Clotworthy v. Scaglione, 2011–CA–1733.

• Court: Court of Appeal of Louisiana (US)
• Citation: 95 So.3d 518
• Docket Number: No. 2011–CA–1733.,2011–CA–1733.
• Parties: Patricia L. CLOTWORTHY v. Michael J. SCAGLIONE and Progressive Security Insurance Company.
• Decision Date: 23 May 2012

95 So.3d 518

Patricia L. CLOTWORTHY
v.
Michael J. SCAGLIONE and Progressive Security Insurance Company.

No. 2011–CA–1733.

Court of Appeal of Louisiana,
Fourth Circuit.

May 23, 2012.

[95 So.3d 519]

Sean P. Early, Klotz & Early, New Orleans, LA, for Plaintiff/Appellant.

Wm. Ryan Acomb, Michele Trowbridge Barreca, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS BAGNERIS, Judge EDWIN A. LOMBARD).

PER CURIAM.

[4 Cir. 1]The plaintiff, Patricia Clotworthy, appeals the trial court judgment granting the exception of prescription filed by defendant, State Farm Mutual Automobile Insurance Company (State Farm). After review of the record in light of the applicable law and arguments of the parties, we affirm.

Relevant Facts and Procedural History

In October 2002, the plaintiff was the passenger in an automobile owned and operated by Luke Sporacio when it was involved in an accident with an automobile driven by Michael Scaglione. In October 2003, as a result of injuries suffered in the accident, the plaintiff filed suit against Mr. Scaglione and his insurance company, Progressive Security Insurance Company (Progressive). In April 2004, by supplemental and amending petition, the plaintiff added as defendants Mr. Scaglione's UM carrier, Allstate Insurance Company (Allstate), and her own UM carrier, State Farm. In July 2004, having compromised her claims against Mr. Scaglione and Progressive, the plaintiff dismissed with prejudice her claims against [4 Cir. 2]them.¹ In September 2004, the plaintiff filed her Second Supplemental and Amended Petition, reiterating her earlier claims and asking for judgment against Mr. Scaglione, Progressive, Allstate, and State Farm.² In December 2005, a motion and order dismissing State Farm without prejudice and reserving the right to proceed against Allstate was filed in the record.³ In February 2010, the plaintiff filed her Third Supplemental and Amended Petition, renaming State Farm as a defendant seeking, “after due proceedings are had,” judgment against State Farm “as prayed for in plaintiff's first supplemental and third amended petition

[95 So.3d 520]

for damages, and against Allstate Insurance Company.⁴ In March 2011, State Farm filed its peremptory exception of prescription, pointing out that the plaintiff's claims against State Farm prescribed on or before December 2, 2007, as the pending claim against Allstate (the primary UM insurer), does not interrupt prescription against State Farm (the personal excess UM insurer) because Allstate and State Farm (primary and personal excess UM insurers) are not solidary obligors.

On June 6, 2011, the trial court granted State Farm's exception of prescription. In its reasons for judgment, the trial court found that the plaintiff failed to prove that she placed any conditions on dismissing State Farm or that State Farm had agreed to be brought back into the lawsuit in the future. The plaintiff filed a motion for a new trial which was denied on September 28, 2011. In his reasons for judgment, the trial judge noted as follows:

[4 Cir. 3]The crux of Ms. Clotworthy's argument is that, in an offer of judgment letter, State Farm incorrectly stated that the Allstate insurance policy that would be available to her had policy limits of $1,100,00.00 [sic], and that she relied on that material misrepresentation in agreeing to dismiss State Farm from the lawsuit. In effect, Ms. Clotworthy would like to “rescind” her motion to dismiss State Farm because of error.

While the Court is sympathetic to Ms. Clotworthy's predicament, the law does not provide her with any relief. Once she voluntarily dismissed State Farm, Civil Code article 3463 erased the interruption of prescription that occurred as a result of her filing suit. Ms. Clotworthy's claims are now prescribed and will remain so, even in [sic] the Court were to grant her a new trial. Unfortunately, Louisiana law does not allow Ms. Clotworthy to take back her dismissal because of her error. The Court finds no legal grounds for granting her a new trial and, accordingly, denies her motion.

On October 13, 2011, the trial court granted the plaintiff's...