Babineaux v. Domingue

• Decision Date: 22 June 1988
• Docket Number: No. 87-552,87-552
• Parties: Joseph Ricky BABINEAUX, Plaintiff-Appellee, v. Divernia DOMINGUE, Neil Domingue, Wallace LeJeune d/b/a Wallace LeJeune Trucking Company, Shelter Insurance Company and State Farm Mutual Automobile Insurance Company, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 45

529 So.2d 45

Joseph Ricky BABINEAUX, Plaintiff-Appellee, v. Divernia DOMINGUE, Neil Domingue, Wallace LeJeune d/b/a

Wallace LeJeune Trucking Company, Shelter

Insurance Company and State Farm Mutual

Automobile Insurance Company,

Defendants-Appellants.

No. 87-552.

Court of Appeal of Louisiana,

Third Circuit.

June 22, 1988.

Ashy & Colvin, D. Warren Ashy, Lafayette, for plaintiff-appellee.

Cooper, Ortego & Woodruff, Calvin E. Woodruff, Jr., Abbeville, for defendants-appellants.

Before DOMENGEAUX, STOKER and KING, JJ.

DOMENGEAUX, Judge.

Joseph Ricky Babineaux commenced these proceedings to recover damages for the injuries he sustained as the result of an automobile accident which occurred on March 8, 1985. Babineaux named as the defendants: (1) Divernia Domingue, the uninsured driver of the automobile in which he was a guest passenger; (2) Neil Domingue, alleged to be the owner of the automobile which Divernia Domingue was driving; (3) Wallace LeJeune d/b/a Wallace LeJeune Trucking Company, (LeJeune), the driver of the vehicle which collided with the Domingue automobile; (4) Shelter Insurance Company, (Shelter), the liability insurer of LeJeune; and (5) State Farm Mutual Automobile Insurance Company (State Farm), the uninsured motorist insurer of Babineaux's father under which the plaintiff was also insured.

Prior to trial on the merits, this case was consolidated with: (1) Divernia Domingue, Et al. v. Wallace LeJeune d/b/a Wallace LeJeune Trucking, Et al., numbered by the Clerk of Court for the Fifteenth Judicial District: 55,350-D; and (2) Antoinette Boutee v. Wallace LeJeune d/b/a Wallace LeJeune Trucking Co., Et al., numbered: 55,357-G. The two above referenced cases have not, however, been appealed.

Babineaux, while riding as a guest passenger in a 1981 Pontiac automobile driven by Domingue, was injured when the Domingue vehicle collided with a 1972 International tractor trailer owned and driven by LeJeune. Subsequent to a trial by jury, a verdict was rendered finding substandard conduct on the part of Domingue and LeJeune and assessing their fault at ninety percent and ten percent, respectively. The jury determined the parties had been damaged in the following amounts: (1) Babineaux, $355,000.00; (2) Boutee, a plaintiff in one of the consolidated cases and also a guest passenger, $132,000.00; (3) Domingue, $22,500.00; and (4) LeJeune, $7,452.21.

Judgment was rendered in accordance with the decision of the jury reflecting the percentage of fault attributed to the defendants, and as pertains to the instant appeal, in favor of Babineaux and against LeJeune, Shelter, Divernia Domingue and State Farm, in solido. State Farm's liability was limited to $25,000.00, the extent of its uninsured motorist policy.

State Farm sought this appeal and contends that as an uninsured motorist insurer it should not be held solidarly liable with Domingue and LeJeune, the tortfeasors, and LeJeune's liability insurer, Shelter. State Farm maintains that Shelter provided LeJeune with $500,000.00 in liability insurance and, although Domingue was uninsured, the total liability exposure only amounts to $489,250.00, $10,750.00 less than the limits of the Shelter policy. The appellant further suggests that this Court's decision in Farnsworth v. Lumbermens Mutual Casualty Co., 442 So.2d 1340 (La.App. 3rd Cir.1983), writ denied 445 So.2d 452 (La. 1984) should be reversed. We concluded, in Farnsworth, relying on the Louisiana Supreme Court decision of Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La. 1982), that uninsured motorist carriers, tortfeasors and tortfeasors' liability insurers were solidary obligors in relation to plaintiffs and that as a result uninsured motorist carriers were "solidarily bound to recompense for the claims of an injured party just as though [they] were the tortfeasor's insurer" Farnsworth, supra, at 1345, quoting, Stroud v. Liberty Mutual Insurance Company, 429 So.2d 492, 501 (La.App. 3rd Cir.1983), writ denied, 437 So.2d 1147 (La. 1983). Subsequent to considerable deliberations on this matter, we believe we are constrained by Hoefly and must, therefore, permit the decision of the District Court to stand. The effect of the Hoefly decision may only be changed by resort to the Supreme Court or the Legislature.

