Wright v. Fireman's Fund Ins. Co., 75-1120
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Citation | 522 F.2d 1376 |
| Docket Number | No. 75-1120,75-1120 |
| Parties | Walter W. WRIGHT, Plaintiff-Appellee, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant-Appellant. |
| Decision Date | 13 November 1975 |
Page 1376
v.
FIREMAN'S FUND INSURANCE COMPANY, Defendant-Appellant.
Fifth Circuit.
Page 1377
A. G. Seale, John W. Swanner, Baton Rouge, La., for defendant-appellant.
Sam J. D'Amico, Baton Rouge, La., for plaintiff-appellee.
Erwin A. LaRose, Baton Rouge, La., for James R. Douglas, Etc.
Appeal from the United States District Court for the Middle District of Louisiana.
Before GEWIN, COLEMAN and GEE, Circuit Judges.
COLEMAN, Circuit Judge.
This is an appeal, 28 U.S.C., § 1292(b), from an order denying a defense motion to dismiss a diversity personal injury action brought in Louisiana by a Georgia resident against a now bankrupt Louisiana corporation and its liability insurer. The District Court held that the prescription issue was governed by the two year Georgia statute of limitations, not the one year Louisiana statute. For the reasons hereinafter appearing, we reverse.
In Atlanta, Georgia, on July 26, 1972, Walter W. Wright was injured, allegedly by the negligence of certain Lurgi-Knost agents and employees there engaged in construction work. Almost two years later, July 17, 1974, Wright filed his suit in the District Court for the Middle District of Louisiana, seeking damages against Lurgi-Knost, Inc. and its liability insurer.
Invoking Fed.R.Civ.P. 12(b)(6), defendants moved to dismiss Wright's complaint in that it was barred by the Louisiana prescription statute, LSA-C.C. Art. 3536. That section provides that actions for damages resulting from offenses or quasi offenses shall be prescribed by one year.
Relying on Jagers v. Royal Indemnity Company, La., 1973, 276 So.2d 309, the District Court denied the motion to dismiss, holding that under Louisiana conflict of laws principles the two year Georgia statute of limitations should control, Georgia Code Ann. § 3-1004.
Jagers, supra, was an action in tort brought in Louisiana by a Louisiana resident Against her son for injuries allegedly sustained in a Mississippi automobile accident. It was argued that Mississippi law would have barred recovery because Mississippi would follow the doctrine of immunity for intra-family torts. Under Louisiana law there is no intra-family tort immunity. Under previous Louisiana cases the Louisiana courts would have looked to the substantive principles of the place where the wrong occurred to determine the issue of liability, see Johnson v. St. Paul Mercury Insurance Company, 1970, 256 La. 289, 236 So.2d 216. Expressly declining to decide whether Mississippi would enforce intra-family tort immunity, the Louisiana Supreme Court overruled Johnson v. St. Paul and held that in tort cases as to contacts with more than one jurisdiction the proper rule is to apply the law of the state having the most significant relationship to the issue in question (276 So.2d at 311-12), thus adopting the "interest analysis" approach set out in Restatement (Second) Conflict of Laws, §§ 2, 6, 145 (1969). On this approach, the Louisiana Supreme Court concluded that Mississippi really had no interest in the litigation beyond the fact that it was the scene of the wrong. Therefore, the
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Court determined that Louisiana law, rather than that of Mississippi, would be applied and that the plaintiff might recover. 1The legal dilemma confronted by the District Court came about as follows.
Article 13 of the old Louisiana Code of Practice provided that the prescriptive period of actions Should be that of the place where the action is brought. The enabling act for the 1960 Louisiana Revised Code of Civil Procedure repealed the 1870 Code of Practice, including its Article 13. The substance of Article 13 was not elsewhere reenacted. Therefore, thought the District Court, there is no definitive Louisiana law concerning the prescriptive period to be applied in a conflict of law situation. Consequently, it turned to Jagers, supra, for a resolution of the question. Since Georgia had the most significant relationship to the litigation, it was held that the Georgia statute of limitations would be applied.
Upon briefs, oral argument, and mature reflection, we are of the opinion that...
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...the statute of limitations of the forum controls, "a maxim long accepted in American jurisprudence." Wright v. Fireman's Fund Ins. Co., 522 F.2d 1376, 1378 (5th Cir.1975) (citations omitted). Louisiana courts refer to prescription statutes as procedural in nature. Id. (Citing Sewerage & Wat......
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Rohde v. Southeastern Drilling Co., Inc., 81-3128
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