Berger v. Fireman's Fund Ins. Co.

• Decision Date: 10 December 1974
• Docket Number: No. 6500,6500
• Citation: 305 So.2d 724
• Court: Court of Appeal of Louisiana — District of US
• Parties: Betty J. Ledet, Wife of and Richard BERGER v. FIREMAN'S FUND INSURANCE COMPANY et al.

Page 724

305 So.2d 724

Betty J. Ledet, Wife of and Richard BERGER v. FIREMAN'S FUND INSURANCE COMPANY et al.

No. 6500.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 10, 1974.

Francipane, Regan & St. Pee (Phillipi P. St. Pee and Wayne H. Scheuermann, Metairie), for plaintiffs-appellants.

Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans (H. Martin Hunley, Jr., New Orleans), for Drs. Rizza and Carter, defendants-appellees.

Before LEMMON, GULOTTA and SCHOTT, JJ.

SCHOTT, Judge.

Plaintiffs appeal from a dismissal of their suit against defendants, Drs. Frank A. Rizza and Robert L. Carter, on the basis of a motion for summary judgment.

Plaintiffs had filed suit for the wrongful death of their seven year old daughter, alleging that on March 28, 1972, the child sustained a puncture injury in a school yard accident when a piece of wire was thrown by a lawn mower; that she was taken to the hospital for emergency treatment and was admitted for surgery in connection with the injury, which surgery was performed by defendant doctors; that in the course of the operation defendants punctured the child's left kidney or failed to discover a puncture wound of the kidney during the operation; that they failed to diagnose the condition of, treat and care for the child before, during and after the operation; and that as a result the child died on March 29, 1972 . It was also alleged that employees of the hospital were negligent in failing to observe the child's post operative condition and to notify defendant doctors of the need for a second surgical procedure .

On discovery deposition of the parents it was learned that on July 18, 1972, they had executed a release containing the following preamble:

'PERSONALLY CAME AND APPEARED:

BETTY J. LEDET, wife of/and

RICHARD BERGER

who declared that appearers assert a claim for damages against the Jefferson Parish School Board because of the death, injuries, damages, loss of love and affection, medical expenses and funeral expenses arising out of or as a result of a certain accident alleged to have been sustained by their minor daughter, Karen Sue Berger at or near the Joshua Butler Elementary School in Marrero, Louisiana, on or about March 28, 1972 and claims that the said Jefferson Parish School Board is liable for the said death, injury, damages, loss of love and affection, medical expenses and funeral expenses, but the said Jefferson Parish School Board expressly denies that it is in any way liable therefor.

Appearers further declare that it is nevertheless the desire of both of the appearers and the Jefferson Parish School Board to compromise and settle this claim and any and all controversies and claims which appearers have or may claim to have against Jefferson Parish School Board, received or sustained as a result of the death of their minor daughter, Karen Sue Berger at any other time or place, or as the result of the said death, injury, damages, loss of love and affection, medical expenses and funeral expenses.'

The release then recites that in consideration for a payment of $20,000 to each parent and $2,730 to both (which is for medical and funeral bills):

'. . . appearers, for themselves, their heirs and assigns do hereby expressly release and forever discharge the Jefferson Parish School Board, and all other persons from any and all claims or damages arising out of or in any way connected with the death, injury, damages, loss of love and affection, medical expenses and funeral expenses of the said minor daughter, Karen Sue Berger, and any and all injury, costs, damages or expenses received or sustained by appearers as the result thereof, at or about the time and place stated above, or at any other time or place, irrespective of how the same may have arisen, or under what laws; and appearers hereby acknowledge for themselves, their heirs and assigns, full and final satisfaction thereof and therefor.'

The hospital and its insurer filed the exception of res judicata based upon the said release and the trial judge maintained the exception, dismissing plaintiffs' suit against them. No appeal was taken from this judgment and it is now final. Thus the summary judgment in favor of the doctors is the only judgment on appeal to this Court.

The doctors' motion for summary judgment was based upon the fact that the payment to plaintiffs by the School Board was in consideration of a release from liability for the child's death in favor of the School Board 'and all other persons.' The doctors contend that they are necessarily and clearly included in these words of the release.

Plaintiffs assign the following errors:

'. . . the dismissal of plaintiffs' suit against Doctors Rizza and Carter based upon a release given to them by the Jefferson Parish School Board for the injury received by Karen Berger on school premises, is not proper basis for a summary judgment.

'. . . the claim of Mr. and Mrs. Berger against Doctors Rizza and Carter is a separate cause of action growing out of separate acts of negligence, and there fore, a release given to another party nemely the Jefferson Parish School Board, for still other acts of negligence cannot be considered as releasing Doctors Rizza and Carter unless they were joint tort feasors which is a question of fact which could only be determined upon a trial of the matter.'

In support of these specifications of error plaintiffs argue that their intention in signing the release agreement was manifestly to release the School Board only for its liability and could not be construed to include the doctors whose liability as far as plaintiffs were concerned was independent of the School Board's liability.

A compromise to be valid requires that the parties intended the same result. They must have agreed to adjust their differences by mutual consent. LSA-C.C. Art. 3071. To affirm the summary judgment before us we would have to conclude that there is no issue as to material fact respecting the intentions of plaintiffs when they signed the agreement. This we cannot do because there is clearly an issue of fact as to what they intended. Applicable is the jurisprudence to the effect that the summary judgment is often not appropriate so as to show subjective facts such as motive, intent, malice, good faith or knowledge. Johnson v. Fairmont Roosevelt Hotel Inc., 286 So.2d 177 (La.App.4th Cir. 1973), Fontenot v. Aetna Insurance Company, 225 So.2d 648 (La.App.3rd Cir. 1969).

But the foregoing does not address itself to some additional issues raised by the doctors in this Court. First, they contend that since there is only one action for wrongful death accruing to the survivors deemed eligible under LSA-C.C. Art. 2315 plaintiffs, who accepted in a settlement an amount 'obviously intended to fully compensate them for the death,' necessarily compromised the whole wrongful death claim. Second, they contend that if the doctors are liable to plaintiffs their liability is in solido with the School Board and the release of the School Board without reservation of rights against the doctors had the effect of releasing the doctors under LSA-C.C. Art. 2203.

On the first point, the doctors beg the question that the amount of the settlement, $20,000 to each parent, was intended to compensate them fully. The proper amount could only be arrived at after a trial and an appropriate exercise of discretion by the trial judge. While recent jurisprudence would indicate that the amount paid by the School Board is in the range of judgments recently awarded by our courts in death actions for young children we can easily conceive of evidence which might lead to a greater award in this particular case. Obviously, plaintiffs have only one death action and can recover only one time, but if they show that they were not fully compensated for the loss of their child by the School Board they may be able to recover the difference from the doctors.

As to the legal effect of plaintiffs' failure to include in the release a reservation of rights to proceed against the doctors it is clear that a release in favor of a co-debtor in solido discharges all others in the absence of a reservation of rights to proceed against the others. LSA-C.C. Art. 2203, Dodge v. Central Louisiana Electric Company, 257 So.2d 802 (La.App.3rd Cir. 1972). Therefore, if the doctors are liable in solido with the School Board for the child's wrongful death they are discharged from liability because of the release by operation of law.

Plaintiffs' second assignment of error to the effect that the in solido nature of the doctors' liability depends upon a showing that they are joint tort feasors is an oversimplification and is not a valid premise for their contention that issues of fact must be resolved on a trial of the case to determine whether they are joint feasors or not.

It is apparent from plaintiffs' pleadings that the...