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JOSEPH HERMO VERSUS AMERISURE MUTUAL INSURANCE COMPANY, JOHN W. LAFORGE & LEON DUPLESSIS & SONS, INC.

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NO. 2010-CA-1039

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 53-316, DIVISION "A" Honorable Kevin D. Conner, Judge ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge Joan Bernard Armstrong, Judge David S. Gorbaty, Judge Roland L. Belsome)

Edward D. Markle MARKLE AND ASSOCIATES, APLC 3520 General DeGaulle Drive Suite 1101 New Orleans, LA 70114 COUNSEL FOR AMERISURE MUTUAL INSURANCE COMPANY AND JOHN W. LAFORGE

Thomas A. Gennusa II Joseph S. Piacun Reid S. Uzee GENNUSA PIACUN & RULI 4405 North I-10 Service Road Suite 200 Metairie, LA 70006-6564

COUNSEL FOR JOSEPH HERMO AND SUNRISE CONTRACTING, LLC

WRIT DENIED

Defendants-Appellants appealed the trial court's denial of their Motion for Summary Judgment, which was declared final on April 9, 2010. Pursuant to La. C.C.P. art. 1915, however, that interlocutory judgment could not be certified as final. Accordingly, we have converted the appeal in the above-captioned matter into a supervisory writ. Plaintiff-Appellee Joseph Hermo owned a truck and trailer1 which was used in connection with his business, Sunrise Contracting, LLC ("Sunrise"), to haul debris during the aftermath of Hurricane Katrina. On January 19, 2006, a dump truck owned by Defendant-Appellant, John LaForge, tipped over onto Mr. Hermo's truck at the Empire Pit dump site in Plaquemines Parish, crushing Mr. Hermo's truck. Mr. Hermo filed suit against Appellants Mr. Laforge and his insurer, Amerisure Mutual Insurance Company, alleging that the truck operated by Mr. LaForge was either overloaded or improperly loaded with wet debris, causing it to tip over and total Mr. Hermo's truck. In Mr. Hermo's original petition for

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The truck and trailer were both registered and insured in Mr. Hermo's name. Mr. Hermo insured the truck and trailer with Progressive Insurance Company.

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damages, he sought to recover, inter alia, "a loss of business income as a result of this incident." In January 2010, the trial court granted Mr. Hermo's motion to file an amended petition adding Sunrise as a party plaintiff. Appellants opposed the amendment, filing a motions and exceptions to dismiss Mr. Hermo's business loss claims. After a hearing on the matter, the trial court granted a partial motion for summary judgment and dismissed the business loss and business income claims, while reserving individual property damage claims to Mr. Hermo. The trial court also granted Appellants' exceptions of no right/no cause of action, stating in the judgment that Mr. Hermo was not the proper party to bring the business losses. Appellants subsequently filed a Motion for Summary Judgment and/or Exceptions of No Right/Cause of Action, and/or Exception of Improper Joinder and Exception of Prescription, seeking to dismiss Mr. Hermo's amended petition. The trial court found that the amended petition related back to Mr. Hermo's original petition for damages, and denied the motion on April 5, 2010, issuing detailed Reasons for Judgment. It is this denial of summary judgment and exceptions that is the subject of this supervisory writ. The Louisiana Supreme Court has established a four-part test when determining whether an amended petition adding a plaintiff can relate back to the original petition pursuant to La. C.C.P. art. 1153.2 plaintiff relates back if:
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An amendment adding a

"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." La. C.C.P. art. 1153.

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(1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense. Giror v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040, 1044 (La. 1985).3 Appellants' three assignments of error essentially assert that the trial court erred by allowing Mr. Hermo to amend his petition to add Sunrise as a plaintiff because the third prong of the test articulated in Giror is not met. Applying the Giror test, we find that the amendment relates back to Mr. Hermo's original petition. The amendment plainly stems from the same conduct, transaction, or occurrence set forth in the original pleading: the damage to Mr. Hermo's truck on January 19, 2006. The facts in the original petition plainly put Appellants on notice of the reasonable possibility that Mr. Hermo's business losses were tied to an actual business. See Giror, 475 So.2d at 1044. Furthermore, Sunrise is "sufficiently related" to Mr. Hermo, as Mr. Hermo and his wife are not only the only corporate officers, but are also the only registered agents of Sunrise. Additionally, as previously noted herein, Mr. Hermo's personal truck and trailer were used to conduct Sunrise's business. Finally, Appellants also "failed to show that they were in any way injured or impaired in their ability to investigate,
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(citing Ray v. Alexandria Mall, 434 So.2d 1083,1087; Leachman v. Beech Aircraft Corp., 694 F.2d 1301 (D.C.Cir.1982); Hockett v. American Airlines, 357 F.Supp. 1343 (N.D.Ill.1973); Williams v. United States, 405 F.2d 234 (5th Cir.1968); Paskuly v. Marshall Field & Co., 494 F.Supp. 687 (N.D.Ill. 1980); Bujtas v. Henningsen Foods, Inc., 63 F.R.D. 660 (S.D.N.Y.1974); 3 Moore's Federal Practice

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