951794 La.App. 1 Cir. 4/4/96, James v. Formosa Plastics Corp. of Louisiana

• Decision Date: 04 April 1996
• Citation: 672 So.2d 319
• Parties: Cir
• Court: Court of Appeal of Louisiana — District of US

Page 319

672 So.2d 319

951794 La.App. 1 Cir. 4/4/96

Louwanna Coleman JAMES v. FORMOSA PLASTICS CORPORATION OF LOUISIANA.

No. 95 CA 1794.

Court of Appeal of Louisiana First Circuit.

April 4, 1996.

Appealed from the Nineteenth Judicial District Court, in and for the Parish of East Baton Rouge, Louisiana, Trial Court Number 395,175; Honorable William H. Brown, Judge.

Brien J. Fricke, John G. Munoz, New Orleans, and John B. Comish, Baton Rouge, for Plaintiff-Appellant.

W. Arthur Abercrombie, Baton Rouge, for Defendant-Appellee West-Paine Laboratories, Inc. Douglas K. Williams, Baton Rouge, for Defendant-Appellee Formosa Plastics Corp. of Louisiana.

Grayson H. Brown, Baton Rouge, for Defendant-Appellee The Travelers Ins. Co.

Before LOTTINGER, C.J., and LeBLANC and FOGG, JJ.

[951794 La.App. 1 Cir. 2] FOGG, Judge.

This appeal is brought by a plaintiff who was injured in the course and scope of her employment. She filed her original petition against Formosa Plastics Corporation of Louisiana, which was not her employer, for compensatory damages only. After the ruling of the Louisiana Supreme Court in Billiot v. B.P. Oil Co., 93-1118 (La. 9/29/94), 645 So.2d 604, plaintiff amended her petition to include a claim for exemplary/punitive damages against Formosa Plastics Corporation and her employer, West-Paine Laboratories, Inc. The trial court sustained an exception of prescription and dismissed plaintiff's action against West-Paine. We affirm.

Louwanna Coleman James was employed by West-Paine Laboratories, Inc., as a metals prep technician. One of her job duties was to analyze waste samples submitted to West-Paine by various companies. On June 5, 1992, she was assigned to analyze a solid waste sample sent by Formosa Plastics Corporation. The sample contained cyclohexanone and had been placed in a sealed plastic bag. Shortly after opening the bag, James became ill. Her doctors later determined that her symptoms were the result of the toxic exposure. James received workers' compensation benefits from West-Paine.

James filed a timely suit against Formosa Plastics Corporation claiming it was negligent and seeking compensatory damages. She did not name her employer as a defendant. On December 13, 1994, subsequent to the Louisiana Supreme Court case of Billiot v. B.P. Oil Co., 93-1118 (La. 9/29/94), 645 So.2d 604, James filed her First Supplemental and Amending Petition for Damages, amending her claims against Formosa, and naming West-Paine as a defendant. Therein, she sought exemplary damages from both companies. ¹ West-[951794 La.App. 1 Cir. 3] filed a peremptory exception raising the objection of prescription on January 23, 1995. The trial judge sustained the exception. James appeals.

Initially, James contends that it was error for the trial court to grant West-Paine's exception of prescription because West-Paine and Formosa Plastic Corporation are solidarily liable. James relies on LSA-C.C. art. 1797 which states, "An obligation may be solidary though it derives from a different source for each obligor." She asserts that because she sued both Formosa Plastics Corporation and West-Paine for exemplary damages the amended petition should relate back to the original petition.

West-Paine claims that plaintiff's request for exemplary damages under LSA-C.C. art. 2315.3 are intended to punish and one party cannot be punished for the acts of another party. Therefore, Civil Code article 1797 does not apply and prescription was not interrupted.

In Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), the Louisiana Supreme Court provided the three [951794 La.App. 1 Cir. 4] requisites to find solidary obligations: first, each defendant is obliged to the same thing; second, each obligor may be compelled for the whole payment, and finally, when payment by one exonerates the other toward the creditor. See also LSA-C.C. art. 1794. Differing sources of liability do not preclude an in solido obligation; the obligation may be in solido even though the obligations of the obligors arise from separate acts or by differing reasons. Williams v. Sewerage & Water Bd. of N.O., 611 So.2d 1383 (La.1993); Narcise v. Illinois Central Gulf R.R. Co., 427 So.2d 1192 (La.1983); Hoefly, 418 So.2d at 579. It is the coextensiveness of the obligations for the same debt, not the source of liability, that determines the solidarity of the obligation. Williams, 611 So.2d at 1388; Narcise, 427 So.2d at 1195; Hoefly, 418 So.2d at 579.

The issue in the instant case is whether Formosa Plastics Corporation and West-Paine can be held solidarily liable for exemplary damages pursuant to LSA-C.C. art. 2315.3. Punitive damages are to be regarded as a fine or a penalty for the protection of the public interest. These damages are provided to the plaintiff over and above the full compensation for his injuries, they are provided for the purpose of punishing the defendant, of teaching the defendant not to do a certain act again, and of deterring others from following the defendant's example. Billiot, 645 So.2d at 612; Ellender v. Texaco, Inc., 93-1803 (La.App. 1 Cir. 6/24/94), 640 So.2d 845, writ denied, 94-2339 (La. 9/30/94), 642 So.2d 883.

We find that exemplary and punitive damages do not meet the criteria established by the Louisiana Supreme Court for solidary obligations. It is the coextensiveness of the obligations for the same debt, not the source of liability, that determines the solidarity of the obligation. The primary effect of solidary liability is that any tortfeasor could be compelled to pay the entire judgment. Touchard v. Williams, 617 So.2d 885 (La.1993). In contrast, the purpose of punitive damages is to teach the defendant not to engage in such conduct again. To accomplish this, [951794 La.App. 1 Cir. 5] punitive damages are assessed against individual defendants based on their culpability; the punitive damage award is their individual debt. Therefore, even though both Formosa Plastics Corporation and West-Paine could be sued under LSA-C.C. art. 2315.3, neither could be compelled to pay the judgment of the other. Accordingly, neither obligor can be liable for the whole performance or debt as required by LSA-C.C. art. 1794. Requiring one tortfeasor to be responsible for the whole amount of exemplary or punitive damages, including those of another tortfeasor, would defeat the purpose of exemplary and punitive damages.

Plaintiff further contends that even if this court determines that West-Paine and Formosa Plastics Corporation are not solidary obligors, prescription did not run against West-Paine because of its continuing payment of workers' compensation benefits. There is nothing in the record before us to indicate that the plaintiff raised this issue at the trial level. Neither the oral reasons for judgment nor the written reasons for judgment indicate that the trial judge considered this issue. Issues not submitted to the trial court for decision will not be considered by the appellate court on appeal. Uniform Rules, Courts of Appeal, Rule 1-3; Big River Constr. & Remodeling Co. v. University Club I Apartments, L.P., 598 So.2d 542 (La.App. 1 Cir.1992). Because this issue was not raised in either the pleadings or the opposition to the exception of prescription, the plaintiff is precluded from raising this issue on appeal.

Finally, plaintiff alleges that it was error for the trial court to hold that the doctrine of contra non valentem was inapplicable to this litigation. Her argument is based on the contention that she was not aware of her rights of recovery until the Louisiana Supreme Court decided the case of Billiot.

In order to mitigate the occasional harshness of the operation of the prescription statute, Louisiana courts have recognized that prescription may be suspended under the equitable doctrine of contra non valentem agere nulla currit praescriptio, which means that prescription does not run against a party unable to act. [951794 La.App. 1 Cir. 6] Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d 206. Contra non valentem is a judicially created exception to the general rules of prescription. The basis for the doctrine is equity and justice which demands that, under certain circumstances, prescription should be suspended because the plaintiff was effectively barred from enforcing his rights for reasons external to his own will. Wimberly, 93-2361 at p. 9, 635 So.2d at 211.

The plaintiff bears the burden of showing why prescription has not run when the face of the petition reveals that the action is prescribed. Wimberly, 93-2361 at p. 8, 635 So.2d at 211. However, ignorance of one's legal rights does not toll the running of prescription. Shushan, Meyer, Jackson, McPherson &...