97-0863 La.App. 4 Cir. 12/23/97, Constans v. Choctaw Transport, Inc.

• Decision Date: 23 December 1997
• Citation: 712 So.2d 885
• Parties: 97-0863 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 885

712 So.2d 885

97-0863 La.App. 4 Cir. 12/23/97

Richard CONSTANS, et al. v. CHOCTAW TRANSPORT, INC., et al.

James PEAR v. CHOCTAW TRANSPORT, INC., et al.

Nos. 97-CA-0863, 97-CA-0864.

Court of Appeal of Louisiana Fourth Circuit.

Dec. 23, 1997.

Writ Denied March 27, 1998.

Order Amending Decree on Grant

of Rehearing Jan. 15, 1998.

Kathleen E. Simon, Simon and Rees, Covington, for Appellant.

Charles A. Boggs, Edward A. Rodrigue, Jr., Boggs, Loehn & Rodrigue, New Orleans, for Appellants.

James R.E. Lamz, Deanna J. Hamilton, Lamz & Associates, Slidell, for Appellant.

Before BYRNES, LOBRANO and JONES, JJ.

[97-0863 La.App. 4 Cir. 1] BYRNES, Judge.

On August 31, 1993 an 18-wheeler tractor trailer operated by Roosevelt Samuels was involved in a collision with a Mazda 626 passenger vehicle driven by the plaintiff, James Pear. Pear had three guest passengers: Patrick Neale, Richard Constans and Stephen Thompson. Pear and his passengers were injured. The guest passengers and their spouses (hereinafter referred to simply as "the guest passengers") sued ¹ Choctaw Transport, Inc., Debose Trucking Company, Inc., Roosevelt C. Samuels and the Northern Assurance Company of America. ² It was stipulated in the course of the trial that: "Roosevelt Samuels was driving the tractor in the course of his employment with Debose and in the course of Choctaw's business with Debose pursuant to the lease agreement." ³

[97-0863 La.App. 4 Cir. 2] Also named and served as a defendant in the suit brought by the guest passengers was Allstate Insurance Company as the liability insurer of James Pear. ⁴ No allegations of negligence or fault were made by the guest passengers against James Pear, individually, who was neither named in nor served with the original petition filed by the guest passengers. The trucking company interests filed an answer to the guest passengers in the Constans case and asserted an Alternative Cross-Claim naming as defendants James Pear and Allstate Insurance Company.

James Pear filed a claim against the trucking company interests. Pear's case was consolidated with the earlier filed Constans case. Shortly before the May 20, 1996 trial date the trucking company interests agreed to settle with the guest passengers. Consequently, the commencement of the trial was then postponed. The trucking company interests agreed to the following settlement:

Richard and Deborah Constans $45,000.00

Stephen and Margaret Thompson $210,000.00

Patrick and Dale Neale $340,000.00

Copies of the "Receipt, Release, Hold Harmless, Subrogation and Assignment" were placed in evidence by the trucking interests and the guest passengers dismissed their claims against Roosevelt C. Samuels, Debose Trucking Company, Inc. Choctaw Transport, Inc., the Northern Assurance Company of America, International Insurance Company and Westchester Fire Insurance Company. The "Motion and Order of Dismissal" reserved the rights of the guest passengers "and their assignees and/or subrogors, to pursue their cause of action [97-0863 La.App. 4 Cir. 3] against James Pear, Allstate Insurance Company, or any other responsible party." While the motion to dismiss the Neale claims was filed, the record does not include any motion to dismiss the claims of the Constans or the Thompsons.

On August 22, 1996, less than 60 days prior to the rescheduled trial date of October 14, 1996 the trucking company interests filed a "Supplemental and Amending Petition for Damages" asserting that they had been substituted as party plaintiffs to the rights of the guest passengers and were the legal successors in interest of the guest passengers. This supplemental and amended petition was presented to and the order permitting it to be filed was signed not by Judge Sholes, to whom this matter was allotted and by whom it had been set for trial, but was instead presented to and ordered filed by Yada Magee, judge of another division. In this supplemental and amended petition the trucking interests sought "judgment over for full indemnity, including interests and costs, from the date of payment, and in the further alternative, contribution from defendants, James Pear and Allstate insurance Company, for principal, interest and costs associated with the underlying claim."

