Dupre v. Vidrine

• Decision Date: 19 April 1972
• Docket Number: No. 3797,3797
• Citation: 261 So.2d 288
• Court: Court of Appeal of Louisiana — District of US
• Parties: Dr. R. E. DUPRE, d/b/a Dupre's Hospital & Clinic, Plaintiff and Appellee, v. Olide VIDRINE, Defendant and Appellant.

Page 288

261 So.2d 288

Dr. R. E. DUPRE, d/b/a Dupre's Hospital & Clinic, Plaintiff and Appellee, v. Olide VIDRINE, Defendant and Appellant.

No. 3797.

Court of Appeal of Louisiana, Third Circuit.

April 19, 1972.

Rehearing Denied May 16, 1972.

Writ Refused June 22, 1972.

Preston N. Aucoin, Ville Platte, for defendant-appellant.

Dubuisson & Dubuisson by William A. Brinkhaus, Opelousas, for plaintiff-appellee.

Before FRUGE , HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

This case is consolidated with Aswell v. Vidrine, La.App., 261 So.2d 292, in which a separate judgment is being rendered by us this date. Both are suits against Vidrine for medical services rendered to him and members of his family for injuries received in an automobile accident. In each case Vidrine filed a third party demand against Southern Farm Bureau Casualty Insurance Company, alleging it is liable to him for all of the principal demand under the 'Medical Payments' coverage of his policy. From a judgment rejecting his third party demand against Southern Farm, Olide Vidrine appealed. Southern Farm answered the appeal, seeking damages for frivolous appeal.

The issues argued on appeal relate solely to the third party demand. The question is whether Vidrine's settlement, with the party responsible for the accident, discharges Southern Farm's liability for medical payments.

The facts show that Olide Vidrine collided with a vehicle operated by Ulfay Guillory. By coincidence, both carried liability insurance with Southern Farm Bureau Casualty Insurance Company. Vidrine and his wife, for a consideration of $1480.69, signed a written release and settlement of all of their claims against Ulfay Guillory and Southern Farm for all damages, claims, etc. arising out of the accident.

The present suit was filed by Dr. Dupre against Olide Vidrine for professional services rendered to Vidrine and his wife and child as a result of the accident. Vidrine filed a third party demand against Southern Farm, contending it is liable for these medical expenses under the 'Medical Payments' coverage of the policy issued by Southern Farm to Vidrine.

IMPAIRMENT OF INSURER'S SUBROGATION RIGHTS

The third party defendant insurer contends first that Vidrine's release of the tort feasor, Ulfay Guillory, and his liability insurer, destroyed defendant's right of subrogation against the party responsible for the damages, and hence extinguishes defendant's liability for medical payments. This rule regarding impairment of subrogation rights is recognized in Travelers Fire Insurance Company v. Ackel, La.App., 29 So.2d 617 (2d Cir. 1947); Joe E. Fruend, Inc. v. Insurance Company of North America, 5 Cir., 270 F.2d 924; Polk Chevrolet Company, Inc. v. Salario, La.App., 132 So.2d 115 (1st Cir. 1961); Hall v. Sears, Roebuck & Company, La.App., 221 So.2d 642 (4th Cir. 1969); and Washington v. Dairyland Insurance Company, La.App., 240 So.2d 562 (4th Cir. 1970).

These cases are distinguished from the present matter since they involved factual situations where the insured released a third party tort feasor and a different insurer, thus defeating the subrogation rights of the defendant insurer. In the present case, the insurer which was released is the same as the insurer whose subrogation rights were allegedly defeated, and the tort feasor is an insured of this same insurer. In effect, they are saying they should be discharged from liability because they have been deprived of a right of subrogation against themselves and their own insured. We fail to see how this can in any way be prejudicial to the defendant insurer. A similar result was reached in St. Paul Fire & Marine Insurance Company v. Gallien, La.App., 111 So.2d 571 (1st Cir. 1959) where the insurer was not prejudiced by the loss of its right of subrogation.

CONTENTION THAT POLICY PROVISION PREVENTS DOUBLE RECOVERY

Under 'Part II, Medical Payments-Coverage C' of the policy issued to Vidrine, we find the following provision:

'PROVIDED THAT NO PAYMENTS shall be made under Coverage C, except under Division 1(b), unless the person to or for whom such payment is made shall have executed a written agreement that the amount of such payment shall be applied toward the settlement of any claim, or the satisfaction of any judgment or damages entered in his favor, against any insured because of bodily injury arising out of any accident to which liability Coverage A applies.'

Southern Farm contends this clause prevents Vidrine from recovering medical payments since they must be applied toward the settlement of any claim under Coverage A (Bodily Injury Liability). This would certainly be true if recovery was being sought under the Medical Payments coverage and the Bodily Injury Liability coverage of the same policy against 'any insured' under that policy. However, the settlement in the present case was made under a different policy with a person who is not an insured under Vidrine's policy.

The clause quoted above requires only that medical payments be applied toward the settlement of any bodily injury claim against 'any insured.' under this policy. It does not require that medical payments be applied toward the settlement of a claim against a person who is not an insured under this policy. Of course, the settlement in this case was made with Ulfay Guillory, who does not fall within any of the definitions of an insured under the policy. Thus, the clause in question has no application.

Even without the quoted clause, this same result would be reached under the jurisprudence. In Gunter v. Lord, 242 La. 943, 140 So.2d 11 (1962), our Supreme Court held that automobile passengers who received medical expenses under medical payments provisions could not seek double recovery of these expenses in a tort action under the same policy. However, the court was careful to point out:

'This is not to say, of course, that were the injured party wholly or partly indemnified for hospital or medical care by insurance effected and paid for by him or through some...