Casualty Reciprocal Exchange v. Richey Drilling & Well Service

• Decision Date: 29 January 1962
• Docket Number: No. 462,462
• Citation: 137 So.2d 127
• Parties: CASUALTY RECIPROCAL EXCHANGE, Plaintiff-Appellant, v. RICHEY DRILLING & WELL SERVICE et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 127

137 So.2d 127

CASUALTY RECIPROCAL EXCHANGE, Plaintiff-Appellant, v. RICHEY DRILLING & WELL SERVICE et al., Defendants-Appellees.

No. 462.

Court of Appeal of Louisiana, Third Circuit.

Jan. 29, 1962.

Voorhies, Labbe, Voorhies, Fontenot & Leonard, by H. Lee Leonard, Lafayette, for plaintiff-appellant.

Landry, Watkins, Cousin & Bonin, by Alfred S. Landry, New Iberia, for defendants-appellees.

Before TATE, FRUGE and CULPEPPER, JJ.

TATE, Judge.

This is a suit by the compensation insurer ('Reciprocal') of an employer to recover the sums paid to an injured employee for workmen's compensation benefits and in settlement of his compensation claim. The plaintiff's insured ('Brown') was the employee's general employer, and this suit is against the special or 'borrowing' employer ('Richey') of the insured's employee at the time of the accident. Also made co-defendant is the compensation insurer of the special employer.

The trial court dismissed the plaintiff's suit upon the defendants' exceptions of no right or cause of action. The plaintiff therefore appeals.

The allegations of the petition show: A welder employed by Brown was injured on October 5, 1959 while performing work as a 'borrowed employee' for and under the direction of the defendant Richey. Following the injury, the plaintiff Reciprocal, as Brown's compensation insurer, paid compensation benefits and medical expenses and, on July 27, 1960, entered into a court-approved compensation settlement with the injured employee, paying thirty-five hundred dollars in addition to previously paid compensation benefits.

Under the terms of this compromise, a full discharge from further claim arising out of the accident was granted not only to the plaintiff Reciprocal and its insured, but specifically also to the present defendants, although the latter were not parties to the court-approved compromise agreement. Reciprocal and its insured also specifically reserved all rights they had to recover sums paid by them to the injured employee, from the present defendants, Richey and Liberty, the alleged special employer and its compensation insurer.

Preliminarily, it is now well-settled that both the general and the special employer are liable in solido for compensation benefits in a suit brought against them by the employee injured in the performance of hazardous work. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895.

Able counsel for the defendants-appellees contends, however, that neither the general nor the special employer has a cause of action against the other to recover amounts paid, in the absence of a judgment obtained by the injured employee holding both employers solidarily liable for compensation benefits. Thus, counsel argues, the same rule applies as did in the case of joint tortfeasors at the time of the present accident. See Kahn v. Urania Lumber Co., La.App. 2 Cir., 103 So.2d 476.

As the Kahn decision states, after a full and scholarly summary of the applicable jurisprudence, 103 So.2d 481: 'The reason for the rule of non-contribution among joint tort-feasors is founded upon public policy that no one can allege his own turpitude or claim an advantage for his own wrong. The courts in such a case will leave the parties in the position in which they have placed themselves and will not undertake to adjust equities between them nor to inquire into the comparative or relative culpability as between them. (Citations omitted.)' See also Quatray v. Wicker, 178 La. 289, 151 So. 208.

But this reason justifying the rule as to joint tortfeasors, does not exist in the case of employers solidarily liable for workmen's compensation claims. Liability in compensation is not founded on fault or wrongdoing; it is predicated instead upon liability without fault for injuries sustained in the course of employment, for reasons of social protection, rather than in order to right a wrong or to require one who damages another to repair the damages. See LSA-R.S. 23:1031; 1 Larson's Workmen's Compensation Law (1952), Section 2.00.

By Humphreys v. Marquette Casualty Co., above-cited, our Supreme Court has specifically held that the general and the special employer are solidary obligors as a matter of law, each solidarily liable for the full amount of workmen's compensation benefits due to an injured employee engaged in hazardous work at the time of the accident. If indeed they are solidary obligors, we are unable to find any authority requiring this solidary liability to be established only in a suit in which both employers are impleaded by the injured employee--other than in the wrongdoer situations, which we have previously found to be inapplicable to workmen's compensation liability. (Despite some language therein which implies support for the appellee's contention, the actual holding in Spanja v. Thibodaux Boiler Works, La.App.Orl., 37 So.2d 615, is only that one defendant may not appeal from the trial court's dismissal of the suit against a co-defendant and that, in the absence of an appeal by the plaintiff, the dismissal is final insofar as the suit in question is concerned; a procedural point not necessarily relevant to the determination of the rights of the two defendants against one another in a subsequent and different suit between them.)

This does not end our inquiry, however. For, although ordinarily one solidarily liable for a debt may compel contribution from others solidarily liable, the present suit by the general employer's insurer to require contribution from the special employer must nevertheless be dismissed if, as between the special and the general employer, the latter alone is liable for the full amount.

Probably equally logical reasons exist for three different general resolutions of the liability Inter se of the general and the special employer: (a) the general employer perhaps should pay the full amount, since the employee's contract of employment is with him alone; (b) perhaps instead the special employer should be ultimately responsible, since the risk was incurred and the injury sustained in his service; or (c) perhaps both general and special employers should be liable each for one-half, as in the case of other solidary obligors.

See, e.g., discussion in dissent in Holland v. Marquette Casualty Co., La.App. 1 Cir., 95 So.2d 878, 889; Malone, Louisiana Workmen's Compensation (1951), Section 57; cf., statutory regulation of liability Inter sese of joint employers and of principal-independent contractor, LSA-R.S. 23:1031 and 1061 respectively. See also 1 Larson, Workmen's Compensation Law (1952), Section 48; Comment, 'Liability of General and Special Employer', 26 Calif.L.Rev. 370 (1938).

As counsel for the plaintiff-appellant has so ably argued, extremely strong reasons can be presented in favor of the argument that the special employer is liable for all or at least half of the compensation payments made by a general employer to the borrowed employee when injured in the service of the special employer.

Perhaps, for instance, the special employer should bear the ultimate burden of the cost of industrial accidents, occasioned in the performance of duties in his business. Also, the special employer, under whose direction the employee is working at the time of the injury, has greater control of the working conditions and to some...