Anyone involved in a lawsuit knows that litigation can take months or even years to resolve. Though courts try to expedite the process, the parties involved are also responsible for moving the case forward expediently. If the plaintiff in a lawsuit files a complaint and fails to take further action for a certain amount of time, the defendant may file a motion to dismiss on the grounds of abandonment. The case below is an example of how the abandonment of a lawsuit by the plaintiff resulted in the dismissal of the action.
Deborah Allen was an employee of the Louisiana Department of Social Services (“LADSS”). On February 2, 2007, she was riding as a passenger in a LADSS vehicle struck from behind by a car driven by Matthew Humphrey. Allen filed a lawsuit against Humprey and his automobile insurer, Imperial Fire and Casualty Insurance Company, seeking compensation for the injuries she received in the crash. Shortly after that, Louisiana’s Division of Administration, Office of Risk Management (“ORM”) filed a petition of intervention, seeking reimbursement from the defendants for workers’ compensation payments made to Allen. You can think of an intervenor as being a replacement or substitute plaintiff in an action who has a related claim against the defendants.
Because Humphrey was underinsured, Allen filed a lawsuit against LADSS. However, LADSS claimed that it had no underinsured motorist coverage and that Allen was only entitled to workers’ compensation from LADSS. LADSS was successful in securing a dismissal of Allen’s lawsuit. In early 2013, Allen and LADSS settled Allen’s workers’ compensation claims. On February 8, 2013, Humphrey and Imperial Fire filed a motion to reduce the jury bond, which is money to procure a jury. In 2014, Humphrey and Imperial Fire sent a settlement letter to Allen, but neither Allen nor the ORM responded to the letter. In 2016, Humphrey and Imperial Fire filed a motion to dismiss Allen’s lawsuit on the grounds of abandonment. After the trial court granted the defendants’ motion, ORM appealed.
In Louisiana, a lawsuit is considered abandoned if the parties fail to take any action in furtherance of prosecution or defense in the trial court for three years. La. C.C.P. art. 561(A)(1). A trial court will not automatically file a formal order deeming a lawsuit abandoned. Only when one of the interested parties files a motion asking for abandonment will the trial court issued the formal order. La. C.C.P. art. 561(A)(3). To prevent abandonment, a party must take some steps toward resolving the lawsuit, which is recorded with the clerk of court, and that step must be taken within three years of the last action taken in the case by either party. Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. Ct. App. 2001). However, abandonment exceptions exist even if the plaintiff has not fulfilled the above requirements. One way is if the plaintiff could not prosecute the case because of circumstances beyond his or her control. The second way is if the defendant waived the right for the lawsuit to be abandoned by taking action incompatible with the intent of abandonment.
In this case, Louisiana’s Court of Appeal for the Second Circuit concluded that Allen’s lawsuit was abandoned because the last motion was filed by the defendants on February 8, 2013; neither Allen nor the ORM as intervenor has filed any motion since then. Though ORM stated that the letter it received from the defendants in 2014 showed that the defendants did not intend to abandon the lawsuit, the Appellate Court ruled that the letter was informal and nothing tangible, like the exchange of money, transpired due to the letter. Thus, the letter did not show that the defendants waived their right to request dismissal due to abandonment.
Allen’s original lawsuit was resolved more than ten years after it was initially filed. Though Allen received workers’ compensation payments, the ORM as the intervenor, likely regretted its inaction. Anyone involved in a lawsuit should retain experienced, competent counsel who can keep careful track of the case’s timeline to ensure that it is not dismissed due to inadvertent latency.
Additional Source: ALLEN v. HUMPHREY
Written by Berniard Law Firm Blog Writer: Peter Lee
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