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02/26/02 "See News Release 14 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 01-CC-1646 LONNIE C. RENFROE, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ROSE RENFROE, AND JUDITH RENFROE PRINCE versus STATE OF LOUISIANA THROUGH THE DEPT. OF TRANSPORTATION AND DEVELOPMENT, ROAD DISTRICT NO. 1 OF THE PARISH OF JEFFERSON, AND THE GREATER NEW ORLEANS EXPRESSWAY COMMISSION ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON

VICTORY, J. At issue in this case is whether the plaintiff's supplemental and amending petitions, which added Road District No. 1 of the Parish of Jefferson ("Road District No. 1") and the Greater New Orleans Expressway Commission ("GNOEC") as defendants outside of the one-year prescriptive period, relates back to an earlier timely filed petition against the State of Louisiana through the Department of Transportation and Development ("DOTD"). After reviewing the record and the applicable law, we reverse the judgments of the lower courts and hold that plaintiff's action has prescribed. FACTS AND PROCEDURAL HISTORY On April 28, 1998, as Rose Renfroe was driving south on Causeway Boulevard approximately two-tenths of a mile before reaching the overpass over U.S. Highway 61 (Airline Highway), her vehicle crossed the concrete median on Causeway Boulevard

and collided with a pickup truck and a tractor trailer, both of

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which were proceeding north on Causeway Boulevard. Mrs. Renfroe was pronounced dead at the scene. On April 22, 1999, Mrs. Renfroe's husband, Lonnie Renfroe, filed a petition for damages individually, and on behalf of the estate Rose Renfroe and Judith Renfroe Prince, against the DOTD. Plaintiff alleged that the DOTD was liable for Mrs. Renfroe's death under Louisiana Civil Code articles 2315 and 2317 due to improper construction, maintenance, and design of Causeway Boulevard. Plaintiff named the DOTD as defendant based on signs along parts of Causeway Boulevard designating it as "LA 3046" and also because the State Police investigated the accident. On July 19, 1999, the DOTD filed a motion for summary judgment alleging that, although another part of Causeway Boulevard is a state highway, the state highway begins at Jefferson Highway to the south and ends at its junction with the south right of way line with Airline Highway, which does not include the portion of Causeway Boulevard where the accident occurred.1 Accordingly, on September 20, 1999, plaintiff filed its first supplemental and amending petition adding Jefferson Parish and the GNOEC as defendants as the proper owners of the portion of Causeway Boulevard where the accident occurred. On October 5, 1999, Jefferson Parish filed an exception of misjoinder and nonjoinder of an indispensible party, Road District No. 1, a separate legal entity, created and governed by Jefferson Parish. Thereafter, on October 15, 1999, plaintiff filed its second supplemental and amending petition, substituting Road District No. 1 as a defendant in place of Jefferson Parish.2

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At some point north of the accident scene, Causeway Boulevard again becomes a state highway.

According to Jefferson Parish's exception of misjoinder and nonjoinder of an indispensable party, the accident site is located within the geographic boundaries of Road District No. 1, which was created pursuant to La. R.S. 48:571 and 582 for the purpose of, among other things, constructing, maintaining, and (continued...) 3

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On December 14, 1999, the trial court granted partial summary judgment in favor of the DOTD, dismissing the plaintiff's action against the DOTD on all matters connected with the ownership and maintenance of the accident location, finding that the DOTD did not own or maintain that portion of Causeway Boulevard, and leaving the remaining issue against the DOTD that of defective design. On June 30, 2000, the trial court granted the DOTD's exception of peremption on the design defect claim under La. R.S. 9:2772, which provides a seven-year peremptive period for actions involving deficiencies in design. Thus, the DOTD was dismissed from the suit with prejudice. On August 18, 2000, and October 23, 2000, respectively, Road District No. 1 and the GNOEC filed exceptions of prescription, claiming that the release of the timely sued solidary obligor, the DOTD, caused the case against them to prescribe. The trial court denied the defendants' motions, finding that the suit against Road District No. 1 and the GNOEC related back to plaintiff's suit against the DOTD, and therefore was timely. The court of appeal agreed and denied the defendants' writ application. Renfroe v. State of Louisiana through the DOTD, et al., 01-0292 (3/15/01). We granted the defendants' writ application to determine whether the plaintiff's supplemental and amending petitions relate back to the timely filed suit against the DOTD. Renfroe v. State of Louisiana through the DOTD, et al., 01-1646 (10/5/01).

(...continued) improving public roads, highways, and bridges within its territorial limits. According to Jefferson Parish's exception, Jefferson Parish functions only in a representative capacity as the governing authority of Road District No. 1. For the purposes of determining whether prescription has run against Road District No. 1 in this case, we will treat Jefferson Parish and Road District No. 1 as the same party, as did the trial court. 4

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DISCUSSION Delictual actions are subject to a liberative prescriptive period of one year, which commences to run from the date the injury is sustained. La. C.C. art. 3492. The delictual action against Road District No. 1 and the GNOEC was not filed during the one-year prescriptive period, although suit was timely filed against the DOTD. Under La. C.C. art. 3462, prescription is interrupted by the commencement of suit against the obligor in a court of competent jurisdiction and venue. Further, the interruption of prescription by suit against one solidary obligor is effective as to all solidary obligors. La. C.C. arts. 1799 and 3503. The same principle is applicable to joint tortfeasors. La. C.C. art. 2324C. However, a suit timely filed against one defendant does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to plaintiffs, since no joint or solidary obligation would exist. Spott v. Otis Elevator Co., 601 So. 2d 1355 (La. 1992). Because the timely sued defendant, the DOTD, was dismissed from the suit, prescription against Road District No. 1 and the GNOEC is not interrupted and plaintiff's suit against them has prescribed, unless some other basis to revive this suit is found. Plaintiff argues that the untimely supplemental and amending petitions relate back to the timely filed petition against the DOTD under La. C.C.P. art. 1153. La. C.C.P. art. 1153 provides: When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading. In Ray v. Alexandria Mall, Through St. Paul Property & Liability Ins., 434 So. 2d 1083, 1087 (La. 1983), this Court established the following criteria for
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determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition: (1) The amended claim must arise out of the same transaction or occurrence set forth in the original petition; (2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits; (3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; (4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed. Plaintiff argues that all of the criteria of Ray have been met; we disagree. The second Ray criteria is very clear

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