ALLEN FARQUE INDIVIDUALLY ET AL v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY LAMMICO ET AL (2025)

In this medical malpractice suit, Defendant-Relator, Louisiana Medical Mutual Insurance Company (LAMMICO), seeks supervisory writs from a trial court judgment denying its peremptory exception of no cause of action. On March 31, 2025, we granted the writ application to the docket for additional briefing, if desired, and oral argument which was held on May 28, 2025. After considering the arguments of each side, and for the following reasons, we grant the writ deny relief, and remand back to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The question posed herein is whether the Louisiana Direct Action Statute, as amended by 2024 La. Acts No. 275, § 1, is applicable to the facts of this case. Here, the conduct giving rise to this suit occurred in 2022, a medical malpractice claim was filed with the Louisiana Division of Administration in 2023, and suit was filed in the Calcasieu Parish district court on September 11, 2024. As amended in 2024 by Act 275, La.R.S. 22:1269 now provides that no direct action lies against an insurer except in limited circumstances, which are not at issue here. The effective date of these amendments was August 1, 2024.

This matter began on September 11, 2024, when Plaintiffs, Allen Farque, Shannon Farque, Reginald Farque, Heidi Watkins, and Amanda F. Johnson, individually and on behalf of the decedent Susan Farque, filed this medical malpractice action against CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS Ochsner St. Patrick Hospital (St. Patrick Hospital), Dr. Justin Rudd, and Dr. Rudd's liability insurer, LAMMICO. The Petition for Damages alleges medical negligence on the part of St. Patrick Hospital and Dr. Rudd in connection with medical care rendered to Susan Farque during her hospitalization at St. Patrick Hospital from January 4, 2022, to February 10, 2022, which allegedly resulted in her injuries and ultimate death on February 11, 2022.¹

On October 21, 2024, LAMMICO filed a peremptory exception of no cause of action, contending that the Direct Action Statute, as amended, is procedural in nature rather than substantive, and therefore, must be applied retroactively as required by Article 6 of the Louisiana Civil Code. Thus, it argued that Plaintiffs have no cause of action against it, and it should be dismissed from their suit. At the conclusion of a December 16, 2024 hearing, the trial court denied the exception, and judgment was rendered to that effect on December 26, 2024. This application for supervisory review followed.

DISCUSSION

The sole issue presented herein is whether the Direct Action Statute, as amended by Act 275, is a procedural statute such that the amendments apply to this matter. If the answer is yes, the trial court erred in denying the exception. If the amended version of the statute does not apply, we must affirm the decision of the trial court.

The amendment to the Direct Action Statute fundamentally changes the conduct of most suits for damages in the state. Prior to its amendment, La.R.S. 22:1269(B)(1) (emphasis added) read as follows:

The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies:

(a) The insured has been adjudged bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.

(b) The insured is insolvent.

(c) Service of citation or other process cannot be made on the insured.

(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.

(e) When the insurer is an uninsured motorist carrier.

(f) The insured is deceased.

As the insurer was a party to most damage claims and was liable in solido with the insured up to the limits of its policy, it participated directly in the litigation, up to and including the rendition of judgment, as a party defendant. Act 275 amended La.R.S. 22:1269(B)(1) (emphasis added) to prohibit direct actions against insurers except under limited circumstances:

The injured person or, if deceased, the persons identified in Civil Code Articles 2315.1 and 2315.2, shall have no right of direct action against the insurer unless at least one of the following applies:

(a) The insured files for bankruptcy in a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.

(b) The insured is insolvent.

(c) Service of citation or other process has been attempted without success or the insured defendant refuses to answer or otherwise defend the action within one hundred eighty days of service.

(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.

(e) When the insurer is an uninsured motorist carrier.

(f) The insured is deceased.

(g) When the insurer is defending the lawsuit under a reservation of rights, or the insurer denies coverage to the insured, but only for the purpose of establishing coverage.

Pursuant to La.R.S. 22:1269, as amended, the insurer can no longer be a party to the litigation and cannot be named in the final judgment unless certain post-trial procedures are followed to add the insurer to the judgment, which the insurer can contest via coverage defenses. La.R.S. 22:1269(D) and (E).

