The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CW 18-961
TYRONE DORSEY
VERSUS
SERGEANT TODD MOSES, ET AL.
**********
SUPERVISORY WRIT FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2018-5821
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE
**********
BILLY H. EZELL
JUDGE
**********
Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry,
Judges.
WRIT GRANTED AND MADE PEREMPTORY; CASE REMANDED TO
THE TRIAL COURT FOR FURTHER PROCEEDINGS AS SET FORTH IN
THIS OPINION.
Donna U. Grodner
Grodner Law Firm
2223 Quail Run, B-1
Baton Rouge, LA 70808
(225) 769-1919
COUNSEL FOR PLAINTIFF/RESPONDENT:
Tyrone Dorsey
David E. Boraks
Assistant Attorney General
Louisiana Department of Justice
Litigation Division
900 Murray St., Suite B-100
Alexandria, LA 71301
(318) 487-5944
COUNSEL FOR DEFENDANTS/APPLICANTS:
State of Louisiana, Department of Public Safety and Corrections
Raymond Laborde Correctional Center
EZELL, Judge.
Relators, the State of Louisiana, Department of Public Safety and
Corrections (DOC) and Raymond Laborde Correctional Center, seek supervisory
writs from the judgment of the Twelfth Judicial Court, Parish of Avoyelles, which
denied Relators’ exception of insufficiency of service of process.
STATEMENT OF THE CASE
This case arises out of an automobile accident which occurred on Interstate
10 in Baton Rouge, Louisiana, on November 20, 2017. Tyrone Dorsey was a
passenger in a van owned by Raymond Laborde Correctional Center. Sergeant
Todd Moses was driving the van. As Sergeant Moses attempted to change lanes,
the van collided with the rear end of the vehicle traveling in front of it. As a result
of the accident, Mr. Dorsey filed a personal injury lawsuit against Sergeant Moses,
and Relators herein, the DOC and Raymond Laborde Correctional Center.
Mr. Dorsey requested service of the petition on Relators via service on the
“Office of Risk Management through the Governor’s Office through the Attorney
General and Attorney General through Honorable Jeff Landry.” Relators filed an
exception of insufficiency of service of process. The trial court denied the
exception, and Relators now seek review of that ruling.
SUPERVISORY RELIEF
“The proper procedural vehicle to contest an interlocutory judgment that
does not cause irreparable harm is an application for supervisory writs. See
La.[Code Civ.P.] arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App.
1 Cir. 3/23/07), 960 So.2d 931, 933.
INSUFFICIENCY OF SERVICE OF PROCESS
Relators assert that the trial court erred when it denied their exception of
insufficiency of service of process. In support of their argument, Relators cite
La.R.S. 39:15381 (emphasis added), which provided at the time suit was filed:
(1) Claims against the state or any of its agencies to recover
damages in tort for money damages against the state or its agencies
for injury or loss of property, personal injury, or death caused by the
negligent or wrongful act or omission of any employee of the agency
while acting within the scope of his office or employment under
circumstances in which the state or such agency, if a private person,
would be liable to the claimant in accordance with the general laws of
this state, may be prosecuted in accordance with the provisions
specified in this Chapter. However, immunity for discretionary acts of
executive, legislative, and judicial officers within the scope of their
legally defined powers shall not be abridged.
(2) The state and its agencies shall be liable for claims in the
same manner and to the same extent as a private individual under like
circumstances.
(3) A judgment may be settled in accordance with R.S.
39:1535(B)(6).
(4) In actions brought pursuant to this Section, process shall be
served upon the head of the department concerned, the office of
risk management, and the attorney general, as well as any others
required by R.S. 13:5107. However, there shall be no direct action
against the Self-Insurance Fund and claimants, with or without a final
judgment recognizing their claims, shall have no enforceable right to
have such claims satisfied or paid from the Self-Insurance Fund.
Relators assert that because La.R.S. 39:1538(4) uses the mandatory word
“shall” and the conjunctive word “and”, the statute mandates that in actions
brought against the State to recover money damages in torts, service of process
must be made on all of the following agents for service of process: 1) the head of
the department concerned; 2) the Office of Risk Management (ORM); and 3) the
Attorney General. Relator notes that La.Civ.Code art. 9 provides “[w]hen a law is
1
Louisiana Revised Statutes 39:1538 was amended by Acts 2018, No. 627, § 1, to add
an additional paragraph regarding final judgments against the State which remain unpaid.
2
clear and unambiguous and its application does not lead to absurd consequences,
the law shall be applied as written and not further interpretation may be made in
search of the intent of the legislature.” Relators maintain that since La.R.S.
