
    Andra TUCKER, Danny Gray v. JERRY DERBES, INC., d/b/a Basin Lounge, First Financial Insurance Company.
    No. 98-CA-0265.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1998.
    Rehearing Denied Nov. 16, 1998.
    Ralph S. Johnson, Gretna, for PlaintiffAp-pellant.
    Thomas G. Buck, George C. Aucoin, Robert E. Williams, IV, Blue Williams, L.L.P., Metairie, for Defendant/Appellee First Financial Insurance Company.
    Before KLEES, LOBRANO and LANDRIEU, JJ.
   IzLANDRIEU, Judge.

Plaintiff, Andra Tucker, appeals a trial court judgment granting Jerry Derbes’s exception of prescription. We affirm.

Tucker sued Jerry Derbes, Inc., the alleged owner of Basin Lounge, and its liability insurer, First Financial Insurance Company,. for injuries she sustained when she fell in Basin Lounge on April 12, 1993. Tucker only served First Financial and, after trial, obtained a judgment only against First Financial.

First Financial appealed, and this court, in a non-published opinion, Tucker v. Jerry Derbes, Inc., 96-0911 (La.App. 4 Cir. 11/27/96, 684 So.2d 90), writ denied, 97-0128 (La.3/27/97), 692 So.2d 405, reversed the trial court. This court found that because Tucker had not introduced the First Financial insurance policy, she had not met her burden of proving coverage and liability. In the meantime, after First Financial appealed the judgment against it, but before this court issued its opinion, Tucker served Derbes with the petition on June 16,1996.

On December 2, 1996, Derbes filed a decli-natory exception of insufficiency of service of process which the trial court denied on July 14, 1997. Soon after, Derbes filed a motion to dismiss for failure to prosecute, an exception of res judicata, and/or an exception of prescription. The trial judge denied the motion to |3dismiss and the exception of prescription. Tucker appeals the judgment granting the exception and dismissing her claim against Derbes.

In this appeal, Tucker assigns error to the trial judge’s ruling that she failed to prosecute her claim against Derbes at trial and that La. Civ.Code art. 3463 requires the finding that her suit against Derbes has prescribed.

La. Civ.Code art. 3463 provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial.

The record shows that Tucker went to trial without ever serving Derbes with the petition, and hence, issue was never joined as to Derbes. Tucker obtained a judgment against First Financial alone and failed to reserve any rights against Derbes. Tucker, therefore, failed to prosecute suit against Derbes at trial.

The trial judge correctly applied article 3463 to the facts of this case to determine that Tucker’s claim against Derbes had prescribed. We affirm the judgment of the trial court granting Derbes’s exception of prescription.

AFFIRMED.

LOBRANO, J., concurs.

liLOBRANO, Judge,

concurring.

I concur in the majority result but do so based on the particular facts of this case. The reason for my reservation is that the application of Civil Code Article 3463 results in a holding which appears to conflict with the well established principle that suit against one solidary obligor interrupts prescription as to all such obligors. See, Adams v. Dupree, 94-2353 (La.App. 4 Cir. 10/12/95), 663 So.2d 433, writ denied 95-2750 (La.1/26/96), 666 So.2d 676, where prescription against a solidary obligor who was not sued was interrupted by the timely suit against other obligors. Under the rationale of Adams, it seems that plaintiff in this ease would have been successful on the prescription issue if he had never sued Derbes in the first instance. However, because he did, and because he withheld service, and then failed to reserve his rights to proceed against Derbes when the case was tried against First Financial, I concur in the majority result and the application of article 3463.  