Baughman Surgical Associates, Ltd. v. Aetna Cas. & Sur. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before SARTAIN; BAILES
• Citation: Baughman Surgical Associates, Ltd. v. Aetna Cas. & Sur. Co., 302 So.2d 316 (La. App. 1974)
• Decision Date: 14 October 1974
• Docket Number: No. 9848,9848
• Parties: BAUGHMAN SURGICAL ASSOCIATES, LTD. v. AETNA CASUALTY & SURETY CO.

Page 316

302 So.2d 316

74 A.L.R.3d 1124

BAUGHMAN SURGICAL ASSOCIATES, LTD. v. AETNA CASUALTY & SURETY CO.

No. 9848.

Court of Appeal of Louisiana, First Circuit.

Oct. 14, 1974.

Paul M. Hebert, Jr., and Van R. Mayhall, Jr., Baton Rouge, for appellant.

William A. Norfolk, Baton Rouge, for appellee.

Before SARTAIN, J., and BAILES and LaHAYE, JJ. pro tem.

BAILES, Judge Pro Tem.

This suit is the companion to Baughman v. Aetna Casualty & Surety Company, et al, No. 9924 on the docket of this Court decided this date. See: 302 So.2d 312.

Plaintiff brought this direct action against the defendant as the insurer of Dr. William O. Vennard to recover certain alleged damage it sustained as a result of injuries to Dr. Charles H. Baughman, for physical damages and depreciation to its vehicle which was involved in the collision, and for the rental cost of a replacement vehicle while its vehicle was being repaired. The trial court allowed $500.00 for depreciation in value caused by the damages, and $400.00 for rental of a replacement vehicle. All other claims for damages were denied. Prior to trial, defendant paid plaintiff for the physical damages to its vehicle.

No complaint is made by plaintiff in this appeal of the quantum of the award for depreciation or of the award for rental cost of a replacement vehicle. As defendant has neither appealed nor answered the appeal, the award for these items of damages is affirmed.

Sometime prior to the accident which gave rise to this action, Dr. Charles H. Baughman, in connection with Dr. Leo Farmer, formed a professional medical corporation under the provisions of LSA-R.S. 12:901 et seq. The plaintiff is this corporation. Dr. Baughman was injured in a collision on Mry 11, 1972, with a vehicle driven by Dr. William O. Vennard. As a result of these injuries, as well as other injuries sustained in an unrelated prior accident, Dr. Baughman was allegedly incapacitated to practice medicine for a period of time. The duration of disability need not be determined herein.

For a cause of action, inter alia, plaintiff alleges that because of these injuries Dr. Baughman was unable to practice his profession as a surgeon for plaintiff for a period of eight months, or more. In other words, Dr. Baughman, an employee of plaintiff, was unable to work for plaintiff for a period of time.

In its petition, plaintiff itemizes its damages as follows: Loss of patients, $20,000; loss of billings and potential income, $16,000; office overhead which had to be paid on lease of premises, $3,200; and office overhead for personnel, $6,000.

In its reasons for judgment, the trial court, inter alia, stated:

'No recovery can be granted plaintiff as to its claims for loss of Dr. Baughman's services.

'In Article 2315 recovery is limited to direct and proximate results of a tort- feasor's acts. Where a third person suffers damages, such damage is too remote to become the subject of a direct action in tort.

Plaintiff has not cited us to any prior jurisprudence of this State which extends LSA-C.C. Article 2315 to include the recovery herein sought. In fact, plaintiff acknowledged that there is no precedent for recovery of such claims. None of the cases cited by plaintiff are apropos to the instant case.

Plaintiff argues that for the same reasons as the courts have recognized that corporations have an insurable interest in its officers and key personnel, this Court should recognize that the loss of services of Dr. Baughman has a value to the plaintiff which is a direct and proximate loss to plaintiff. We do not find this analogy persuasive.

The possible loss of key personnel to employers through tortious or natural causes is ever present. An employer is permitted under our law to contract with insurers for protection against such losses, but the recovery ex delicto is restricted to those included within the law.

In Pellegrin v. Hebert, La.App., 107 So.2d 853, this Court disallowed the plaintiff's claim for damages for the loss of the services of an employee because of the tortious conduct of ...