It is first noted that while LAMMICO's exception is labeled as an exception of no cause of action, it is more properly treated as an exception of no right of action under the facts and pleadings presented here. As noted in Charles v. Towing and Recovery Professionals of Louisiana, 12-824, pp. 2–3 (La.App. 3 Cir. 4/24/13), 156 So.3d 84, 86–87:

The Louisiana Direct Action Statute refers to a right of direct action, and a defendant challenging a plaintiff's right to proceed under the Louisiana Direct Action Statute should do so by means of an exception of no right of action. Vincent v. Penrod Drilling Co., 372 So.2d 807 (La.App. 3 Cir.), writ denied, 375 So.2d 646 (La. 1979); Diamond v. Progressive Sec. Ins. Co., 05-820 (La.App. 1 Cir. 3/24/06), 934 So.2d 739. “Without enabling legislation, the right to direct action does not exist.” Logan v. Hollier, 424 So.2d 1279, 1281 (La.App. 3 Cir. 1982).

In Giannouleas v. Phoenix Maritime Agencies, Inc., 621 So.2d 1131, 1133 (La.App. 1 Cir. 1993) (footnote omitted), the insurer challenged the trial court's denial of its exception of no cause of action that raised issues concerning the applicability of the Direct Action Statute. The court noted, “This objection is more properly an objection of no right of action rather than one of no cause of action and will be treated as such.”

In reviewing an exception of no right of action, the supreme court, in Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, pp. 6-7 (La. 10/25/11), 79 So.3d 246, 255-56, has stated:

“The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 2008-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. An appellate court reviewing a lower court's ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Id., Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, p. 6–7 (La.3/17/06), 929 So.2d 1211, 1217; Turner v. Busby, 2003-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415–416; Reese v. State, Dept. of Public Safety and Corrections, 2003-1615, p. 3 (La.2/20/04), 866 So.2d 244, 246.

The determination whether a plaintiff has a right to bring an action raises a question of law. A question of law requires de novo review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-05 82, p. 9 (La. 11/29/06), 943 So.2d 103 7, 1045

Prior to its amendment, La.R.S. 22:1269(B)(1) stated that the injured person or his survivors or heirs “shall have a right of direct action against the insurer,” while the amended version states specifically that those persons “shall have no right of direct action against the insurer” unless at least one of the conditions are met, which are not relevant or argued here. Accordingly, we treat the exception here as one of no right of action, although our standard of review remains unchanged.²

LAMMICO argues that the amendments to La.R.S. 22:1269 are procedural in nature and, thus, must be applied retroactively to causes of action arising prior thereto, while Plaintiffs argue that the amendments are substantive in nature in that they affect vested rights as the cause of action giving rise to this litigation occurred prior to the effective date of the amendments. In analyzing the issue presented, we first look to La.Civ.Code art. 6, providing that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively only” while “[p]rocedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” As there is no legislative expression in Act 275 as to whether the statute applies retroactively, we look to whether the law is procedural, interpretive, or substantive. This question is answered in Green v. Auto Club Group Ins. Co., 08-2868, p. 3 (La. 10/28/09), 24 So.3d 182, 184, wherein the supreme court stated:

The Direct Action Statute grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. Hood v. Cotter, 08-215 (La. 12/2/08), 5 So.3d 819; Cacamo v. Liberty Mutual Ins. Co., 99-3479 (La.6/30/00), 764 So.2d 41, 43; Descant v. Administrators of Tulane Educational Fund, 93-3098 (La.7/5/94), 639 So.2d 246. The Direct Action Statute “was enacted to give special rights to tort victims, not to insureds with contract claims against a defendant.” Cacamo, supra at 43. In the absence of the Direct Action Statute, a plaintiff would have no right of action against an alleged tortfeasor's liability insurer because the obligation between the plaintiff and the alleged tortfeasor is delictual in nature, and plaintiff has no contractual relationship with the tortfeasor's insurer.

Thus, the Direct Action Statute is a procedural statute, wherein a plaintiff's ability to name an insurer as a party to litigation is a procedural right where a substantive cause of action against the insured already exists. In the absence of legislative guidance within the amendment, it would typically be applied retroactively. However, this finding does not end the inquiry into the retroactive application of the amended statute as a law will not be applied retroactively if its effect would be to “impair contractual obligations or disturb vested rights.” Segura v. Frank, 93-1271, 93-1401 (La. 1/14/94), 630 So.2d 714, 721.