James Pear and Allstate Insurance Company filed multiple motions and exceptions to the supplemental petition, including: Peremptory Exception of Prescription, Declinatory Exception of Insufficiency of Citation and Service of Process and Motion to Vacate the Order signed by Judge Magee allowing the filing of the supplemental petition by the trucking interests. On the morning of the trial the trial court ruled that the supplemental petition had not been filed in accordance with the applicable Rules of Court and ordered it stricken. The trial court also ruled that the striking of the supplemental petition had rendered moot the other [97-0863 La.App. 4 Cir. 4] motions and exceptions, including the exceptions of James Pear. However, the trial court allowed the trucking interests to proceed on the basis of their Alternative Cross-Claim.

At the trial the jury found the plaintiff, James Pear, had suffered $97,500.00 ⁵ of damages, but that he alone was at fault and that his negligence was the legal cause of the accident. The jury also found that the three guest passengers had suffered $594,000.00 in damages, in addition to which the trial court awarded certain stipulated special damages in its first judgment rendered on November 18, 1996. In that judgment the trial court condemned James Pear and Allstate to pay the trucking company interests $744,860.37 plus all costs and certain expert witness fees. Allstate and James Pear filed a "Motion To Vacate Judgment, Motion For New Trial And/Or Alternatively Judgment Not Withstanding The Verdict" which was fixed for hearing on December 13, 1996.

Pursuant to that hearing, an amended judgment was rendered on December 17, 1996 dismissing all claims against James Pear and reducing the judgment against Allstate to $100,000.00, plus interest, all costs, and certain expert's fees. Without another hearing being held, the trial court rendered another amended judgment on December 23, 1996. The only change made by this second amended judgment appears to be in the last line of the fourth full paragraph on the second page where the word "his" is found in the first amended judgment and the word "their" is found in the second amended judgment. The effect of this change would [97-0863 La.App. 4 Cir. 5] be to shift some costs ("his cost") from James Pear to the trucking company interests ("their costs"). Other than this minor change the second amended judgment is identical to the first amended judgment. Allstate and James Pear appealed. The trucking company interests filed an answer to the appeals.

I. THE ALTERNATIVE CROSS-CLAIM OF THE TRUCKING COMPANY INTERESTS

The alternative cross-claim of the trucking company interests denies all liability and states that the cross-claim is to apply "only in the event that any liability is found on their part." Allstate contends that:

Since the settlements with the Guest Passenger Plaintiffs extinguished all liability of the Trucking Company Interests to the Guest Passenger Plaintiffs, there can be no liability of the Trucking Company Interests to the Guest Passenger Plaintiffs and the Alternative Cross-Claim is therefore moot.

Pear and Allstate advance Phillips v. Ursin, 280 So.2d 243 (La.App. 4 Cir.1973), as authority for the proposition that where a third party demand seeks recovery only in the event that the third party plaintiff (in this case the trucking company interests) is cast in judgment to the original plaintiffs (in this case the guest passengers), the third party demand must be dismissed when the claim against the third party plaintiff is dismissed. Because Pear was found to be 100% at fault, no liability was found on the part of the trucking company interests. Pear and Allstate contend that the trucking company interests cross-claim is limited by its own language to situations in which the trucking company interests were found to be liable. Therefore, Pear and Allstate conclude that the language of the cross-claim asking for recovery "only in the event that any liability is found" on the part [97-0863 La.App. 4 Cir. 6] of the trucking company interests precludes recovery by the trucking company interests under the cross-claim. However, on this issue the exact language of this Court in Phillips is important:

Since plaintiff made no recovery under the uninsured motorist provisions, the third-party demand of Phoenix against Gregory E. Ursin and Commercial Union Insurance Company should be and is hereby dismissed. [Emphasis added.]

In the instant case, "recovery " was made against the trucking company interests in the form of the settlement. There was no settlement made by the third party plaintiff and his insured in Phillips. Therefore, there was no attempt by the third party plaintiff uninsured motorist insurance company and its insured in Phillips to recover funds paid in settlement under the uninsured motorist provision of the third party plaintiff's insurance policy. There is nothing in Phillips that would prevent this Court from treating the settlement payments made by the trucking company interests in the instant case as the "recovery" referred to in Phillips. Following this line of reasoning, Phillips would permit just the kind of third party claim now being asserted by the trucking company interests. Phillips does not say that the only recovery that may be taken into account is recovery obtained by court decree in the course of litigation. In fact, as will be discussed hereafter in greater detail, this Court has held in an opinion that was affirmed and adopted by the Supreme Court that the right of contribution is substantive and arises out of the payment of the obligation of a solidary co-debtor without the necessity of first reducing...