94 0351 La.App. 1 Cir. 12/22/94, Miceli v. American Tobacco Co.

• Decision Date: 22 December 1994
• Citation: 649 So.2d 28
• Parties: 94 0351 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 28

649 So.2d 28

94 0351 La.App. 1 Cir. 12/22/94

Joseph C. MICELI v. AMERICAN TOBACCO COMPANY; Lorillard, Inc.; Liggett Group Inc.; and K & B Louisiana Corporation.

No. 94 CA 0351.

Court of Appeal of Louisiana, First Circuit.

Dec. 22, 1994.

James L. Piker and George R. Covert, Baton Rouge, for plaintiff-appellant Mary Ruth Ford Miceli.

Sally Shushan, New Orleans, for defendant-appellee The American Tobacco Co.

John Weigel, New Orleans, for defendant-appellee Liggett Group, Inc.

John McCollam, New Orleans, for defendant-appellee Lorillard, Inc.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

[94 0351 La.App. 1 Cir. 2] LOTTINGER, Chief Judge.

Plaintiff appeals a summary judgment which was granted in favor of defendants based on a receipt and release.

FACTS

In June, 1982, Joseph Miceli filed suit in federal court against numerous entities which manufactured asbestos insulation products. On August 31, 1982, Mr. Miceli and his wife, Mary Ruth Miceli, executed a receipt and release, thereby releasing one of the "asbestos defendants," Combustion Engineering, Inc.

In June, 1987, Mr. Miceli was diagnosed with cancer. He filed this survival action in state court against The American Tobacco Company, Lorillard, Inc., Liggett Group, Inc. and K & B Louisiana Corporation (tobacco defendants). Mr. Miceli died in September, 1987. His wife was substituted as plaintiff in the survival action.

Following her husband's death, Mrs. Miceli filed a wrongful death suit ¹ in state court against the tobacco defendants and the asbestos defendants, excluding Combustion. The asbestos defendants sought summary judgment on the theory that the earlier release executed by Mary Miceli in favor of Combustion, and without a reservation of rights against other asbestos defendants, acted as a bar to her wrongful death action. The trial court granted summary judgment and in an unpublished opinion, we sustained the trial court's ruling. ²

The tobacco defendants have now filed motions for summary judgment in the survival and wrongful death actions. ³ They assert that because the release executed by the Miceli's did not contain an expressed reservation of rights as to the [94 0351 La.App. 1 Cir. 3] tobacco defendants, the release bars any claims against the tobacco defendants who are solidary obligors with Combustion. The trial court granted the motions holding that the receipt and release executed in favor of Combustion discharged all claims against the tobacco defendants as solidary obligors. Mrs. Miceli appeals asserting that:

(1) The trial court committed reversible error by granting appellees Motion For Summary Judgment because, appellant did not have a duty under former La.Civ.Code Art. 2203 to reserve her rights against then unknown tort feasors.

(2) The trial court committed reversible error by granting appellees' Motion For Summary Judgment because, appellees did not make the requisite showing that they were solidary obligors with the previously released asbestos defendants.

We address only assignment of error number two because our conclusion on that issue disposes of this case on appeal.

A motion for summary judgment may be granted if pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.Pro. art. 966. The burden is on the mover to show that there is no genuine issue of material fact. Succession of Lawrence, 623 So.2d 96, 99 (La.App. 1st Cir.1993). Whether or not a fact in dispute is material is determined by the applicable substantive law. Id. at 100.

In this case, the applicable law is La.Civ.Code art. 2203. At the time that the Micelis executed the release in favor of Combustion, La.Civ.Code art. 2203 provided:

The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved the right against the latter.

In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.

In order to avail themselves of former article 2203, defendants must first prove that they are in fact "codebtors in solido." To establish solidary...