Brown v. Drillers, Inc.

• Decision Date: 14 January 1994
• Parties: 93-1019 La
• Court: Louisiana Supreme Court

Page 741

630 So.2d 741

93-1019 La. 1/14/94

Ruth BROWN, Individually and on Behalf of Her Minor Daughter, Kimberly Lynn Brown v. DRILLERS, INC., et al.

No. 93-CC-1019.

Supreme Court of Louisiana.

Jan. 14, 1994.

Charles R. Moore, Moore, Walters & Shoenfelt, Baton Rouge, for applicant.

Stephen H. Vogt, Durrett, Hardin, Hunter, Dameron & Fritchie, J. Reginald Keogh, Keogh, Cox & Wilson, Baton Rouge, W. Gerald Gaudet, L. Michael Cooper, Voorhies & Labbe, James M. Dill, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, Kathleen A. Manning, Henri Wolbrette, III, Lamont P. Domingue, McGlinchey, Stafford, Cellini & Lang, New Orleans, for respondent.

[93-1019 La. 1] HALL, Justice. ^*

The instant case is a sequel to our recent decision in Daigle v. Clemco Industries, 613 So.2d 619 (La.1993). Daigle repudiates the holding in Schiffman v. Service Truck Lines, Inc., 308 So.2d 824 (La.App. 4th Cir.1974), that a pre-death release of a wrongful death claim is contra bonos mores, and declares that a beneficiary under LSA-C.C. Art. 2315.2 can settle his or her potential wrongful death claim before the injured party dies and such right accrues. We granted writs in the instant case to resolve a related issue not presented in Daigle, supra. The issue presented in the instant case is whether a pre-death release executed by both a husband and his wife of all their claims arising out of the husband's personal injuries, but not expressly referring to his death as a potential consequence of the claimed tort, encompasses the wife's subsequently accruing wrongful death claim.

Refining Daigle's holding that such a pre-death release is permissible, we add a requirement that the release instrument unequivocally reflect, while not necessarily by express reference, that the parties clearly contemplated a compromise of future wrongful death claims. For the reasons that follow, we find that the release instrument in the instant case does not. We thus reverse the court of appeal's decision dismissing the wife's wrongful death claim and remand.

[93-1019 La. 2] I.

On February 9, 1979, Buel Brown fell from a drilling rig at the Strategic Petroleum Reserve Project in Bayou Choctaw, Louisiana. Seeking recovery for his injuries, Buel Brown filed suit, naming numerous entities as defendants, but serving only the following named defendants: National Union Fire Insurance Company of Pittsburgh, Pennsylvania; Granite State Insurance Company; The Home Indemnity Company; Pacific Employers Insurance Company; Millers Mutual Insurance Association of Illinois; Harbor Insurance Company; Employers Casualty Company; and Drillers, Inc. (hereinafter collectively referred to as "Defendants"). In 1980, the petition was amended to add as a party plaintiff Buel Brown's wife, Ruth Brown, seeking loss of consortium damages. ¹

In September 1982, Buel and Ruth Brown settled their pending suit. In connection therewith, the parties' attorneys executed a Settlement Agreement, reflecting the terms of the settlement. One of those terms was that upon receipt of the settlement proceeds, both Buel and Ruth Brown would execute a Receipt, Release, Indemnification and Subrogation Agreement in Defendants' favor (hereinafter referred to as the "Release Agreement").

On September 8, 1982, both Buel and Ruth Brown, with the advise and assistance of counsel, executed the Release Agreement. That agreement is the crux of this case, and contains the following recital:

That for and in consideration of the sum of NINE HUNDRED THOUSAND AND NO/100 ($900,000.00) DOLLARS, and an annuity of ONE HUNDRED THOUSAND AND NO/100 ($100,000) DOLLARS, payable in twenty (20) years ² this date paid by [Defendants ³] to Buel Brown, receipt of which is hereby acknowledged, said Buel Brown and his wife Ruth Brown do by these presents:

