94-777 La.App. 3 Cir. 3/20/96, Touchard v. Williams

• Decision Date: 20 March 1996
• Citation: 671 So.2d 1065
• Parties: 94-777 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1065

671 So.2d 1065

94-777 La.App. 3 Cir. 3/20/96

Mary TOUCHARD, Plaintiff-Appellant, v. Brenda G. WILLIAMS, et al., Defendants-Appellees.

No. 94-777.

Court of Appeal of Louisiana Third Circuit.

March 20, 1996.

On appeal from the Twenty-Seventh Judicial District Court, Parish of St. Landry; the Honorable Alonzo Harris, District Judge, Presiding.

John Henri Pucheu, Eunice, for Mary Touchard.

Jerry Joseph Falgoust, Opelousas, for Brenda Williams et al.

John Edward Ortego, Lafayette, for State Farm Mutual Automobile Insurance.

Robert A. Lecky, Lafayette, for Steven Lege & Texas Farmers Insurance Co.

Before YELVERTON, THIBODEAUX and PETERS, JJ.

[94-777 La.App. 3 Cir. 1] THIBODEAUX, Judge.

This case involves the interpretation of La.Civ.Code art. 2324(B), which imposes solidary liability on joint tortfeasors up to at least 50% of the victim's recoverable damages. The trial court concluded that all defendants were solidarily liable to the extent of 50% of plaintiff's recoverable losses. The plaintiff-appellant, Mary Touchard, claims that the district court improperly rendered the damage award in light of the decision by the supreme court in Touchard v. Williams, 617 So.2d 885 [94-777 La.App. 3 Cir. 2] (La.1993). We agree. We, therefore, amend the judgment of the trial court and hold that each defendant is solidarily liable for up to 50% of Ms. Touchard's recoverable damages.

ISSUE

Whether La.Civ.Code art. 2324(B) requires that each defendant-tortfeasor be held solidarily liable for 50% of the victim's recoverable damages in light of the supreme court decision in Touchard, and this court's decision in Hayes v. Kelly, 625 So.2d 628 (La.App. 3 Cir.1993), writs denied, 93-3026 and 93-3048 (La. 2/4/94), 633 So.2d 171, 580.

FACTS

This is an appeal of a judgment rendered by the district court following a remand by the Louisiana Supreme Court after a previous appeal to this court. This lawsuit for damages arises out of a multi-car accident that occurred in the eastbound lane of Interstate 10 on September 17, 1987. Touchard was a passenger in her own vehicle; however, it was being driven by Brenda Williams. James H. Minter was also injured in the accident, and Touchard's suit was consolidated with Minter's suit.

On April 23, 1990, through April 30, 1990, these consolidated cases were tried before a civil jury. As to Touchard, the jury found that her injuries were caused by the joint negligence of Brenda Williams, Martha Causey, and Steven Lege. The following percentages of fault were allocated to the defendants by the jury: Williams 63%; Lege 7%; and, Causey 30%. The jury awarded Touchard a lump sum of $100,000.00.

Touchard appealed to this court. A decision was rendered on October 16, 1992, upholding the district court judgment in all respects. See Touchard v. [94-777 La.App. 3 Cir. 3] Williams, 606 So.2d 927 (La.App. 3 Cir.1992). Next, Touchard applied to the Louisiana Supreme Court for a writ of certiorari which was granted. See Touchard v. Williams, 609 So.2d 239 (La.1992). In the supreme court opinion, the jury's allocation of fault and award for damages were affirmed. However, our court's decision regarding the interpretation of La.Civ.Code art. 2324(B) was reversed and the case was remanded to district court. See Touchard, 617 So.2d 885.

After remand, a status conference was set to fashion a final judgment. On September 2, 1993, the district court rendered and signed a final judgment in favor of Touchard. The portion of the judgment at issue provides:

"IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. That there be judgment in favor of plaintiff, Mary Touchard, and against defendants, jointly and divisibly, in the following proportions: Brenda Williams and State Farm Mutual Automobile Insurance Company, 63%; Steve Lege and Texas Farmers Insurance Company, 7%; Martha Causey and Allstate Insurance Company, 30% of recoverable losses of $100,000.00, plus legal interest on all amounts from date of judicial demand until paid; further, subject to applicable policy limits of the liability insurers herein, State Farm Mutual Automobile Insurance Company at $25,000.00, Texas Farmers Insurance Company at $20,000.00 and Allstate Insurance Company at $100,000.00, all defendants are solidarly [sic] liable to the extent of 50% of plaintiff's same recoverable losses."

The underlying facts of the case as to allocation of fault and award of damages are not at issue. However, there has been a change in the amounts Touchard has received from the various defendants. At the time of the supreme court decision, Touchard was paid the policy limits of $25,000.00 from State Farm Insurance Company (Williams' insurer); $30,000.00 from Allstate Insurance Company (Causey's insurer); and, $7,000.00 from Texas Farmers Insurance Company (Lege's insurer). After filing the present appeal, Touchard was paid an additional $20,000.00 by Allstate Insurance Company.

[94-777 La.App. 3 Cir. 4] Touchard was not paid, and the trial court did not order payment, of any additional amount by Texas Farmers Insurance Company. Texas Farmers is the only insurance company still remaining as a party in this lawsuit.

Touchard's appeal asserts as error the district court's failure to recognize that La.Civ.Code art. 2324(B) makes each joint tortfeasor solidarily liable for 50% of the plaintiff's recoverable damages. Thus, Touchard argues, the district court judgment should have provided that each of the tortfeasors was solidarily liable for up to $50,000.00. This would have provided the mathematical underpinning to conform to Touchard v. Williams and explain the increase of Allstate's liability from 30% to 50%, as well as Texas Farmers' liability from 7% to 50% (limited, of course, by its $20,000.00 policy limits). We agree, therefore, that it is unnecessary to address Touchard's second assignment of error as to the allocation of payments previously made by the tortfeasors.

LAW AND DISCUSSION

Article 2324(B) of the Louisiana Civil Code reads as follows:

"B. If liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages; however, when the amount of recovery has been reduced in accordance with the preceding Article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of fault has been attributed. Under the provisions of this Article, all parties shall enjoy their respective rights of indemnity and contribution. Except as described in Paragraph A of this Article, or as otherwise provided by law, and hereinabove, the liability for damages caused by two or more persons shall be a joint, divisible obligation, and a joint tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, or immunity by statute or otherwise."

[94-777 La.App. 3 Cir. 5] This section of La.Civ.Code art. 2324 has recently been interpreted by the supreme court in Touchard, 617 So.2d 885.

In Touchard, the supreme court revealed that "[t]he pivotal issue in this case is the interpretation of the phrase 'only to the extent necessary for the person suffering injury, death, or loss to recover fifty per cent of his recoverable damages'...." Id. at 887. This phrase is contained in La.Civ.Code art. 2324(B). Further, the supreme court noted that the Article is not clear and free of ambiguity and that both scholars and commentators have wrestled with the meaning of the Article...