39:1538(4) is clear and unambiguous regarding the service of process requirements
for tort suits against the State, the statute should be interpreted and enforced as
written. As such, Relators contend that service of process should have been made
on the head of the DOC, the ORM, and the Attorney General. Relators assert that
the ORM does not accept service of process “through the attorney general”, as
suggested by Plaintiff’s service instructions. Thus, Relators argue that the attempt
to serve the ORM through the Attorney General was improper.
In his opposition to the instant writ application, Mr. Dorsey asserts that the
trial court properly denied the exception of insufficiency of process. Plaintiff
contends that Relators take the position that the service requirements set forth in
Title 39 of the Louisiana Revised Statutes, which is entitled “Public Finance,”
applies to this case. However, Mr. Dorsey takes the position that this case is
governed by the service requirement set forth in Title 13, which is entitled, “Courts
and Judicial Procedure.” Louisiana Revised Statutes 13:5107(A) provides:
1) In all suits filed against the state of Louisiana or a state
agency, citation and service may be obtained by citation and service
on the attorney general of Louisiana, or on any employee in his office
above the age of sixteen years, or any other proper officer or person,
depending upon the identity of the named defendant and in
accordance with the laws of this state, and on the department, board,
commission, or agency head or person, depending upon the identity of
the named defendant and in accordance with the laws of this state, and
on the department, board, commission, or agency head or person,
depending upon the identity of the named defendant and the identity
of the named board, commission, department, agency, or officer
through which or through whom suit is to be filed against.
(2) Service shall be requested upon the attorney general within
ninety days of filing suit. This shall be sufficient to comply with the
3
requirements of Subsection D of this Section and also Code of Civil
Procedure Article 1201(C). However, the duty of the defendant served
through the attorney general to answer the suit or file other responsive
pleadings does not commence to run until the additional service
required upon the department, board, commission, or agency head has
been made.
In Burnett v. James Construction Group, 10-2608 (La. 7/1/11), 66 So.3d 482,
the supreme court observed that service on the attorney general satisfies the service
requirements of La.R.S. 13:5107(A). The supreme court recognized in Whitley v.
State, through the Board of Supervisors of Louisiana State University Agricultural
Mechanical College, 11-40 (La. 7/1/11), 66 So.3d 470, that the service of process
requirements under La.R.S. 39:1538, addressing funding for the State’s liabilities
for money damages arising from tort suits, extend to tort claims in general and are
not limited to those claims that have been litigated and a money judgment has been
entered against the State or a state agency.
Accordingly, La.R.S. 39:1538(4) applies to this tort action. Mr. Dorsey
claims that even if La.R.S. 39:1538(4) applies to this case, a single citation on the
Attorney General constitutes proper service on the head of the department involved,
the ORM, and the Attorney General. Mr. Dorsey notes that both the Attorney
General and James LeBlanc, the secretary of the DOC, were issued citation and
service. The supreme court has held that service at a minimum under La.R.S.
39:1538(4) is required on the head of the department concerned, the ORM, and the
Attorney General. Failure to effect service on any of these parties is insufficient
service of process. Therefore, Mr. Dorsey’s failure to effect service on the ORM
entitled the Relators to have their declinatory exception of insufficiency of service
of process sustained by the trial court.
4
However, as noted by the supreme court, “[t]he purpose of [La.R.S.]
39:1538 is to provide notice to the AG, the ORM, and the department head that a
tort action has been brought.” Whitley, 66 So.3d at 481. Louisiana Revised
Statutes 39:1538 “does not provide for dismissal for the failure to effectuate
service.” Id. “Although there is a reference in [La.R.S.] 39:1538(4) to [La.R.S.]
13:5107, based on the clear language, this is a reference to who must be served and
not a reference to when service must occur or to a sanction for failure to serve
timely.” Id. “Therefore, an objection of insufficiency of service based on [La.R.S.]
39:1538(4) can be cured by subsequent service on those entities/persons not
previously served.” Id. at 482.
We find that the trial court erred in denying Relators’ exception of
insufficiency of service of process and grant Relators’ writ application. However,
since the grounds for the objection, the failure to serve the ORM, can be cured by
Mr. Dorsey requesting and obtaining service of process on the ORM, we remand
the case to the trial court to allow Mr. Dorsey a reasonable amount of time, to be
set by the trial court on remand of this matter, in which to cure the defect in service.
WRIT GRANTED AND MADE PEREMPTORY; CASE
REMANDED TO THE TRIAL COURT FOR FURTHER
PROCEEDINGS AS SET FORTH IN THIS OPINION.
5