PITRE v. DUFRENE XYZ (1998)

This is an appeal from a judgment granting an exception of no right and/or cause of action dismissing with prejudice the cross-claim and third party demands of Head and Engquist Equipment, Inc. against Murray Pitre, Clifton Dufrene and Total Marine Services, Inc. For the reasons that follow, we reverse.

On August 8, 1990, Murray Pitre (Pitre) was injured when a crane manufactured by Grove North America, Division of Kidde Industries, Inc. (Grove) rolled over him.   At the time of the accident, Clifton Dufrene (Dufrene), an employee of Total Marine Services, Inc. (Total Marine) was operating the crane which Total Marine had leased from Head & Engquist Equipment, Inc. (H & E).

Pitre filed suit against Dufrene, Total Marine, Grove and H & E. Employers Casualty Company (Employers) filed an intervention seeking reimbursement for  worker's compensation benefits and medical expenses paid to Pitre.   Subsequently, Pitre, Dufrene, Total Marine and Employers filed a joint motion for dismissal since a settlement had been reached between those parties, and the trial court granted the motion.   H & E filed a cross-claim and third-party demand naming Dufrene and Total Marine as cross-claim defendants and Employers as a third-party defendant.   Thereafter, Grove filed a motion for summary judgment and the trial court later granted the motion dismissing Pitre's claims and demands against Grove.¹  Pitre then filed an exception of no right and/or cause of action to the cross-claim and third-party demand of H & E.

The trial court conducted a hearing on the exception on August 6, 1997, and after taking the matter under advisement, the court granted Pitre's exception of no right and/or cause of action.   It is from this judgment that H & E appeals.

Because our review of the record reflects that Pitre was not named as a defendant in H & E's cross-claim and third-party demand and that Pitre has not filed a petition of intervention, we find that Pitre had no standing to urge the exception of no right and/or cause of action.   See Becnel v. Madere, 535 So.2d 387 (La.App. 5 Cir.1988), writ denied, 536 So.2d 1199 (La.1988).

Accordingly, we reverse the trial court's judgment granting the exception of no right and/or cause of action and remand the matter in order to allow Pitre the opportunity to intervene and to reurge any exceptions and/or defenses he deems appropriate.

REVERSED AND REMANDED.

FOOTNOTES

1.   We affirmed that judgment in Pitre v. Dufrene, 97-38 (La.App. 5 Cir. 6/30/97), 697 So.2d 355.

 GOTHARD, Judge.