The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-31
DRAUGHN KOONCE
VERSUS
ST. PAUL FIRE & MARINE INS. CO., ET AL.
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-4460
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE
**********
JOHN D. SAUNDERS
JUDGE
**********
Court composed of John D. Saunders, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.
AFFIRMED.
Robert C. McCorquodale
In House Counsel
P. O. Box 2185
Lake Charles, LA 70602
(337) 491-3622
COUNSEL FOR DEFENDANT/APPELLEE:
Calcasieu Parish Sheriff's Office
Calcasieu Parish Unnamed Sheriff Deputy
John Ezell Jackson
Attorney at Law
P. O. Box 1239
Lake Charles, LA 70602
(337) 433-8866
COUNSEL FOR PLAINTIFF/APPELLANT:
Draughn Koonce
Vernon Ed McGuire, III
Plauche', Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
St. Paul Fire & Marine Ins. Co.
SAUNDERS, Judge.
Plaintiff, Draughn Koonce (hereafter “Appellant”), appeals from the trial
court’s grant of summary judgment in favor of Defendants, Tony Mancuso,
individually and in his official capacity as the Sheriff of Calcasieu Parish, and his
insurer, St. Paul Fire and Marine Insurance Company (hereafter collectively
“Appellees”) and denial of Appellant’s motion to strike Appellees’ supplemental
and amended answer and affirmative defenses. For the reasons that follow, we
affirm the trial court’s judgment in all respects.
FACTS AND PROCEDURAL HISTORY:
Appellant was an inmate at the Calcasieu Correctional Center. On
September 22, 2005, as Hurricane Rita approached land, a school bus driven by
Deputy Ryan Lavergne (hereafter “Lavergne”) was transporting prisoners,
including Appellant, for evacuation when it crashed into the rear end of another
school bus that was also transporting prisoners for evacuation.
On September 22, 2006, Appellant filed a petition for damages against
Appellees, alleging he sustained personal injuries in the crash. Appellees answered
on October 24, 2006. Thereafter, no action was taken on the case by either party
for a substantial length of time. On January 22, 2014, Appellant filed a first
supplemental and amending petition for damages. Appellees filed an answer on
February 22, 2014, raising the affirmative defenses of immunity under La.R.S.
29:735, and La.R.S. 9:2800.17.
On March 26, 2014, Appellant filed a motion to strike Appellees’ answer
and affirmative defenses, asserting that Appellees’ answer was not timely, having
been filed into the record thirty-one days after Appellant filed his supplemental and
amending petition, and that there were “no allegation of new facts. . . that justified
the assertion of these new affirmative defenses at such a late date.” Appellees then
filed a motion for summary judgment on June 6, 2014, asserting immunity
pursuant to the above-cited statutes. A hearing on the motions of both parties was
held on June 24, 2014, after which the trial court denied Appellant’s motion to
strike, granted summary judgment in favor of Appellees, and dismissed the claims
of Appellant. It is from this judgment that this appeal arises.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, Appellant contends the trial court legally
erred in “apply[ing] a liberal construction” of La.R.S. 29:735 “to the facts at hand”
and in concluding that “willful misconduct” required that there be “some type of
specific intent . . . to cause some type of injury or harm. Thus, he contends that the
trial court erred in granting Appellees’ motion for summary judgment.
Standard of Review
An appellate court reviews de novo the ruling of the trial court on a motion
for summary judgment. Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir.
11/5/08), 996 So.2d 667, writ denied, 09-69 (La. 3/6/09), 3 So.3d 491. “[T]he
same criteria that govern a trial court’s determination of a motion for summary
judgment” are applied. Breaux v. Cozy Cottages, LLC, 14-486, p. 4 (La.App. 3 Cir.
11/12/14), 151 So.3d 183, 187. “The summary judgment procedure is designed to
secure the just, speedy, and inexpensive determination of every action. . . . The
procedure is favored and shall be construed to accomplish these ends.” La.Code
Civ.P. art. 966(A)(2). A motion for summary judgment:
shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions, together with the affidavits, if any,
admitted for the purposes of the motion for summary judgment, show
that there is no genuine issue as to material fact, and that mover is
entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(B)(2).
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Whether a given set of conduct rises to the level of “willful
misconduct” or “criminal, willful, outrageous, reckless, or flagrant
misconduct” is a standard created by law to determine whether
liability will result from that conduct; as such, the question of whether
a given set of conduct rises to the level of “willful misconduct” or
“criminal, willful, outrageous, reckless, or flagrant misconduct” is
purely a question of law, and is within the province of the trial court
to determine at the summary judgment stage.
Haab v. E. Bank Consol. Special Serv. Fire Prot. Dist. of Jefferson Parish, 13-954
p. 9 (La.App. 5 Cir. 5/28/14), 139 So.3d 1174, 1181, writ denied sub nom. Haab v.
E. Bank Consol. Special Serv. Prot. Dist. of Jefferson Parish, 14-1581 (La.
10/24/14), 151 So.3d 609.
Discussion
The Louisiana Homeland Security and Emergency Assistance and Disaster
Act (hereafter “the Act”), La.R.S. 29:721 et. seq., defines emergency preparedness
as “the mitigation of, preparation for, response to, and the recovery from
emergencies or disasters.” La.R.S. 29:723(4). A disaster is “a natural or man-
made event which causes loss of life, injury, and property damage, including but
not limited to natural disasters such as a hurricane.” La.R.S. 29:723(2). An
emergency is “the actual or threatened condition that has been or may be created
by a disaster.” La.R.S. 29:723(3)(a). Louisiana Revised Statutes 29:735, provides,
in pertinent part:
A. (1) Neither the state nor any political subdivision thereof,
nor other agencies, nor, except in case of willful misconduct, the
agents' employees or representatives of any of them engaged in any
homeland security and emergency preparedness activities, while
complying with or attempting to comply with this Chapter or any rule
or regulation promulgated pursuant to the provisions of this Chapter
shall be liable for the death of or any injury to persons or damage to
property as a result of such activity.
Thus, the State, its agencies, and political subdivisions are afforded complete
immunity for injury or death resulting from emergency preparedness activities.
Castille v. Lafayette City-Parish Consol. Gov’t, 04-1569 (La.App. 3 Cir. 3/2/05),
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896 So.2d 1261, writ denied, 05-0860 (La. 5/13/05), 902 So.2d 1029. Pursuant to
the same statute, agents, representatives, or employees of the State, its political
subdivisions, or agencies are also completely immune except where they have
engaged in willful misconduct in the course of preparing for a disaster or
emergency. Id.
There is no dispute that, at the time of Appellant’s accident, the State of
Louisiana was in a state of emergency and that the evacuation activities constituted
emergency preparedness activities pursuant to La.R.S. 29:723. At the time of the
accident at issue, the State of Louisiana was under Gubernatorial Proclamation No.
53 KBB 2005, issued by Governor Kathleen Blanco on September 20, 2005,
declaring a state of emergency for the State of Louisiana due to Hurricane Rita’s
approach to Louisiana. The accident at issue occurred in the course of an
evacuation pursuant to this order. Thus, the question we must address is whether
the actions of the agents, representatives, or employees of the State, its
subdivisions, or agencies in the course of the evacuation constitute willful
misconduct pursuant to La.R.S.29:735.
In M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, pp. 13-14 (La. 7/1/08),
998 So.2d 16, 26-27, amended on reh’g (9/19/08)(citations omitted), the supreme
court explained:
The function of statutory interpretation and the construction
given to legislative acts rests with the judicial branch of the
government. The rules of statutory construction are designed to
ascertain and enforce the intent of the Legislature. Legislation is the
solemn expression of legislative will and, thus, the interpretation of
legislation is primarily the search for the legislative intent. We have
often noted the paramount consideration in statutory interpretation is
ascertainment of the legislative intent and the reason or reasons which
prompted the Legislature to enact the law.
The starting point in the interpretation of any statute is the
language of the statute itself. “When a law is clear and unambiguous
and its application does not lead to absurd consequences, the law shall
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be applied as written and no further interpretation may be made in
search of the intent of the legislature.” However, “when the language
of the law is susceptible of different meanings, it must be interpreted
as having the meaning that best conforms to the purpose of the law.”
Moreover, “when the words of a law are ambiguous, their meaning
must be sought by examining the context in which they occur and the
text of the law as a whole.”
We first turn to the text of the statute; notably absent are definitions of
“willful,” “misconduct,” or “willful misconduct.” Thus, we turn to Black’s Law
Dictionary (10th ed. 2014), which defines “misconduct” as “a dereliction of duty;
unlawful, dishonest, or improper behavior, esp. by someone in a position of
authority or trust.” “Willful” is defined as “[v]oluntary and intentional, but not
necessarily malicious.” Id. It is further explained that “[a] voluntary act becomes
willful, in law, only when it involves conscious wrong or evil purpose on the part
of the actor, or at least inexcusable carelessness, whether the act is right or wrong.
The term willful is stronger than voluntary or intentional; it is traditionally the
equivalent of malicious, evil, or corrupt.” Id. (underlining added for emphasis)
Thus, it is our opinion that, to constitute “willful misconduct,” there must be some
voluntary, intentional breach of duty, which may be unlawful, dishonest, or
improper, or perhaps all three, that is committed with bad intent or, at best, with
wanton disregard for the consequences.
We conclude that this interpretation best reflects the intent of the Legislature.
The Legislature stated its purpose in promulgating the Act:
A. Because of the existing possibility of the occurrence of
emergencies and disasters of unprecedented size and destructiveness
resulting from enemy attack, sabotage, or other hostile action, or from
fire, flood, earthquake, or other or manmade causes, and in order to
ensure that preparations of this state will be adequate to deal with such
emergencies or disasters, and generally to preserve the lives and
property of the people of the state of Louisiana, it is hereby found and
declared to be necessary:
...
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(4) To reduce vulnerability of people and communities of this
state to damage, injury, and loss of life and property resulting from
natural or man-made catastrophes, riots, acts of terrorism, or hostile
military or paramilitary action.
(5) To prepare for prompt and efficient evacuation, rescue, care,
and treatment of persons victimized or threatened by disasters or
emergency.
La.R.S. 29:722 (emphasis added).
Although not binding, we find Louisiana Attorney General Opinion No. 08-
0093 to provide a useful summary of the Legislative intent in promulgating the Act,
of which La.R.S. 29:735 is a part. In that opinion, the Attorney General explored
the public policies at issue in providing for various forms of governmental
immunity, noting:
[T]he [Supreme] Court recognized society’s interest in an efficient
and effective government, which would be hampered by allowing
lawsuits to proceed unhindered against government officials
exercising discretion within the sphere of their official duties.
The Court observed that the costs to society of litigation
brought against government officials include expenditure of time and
money on litigation expenses, diversion of energy from public work,
and deterrence of entrance into public office. Considering these costs
of litigation, the Court noted that the fear of being sued deters “all but
the most resolute, or the most irresponsible” from efficiently and
steadfastly pursuing their official duties.
La. Att’y Gen. Op. No. 08-0093 (7/24/08).
Additionally, the Attorney General explained the legislative history of the Act,
noting (emphasis added):
[t]he Act immunizes a broad array of actors and entities for a broad
array of activities.
...
A flurry of recent decisions regarding emergency preparedness
litigations reinforces the legislative intent to immunize anyone
performing emergency activity who is acting in good faith.
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Moreover, this interpretation is consistent with the prior jurisprudence of this
court. Although in the context of addressing a different set of facts, in Cates v.
