Certain Underwriters at Lloyd's v. U.S.

• Decision Date: 14 April 1975
• Docket Number: No. 74--1613,74--1613
• Citation: 511 F.2d 159
• Parties: CERTAIN UNDERWRITERS AT LLOYD'S, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 159

511 F.2d 159

CERTAIN UNDERWRITERS AT LLOYD'S, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 74--1613.

United States Court of Appeals Fifth Circuit.

April 14, 1975.

Harold A. Thomas, Henry B. Alsobrook, Jr., New Orleans, La., for plaintiff-appellant.

Gerald J. Gallinghouse, U.S. Atty., Michaelle Pitard, James D. Carriere, Mary Williams Cazalas, Asst. U.S. Attys., New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE, RONEY and GEE, Circuit Judges.

RONEY, Circuit Judge:

Certain Underwriters at Lloyd's brought suit against the United States for contribution as a joint tortfeasor to the amount paid in settlement of a medical malpractice suit. The district court granted summary judgment in the United States' favor. A military serviceman had previously sued the surgeon and nurses of the United States Public Health Service for negligence during an operation in a United States hospital in Louisiana. That suit was dismissed on the ground that the Federal Tort Claims Act does not permit such claims by servicemen against United States medical personnel for injuries received incident to military service. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The serviceman also had brought a direct action against Lloyd's as malpractice insurer of the operating surgeon, which suit was not dismissed by the court. Lloyd's seeks contribution to the $75,000 paid to the serviceman in settlement of that suit. Since the United States would be liable to Lloyd's under the Federal Tort Claims Act if it would be so liable under the law of the state where the tort occurred, the question is whether Louisiana law permits a claim of contribution under these circumstances. We agree with the district court that the serviceman exception under the Tort Claims Act in counterpoint with the Louisiana law of contribution among tortfeasors prevents recovery. We affirm the judgment of dismissal of the insurer's claim.

A sponge was left inside Clarence Pritchett, a lieutenant colonel in the United States Marine Corps, after an opperation in a United States Public Health Service Hospital in Louisiana. Care and hospitalization was being provided incident to Colonel Pritchett's military service with the United States.

In a malpractice action brought prior to the instant suit, Colonel Pritchett sued the medical personnel involved, including the attending surgeon and the hospital's nurses who assisted with the operation. Certain Underwriters at Lloyd's, the surgeon's medical malpractice insurer, was joined as a defendant under Louisiana's direct action statute. LSA-R.S. 22:655. The court dismissed the action as to all Public Health Service employees under the Feres doctrine. There is no dispute that the medical services were received by the serviceman as an incident to his military duty and that Feres barred the claim against the United States medical personnel. The court held, however, that the Feres defense was personal to the United States and its employees and did not bar the direct action claim against Lloyd's as the surgeon's malpractice insurer. Lloyd's then settled the lawsuit for $75,000.00 without litigating to finality its legal liability.

The present suit was thereafter filed by Lloyd's in Louisiana state court against the nurses claiming contribution of $37,500 from them as joint tortfeasors with the doctor. The United States removed the case to federal district court which then granted the United States' motion to substitute itself as proper party defendant for the nurses. 42 U.S.C.A. § 233(c). The United States then moved for summary judgment. The district court granted the motion on the ground that the United States was not liable to the original plaintiff and therefore could not be liable under Louisiana law as a joint tortfeasor. The sole question on this appeal is whether Lloyd's has a right to contribution under these circumstances.

It is clear that the United States can be sued for contribution as a joint tortfeasor through the provisions of the Tort Claims Act, if a right of contribution exists under state law. 28 U.S.C.A. § 1346(b), § 2674; United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951); United States Lines, Inc. v. United States, 470 F.2d 487 (5th Cir. 1972). The act was only meant to confer a procedural remedy, however, and did not create a substantive cause of action. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960); Lloyd's London v. Blair, 262 F.2d 211 (10th Cir. 1958). Therefore, the controlling question is whether the substantive law of Louisiana permits contribution recovery from the United States under the facts of this case.

The Louisiana Supreme Court has held that a joint tortfeasor who enters into a compromise settlement with a claimant may obtain contribution from his fellow joint tortfeasor in an independent plenary action. Morris v. Kospelich, 253 La. 413, 218 So.2d 316 (1969), aff'g, 206 So.2d 135 (La.App.1968). If he proves a tort for which the defendant joint tortfeasor was solidarily liable with him for the amount compensated, he may collect his pro rata share from the defendant joint tortfeasor. The decision was based on LSA-Civ.Code art. 2103 which provides:

When two or more debtors are liable in solido . . . (the obligation) should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.

The meaning of the term 'in solido,' as used in the above statute, is found in Article 2091 of the Civil Code:

There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others toward the creditor.

The basis of Lloyd's claim of contribution is that under LSA-Civ.Code art. 2324 one who assists another person in an unlawful act is answerable in solido with that person for the damages caused by such act. Lloyd's claim that Public Health Service nurses assisted in the alleged medical negligence, and therefore were liable in solido with the surgeon for the damages caused to Colonel Pritchett. The essence of Louisiana contribution law is that the tortfeasors among whom contribution is required must each be substantively liable in their own right for the damages caused by the tort.

The Louisiana Supreme Court has held, however, that as long as a substantive cause of action exists between the injured party and both joint tortfeasors, contribution will be granted despite a statutory immunity from suit as between the injured party and one of the joint tortfeasors. Smith v. Southern Farm Bureau Casualty Insurance Co., 247 La. 695, 174 So.2d 122 (1965). The plaintiff in the Smith case was injured in an automobile collision caused by the negligence of her husband and a third-party. The third-party's insurer, sued in a direct action by the wife, filed a third-party claim for contribution against the husband who had not been made a party to the suit. The husband defended the third-party demand on the ground that Louisiana law grants a husband immunity from suit by his wife. Article 2315 of the Civil Code of Louisiana creates a cause of action in favor of an injured party against those whose fault causes the injury. Since both the husband and the third-party negligently caused Mrs. Smith's injuries, a cause of action arose in her favor against both her husband and the third-party. Under Civil Code Article 2324, the husband was a true tortfeasor along with the third-party since he assisted in the commission of the tortious activity. The right to contribution among tortfeasors was given not to the wife, but to the third-party. The Louisiana court held that the incapacity of the wife to sue, which was purely procedural and not substantive, could not be extended to protect the husband against the contribution claim.

The Feres doctrine must therefore be examined to determine whether it presents a procedural bar to a cause of action that would otherwise exist, or is based on the absence of substantive liability for the tortious injury.

The Federal Tort Claims Act declares that the United States shall be liable, subject to enumerated exceptions, for injury or damage caused by negligence or wrongful act or omission of any employee of the Government, while acting within the scope of his employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance...