Cadierre v. Duet

• Decision Date: 28 December 1984
• Docket Number: No. 83,83
• Citation: 461 So.2d 598
• Parties: Robert Joseph CADIERRE, Sr. and Melda Brown Cadierre v. Theresa DUET, in her capacity as the natural tutrix of the minor child, Perry J. McKee, Louisiana Farm Bureau Mutual Insurance Company, United States Fidelity and Guaranty Company, Progressive American Insurance Company, Louisiana Companies, Saint Joseph's Catholic Church, the Roman Catholic Church of the Diocese of Houma-Thibodaux, United States Fidelity and Guaranty Company. CA 1352.
• Court: Court of Appeal of Louisiana — District of US

Page 598

461 So.2d 598

Robert Joseph CADIERRE, Sr. and Melda Brown Cadierre v. Theresa DUET, in her capacity as the natural tutrix of the minor child, Perry J. McKee, Louisiana Farm Bureau Mutual Insurance Company, United States Fidelity and Guaranty Company, Progressive American Insurance Company, Louisiana Companies, Saint Joseph's Catholic Church, the Roman Catholic Church of the Diocese of Houma-Thibodaux, United States Fidelity and Guaranty Company.

No. 83 CA 1352.

Court of Appeal of Louisiana First Circuit.

Dec. 28, 1984.

David B. Allen, Houma, for plaintiff-appellant.

Robert D. Morvant, Christopher H. Riviere, Thibodaux, for defendant-appellee.

Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON ^*, JJ.

JOHN S. COVINGTON, Judge Pro Tem.:

This is a suit for damages brought by the parents of a motorcycle passenger, Robert J. Cadierre, Jr., who was killed in a 1979 collision with an automobile driven by an intoxicated minor, Perry J. McKee. Plaintiffs filed suit against McKee's mother, Theresa Duet (Duet); her automobile liability insurer, Louisiana Farm Bureau Mutual Insurance Company (Louisiana Farm Bureau); Progressive American Insurance Company (Progressive), issuer of an insurance policy covering the motorcycle, driven by one Kenneth Dubois; Louisiana Companies, Progressive's agent; Congregation of St. Joseph's Roman Catholic Church, Chauvin, Louisiana ¹ and the Roman Catholic Church of the Diocese of Houma-Thibodaux (hereinafter collectively referred to as St. Joseph), the sponsor of an annual church fair at which McKee allegedly became intoxicated prior to the accident; and United States Fidelity and Guaranty Company (USF & G), in a dual capacity as St. Joseph's liability insurer and as issuer of an automobile insurance policy with uninsured/underinsured motorist coverage on the Dubois motorcycle.

On the basis of a previously executed release signed by the plaintiffs, Duet and Louisiana Farm Bureau were dismissed from the suit after filing an exception of no right/no cause of action and alternatively, a motion for summary judgment. Louisiana Companies and Progressive were similarly dismissed prior to trial on their motion for summary judgment. ² At trial, the only remaining defendants were St. Joseph and USF & G, in both its capacities. After a bench trial, the trial judge rendered judgment against plaintiffs, and this appeal followed.

Plaintiffs assert two specifications of error: (1) that the trial court erred in determining they had failed to prove any negligence on the part of St. Joseph; and (2) that the trial court erred in concluding that even if plaintiffs had proven actionable negligence, all defendants were solidarily liable with McKee and had been discharged from liability by virtue of the unrestricted release of Duet and Louisiana Farm Bureau by the plaintiffs prior to filing suit.

We amend and as amended, affirm.

St. Joseph's Catholic Church in Chauvin, Louisiana, has sponsored an annual fair called "Lagniappe on the Bayou" for over a decade. Games, rides, food and beer ³ are offered at the fair. Plaintiffs allege that in 1979, fair personnel sold McKee, a minor, alcoholic beverages in violation of several statutes, LSA-R.S. 14:91, R.S. 26:88(1), and R.S. 26:285. ⁴ As a result, they allege McKee became grossly intoxicated, and as he drove home around midnight, recklessly attempted to pass four or five vehicles in a steep curve, on a two-lane highway, ignoring a double yellow line prohibiting passing. McKee collided in the curve with the motorcycle being driven by Kenneth Dubois and ridden by plaintiffs' son, in the motorcycle's lane of travel. Plaintiffs' son was killed, Dubois was severely injured, and McKee suffered minor scratches. Blood drawn from McKee approximately two hours after the accident revealed that at that time, McKee's blood alcohol level was .13%. The investigating officer testified that at the scene of the accident, McKee was wobbly and unstable, and smelled of alcohol. He cited McKee for improper passing, reckless operation of his vehicle, and driving while intoxicated.