In Rogers v. Griffin, 24-537, pp. 3-6 (La.App. 5 Cir. 12/20/24), ___So.3d ___, __ (2024 WL 5183219) (alterations in original) (footnotes omitted), the fifth circuit denied an application for a supervisory writ by LAMMICO in a suit where it had already been named a party to a medical malpractice action before the August 1, 2024 effective date of the amendment, stating:

The Louisiana Supreme Court has stated that the Direct Action Statute grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. Soileau v. Smith True Value & Rental, 2012-1711 (La. 6/28/13), 144 So.3d 771, 775; Green v. Auto Club Grp. Ins. Co., 2008-2868 (La. 10/28/09), 24 So.3d 182, 184. Substantive laws establish new rules, rights, and duties, or change existing ones, while procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Church Mut. Ins. Co. v. Dardar, 13-2351 (La. 5/7/14), 145 So.3d 271, 283.

Since the Legislature's amendment to the Direct Action Statute, our brethren in Louisiana's federal courts have looked to Louisiana law to address the Statute's retroactive application where the plaintiff either has named an insurer as a defendant, or has requested leave to amend the complaint to name an insurer as a defendant before the statute's August 1, 2024 effective date. For example, in Maise v. River Ventures, L.L.C., 2024 WL 4266698 (E.D. La. Sept. 23, 2024), a Jones Act case, the plaintiff filed a First Supplemental Complaint in April 2024 to name the defendants’ insurers as co-defendants. The insurers subsequently filed a motion to dismiss pursuant to the 2024 amendment to the Direct Action Statute. The district court acknowledged that under the current law, there is no longer a direct action against the insurer unless specific circumstances are met, and further acknowledged that because the Louisiana Supreme Court has consistently interpreted the Direct Action statute to be procedural, “it is proper to understand it to have retroactive application.” Id. at *2. However, the district court continued: “Nonetheless, Defendant Insurers’ line of reasoning only takes them to the doorstep; Louisiana caselaw and present circumstances close their argument for dismissal.” Id. Distinguishing between the procedural rules in existence at the time the cause of action arose and those in existence at the time suit is filed, the district court recognized that a plaintiff may be entitled to rely upon the procedural rules in existence when his suit is filed, depending upon the court's assessment of whether the party received “due notice and an opportunity to be heard.” Id. (citing Naquin v. Titan Indem. Co., 00-15 85 (La. 2/21/01), 779 So.2d 704, 708, and Lott v. Department of Public Safety & Corrections, 98-1920 (La. 5/18/99), 734 So.2d 617, 621). The district court further stated that “[a]t least one Louisiana appellate court has used such an analysis to find a procedural rule to apply only to cases filed after an effective date, but not before.” Id. (citing Jones v. Sewerage & Water Bd. of New Orleans, 16-0691 (La. App. 4 Cir. 3/8/17), 213 So.3d 497, 502). Thus, the district court denied the insurers’ motion to dismiss the claims against them.

Likewise, in Baker v. Amazon Logistics, Inc., ___ F.Supp.3d ___, 2024 WL 4345073 (E.D. La. Sept. 30, 2024), one day before the August 1, 2024 effective date of the amended statute, plaintiffs sought to amend their complaint to name defendants’ insurers as additional defendants. The defendants opposed the amended complaint, arguing that the new Direct Action Statute foreclosed naming an insurer directly (unless certain prerequisites exist). The defendants further argued that the Direct Action Statute is procedural in nature, and thus the amendment may be applied retroactively.

In response, the Baker plaintiffs argued that although the Direct Action Statute provides a procedural right of action, the amended language “does not apply in this case because changes to procedural rules cannot apply retroactively to disturb vested rights.” Id. at ___, 2024 WL 4345073, at *2. Plaintiffs argued, and the district court agreed, that their right to bring a direct action against the insurers vested before the amended statute's effective date. Therefore, application of Act 275's new restrictions to bar them from naming insurers as defendants would impermissibly divest them of this right. Id. The district court further explained:

Plaintiffs had a procedural right to sue Insurers when the accident occurred ․, which at that time may have been appropriately characterized as a mere expectancy of a future benefit and not absolute, complete, or unconditional, independent of a contingency. But when Plaintiffs exercised that right by moving for leave to file an amended complaint adding Insurers as defendants in this case on July 31, 2024, Plaintiffs’ right to bring the direct action against the Insurers became a vested property right that cannot be divested retroactively.

