Ourso v. Schinsing

EUGENE E. LEON, Jr., Judge pro tem. This is a tort action growing out of an automobile accident, which occurred on Highway 18 in Jefferson Parish on July 19, 1970. The defendant, Leo G. Schin-sing, was at the time of the accident and at the time of filing of this suit and is presently a resident of Jefferson Parish. The defendant, Government Employees Insurance Company, is a foreign insurance corporation, licensed to do business and doing business in the State of Louisiana and whose only agent for Service of Process is the Louisiana Secretary of State. New Orleans Rosenbush Claims Service, Inc., is a Louisiana corporation whose principal business activity is that of an independent adjuster of claims for several out-of-state insurers. Plaintiff filed suit against the defendants, Leo G. Schinsing and Government Employees Insurance Company, in the Parish of Orleans in July, 1971, No. 527-187, Division “H”. Neither defendant was served until after one year from the date of the accident had elapsed. Service on Government Employees Insurance Company was originally made through New Orleans Rosenbush Claims Service, Inc., in Orleans Parish on July 22, 1971, the same date of service on Schinsing. Defendants on August 22, 1971, in the Civil District Court for the Parish of Orleans filed a declinatory Exception of Insufficiency of Service of Process and Improper Venue. Plaintiff corrected service of Process on Government Employees Insurance Company by having the Louisiana Secretary of State served on October 27, 1971. On January 28, 1972 the Honorable Oliver P. Carriere, Judge, Division “H”, rendered judgment maintaining the Exception of Improper Venue and ordered the case transferred to the Twenty-Fourth Judicial District Court for the Parish of Jefferson. On March 24, 1972 the defendants, in the Twenty-Fourth Judicial District, Parish of Jefferson, suit No. 141-371, filed an Exception of Prescription alleging that plaintiff’s Cause of Action was prescribed by the prescription of one year. On June 26, 1972, the Honorable Gordon L. Bynum, Judge, Division “D”, rendered judgment maintaining defendants’ Exception of Prescription dismissing plaintiff’s demands, at his costs. From this judgment the plaintiff has taken this devolutive appeal. This accident happened in Jefferson Parish on July 19, 1970. Neither defendants was domiciled in Orleans Parish or subject to valid service in Orleans Parish and neither was served until some time after July 19, 1971. It is well established in Louisiana jurisprudence that where a suit is filed in a Court of Improper Venue, and no defendant is served before passage of the one year peremptive period, the peremptive period is not interrupted so that suit is barred by prescription. McGowan v. Gomez, La.App., 254 So.2d 307 Therefore, judgment is affirmed; plaintiff to pay all costs of this appeal. Affirmed.