Beauregard Electric Cooperative, Inc., 316 So.2d 907, 916 (La.App. 3 Cir. 1975),
aff’d, 328 So.2d 367 (La.1976) (emphasis added), this court explained:
The terms ‘willful’, ‘wanton’, and ‘reckless’ have been applied to that
degree of fault which lies between intent to do wrong, and the mere
reasonable risk of harm involved in ordinary negligence. These terms
apply to conduct which is still merely negligent, rather than actually
intended to do harm, but which is so far from a proper state of mind
that it is treated in many respects as if harm was intended. The usual
meaning assigned to do (sic) the terms is that the actor has
intentionally done an act of unreasonable character in reckless
disregard of the risk known to him, or so obvious that he must be
taken to have been aware of it, and so great as to make it highly
probable that harm would follow. It usually is accompanied by a
conscious indifference to consequences, amounting almost to a
willingness that harm should follow.
Finally, this interpretation is consistent with the jurisprudence of our
brethren in the fourth and fifth circuits. In Sandrock v. St. Bernard Parish Gov’t,
14-1019, p. 3 (La.App. 4 Cir. 5/27/15), -- So.3d --, -- (emphasis added), in
interpreting La.R.S. 9:2800.17, which provided complete immunity to the state and
its political subdivisions in certain circumstances post-Hurricanes Katrina and Rita,
the fourth circuit explained:
Gross negligence has been defined by the Louisiana Supreme
Court as “‘want of even slight care and diligence’ and the ‘want of
that diligence which even careless men are accustomed to
exercise.’“ Ambrose v. New Orleans Police Dep't Ambulance Serv.,
93–3099, p. 4 (La.7/5/94), 639 So.2d 216, 219, quoting State v.
Vinzant, 200 La. 301, 7 So.2d 917 (La.1942). “There is often no clear
distinction between such [willful, wanton, or reckless] conduct and
‘gross’ negligence, and the two have tended to merge and take on the
same meaning.” Id., quoting Falkowski v. Maurus, 637 So.2d 522
(La.App. 1st Cir.1993).
In Haab, 139 So.3d at 1182 (emphasis added), in interpreting La.R.S.29:735
and La.R.S.9:2798.1(C)(2), which provides for qualified immunity to public
entities and their officials and employees except in the case of “criminal,
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fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct,” the fifth circuit cited, with approval, our explanation of the terms
willful, wanton, and reckless as defined in Cates, 316 So.2d 907, and concluded:
that only the most egregious conduct by parish agents, employees or
representatives that exhibits an active desire to cause harm, or a
callous indifference to the risk of potential harm from flagrantly bad
conduct, will rise to the level of “willful misconduct” or “criminal,
willful, outrageous, reckless, or flagrant misconduct” resulting in a
forfeiture of all the immunity protections afforded by the [the Act]
and the [discretionary immunity statute].
In light of our conclusion that “willful misconduct” pursuant to La.R.S. 29:735 is
some voluntary, intentional breach of duty that is committed with bad intent or, at
best, with wanton disregard for the consequences, we now turn to whether the
activities of the personnel involved constitute such.
In 2005, when this accident occurred, Jeffrey Miller (hereafter “Miller”) was
Assistant Warden at the Sheriff’s Prison. Miller was one of the individuals within
the Calcasieu Parish Sheriff’s Office tasked with overseeing the evacuation of all
inmates from both the Sheriff’s Prison and the Calcasieu Parish Correctional
Center. Miller testified that there were over 1,200 inmates to evacuate between the
two facilities and that it took fifty or sixty school buses to complete the evacuation,
which began in the early morning hours and ended early in the evening.
Regarding the evacuation process, Miller testified:
Q And you were shipping them out on school buses?
A Correct. Correct.
Q Y’all had an arrangement with the Calcasieu Parish School
Board, I guess, to borrow the buses for that kind of use if you
need it?
A Correct, we were using the school buses. Basically, we asked
for volunteers. We have some people that drive part-time for
the school board.
