Caronna v. Curry

• Citation: 473 So.2d 355
• Decision Date: 08 July 1985
• Docket Number: No. 85-CA-138,85-CA-138
• Parties: Carie Whitaker CARONNA, individually and as administratrix of the estate of her deceased husband, Joseph P. Caronna, Jr., and as natural tutrix of the estate of the two minor children, Jonathan Thomas Caronna and Candy Jo Caronna v. Barry J. CURRY and his liability insurance carrier, Western Preferred Insurance Co., Roland Hopkins, Southeastern Fidelity Insurance Co. and State of Louisiana Department of Transportation and Development, Office of Highways. 473 So.2d 355
• Court: Court of Appeal of Louisiana — District of US

Page 355

473 So.2d 355

Carie Whitaker CARONNA, individually and as administratrix of the estate of her deceased husband, Joseph P. Caronna, Jr., and as natural tutrix of the estate of the two minor children, Jonathan Thomas Caronna and Candy Jo Caronna v. Barry J. CURRY and his liability insurance carrier, Western

Preferred Insurance Co., Roland Hopkins, Southeastern

Fidelity Insurance Co. and State of Louisiana Department of

Transportation and Development, Office of Highways.

No. 85-CA-138

473 So.2d 355

Court of Appeal of Louisiana,

Fifth Circuit.

July 8, 1985.

Robert R. Faucheux, Jr., for plaintiffs/appellants.

Leon C. Vial, III, Hahnville, Andrew P. Carter, Eugene G. Taggart, J. Wayne Anderson, Monroe & Leamann, New Orleans, for defendant/appellee.

Before KLIEBERT, BOWES and GAUDIN, JJ.

BOWES, Judge.

The issue before this court arises out of a wrongful death suit filed in connection with a traffic accident which took place about 7:20 p.m. on February 10, 1983, and in which a pedestrian, Joseph P. Caronna, Jr., was struck and killed by an automobile. The vehicle, which was north bound on Louisiana Hwy. 628 in St. Charles Parish, was driven by Barry J. Curry and owned by Roland Hopkins.

On March 24, 1983, suit was filed naming Barry J. Curry and Roland Hopkins as defendants, along with their insurers and the State of Louisiana, Department of Transportation and Development. Petitioners filed an amended petition on June 28, 1984, seeking to add as defendants, Louisiana Power and Light Co. (L.P. & L.) and St. Charles Parish, by adding the following paragraph numbered VI(A) to the original petition:

Petitioner further avers that a proximate cause of the above alleged accident was the negligence of the defendant, Louisiana Power and Light Company, [who] failed to provide the proper and appropriate lighting. That the defendant, St. Charles Parish, did not provide a sidewalk and/or improved area for walking along the highway.

All of which the aforesaid acts of negligence are in violation of the Ordinances of the Parish of St. Charles and the Laws of the State of Louisiana, which are pleaded herein as if copied in extensio.

L.P. & L. filed exceptions of prescription, no cause of action and no right of action. The trial judge, on December 6, 1984, after hearing argument of counsel, ruled that L.P. & L.'s exception of prescription was well-founded and maintained the exception. Having so ruled, he did not consider the other exceptions filed.

Plaintiffs appeal that ruling, arguing that their amending petition should relate back to the date of filing of the original petition. Appellants cite as authority for their claim L.S.A.-C.C. art. 3503 and Langlinais v. Guillotte, 407 So.2d 1215 (La.1981).

Article 3503 provides that the interruption of prescription against one solidary obligor is effective against all solidary obligors. We have no argument with that rule. Likewise, we agree that a party pleading prescription bears the burden of proving it. City of New Orleans v. Century Management, Inc., 442 So.2d 831 (La.App. 4th Cir.1983); Thornell v. Payne and Keller, Inc., 442 So.2d 536 (La.App. 1st Cir.1983), Writ Denied. However, we also believe that a party seeking to avoid prescription by claiming solidary liability between two or more parties bears the burden of proving that solidary relationship. See Lowe v. Rivers, 448 So.2d 848 (La.App. 2nd Cir.1984).

The pleadings evidence that absent a solidary relationship between L.P. & L. and any of the original defendants prescription would have tolled. This was pointed out by L.P. & L. in their exception filed on August 28, 1984 and was sufficient to meet their burden of proof.

Plaintiffs, however, failed to meet their burden of proving solidarity. Their amending petition, in paragraph VI(A), does not even allege a solidary relationship between L.P. & L. and any other d...