Theriot v. Bergeron
| Decision Date | 11 October 1989 |
| Docket Number | No. 88CA1115,88CA1115 |
| Citation | 552 So.2d 1 |
| Parties | Emile H. THERIOT, Jr. and Barbara C. Theriot v. Phillip P. BERGERON, Appearing Individually and as Administrator of the Minor Child, Joel P. Bergeron, Allstate Insurance Company and Capital Enterprise Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Michael J. Samanie, Houma, for plaintiffs and appellees, Emile Theriot Jr. and Barbara Theriot.
Donald Massey, New Orleans, for defendant and appellant, Capital Enterprise Ins. Co.
Stephen LaRussa, Houma, for defendants, Phillip Bergeron and Allstate Ins. Co.
Before CARTER, SAVOIE and ALFORD, JJ.
This case involves a purely legal issue concerning the subrogation rights of the plaintiffs' liability insurer for the medical payments it made to plaintiffs. Herein we decide: (1) that tortfeasors owe medical payments to the plaintiffs' insurer in the same proportion as they owe liability payments to the plaintiffs; and (2) that even though one tortfeasor may have sufficient insurance coverage to pay the whole judgment, the uninsured/underinsured motorists carrier still provides liability coverage for the uninsured or underinsured tortfeasor(s).
Plaintiffs, Emile and Barbara Theriot, filed suit against the following defendants: Phillip Bergeron, individually and as administrator of the estate of his minor child, Joel; Allstate Insurance Company (Allstate), Bergeron's liability insurer; First Assembly of God of Dulac (First Assembly); State Farm Mutual Automobile Insurance Company (State Farm), the church's liability insurer; and Capital Enterprise Insurance Group (Capital), the plaintiffs' uninsured/underinsured motorist insurer. 1 The plaintiffs sought to recover damages for injuries they sustained in a car accident on January 17, 1986; as their vehicle attempted to stop behind a bus owned by First Assembly and operated by its minister, which was stopped and unloading passengers, the vehicle behind the Theriots, which was driven by Joel Bergeron, rear-ended them.
Various cross-claims and third party demands were filed by the defendants. Capital filed a cross-claim against Bergeron and Allstate and a separate cross-claim against State Farm. In its cross-claim against Bergeron and Allstate, Capital sought recovery from both codefendants for the medical payments it made to plaintiffs on the basis that it was conventionally and legally subrogated to the plaintiffs' claims in the amount of the medical payments. 2 In Capital's cross-claim against State Farm, it again sought recovery for medical payments made by it to plaintiffs pursuant to conventional and legal subrogation. 3 The parties stipulated that Capital had paid $2,475.00 to Emile Theriot and $12,672.25 to Barbara Theriot under its medical payment provisions.
The liability and damages issues on the main demand were tried to the jury, and the cross-claims and third party demands were tried by the judge. The jury found Bergeron 80% at fault and First Assembly 20% at fault. The jury awarded $10,000.00 in damages to Emile Theriot (including $3,000.00 in past and future medical expenses) and $160,000.00 to Barbara Theriot (including $30,000.00 in past and future medical expenses). The court rendered judgment in accordance with the jury verdict; after deducting the $15,147.25 which Capital had made in medical payments to the plaintiffs, it awarded plaintiffs their damages against all defendants in solido, and then directed that payment of the damages be based on the percentages of fault assessed against the parties. Allstate and Bergeron were to pay 80% of the damages and State Farm was to pay 20%. As to Barbara Theriot, because Allstate's policy limits were exhausted, Capital as plaintiffs' underinsured motorist insurer had to pay the remainder of Allstate and Bergeron's 80% share. 4
The trial judge rendered judgment on the cross-claims finding State Farm liable to Capital for 20% of the medical payments made to the plaintiffs and finding Allstate and Bergeron liable to Capital for 80% of the medical payments made to the plaintiffs. The trial judge did not state in the judgment on the cross-claim that Bergeron and Allstate and State Farm were solidarily liable to Capital. 5
Capital filed a motion to amend the judgment, contending that judgment on the cross-claim should have been rendered in solido against Bergeron, Allstate, and State Farm. The court denied Capital's motion. From this judgment, Capital appeals, urging that the trial court erred in failing to hold First Assembly, State Farm, Bergeron and Allstate liable in solido to Capital on its cross-claim for medical payments. 6
The court's reasons for denying Capital's motion are as follows:
At the hearing on these motions, Capital also argued that its cross-claims against Allstate, Bergeron, and State Farm should have been granted in solido against all three defendants. Capital argued that since Bergeron and First Assembly are jointly and solidarily liable for plaintiffs' damages, then their insurers must pay all of plaintiffs [sic] damages to the limit of their policies notwithstanding the percentages of fault attached to the defendants as determined by the jury. If this Court were to grant Capital's request, the result would be that State Farm would be paying more than its insured's 20% of fault and exempt Capital as underinsured motorist carrier from paying any part of the damages incurred by plaintiffs. This Court followed the decision of the court in Harris v. Guitterez, 469 So.2d 1135 (La.App. 4 Cir.1985) in rendering its original judgment; consequently, this Court sees no reason to amend its judgment.