Q Some of the deputies?
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A Some of the deputies, so we asked for some of them to drive,
and we got a few of them to drive, but we still needed more
volunteers so -- and then that’s when we kind of asked around,
“Who thinks they could drive a bus?” Some people raised their
hand and said they could do it, so we allowed them to drive.
Q And you understand that -- I think there’s a special
endorsement or certain kind of license that is generally required
to operate a school bus?
A Correct, right.
Q And y’all knew that when y’all were going through this process?
A Right. Right. Some people didn’t have the proper endorsement.
I guess being in an emergency situation where we’re trying to
evacuate inmates, we had to go with what we had.
Q And that was just the decision that was made at the time and
that’s what y’all did?
A Correct.
Miller further testified that, since some of the deputies drove school buses for the
Calcasieu Parish School Board on a part-time basis, those deputies were first asked
to volunteer. Miller explained, however, that because “it was an emergency
situation[,] we had to transport looking at possibly 1200 inmates,” and that after
they had run out of volunteers who drove a school bus for the parish, any deputy
who said they were capable of driving a school bus was permitted to do so.
Lavergne testified that, at the time of the accident at issue, he was a transport
officer, whose duties included driving inmates to various places. The vehicle that
he routinely used was a fifteen-passenger van. Regarding the reasons he operated
the bus, knowing that he did not possess the proper endorsement, he testified:
Q Okay. Why did you drive the bus if you knew that under the
law your license did not permit to drive you [sic] a bus?
A One, we were in a state of emergency and we had to evacuate
inmates. The sheriff’s office, we don’t have too much people
that I know of that are licensed to drive it, and they were asking
for volunteers. And I thought since I was a transport officer at
that time, I would volunteer to help out.
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Lavergne also explained that deputies who had the proper endorsements were first
asked to volunteer in evacuation transport, but that “[a]ll the ones that done that
were basically all gone already.”
In brief, Appellant asserts the actions of the deputies constitute willful
misconduct pursuant to La.R.S. 29:735 because their actions “were not only
violations of multiple state laws, but also violations of the policies of the Calcasieu
Parish Sheriff’s Office.” In support of this argument, he points out that that the
Calcasieu Parish Sheriff’s office has a policy that prisoner transport drivers obey
state law, that Lavergne did not have a commercial driver’s license or an
endorsement for transporting passengers, that La.R.S. 32:81(A) requires that
drivers following another vehicle “shall not follow another vehicle more closely
than is reasonable and prudent,” and that Miller “allowed people to drive who
simply said they thought they could drive a bus,” despite being aware of special
licensing requirements and without inquiring into the deputies’ driving records and
bus-driving experience. In other words, Appellant asserts that technical violations
of state law and the policies of the Calcasieu Parish Sheriff’s Office in the face of
an emergency constitute “willful misconduct,” such that the immunity provided for
in La.R.S. 29:735 is voided. We disagree. We conclude that such interpretation is
not what the Legislature intended in enacting La.R.S. 29:735. To the contrary, we
conclude that Miller and Lavergne’s actions are the precise conduct intended to be
immunized from liability.
We have reviewed the record and conclude that Appellant has presented no
evidence that any official involved in the evacuation effort acted with willful
misconduct. We find nothing about the conduct of Miller and Lavergne in the
course of the evacuation to be even slightly suggestive of any bad intent or reckless
disregard for the consequences of their actions. Instead, the evidence shows that
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Miller and Lavergne had to make immediate decisions as to how to quickly and
safely evacuate a large number of prisoners from a dangerous hurricane with
minimal staff and even fewer who were properly licensed to drive a bus. The
circumstances were less-than-ideal. The Legislature stated that it intended “to
preserve the lives and property of the people of the state of Louisiana,” and “[t]o
prepare for prompt and efficient evacuation, rescue, care, and treatment of persons
victimized or threatened by disasters or emergency” in promulgating the Act.
