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2/21/01

SUPREME COURT OF LOUISIANA
No. 00-C-1585 PRESTON NAQUIN v. TITAN INDEMNITY CO., IBERVILLE PARISH SHERIFF'S DEPARTMENT, AND NEAL NOEL ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE KIMBALL, J.* We granted certiorari in this case to consider the applicability of La. R.S. 13:5107(D) to suits in which the cause of action arose prior to the effective date of the statute, but were filed after its effective date. Additionally, we must determine whether the statute, which authorizes dismissal of the suit as to the state, state agency, or political subdivision or any officer or employee thereof when plaintiff fails to request service of citation within ninety days of the filing of the initial pleading naming such governmental defendant, applies to governmental insurers. We conclude that La. R.S. 13:5107(D), as enacted by Act 63 of the First Extraordinary Session of 1996, applies to suits filed after its effective date, that Act 518 of 1997, which amended and reenacted La. R.S. 13:5107(D), has no application to suits filed prior to its effective date, and that the insurers of governmental defendants may not take advantage of the personal defense provided by the statute. FACTUAL AND PROCEDURAL BACKGROUND On March 23, 1996, Preston Naquin was a passenger in a vehicle being driven by Aaron Folse. While Folse and Naquin were stopped in traffic on Interstate-10 in

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James C. Gulotta, Justice Pro Tempore, sitting for Associate Justice Harry T. Lemmon.

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East Baton Rouge Parish, Neal Noel, an employee of the Iberville Parish Sheriff's Department (the "Sheriff"), allegedly rear-ended the vehicle behind Folse and Naquin, causing that vehicle to strike the vehicle in which Folse and Naquin were traveling. Naquin alleges that he suffered various injuries as a result of this collision. At the time the accident occurred, there was no requirement that service of citation upon a governmental defendant be requested within any specified time. However, effective May 9, 1996, the legislature amended La. R.S. 13:5107, a statute governing suits against the state, state agencies, or political subdivisions, to require that service upon governmental defendants be requested within ninety days of the filing of the petition. Act 63 of the First Extraordinary Session of 1996 provided: In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the filing of the initial pleading, which names a state, a state agency, or political subdivision or any officer or employee thereof as a party. If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory hearing, as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served. When the state, a state agency, or political subdivision or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof. The effect of interruption of prescription as to other persons shall not be affected thereby. On March 17, 1997, Naquin filed suit in the Nineteenth Judicial District Court for the Parish of East Baton Rouge against Noel, the Sheriff and Titan Indemnity Company as insurer of the Sheriff and Noel (collectively "defendants"). Naquin's Petition for Damages gave service of process information for Titan only, and instructed that service be withheld until further notice. Effective January 1, 1998, the legislature "amended and reenacted" La. R.S. 2

13:5107(D) to provide that the requirement that service of citation shall be requested within ninety days of the filing of the petition that named the governmental defendant may be expressly waived by the defendant in writing. The amendment also provided that if service is not requested within the ninety day period, the action shall be dismissed without prejudice after contradictory motion, rather than contradictory hearing as provided for in Act 63.1 Section 5 of Act 518 specifically provided that "[t]he provisions of this Act shall be applicable only to suits filed on and after its effective date." In March, 1998, plaintiff requested that the petition be served on defendants. On April 23, 1998, defendants requested an extension of time in which to file responsive pleadings. On July 21, 1998, defendants filed a Motion to Dismiss plaintiff's claim for failure to request service upon the political subdivision within ninety days as provided in La. R.S. 13:5107(D). The trial judge granted defendants'

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Specifically, Act 518 of 1997 provided: (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver. (2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served. (3) When the state, a state agency, or a political subdivision, or any employee or officer thereof, is dismissed as a party pursuant to this Section, the filing of the action, even against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any employee or officer thereof; however, the effect of interruption of prescription as to other persons shall continue.