EFFECT OF THE UNRESTRICTED RELEASE

Plaintiffs executed a release in favor of Duet and her automobile liability insurer, Louisiana Farm Bureau, thirteen days after the accident. They were not represented by legal counsel at the time. The release failed to contain any language expressly or impliedly reserving plaintiffs' rights against the defendants, and in fact expressly released all other parties "who are or may be liable".

It is well established that the release of one solidary obligor or joint tort-feasor without express reservation of rights against other solidary obligors or joint tort-feasors discharges all other solidary obligors and joint tort-feasors from liability. LSA-C.C. art. 2203; Billeaudeau v. Lemoine, 386 So.2d 1359 (La.1980); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976), appeal after remand 371 So.2d 1179 (La.App. 1st Cir.1979), writ denied 373 So.2d 510 (La.1979).

Plaintiffs amply proved at trial the negligence of McKee and his resulting liability, as primary tort-feasor, for the death of their son. ⁵ They contend that St. Joseph, as the supplier of alcoholic beverages to the minor driver, is also liable. Assuming the existence of liability, plaintiffs argue that St. Joseph's liability is not solidary with McKee's, and thus that St. Joseph and its liability insurer should not be discharged by the unrestricted release. Plaintiffs base their argument on three cases: Boyer v. Johnson, 360 So.2d 1164 (La.1978); Garcia on Behalf of Garcia v. Jennings, 427 So.2d 1329 (La.App. 2d Cir.1983); and Chausse v. Southland Corp., 400 So.2d 1199 (La.App. 1st Cir.1981), writs denied 404 So.2d 278, 404 So.2d 497, 404 So.2d 498 (La.1981).

In these cases, the extent of the defendant's duty to protect a minor from the consequences of his own negligence, under varying circumstances, was examined. In Boyer and Chausse, the court found that the minor plaintiff's contributory negligence would not serve to bar his recovery from the defendants, because the defendants' duty encompassed the risk of the minor's negligence. Chausse involved the sale of alcohol to a minor. Extrapolating from the principle enunciated in Boyer and Chausse, plaintiffs conclude that innocent third parties, injured as a result of the minor's negligence, would similarly be barred from recovery from the minor. They contend that because the third party would be unable to recover from the minor, there can be no solidary liability between the minor and St. Joseph's.

This argument is without merit. The intoxicated minor is in fact liable to an innocent party injured as a result of his negligence, and the injured party is in fact able to recover damages from the minor and/or his parents under existing law. LSA-C.C. arts. 2315, 2318. Assuming solely for the sake of argument that plaintiffs did prove by a preponderance of the evidence that St. Joseph violated the aforementioned statutes by selling alcohol to McKee, and allowed him to leave the fair grounds in an intoxicated condition, and further assuming that civil liability would inevitably follow as a result of these actions, St. Joseph's liability would be solidary with that of McKee's, as St. Joseph would be a joint tort-feasor. Billeaudeau, supra.

Therefore, the trial court's dismissal of plaintiffs' suit against St. Joseph was correct. As against USF & G, the judgment of dismissal did not distinguish between this defendant's dual capacities (as St. Joseph's liability insurer and as the uninsured/underinsured motorist carrier of the Dubois motorcycle). Accordingly, the trial judge's dismissal of USF & G was correct only insofar as it applied to USF & G in its capacity as St. Joseph's liability insurer. For the following reasons, the dismissal of plaintiffs' suit against USF & G in its capacity as UM insurer was in error.

On November 26, 1984, the Louisiana Supreme Court handed down Carona v. State Farm Ins. Co., 458 So.2d 1275 (1984), which held that "when an automobile accident victim settles with his tortfeasor his claim against his UM insurer is not discharged merely because he does not expressly reserve his right against the latter in accordance with Civil Code article 2203". Speaking for the Court, Justice Dennis reasoned that although the tortfeasor and the UM insurer are solidary obligors, the rule of art. 2203 has been superseded by LSA-R.S. 22:1406(D)(4), which provides:

"In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made ..."

The Court stated:

"This...