La.R.S. 29:722. In those less-than-ideal circumstances, Miller and Lavergne made
good faith, although perhaps imperfect, decisions about how to best evacuate
numerous inmates from harm’s way in order to preserve their lives. Thus, we find
neither Miller nor Lavergne engaged in any willful misconduct. We, therefore,
hold that there are no genuine issues of material fact and that the defendant is
entitled to judgment as a matter of law; thus, we affirm the trial court’s grant of
summary judgment.
ASSIGNMENT OF ERROR NUMBER TWO
Appellant filed an amending petition on January 22, 2014, which was
formally served on Appellees on February 10, 2014. On Appellant’s motion, a
pre-trial conference was held the following day on January 23, 2014. During the
pre-trial conference, a jury trial was scheduled for June 23, 2014. The deadline for
filing supplemental and amending pleadings was set for six weeks prior to trial. In
February 2014, Appellant filed two separate motions for summary judgment.
Hearing on Appellant’s motions was scheduled for February 27, 2014. Because
the judge pro tempore had an active conflict, Appellees filed a motion to recuse on
February 21, 2014; a recusal order was signed by the judge on February 27, 2014.
Thereafter, as a result of the judge’s recusal, hearing on Appellant’s motions and
the trial date were continued.
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On February 22, 2014, Appellees answered Appellant’s supplemental and
amending petition, asserting the defenses of immunity under La.R.S. 29:735 and
La.R.S. 9:2800.17, which were in effect at the time of the incident made basis of
this matter. On March 26, 2014, Appellant filed a motion to strike Appellees’
supplemental and amending answer and affirmative defenses. On June 6, 2014,
Appellees filed a motion for summary judgment, asserting Appellant was unable to
establish an exception to the immunity statutes, La.R.S. 29:735 and La.R.S.
9:2800.17. Hearing on the motions of both parties was held on June 24, 2014.
Appellant’s motion to strike was denied, and Appellees’ motion for summary
judgment was granted.
In his second assignment of error, Appellant asserts that the trial court erred
in failing to grant his motion to strike. In support of this assignment, he asserts
immunity pursuant to La.R.S. 29:735 was not pled at an early stage of the
proceedings such that he was deprived of fair notice of the defense. In further
support of this assignment, he asserts that the answer was filed outside of the ten-
day time period pursuant to La.Code Civ. P. art 1151. For the following reasons,
we affirm the trial court’s denial of Appellant’s motion to strike.
The trial court has great discretion in determining whether to allow
amendment to pleadings. Thus, a trial court’s ruling on this issue will not be
reversed absent an abuse of that discretion. W.T.A. v. M.Y., 10-839 (La.App. 3 Cir.
3/9/11), 58 So.3d 612.
We noted in Rogers v. State, ex rel. Dep’t of Pub. Safety & Corr., 07-1060, p.
4 (La.App. 3 Cir. 1/30/08), 974 So.2d 919, 922, writ denied, 08-0504 (La. 4/25/08),
978 So.2d 367:
“An affirmative defense raises new matter which, assuming the
allegations in the petition to be true, constitutes a defense to the action
and will have the effect of defeating plaintiff’s demand on its merits.”
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Webster v. Rushing, 316 So.2d 111, 114 (La.1975). The defendant’s
answer shall set forth all affirmative defenses. La.Code Civ.P. arts.
1003 and 1005. “In the absence of inclusion of an affirmative defense
in the answer, evidence can be adduced thereon only in the absence of
an objection thereto.” Red Barn Chems., Inc. v. Lassalle, 350 So.2d
1315, 1317 (La.App. 3 Cir.1977).
As this court previously noted in Rider v. Fontenot, 463 So.2d
951, 956 (La.App. 3 Cir.1985), cited with approval in Patterson v.
State, 95–1668 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, writs denied,
97–27, 97–108 (La.2/21/97), 688 So.2d 513:
The policy behind the requirement that affirmative
defenses be raised in answer is sensible and laudable.
