Baker v. Payne and Keller of Louisiana, Inc.

• Decision Date: 10 November 1980
• Docket Number: No. 67437,67437
• Citation: 390 So.2d 1272
• Parties: Frances Mathews BAKER v. PAYNE AND KELLER OF LOUISIANA, INC., Georgia Pacific, Inc., Maryland CasualtyCompany et al.
• Court: Louisiana Supreme Court

Page 1272

390 So.2d 1272

Frances Mathews BAKER v. PAYNE AND KELLER OF LOUISIANA, INC., Georgia Pacific, Inc Maryland CasualtyCompany et al.

No. 67437.

Supreme Court of Louisiana.

Nov. 10, 1980.

Rehearing Denied Dec. 15, 1980.

Maurice D. Robinson, Jr., Kopfler, Robinson & Moody, Hammond, for plaintiff-applicant.

John S. White, Jr., Kennon, White & Odom, David W. Robinson, Watson, Blanche, Wilson & Posner, W. S. McKenzie, Taylor, Porter, Brooks & Phillips, Horace C. Lane, Lane & Clesi, Felix R. Weil, Baton Rouge, for defendants-respondents.

DIXON, Chief Justice.

This wrongful death action was brought against several defendants, ¹ including Payne and Keller and Maryland Casualty Company, the decedent's employer and the employer's insurer. Both excepted, arguing that plaintiff's exclusive remedy, as to them, was under the workmen's compensation act. (Plaintiff was receiving workmen's compensation benefits; Maryland later intervened to recover them if plaintiff's suit should be successful). These peremptory exceptions were sustained, and the employer was dismissed from the suit. Maryland, however, was not dismissed; plaintiff was given fifteen days to amend and allege a cause of action against Maryland.

The original petition alleged that Fred Baker, Jr., while at work for Payne and Keller, his employer, on January 27, 1976 at a Georgia Pacific, Inc. plant, suffered an injury when a piece of pipe under the care and control of an employee of either Payne and Keller or Georgia Pacific was dropped on him, an injury from which Baker died on January 30, 1976. The accident was caused by the fault, it was alleged, of the employees and agents of Payne and Keller and Georgia Pacific in failing to provide a safe place to work, safety procedures and medical and emergency treatment.

The judgment sustaining the peremptory exceptions of Payne and Keller and Maryland was rendered and signed on March 11, 1977.

On March 17, 1977 plaintiff filed her amended petition, naming as new defendants (in addition to Hartford Accident and Indemnity Company, an insurer of Georgia Pacific) five named employees of Payne and Keller (and some unidentified supervisory employees of Georgia Pacific) all of whom were charged with fault in the death of Baker, for the same reasons, amplified, as in the original petition. Maryland Casualty, named the liability insurer of Payne and Keller in the original petition, was, in the amended petition, said to be the liability insurer of both Payne and Keller and their executive officers.

Maryland Casualty, having intervened in July, 1977 to recover compensation benefits paid plaintiff, filed on April 21, 1978 a plea of prescription of one year to the demand in the amended petition. Pleas were also filed on behalf of the named employees. All pleas of prescription were sustained. The Court of Appeal affirmed on the authority of Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350 (La.1975).

In the Trahan case this court explained:

"... Stated another way, there must be a solidary obligation to plaintiff of one or more of the six named executive officers (and, as a consequence, their insurers) and Chrzanowski, as in this case the insurers are liable only in their capacities as insurers of their respective insureds...." 314 So.2d at 356.

This statement was made in explaining why C.C. 2097 ("A suit brought against one of the debtors in solido interrupts prescription with regard to all.") did not require a finding that the first suit interrupted prescription against the new defendants and their insurers in the second suit. The first suit had gone to final judgment; those six named executive officers and their insurers, in that capacity, were absolved, and could not, therefore, be solidary debtors with Chrzanowski to the plaintiffs; those executive officers had never been indebted to plaintiffs.

As for the contention that R.S. 9:5801 effected an interruption, the Trahan court found the cause of action in each of the two suits different. R.S. 9:5801 provides:

"All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action ..."

The cause of action consists of the juridical facts-the material facts giving rise to the demand. The material facts in the first suit were the acts of the six defendants; the material facts in the second suit giving rise to the demand were the acts of the new defendants-former plaintiffs-alleged to have caused the accident. Since the second suit was based on a new cause of action, there was no interruption under 9:5801.

But in the case now at issue, there has never been but one cause of action. It is the same in the first petition and in the amended petition. The employees and agents (not named in the first petition) of Payne and Keller and Georgia Pacific failed to furnish a safe place to work and other protective measures, and permitted a piece of pipe in their control to injure Fred Baker.

There has been no finding in this suit that the actors in the first petition were not liable, as there was in Trahan. Here the actors are the same in the two...