas suit against the tortfeasor was dismissed, the Louisiana resident filed suit in Louisiana against his uninsured motorist carrier. The UM Carrier filed an exception raising the objection of prescription.

 

**9 The Louisiana Supreme Court held that prescription may be interrupted by Article 3462 by the timely filing of a suit in a court of competent jurisdiction and venue, regardless of whether it is a federal, Louisiana or another state court. Taylor, 579 So.2d at 446.

 

Furthermore, general conflicts of laws provisions would require that the tort statute of limitations of the state of the accident be applied to determine the timeliness of a suit and the competency of a court to hear a suit filed in that forum and arising out of an accident occurring in that state. Taylor, 579 So.2d at 446.

 

Canal argues that even though Celestine filed the Washington case, it did not interrupt the one-year prescription because it was involuntarily dismissed with prejudice.

 

In order for the Washington case to have interrupted prescription as to Canal, it must have been filed in a court of competent jurisdiction and venue. Taylor, 579 So.2d at 446. It is undisputed that Celestine’s claim for damages in Washington could be filed within three years of the date of the accident. Wash. Rev. Code 4.16.080. However, Celestine was also required to serve at least one party within ninety days. The applicable provision is Wash. Rev. Code 4.16.170, which provides:

For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations. (Emphasis added).

 

We agree with Canal that the Washington tolling statute is different than the laws of Louisiana. In Bordelon v. Medical Center of Baton Rouge, 2003–0202 (La. 10/21/03), 871 So.2d 1075, 1077, the defendants argued that pursuant to La. C.C.P. art. 1201, a dismissal for failure to serve within ninety days rendered a petition absolutely null such that the suit did not interrupt prescription. The Louisiana Supreme Court agreed with two court of appeal cases that held “that in the absence of bad faith, a timely filed lawsuit in a court of competent jurisdiction and venue serves to interrupt prescription, even where the defendant is not served within the [ninety] day time period.” Bordelon, 871 So.2d at 1079. The Court relied on La. R.S. 9:5801, which provides,

Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3463, shall continue.

 

*6 Specifically, the Court noted that there would have been no reason for the legislature to specify in La. R.S. 9:5801 that prescription is not interrupted where a defendant is dismissed from suit because of non-service within ninety days if the non-service was in bad faith, if it had intended that prescription would not be for all defendants not served within ninety days under Article 3463. Bordelon, 871 So.2d at 1082. The Court also stated, “[l]ikewise, by providing that ‘as to any other defendant … an interruption of prescription, as provided in Civil Code Article 3463, shall continue,’ the legislature was expressing its intent that in cases not involving bad faith, interruption of prescription continues even if the defendant is not served within [ninety] days.” Bordelon, 871 So.2d at 1082. The Supreme Court also determined that a plaintiff does not “abandon” a lawsuit by virtue of their failure to request service in ninety days. Bordelon, 871 So.2d at 1083.

 

The Washington statute, Wash. Rev. Code 4.16.170, requires a plaintiff to serve at least one defendant within ninety days of filing suit. Celestine did not do so, and her Washington case was dismissed. Therefore, unlike the facts of Taylor, **11 the filing of the Washington case was not in a court of competent jurisdiction and venue, since it was “deemed to not have been commenced for purposes of tolling the statute of limitations,” and the filing did not interrupt prescription as to Canal. See Wash. Rev. Code 4.16.170.

 

Since we have determined that the filing of the Washington case did not interrupt prescription at all pursuant to Article 3462, we need not discuss whether the exceptions to the interruption of prescription set forth in Article 3463 apply. For the above reasons, we find the granting of the exception raising the objection of prescription should be affirmed.

 

Furthermore, as we find that Celestine’s claims against Canal are prescribed, we need not address the exception pleading res judicata filed by Canal. We dismiss the exception as moot.

 

 

CONCLUSION

For the above and foregoing reasons, the trial court’s judgment of October 14, 2015, in favor of cross-defendant, Canal Insurance Company, granting the exception raising the objection of prescription is affirmed. The exception pleading res judicata filed by Canal Insurance Company is dismissed as moot. Costs of this appeal are assessed against cross-plaintiff, April Celestine.

 

AFFIRMED; RES JUDICATA EXCEPTION DISMISSED AS MOOT.