The issue in Hoefly was "whether an automobile accident victim's uninsured motorist carrier [was] solidarily obligated with the tortfeasor so that the victim's timely suit against the latter interrupt[ed] prescription with regard to the insurer." Hoefly, supra, at 576. The Court held that since the tortfeasor and the uninsured motorist carrier were obligated for the same thing, the repair of the innocent automobile accident victim, they were solidary obligors and the Court, to quote Justice Blanche who dissented in Hoefly, thereby, "salvaged a particular plaintiff's claim from prescription." Carona v. State Farm Insurance Company, 458 So.2d 1275, 1280 (La.1984) (Blanche, J., concurring in the Carona result only). The Hoefly Court, although concluding that the object of La.R.S. 22:1406 (1950) (as amended), the uninsured motorist statute, was to promote full recovery by innocent automobile accident victims "by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured ", held that the uninsured motorist statute should be liberally construed and that uninsured motorist carriers and tortfeasors were solidarily obligors. Hoefly, supra, at 578 (emphasis added). The Court was of the opinion that:

The uninsured motorist carrier [was] bound by the combined effect of the tortfeasor's wrongful act, the uninsured motorist statute, and the carrier's delivery or issuance for delivery of automobile liability insurance, while the tortfeasor [was] obligated merely because of his delict. Hoefly, supra, at 579.

Uninsured motorist insurance suggests by its very name that it was intended to protect innocent automobile accident victims only when tortfeasors are uninsured or inadequately insured. The statute has, however, been interpreted otherwise by Hoefly and its progeny. Carona, supra; Johnson v. Fireman's Fund Insurance Company, 425 So.2d 224 (La.1982); Harris v. Guitterez, 469 So.2d 1135 (La. App. 4th Cir.1985); Perrilloux v. Bowser, 483 So.2d 1135 (La.App. 5th Cir.1986). Accordingly, following the Hoefly decision, the judgment of the District Court must be affirmed. ¹ But see, W. McKenzie and H Johnson, 15 Louisiana Civil Law Treatise Sec. 134 (1986); McKenzie and Johnson, Insurance Law, 46 La.L.Rev. 475 (1986); Note, Obligations Uninsured Motorist And Insurer As Obligors In Solido, 58 Tul.R.Rev. 642 (1983).

For the above and foregoing reasons, the judgment of the District Court is affirmed.

All costs of this appeal are assessed against State Farm Mutual Automobile Insurance Company.

AFFIRMED.

STOKER, and KING, JJ., concur and assign written reasons.

STOKER, Judge, concurring.

I concur in the majority's affirmation of the trial court but do not subscribe to all the pronouncements contained in the majority opinion. In this case the appellant uninsured motorist carrier is not seeking a credit for the liability carrier's limits or for what the liability carrier may pay under its limits. There is no third party demand over against the liability insurer and its insured for contribution or reimbursement. In its appeal here the appellant has simply made a frontal assault against the concept of solidarity between automobile insurance carriers, one of which is an uninsured motorist carrier, and the other a liability insurer. What the appellant seeks is an outright repudiation of the solidarity concept announced by the Louisiana Supreme Court in Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La. 1982). On its face the appellant's argument appears to be an attack on our case of Farnsworth v. Lumbermens Mutual Cas Co., 442 So.2d 1340 (La. App. 3d Cir.1983), writ denied, 445 So.2d 452 (La. 1984).

The essence of appellant's argument on appeal is that Farnsworth represents an aberrant extension of Hoefly insofar as it makes uninsured motorist carriers solidarily liable with liability insurers. Since that is the gravamen of the appeal, I agree that appellant should be denied relief.

The ruling and legal holding of the Louisiana Supreme Court in Hoefly v. Government Employees Insurance Company, supra, is confined to the determination that "an automobile victim's uninsured motorist carrier is solidarily obliged with the tort-feasor so that the victim's timely suit against the latter interrupts prescription with regard to the insurer." The Hoefly decision is confined to the effect of the solidarity in interrupting prescription.

In Hoefly the Supreme Court concluded by stating the following caveat at page 580:

"Allstate argues that the conclusion we have reached will cause all effects of solidarity to be applied in uninsured motorist cases. Care should be taken by civilian attorneys and jurists to be on guard against applying one segment of the code in isolation from others. Neither the Civil Code nor the revised statutes were intended to be applied in this manner. A full delineation of the relationship between the tortfeasor and the uninsured motorist carrier after payment of the debt owed by them solidarily is beyond the scope of this case. However, it is clear that the Civil Code recognizes that debtors, although solidarily bound for the creditor's benefit, may have differing relationships among themselves. The conclusion that debtors are solidarily bound does not alone determine the rights and obligations of the debtors in relation to each other."

Although Hoefly left open the question of how the concept of solidarity might be applied beyond the question of interruption of prescription, later expressions of the Supreme Court...