Baker, __ F.Supp.3d at __, 2024 WL 4345073, at *4. In short, the district court squarely rejected Amazon's argument—that the procedural nature of the Direct Action statute means that a plaintiff's right to name an insurer as a defendant could be revoked “even from plaintiffs who have already exercised it.” The district court further explained: “while the procedural right to bring a direct action against an insurer is a ‘mere expectancy of a future benefit’ until exercised, once that procedural right has been properly invoked, the plaintiff acquires a vested right in the pending action[.]” Id. at ___, 2024 WL 4345073, at *5. The district court noted, however, that if plaintiffs had waited until August 1, 2024 to amend their complaint, there would have been no retroactive application of the newly enacted amendments, and the new law would apply. Id.

Similarly, in Smith v. Fortenberry, 2024 WL 4462332 (E.D. La. Oct. 10, 2024), the district court recognized that at first blush, the statute would appear to apply retroactively, but explained that the analysis does not end with the simple classification of the statute as procedural or substantive; the court must also determine whether the plaintiff has accrued a vested right in his cause of action. Citing Baker, the district court in Smith determined that the plaintiff's cause of action against the insurer became a vested right when she filed suit against the insurer, which occurred before the enactment of Act 275.

We find the reasoning in Maise, Baker, and Smith to be persuasive. While the amendment to the Direct Action Statute may apply retroactively to a cause of action that arose before the amended statute's August 1, 2024 effective date, this retroactivity stands only in reference to causes of action for which suit had not yet been filed, and thus the plaintiff's right had not yet vested. But here, as in Maise, Baker, and Smith, plaintiffs invoked their right to name insurer LAMMICO as a co-defendant by filing suit before the amendments to the Direct Action Statute became effective. Where plaintiffs exercised their procedural right to sue the tortfeasor's insurer before the effective date of the statutory amendment, the Legislature cannot revoke that vested right. For these reasons, we find the trial court properly overruled LAMMICO's peremptory exception of no cause of action and dilatory exception of prematurity.

We agree with the rationale of our colleagues on the fifth circuit that once a plaintiff has exercised his or her right by law to pursue the insurer directly by naming it as a party to the litigation, the right has been exercised and vested, and the law as amended cannot be applied retroactively. However, in the instant case, Plaintiffs did not file suit naming LAMMICO as a defendant until after the amendments to La.R.S. 22:1269 had become effective. The effective date of the statute was August 1, 2024, while suit was filed on September 11, 2024. However, Plaintiff did file a complaint to institute a medical review panel prior to the effective date.

In Hurel v. National Fire & Marine Insurance Co., 25-49 (La.App. 4 Cir. 3/11/25), __ So.3d __, (2025 WL 762645), a panel of the fourth circuit decided this very issue, holding that a plaintiff has no vested right of action against an insurer of a third-party tortfeasor if that right was not exercised by filing suit before the effective date of the amendments to La.R.S. 22:1269. In so holding, the court reviewed and found cases decided in our federal courts to be persuasive:

Having concluded the trial court erred in denying NFMIC's Exception of No Right of Action, Motion to Strike, and Motion in Limine on the basis of prematurity, we next consider the merits of these pleadings. NFMIC contends procedural laws apply retroactively to suits filed after the effective date of the law or any amendment to the law. To this end, NFMIC argues the amendment to the Direct Action Statute is procedural in nature, such that it applies to the matter sub judice because Ms. Hurel filed her Petition on October 1, 2024, after the effective date of the amendment, August 1, 2024. In support of its contentions, NFMIC cites to La. C.C. art. 6; Baker v. Amazon Logistics, Inc., __ F.Supp.3d __, 2024 WL 4345073 (E.D. La. 2024); and Smith v. Fortenberry, __ F.Supp.3d __, 2024 WL 4462332 (E.D. La. 2024). In her opposition filed with the trial court, Ms. Hurel averred her cause of action arose on the date of the accident, January 13, 2023, and she contended the amendment to the Direct Action Statute was a substantive change that could not be applied retroactively because the Louisiana Legislature did not expressly provide for such application. Ms. Hurel further argued that in the federal cases cited by NFMIC and Mr. Bush in their Exception of No Right of Action (Baker and Smith), the federal courts did not address the critical distinction between procedural and substantive laws. Additionally, Ms. Hurel asserted Louisiana state courts protect a plaintiff's substantive rights, and, in support of this assertion, she cited Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992). We begin with the standard of review and principles applicable to the exception of no right of action.