Because affirmative defenses raise matters for judicial
resolution outside of issues raised by plaintiff’s petition,
plaintiff must be made aware of these matters at an early
stage so that plaintiff can prepare an opposition to the
defense and adjust his case, if necessary, in light of the
new facts and issues raised by the affirmative defense. If
the affirmative defense is allowed despite the defense not
being raised in answer, the result is a surprise “trial by
ambush” that unfairly aids the defendant, who knew
about the defense even though plaintiff was kept in
ignorance of the defense.
Additionally, in Bayou Rapides Corp. v. Dole, 14-906, p.18 (La.App. 3 Cir.
5/27/15), 165 So 3d 373, 384, we explained:
The law takes a liberal approach toward allowing amended
pleadings in order to promote the interests of justice. Reeder v. North,
97–0239 (La.10/21/97), 701 So.2d 1291. Amendment of pleadings
should be liberally allowed, provided the movant is acting in good
faith, the amendment is not sought as a delaying tactic, the opponent
will not be unduly prejudiced and trial of the issues will not be unduly
delayed. Premier Bank, Nat’l. Ass’n v. Robinson, 618 So.2d 1037
(La.App. 1st Cir.1993).
In the instant matter, there is no evidence that Appellees sought to amend
their answer in bad faith or for the purpose of achieving a delay of the proceedings.
In fact, it was the filing of Appellant’s motions for summary judgment that resulted
in a continuance of the trial date, as the judge serving at the time Appellant’s
motions were originally set to be heard had an active conflict in the matter.
Moreover, Appellant neither alleges nor demonstrates how he was prejudiced by
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the complained of answer. In fact, as a result of the continuances, Appellant had
over six months to investigate the defenses. Further, almost no discovery had been
completed at the time the amended answer was filed. Additionally, Appellant was
the first to file an amended pleading. Appellees simply answered that pleading,
long before the first scheduled trial date and well before the deadline for amending
pleadings had passed.
In brief, Appellant focuses sharply on the fact that the immunity defenses
were not asserted at the dawn of the litigation. His reliance on this is misplaced.
Although it is accurate that this court has found that affirmative defenses must be
asserted “at an early stage,” this court further explained that this is so in order “that
plaintiff can prepare an opposition to the defense and adjust his case, if necessary,
in light of the new facts and issues raised by the affirmative defense.” Although
Appellees’ affirmative defenses of immunity were not asserted at the outset of the
litigation, we find that the affirmative defenses were asserted early enough that
Appellant had more than ample opportunity to prepare a response to the defenses
raised in the amended answer and to adjust his trial strategy accordingly.
Finally, Appellant asserts that, because Appellees’ supplemental and
amending answer was filed thirty-one days after they were served a copy by fax
and twelve days after they received formal service, the entire supplemental and
amending answer should be stricken from the record. We disagree. An answer
may be filed at any time prior to confirmation of default. La.Code Civ. P. art. 1002.
The proper remedy for failing to answer an amending petition is to move for
default. See Russell v. Illinois Cent. Gulf R.R., 96-2649 (La. 1/10/97), 686 So.2d
817 (defendant had filed answers to prior petitions but had inadvertently failed to
answer plaintiff’s second amended petition and plaintiff obtained a default
judgment).
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In light of the foregoing, we find no abuse of discretion in the trial court’s
denial of Appellant’s motion to strike; thus, we affirm.
REQUEST FOR REMAND
Finally, Appellant requests that, upon reversal of the trial court’s judgments
granting Appellees’ motion for summary judgment and denying Appellant’s
motion to strike, this case be remanded to Division E of the 14 th Judicial District
Court, on the grounds that Appellees lacked good faith in recusing the judge pro
tempore. Because we affirm the judgment of the trial court in all respects, we need
not address this request.
CONCLUSION
For the foregoing reasons we affirm the trial court’s judgment. All costs of
this appeal are assessed to Appellant.
AFFIRMED.
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