Burnett v. James Construction Group

Citations: 66 So. 3d 482; 2011 La. LEXIS 1594; 2011 WL 2611302Docket: 2010-CC-2608

Court: Supreme Court of Louisiana; July 1, 2011; Louisiana; State Supreme Court

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In *Burnett v. James Construction Group* (66 So.3d 482, 2011), the Supreme Court of Louisiana addressed whether serving only the attorney general suffices for initiating a tort action against the Department of Transportation and Development (DOTD). The plaintiff, Shawn Burnett, filed suit seeking damages from an automobile accident and requested service on DOTD through the attorney general. DOTD moved for involuntary dismissal, arguing that service on the DOTD secretary was also necessary under LSA-R.S. 13:5107. The trial court denied DOTD's motion, stating it would be unreasonable to require service on both the agency head and the attorney general. 

Upon appeal, the appellate court reversed the trial court's decision, asserting that both service on the attorney general and the agency head are mandated. The Supreme Court found that service on just the attorney general was sufficient under LSA-R.S. 13:5107 and allowed Burnett the opportunity to properly serve the secretary as required by LSA-R.S. 39:1538. The court reversed the appellate court's ruling granting DOTD's motion for involuntary dismissal and amended the decision to permit Burnett to cure the service deficiency per LSA-R.S. 39:1538(4). The case highlights the complexities of service requirements for state agencies in Louisiana tort actions.

In Johnson v. University Medical Center of Lafayette, the appellate court upheld the dismissal of Burnett's claims against the Department of Transportation and Development (DOTD) due to insufficient service of process. Burnett challenged this dismissal, arguing that the appellate court incorrectly interpreted LSA-R.S. 13:5107(A) to necessitate a double request for service in cases against the state and its agencies. The court found merit in Burnett's argument, clarifying that a single request for service to the attorney general met the statutory requirements.

Despite rejecting DOTD's reliance on LSA-R.S. 13:5107(A) and (D), the court acknowledged that Burnett had not served DOTD's secretary or the office of risk management as mandated by LSA-R.S. 39:1538(4). However, since LSA-R.S. 39:1538 lacks a time constraint for service and does not stipulate dismissal for failure to serve, Burnett's failure to serve within 90 days did not warrant dismissal under LSA-C.C.P. art. 1672(C). 

The appellate court affirmed the decision sustaining DOTD's exception for insufficient service but amended it to allow Burnett the opportunity to cure the service defects. The case was thus remanded to the trial court for further proceedings, reversing in part the appellate court's earlier dismissal while affirming the sufficiency of service exception but allowing for remedial action. The case was consolidated with Whitley v. State of Louisiana, which was addressed separately.

LSA-R.S. 13:5107(A) outlines the procedures for citation and service in lawsuits against the state of Louisiana or its agencies, allowing service on the attorney general, employees over sixteen, or appropriate officials depending on the defendant's identity. LSA-R.S. 13:5107(D), prior to its 2010 amendment, mandated that service of citation must be requested within ninety days of initiating a lawsuit involving the state or its entities; failure to do so could result in dismissal without prejudice. The amended version specifies that if service is not requested within the stipulated period, the action will be dismissed without prejudice for any unserved parties. Additionally, LSA-R.S. 39:1538(4) states that in relevant actions, service must also be made on the department head, the office of risk management, and the attorney general. Importantly, there is no direct action allowed against the Self-Insurance Fund, meaning claimants cannot enforce claims for payment from this fund.