As this Court has previously held, “[a]n appellate court reviews a trial court's ruling on an exception of no right of action de novo.” Crosby v. Waits, Emmett, Popp & Teich, L.L.C., 2021-0054, p. 9 (La. App. 4 Cir. 10/6/21), 366 So.3d 323, 329. The appellate review is de novo because an “exception of no right of action presents a question of law,” such that the appellate court's review “involves determining whether the trial court was legally correct in sustaining such exception.” Id. (quoting Lestelle & Lestelle v. Campo Music Shopping Ctr. Condo. Ass'n, 2021-0077, p. 4 (La. App. 4 Cir. 3/23/21), 315 So.3d 331, 334). Louisiana Code of Civil Procedure Article 681 states, “[e]xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” As previously noted, an exception of no right of action is a peremptory exception. La. C.C.P. art. 927(A)(6). “The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. More particularly, “[t]he function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Crosby, 2021-0054, p. 10, 366 So.3d at 330 (quoting Williams v. Buck Kreihs Marine Repair, LLC, 2021-0001, p. 4 (La. App. 4 Cir. 2/24/21), 314 So.3d 1040, 1043). With an “exception of no right of action,” there is an assumption “that the petition states a valid cause of action,” but the exception “questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation.” Id. That is, a court must determine if the plaintiff has standing and a legal interest to bring the suit. Crosby, 2021-0054, p. 11, 366 So.3d at 330-31 (quoting Williams, 2021-0001, p. 4, 314 So.3d at 1043).

Prior to the amendment that became effective on August 1, 2024, La. R.S. 22:1269(B) stated that an “injured person ․ shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido ․” As amended, La. R.S. 22:1269(B) states that an “injured person ․ shall have no right of direct action against the insurer unless” certain exceptions apply. None of the exceptions are applicable to the matter sub judice. Thus, based on the plain language of the amended version of the statute, Ms. Hurel does not have a right of action against NFMIC under La. R.S. 22:1269(B) if the amendments to that statute apply retroactively. Therefore, we must determine whether the preamendment or amended version of La. R.S. 22:1269 applies to this matter in which the underlying accident occurred prior to the effective date of the amendments yet suit was not filed until after the effective date of the amendments. This is a res novo issue for this Court.

Louisiana Civil Code Article 6 provides, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Thus, La. C.C. art. 6 “requires us to ‘first ascertain whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends unless the enactment impairs contractual obligations or vested rights. If no such intent is expressed, the enactment must be classified as either substantive, procedural or interpretive.’ ” Blow v. OneBeacon Am. Ins. Co., 2016-0301, pp. 16-17 (La. App. 4 Cir. 4/20/16), 193 So.3d 244, 254 (quoting Keith v. U.S. Fid. & Guar. Co., 1997-2075, p. 6 (La.5/9/97), 694 So.2d 180, 183). In this instance, the Louisiana Legislature did not express its intent regarding retrospective or prospective application of the amendment to the Direct Action Statute. Therefore, we must determine whether the amendment to the Direct Action Statute is classified as substantive, procedural, or interpretive.

In Blow, this Court discussed the definitions of these classifications:

It is well accepted that substantive laws either establish new rules, rights, and duties or change existing ones. See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La. 1992). Interpretive laws, on the other hand, merely establish the meaning the statute had from the time of its enactment. See id. Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws. See Keith [v. U.S. Fid. & Guar. Co.], [19]96-2075, p. 6 [La. 5/9/97)], 630 So.2d [809,] 183. Because the application of legislative enactments has constitutional implications under the due process and contract clauses of both the United States and Louisiana Constitutions, even where the Legislature has expressed its intent to give a substantive law retroactive effect, the law may not be applied retroactively if it would impair contractual obligations or disturb vested rights. See Keith, [19]96-2075, p. 6, 630 So.2d at 183.