Capital is conventionally subrogated to the plaintiffs' claims against Bergeron, Allstate, and State Farm in the amount of the medical payments made by it to the plaintiffs. 7 LSA-C.C. arts. 1825, 1826, 1827; Southern Farm Bureau Casualty Insurance Co. v. Sonnier, 406 So.2d 178 (La.1981). However, as a subrogee, Capital acquires only the rights the plaintiffs have. Bosch v. Cummings, 520 So.2d 721, 724 (La.1988). The trial judge found that the defendants and Capital were liable to the plaintiffs in solido, but then found that State Farm must pay 20% of the damages and that Bergeron, Allstate, and Capital must pay 80% of the damages. Capital, as an underinsured motorist insurer, was liable for that portion of the damages exceeding Allstate's policy limits even though State Farm had sufficient insurance to cover the remainder of plaintiffs' damages. The trial court based its holding on Harris v. Guitterez, 469 So.2d 1135 (La.App. 4th Cir.1985), wherein the Fourth Circuit found that where an insured motorist was 60% at fault and the driver of an unknown vehicle was 40% at fault, the plaintiff's uninsured motorist carrier was 40% liable for the plaintiff's damages, notwithstanding that the liability policy limits of the insured motorist were sufficient to satisfy the judgment. 8
Here, plaintiffs only had a right to recover 20% of their damages from State Farm. Likewise, Capital may only recover 20% of its medical payments to plaintiffs from State Farm since it stands in the shoes of the plaintiffs. To hold otherwise would give Capital greater rights than the plaintiffs had against State Farm and would circumvent the court's ruling on the main demand.
We agree with Capital's contention that because Bergeron, Allstate, and State Farm are solidarily liable to the plaintiffs, these defendants should likewise be liable in solido to Capital as the subrogee of the plaintiffs. See Billeaudeau v. Lemoine, 386 So.2d 1359 (La.1980). However, as earlier stated, we believe that the liability of the solidary obligors to Capital is the same as it is to the plaintiffs. 9
For these reasons, we will amend the judgment of the trial court to recognize that Bergeron, Allstate, and State Farm are liable in solido to Capital on its cross-claims for medical payments, yet we will also include in the judgment the percentages of damages each party must pay. We now amend that portion of the judgment dealing with Capital's cross-claims to read as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein against defendants PHILLIP P. BERGERON, ALLSTATE INSURANCE COMPANY (not to exceed its policy limits of $100,000 for each plaintiff), and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (not to exceed its policy limits of $100,000 for each plaintiff), in solido, and in favor of Capital Enterprise Insurance Group in the full and true sum of $15,147.25, to be paid as follows:
PHILLIP P. BERGERON AND ALLSTATE INSURANCE COMPANY
80% of Barbara Theriot's medical payments $10,137.80
80% of Emile Theriot's medical payments $ 1,980.00
TOTAL $12,117.80
STATE FARM MUTUAL AUTO- MOBILE INSURANCE COMPANY
20% of Barbara Theriot's medical payments $ 2,534.45
20% of Emile Theriot's medical payments $ 495.00
TOTAL $ 3,029.45
together with legal interest from the date of judicial demand until paid and costs.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the cross-claim of CAPITAL ENTERPRISE INSURANCE GROUP against PHILLIP BERGERON is granted for any and all sums that CAPITAL ENTERPRISE INSURANCE GROUP pays to BARBARA C. THERIOT in accordance with the uninsured/underinsured motorist provisions of the automobile insurance policy issued by CAPITAL ENTERPRISE INSURANCE GROUP to EMILE H. THERIOT, JR. together with legal interest from date of judicial demand until paid. The total payments to be made by ALLSTATE INSURANCE COMPANY and STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. in this matter, excluding interest and costs, shall not exceed their policy limits of $100,000 for each plaintiff.
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