Amerson v. Louisiana Dept. of Transp. and Development Through Office of Highways

• Decision Date: 11 October 1990
• Docket Number: No. 90-CA-218,90-CA-218
• Parties: Lois AMERSON, et al. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Through its OFFICE OF HIGHWAYS, et al. 570 So.2d 51
• Court: Court of Appeal of Louisiana — District of US

Page 51

570 So.2d 51

Lois AMERSON, et al. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT,

Through its OFFICE OF HIGHWAYS, et al.

No. 90-CA-218.

570 So.2d 51

Court of Appeal of Louisiana,

Fifth Circuit.

Oct. 11, 1990.

Rehearing Denied Dec. 17, 1990.

Writ Denied Feb. 21, 1991.

Steven F. Griffith, Sr., Destrehan, for plaintiffs/appellees.

William J. Guste, Jr., Atty. Gen., William J. Doran, Jr., Sp. Asst. Atty. Gen., Baton Rouge, for defendant/appellant.

Before BOWES, DUFRESNE and WICKER, JJ.

WICKER, Judge.

This is an appeal from the granting of a partial summary judgment on the issue of the Louisiana Department of Transportation and Development's (DOTD) liability for a multi-vehicle accident occurring in St. Charles Parish on October 12, 1982. The appeal is also taken from the sustaining of an exception of res judicata which effectively imposed liability on DOTD. DOTD has appealed the adverse rulings. We reverse and remand.

On October 12, 1983 a petition for damages and worker's compensation benefits was filed in St. Charles Parish on behalf of plaintiffs/appellees Lois Amerson, wife of Albert E. Amerson, Sr. and Amerson's major children, Albert E. Amerson, Jr., Danny Bernard Amerson and Scott E. Amerson. Worker's compensation benefits were sought from defendants, Alden Maintenance Contractors, Inc. and its insurer as well as GHR Energy Corporation. The worker's compensation claim is still pending.

Plaintiffs/appellees also sued for damages pursuant to a wrongful death claim and a survival action. The wrongful death claim and survival action are based on an accident occurring on or about October 12, 1982. Defendants on the two actions are DOTD; Norma Dawn Connor in her capacity as curator for William P. Carman; State Farm Mutual Automobile Insurance Company as Carman's insurer; The Louisiana Department of Public Safety, Offices of State Police; the St. Charles Parish Sheriff's Department and it insurer. The plaintiffs' suit was subsequently partially dismissed against defendants St. Charles Parish Sheriff's Department and Louisiana Department of Public Safety, Office of State Police.

The present appeal only concerns the wrongful death and survival action claims against Connor, State Farm and DOTD.

State Farm and Connor filed an exception of res judicata. In support of their motion they filed a certified copy of a judgment rendered in matter No. 15,104 consolidated with No. 15,690. The judgment was rendered June 3, 1986 in the Parish of St. John The Baptist. Additionally, plaintiffs filed a partial motion for summary judgment on the issue of DOTD's liability. In support of its motion for summary judgment plaintiffs attached a certified copy of the same judgment along with the reasons for judgment. The trial judge granted the motion for summary judgment and sustained the exception. DOTD now appeals and specifies the following errors:

1. The trial court erred in granting the Motion for Partial Summary Judgment because the judgment of the district court in St. John the Baptist Parish is not res judicata as to the question of liability as between the widow and children of Albert Amerson and DOTD, and

2. Even if all of the other criteria for res judicata are met, the judgment of the court in St. John the Baptist Parish did not definitively determine the rights of the parties before the court in the instant case in that it did not assess the relative percentage of fault as between Amerson and DOTD nor was it called upon to determine the question of proximate cause and legal cause of the accident as between Amerson and DOTD and, therefore, the judgment did not decide upon all of the questions that are before the court in the instant case.

The St. John the Baptist Parish Court rendered judgment in favor of the plaintiffs in that suit: (1) Norma Dawn Connor individually and in her capacity as curator for William P. Carman and as natural tutor of the minor children, Shawn and Paul Carman, and (2) Pamela Robinson Ramsay, individually and as natural tutrix of the minor children, Jeremy C. and Jillian P. Ramsey. The trial court awarded damages in their favor and cast judgment against DOTD; the Estate of Albert E. Amerson; State Farm in its capacity as insurer of the automobile of Wanda D. Bennett, the owner of the car driven by defendant Ramsay, and State Farm as under and/or uninsurer of Albert E. Amerson by virtue of a policy of insurance purchased by and issued to William P. Carman.

The trial court rendered judgment finding the defendants "jointly liable for the accident made the basis of this suit."

The trial judge's reasons for judgment in the St. John the Baptist suit indicates the cause of action arose out of an automobile accident on October 12, 1982. He concluded the following in his reasons for judgment:

On October 12, 1982 Albert E. Amerson a resident of St. John the Baptist Parish was proceeding west on the Bonnet Carre' Spillway Bridge when he crossed the center lane on two (2) occasions. In the first instance he struck a 1977 Ford Pinto being driven by Carman in its proper east bound lane of travel. The Pinto was propelled into the west bound lanes of travel and in all had four (4) secondary impacts having been jolted across the center lane of the Spillway Bridge three (3) times. Amerson, operating a 1979 Pontiac with the permission of its owner Wanda Bennett, then proceeded in a westerly direction in his own lane, again crossed the center lane and struck Ramsay.

It was further shown that Albert E. Amerson had alcohol in his system causing him to be driving while under the influence.

* * * * * *

This Court has ruled that the accident that is the subject of this litigation was caused by the joint and concurrent negligence of Albert E. Amerson and defendant Louisiana Department of Transportation and Development, Office of Highways.

RES JUDICATA:

La. Civil Code art. 2286 ¹ lists the essential elements for sustaining a plea of res judicata:

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

Neither parties dispute that the alleged accident occurred October 12, 1982. The action was filed October 12, 1983. At these times the wrongful death and survival action statute, La. Civil Code art. 2315 provided in pertinent part:

The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.

The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.

In the first suit the estate was the defendant; whereas, in the instant case the widow and children are individually bringing a survival action and a wrongful death action. Under La. Civil Code art. 2315 the widow and children are the appropriate individuals to which the right to bring these claims flows. The succession representative could not have brought actions in the prior suit or in the...