2016-0301, pp. 16-17 (La. App. 4 Cir. 4/20/16), 193 So.3d 244, 254. Significantly, this Court stated in Blow that “[t]he Direct Action Statute grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured.” Id. at p. 7, 193 So.3d at 249 (emphasis added) (citing Green v. Auto Club Grp. Ins. Co., 2008-2868, p. 3 (La. 10/28/09), 24 So.3d 182, 184). See also Soileau, 2012-1711, p. 4, 144 So.3d at 775. This Court further explained in Blow:

The [Direct Action] Statute “was enacted to give special rights to tort victims, not to insureds with contract claims against a defendant.” Cacamo v. Mut. Fire Ins. Co., 1999-3479, p. 3 (La. 6/30/00), 764 So.2d 41, 43. “In the absence of the Direct Action Statute, a plaintiff would have no right of action against an alleged tortfeasor's liability insurer because the obligation between the plaintiff and the alleged tortfeasor is delictual in nature, and plaintiff has no contractual relationship with the tortfeasor's insurer.” Green, 2008-2868, p. 3, 24 So.3d at 184. Because it “provides the sole procedural right of action against the insurer in this case, the Direct Action Statute provides ‘the rules regulating the subject’ ․

Id. at p. 7, 193 So.3d at 249. In Church Mutual Ins. Co. v. Dardar, the Supreme Court explained that “procedural statutes ․ become operative only when and if the remedy they serve to facilitate is invoked.” 2013-2351, p. 24 (La. 5/7/14), 145 So.3d 271, 287. Yet, “[i]f that remedy is invoked after the statute's enactment,” then “the statute operates in the future regardless of the time of the events giving rise to the cause of action.” Id.

For example, in Baker, the plaintiffs, who were the heirs of Alrick Baker (“Mr. Baker”), filed suit after Mr. Baker died in a motor vehicle accident on June 5, 2023. __ F.Supp.3d at __, 2024 WL 4345073, at *1. The plaintiffs initially filed suit against Amazon; but, on July 31, 2024, the plaintiffs filed a motion for leave to amend their complaint to add Amazon's insurance companies as defendants. Id. Amazon opposed the motion for leave based on the amendment to La. R.S. 22:1269. Id. The United States District Court for the Eastern District of Louisiana (“Eastern District”) explained that the plaintiffs had a procedural right to sue the insurer when the accident occurred on June 5, 2023, “which at that time may have been appropriately characterized as a mere expectancy of a future benefit and not absolute, complete, or unconditional, independent of a contingency.” Id., __ F.Supp.3d at __, 2024 WL 4345073, at *4. However, as the Eastern District further explained, “when [the] [p]laintiffs exercised that right by moving for leave to file an amended complaint adding [the] [i]nsurers as defendants in this case on July 31, 2024, [their] right to bring the direct action against the [i]nsurers became a vested property right that cannot be divested retroactively.” Id.

Similarly, in Smith, the plaintiff filed a direct action against the tortfeasor and his insurer before the effective date of the amendment to the Direct Action Statute. __ F.Supp.3d at __, 2024 WL 4462332, at *1. The insurer argued that because the Direct Action Statute was procedural in nature, the amendment must be applied retroactively. Id., __ F.Supp.3d at __, 2024 WL 4462332, at *2. Citing Baker, the district court determined the plaintiff obtained a vested right in the direct action against the insurer by filing suit before the effective date of the amendment. Id., __ F.Supp.3d at __, 2024 WL 4462332, at *4.

In the matter sub judice, Ms. Hurel's substantive cause of action is against the tortfeasor, Mr. Bush, and/or his employer, Holton. Her substantive cause of action, a negligence claim, accrued upon fault, causation, and damages, and it became vested on the day of the accident, January 13, 2023. See Austin v. Abney Mills, Inc., 2001-1598, p. 15 (La. 9/4/02), 824 So.2d 1137, 1148. Nonetheless, Ms. Hurel's procedural right of action under the Direct Action Statute against NFMIC, the insurer of Holton and Mr. Bush, became operative only when, and if, the remedy served by the Direct Action Statute was invoked timely, i.e., before the amendment removed the procedural right of action against an insurer. That is, Ms. Hurel had until July 31, 2024, which was the day before the effective date of the amendments to the Direct Action Statute, to invoke the procedural right of action against NFMIC and to have that become a vested right, regardless of the fact that the substantive cause of action against Holton and Mr. Bush arose on January 13, 2023. Unlike the plaintiffs in Baker and Smith, Ms. Hurel did not timely invoke the procedural remedy prior to the effective date of the amendment eliminating the procedural right of action provided in the prior version of the Direct Action Statute. After August 1, 2024, when the amended version of the Direct Action Statute was effective, Ms. Hurel had no right or interest in a direct action against NFMIC. Because Ms. Hurel filed her Petition on October 1, 2024, months after the effective date of the amendment to the Direct Action Statute, she lacks a right of action against NFMIC. Accordingly, we grant NFMIC's Exception of No Right of Action.