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motion, dismissing the action without prejudice as to all defendants, and Naquin appealed. The court of appeal affirmed the district court's ruling. Naquin v. Titan Indem. Co., 99-0400 (La.App. 1 Cir. 5/12/00), 767 So.2d 726. The court of appeal held that Naquin's claims against Noel and the Sheriff were properly dismissed since the ninety day service requirement of La. R.S. 13:5107(D) was in effect at the time his suit was filed. The court also dismissed Naquin's claim against Titan, holding that Titan was entitled to stand in the shoes of its insureds, Noel and the Sheriff, and claim the benefit of the service requirement imposed by La. R.S. 13:5107(D). Finally, the court rejected Naquin's argument that defendants had "lulled" him into the belief that service was not required, since the parties were engaged in good faith negotiations through correspondence between Naquin's attorney, adjusters and representatives of Titan. For all these reasons, the court of appeal affirmed the dismissal without prejudice of Naquin's claims. We granted writs to review the correctness of this decision. 00-1585 (La. 10/6/00), 770 So.2d 356. For the reasons that follow, we conclude Naquin's claims against Noel and the Sheriff were properly dismissed. However, we find that the court of appeal erred in affirming the dismissal of the suit as to Titan. LAW AND ANALYSIS This case presents the situation in which plaintiff's cause of action arose prior to the effective date of Act 63, but suit was filed after its effective date. Because of this, plaintiff argues that application of Act 63 to his suit would deprive him of substantive rights acquired prior to the statute's effective date. We disagree. The rules governing service of process are procedural because they prescribe a method for enforcing a previously existing substantive right and relate to the form of

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the proceeding or the operation of the laws. See Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 6 (La. 5/9/97), 694 So.2d 180, 183 ("Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws.").2 As procedural rules, the provisions governing service of process do not create substantive rights. The state may therefore change these rules as long as a party receives due notice and an opportunity to be heard. Lott v. Department of Public Safety & Corrections, 98-1920 (La. 5/18/99), 734 So.2d 617. See also Hardware Dealers' Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 52 S.Ct. 69 (1931); Wall v. Close, 10 So.2d 779 (La. 1942). Just as an accused is not entitled to be tried in the exact mode prescribed for criminal trials at the time of the commission of the offense for which he is charged, State v. Sepulvado, 342 So.2d 630 (La. 1977), a civil litigant is not entitled to pursue his cause of action in the exact mode prescribed by the legislature at the time his cause of action arose. No one has a vested right in any given mode of procedure. Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen, 387 U.S. 556, 563, 87 S.Ct. 1746, 1750 (1967); Lott, 734 So.2d at 621; Wall, 10 So.2d at 784; State v. Standard Oil Co. of Louisiana, 178 So. 601, 611 (La. 1937). Because plaintiff had no vested right to have the procedural rules in effect at the time his cause of action arose applied to his suit, the procedure provided for by Act 63 can be applied to his action as long as he was afforded due notice and an opportunity to be heard. Act 63 became effective more than ten months prior to the date plaintiff filed suit. Therefore, once the suit was filed, plaintiff had a full ninety days within which to request service. Clearly, plaintiff was afforded due notice and an opportunity to be heard. The requirements imposed by Act 63 did nothing to affect
Plaintiff does not disagree with this conclusion as his brief to this court explicitly states that La. R.S. 13:5107(D) is procedural.
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plaintiff's right to sue on his cause of action. Rather, they merely prescribed the method by which plaintiff had to pursue his right. We therefore conclude that the provisions of Act 63 apply to govern the procedure by which plaintiff must pursue his cause of action. Plaintiff argues that Act 63 should not be applied to his suit because Section 5 of Act 518, which provides that the Act shall be applicable only to suits filed on and after January 1, 1998, evidences an intent by the legislature that the ninety day service rule only be applied from that day forward. Plaintiff reasons that because Act 518 "amended and reenacted" La. R.S. 13:5107(D), the provisions of Act 63 no longer exist and therefore cannot be applied to his case. In other words, plaintiff argues that Act 518 completely replaced Act 63 such that the ninety day service rule cannot be applied to suits filed prior to January 1, 1998. Again, we disagree. Section 5 of Act 518 states that the provisions of the Act "shall be applicable only to suits filed on and after" January 1, 1998. This is a clear and unmistakable expression of the legislature's intent that the provisions of Act 518 have prospective application only. As an Act having prospective application only, Act 518 has no effect on its predecessor, Act 63. Plaintiff's argument that the phrase "to amend and reenact" contained in Act 518 somehow allows that Act to go back in time and erase the provisions of Act 63 as if they never existed is without merit. The phrase "to amend and reenact" is standard drafting language where an existing statute is being changed in some way, and, despite plaintiff's assertions, does not in itself carry any special weight. See "Legislative Bill Drafting -- Forms," p. XXXVI, preceding LSAR.S. 1:1. Moreover, the full title of Act 5183 indicates that the legislature's most likely
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The full title of Act 518 is as follows: AN ACT

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intent in amending and reenacting

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