(1) Grant a full release, discharge, and acquittance ... to [Defendants] of and from any and all claims, demands, causes or rights of action or suits at law or in equity of whatsoever kind of [sic] nature, which Buel Brown and/or Ruth Brown [93-1019 La. 3] have or may have against them or against any one or more of them for or because of any manner or thing done, admitted, or suffered to be done by [Defendants], prior to and including the date hereof, particularly on account of or relating in any way to injuries suffered by Buel Brown on or about February 9, 1979, when he fell from a drilling rig at the Strategic Petroleum Reserve Project in Bayou Choctaw, Louisiana, including, but not limited to, the matters asserted in the lawsuit styled "Buel Brown v. Drillers, Inc., et al." bearing number 23-859 on the docket of the Eighteen Judicial District Court for the Parish of Iberville; the aforesaid amount of NINE HUNDRED THOUSAND AND NO/100 ($900,000.00) DOLLARS, and the ONE HUNDRED THOUSAND AND NO/100 ($100,000) DOLLARS annuity paid to Buel Brown, simultaneously with the execution of this instrument being a full and final payment, settlement, and compromise of any and all claims, demands, causes and/or rights of action ... which Buel and/or Ruth Brown, their successors, assigns, employees, agents, and lessees, have or may have against [Defendants]; Buel Brown and Ruth Brown further instruct their attorney to dismiss with prejudice, "Buel Brown v. Drillers, Inc. [supra ]," it being the intent hereof that Buel Brown and Ruth Brown, in consideration of the afore-mentioned payment made to Buel Brown, grant a full and complete release and discharge in connection with the aforesaid matters ... to [Defendants].

Further, the Release Agreement includes an express indemnity provision, requiring that Buel and Ruth Brown hold harmless, defend and indemnify Defendants for any future claims asserted as a result of Buel Brown's injuries; particularly, Paragraph 3 of the agreement recites that Buel and Ruth Brown:

Bind and obligate themselves, their heirs, administrators, and executors to hold harmless, defend and indemnify [Defendants] for the injuries Buel Brown alleges he sustained and to each and all of them to hold harmless and to indemnify them or any one of them from any losses or damages of any nature whatsoever sustained or which may be sustained in the future, directly or indirectly, as a result of the injuries heretofore recited, because of other claims, demands, or causes of action of whatever type or kind which may be made against them by Buel Brown, Ruth Brown, their heirs, administrators, executors or assigns ...

Still further, the Release Agreement contains a representation by Buel Brown to the effect that he had consulted with his physicians, was advised regarding the prognosis of his injuries, and disclaimed any rights in the event "his condition worsens in the future"; particularly, Paragraph 4 of the agreement states that Buel Brown:

[W]arrant[s] that he has discussed his physical, medical, and mental condition with physicians of his own choosing or with physicians with whom he is satisfied, and he is fully aware of his medical, physical, and mental condition and is aware of the prognosis for the future. The said Buel Brown further warrants that he is aware of the fact that his condition may grow worse than it is, or seems to be, and that surgery or other further treatment may be required in the future; that in executing this Receipt, Release, Indemnification, and Subrogation Agreement, he is completely giving up and discharging any and all rights he has and that he may never again proceed against such parties in the event his condition worsens in the future; and that he is desirous of accepting the sum of NINE HUNDRED THOUSAND AND NO/100 ($900,000.00) DOLLARS, and the ONE HUNDRED THOUSAND ($100,000.00) DOLLAR annuity in full and final settlement and discharge of all of his legal rights ... arising out of or resulting [93-1019 La. 4] from his injuries as aforesaid, and that he is of the opinion that this settlement is reasonable and proper under the circumstances.

As required by the Release Agreement, the pending lawsuit was dismissed. However, in May 1987, approximately five years after the release instrument was executed, Buel Brown died as a result, at least in part, of the injuries he sustained in the 1979 accident. Ruth Brown then filed the instant wrongful death action on behalf of herself and her minor daughter, Kimberly Brown, against Defendants. Answering that suit, Defendants interposed the release instrument. More particularly, in their answer, Defendants asserted four affirmative defenses: release, indemnity, confusion and set off. Defendants also filed a third party demand against Ruth Brown for indemnification; Defendants alleged that under the indemnity provision of the instrument, Ruth Brown was required to hold harmless, defend and indemnify them for the wrongful death claim she asserted on Kimberly Brown's behalf.

Thereafter, Defendants filed a motion for summary judgment, claiming, among other things, that Ruth Brown's wrongful death claim was barred by the release instrument. Ruth Brown responded by filing her own affidavit. In her affidavit, she attested that "[b]y signing the document, she did not intend to release a future wrongful death claim," and that "[a]t the time she signed the document, she did not think that [Buel Brown] would die from his injuries but would grow old."

Citing the holding in Schiffman v. Service Truck Lines, Inc., 308 So.2d 824 (La.App. 4th Cir.1974), that an anticipatory waiver a wrongful death claim is contra bonos mores, the district court held that Ruth Brown could not have compromised her claim or her minor child's claim for wrongful death before her husband died. While Defendants' application for supervisory writs was pending, we handed down our decision in Daigle v. Clemco Industries, 613 So.2d 619 (La.1993), repudiating the Schiffman holding and declaring that a prospective beneficiary under LSA-C.C. Art. 2315.2 can release his or her future wrongful death claim before the tort victim dies....