Id. at 17–13 (alterations in original) (footnote omitted).

While we agree with the rationale of Hurel, we reach a different conclusion given the particular facts and procedural setting of the case at hand, holding that the 2024 amendments to La.R.S. 22:1269 do not apply retroactively to medical malpractice actions properly instituted by the filing of a malpractice complaint against a qualified health care provider before August 1, 2024. While we agree with LAMMICO that Plaintiff did not file his lawsuit until September 11, 2024, after the August 1, 2024 effective date of the statute, Plaintiff did institute this malpractice action by filing a claim with the Division of Administration in January 2023, as he was legally required to do.

In Louisiana, the only way to properly institute a medical malpractice complaint against a qualified health care provider is to comply with the provisions of La.R.S. 40:1231.8 requiring all such claims to first be submitted to the Division of Administration for the formation of, and an opinion by, a medical review panel. “No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section.” La.R.S. 40:1231.8 (B)(1)(a)(i) (emphasis added).

Not only is the filing of a complaint and request for the formation of a review panel a necessity before an actual lawsuit can be filed, filing such a complaint has a myriad of other legal effects. La.R.S. 40:1231.8(2)(a) provides in pertinent part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part[.]

The suspension of the running of prescription ceases ninety days after the notification to all parties by certified mail by the attorney chairman of the review panel the dissolution of the medical review panel, or ninety days following notification by certified mail to the claimant or his attorney of the issuance of the opinion of the medical review panel. La.R.S. 40:1231.8(B)(3) and (L). Further, a lawsuit filed before presenting a malpractice claim against a qualified health care provider is properly subject to dismissal via an exception of prematurity.

The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. See Spradlin v. Acadia-St. Landry Med. Found., 98–1977 (La.2/29/00), 758 So.2d 116, 119. If a lawsuit against a health care provider covered by the Act has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant's suit must be dismissed. Dunn v. Bryant, 96–1765 (La. App. 1st Cir.9/19/97), 701 So.2d 696, 699, writ denied, 97–3046 (La.2/13/98), 709 So.2d 752.

Armand v. Lady of the Sea Gen. Hosp., 11-1083, p. 5 (La.App. 1 Cir. 12/21/11), 80 So.3d 1222, 1226, writ denied, 12-230 (La. 3/30/12), 85 So.3d 121.

Having properly instituted this medical malpractice action by the filing of a complaint with the Division of Administration prior to August 1, 2024, when the amended version of the Direct Action Statute was effective, Plaintiffs had a vested right or interest in a direct action against LAMMICO. They exercised that right in the only way they could, by requesting a medical review panel via the filing of a complaint with the Division of Administration. That right once exercised cannot be retroactively taken away. In so holding, we note that this conclusion only applies to medical malpractice actions instituted by the proper filing of a complaint against a qualified health care provider as necessitated by the Louisiana Medical Malpractice Act, and thus any argument that the effects of our decision will be widespread is without merit, as it only effects those complaints for malpractice already filed. Accordingly, the trial court did not err denying the peremptory exception filed by LAMMICO.

DECREE

We hereby grant the writ and deny relief. The judgment of the trial court denying the peremptory exception is affirmed. This matter is remanded to the trial court for further proceedings.

WRIT GRANTED, RELIEF DENIED, AND REMANDED.

FOOTNOTES

1.   Plaintiffs assert they filed a claim for medical malpractice against Dr. Justin Rudd and St. Patrick Hospital on January 4, 2022, with the Louisiana Division of Administration. Plaintiffs’ petition indicates the malpractice claim was filed on January 4, 2022, and attached to their brief is a copy of a letter dated January 4, 2022, to the Commissioner of Administration asserting the malpractice claim. In that this letter references events occurring in February of 2022, it is assumed the malpractice claim was filed with the Division of Administration on January 4, 2023. The medical review panel's opinion was rendered on June 11, 2024.

2.   “[T]the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or the court's lack of jurisdiction over the subject matter of the action may be noticed by either the trial or appellate court on its own motion.” La.Code Civ.P. art. 927(B).

VAN H. KYZAR JUDGE