Elbert v. Lumbermen's Mut. Cas. Co.
Decision Date | 30 October 1952 |
Docket Number | No. 3548.,3548. |
Citation | 108 F. Supp. 157 |
Parties | ELBERT v. LUMBERMEN'S MUT. CAS. CO. |
Court | U.S. District Court — Western District of Louisiana |
John N. Madison, Shreveport, La., Whitfield Jack, Shreveport, La., for plaintiff.
Charles L. Mayer, Jackson, Mayer & Kennedy, Shreveport, La., for defendant.
On Motion for Rehearing
Plaintiff has sought a rehearing in this case because of the decision of the Court of Appeals for this Circuit in Cushing v. Maryland Casualty Company, 198 F.2d 536, 537.
In that case, jurisdiction was invoked under both Section 33 of the Merchant Marine (Jones) Act of 1920, 46 U.S.C.A. § 688, and Section 655 of Title 22 of the Louisiana Statutes Annotated — Revised Statutes, usually called the direct action law. The suits were by the beneficiaries of deceased seamen who lost their lives in a collision by a tug owned by their employer with a railroad bridge belonging to the Texas & Pacific Railway Company. Defendants were the Railroad and the insurers, alone, against liability of the owners of the tug for injury and death of seamen. This insurance policy also covered death by accidental means and applied solely to the employees of the owner of the tug. The complaints charged negligence on the part of the operators of both the tug and the bridge.
The trial court sustained a motion to dismiss the demands against the insurance companies under the State Direct Action Statute, on the ground that the matter was cognizable solely, in admiralty jurisdiction and the State law did not apply. The Court of Appeals reversed that ruling, stating the issues as follows:
"The dominant question is whether or not the statute Sec. 655, La.Rev. Stat. of 1950 applies to policies which protect the owner and charterer of a vessel against liability for personal injuries or accidental death suffered by the crew of a vessel in navigable waters." (Emphasis by the writer.)
In disposing of the case, the Court, among other things, said:
and that it (Emphasis by the writer.)
It is hard to understand how a law can confer "a substantive right" and yet provide "only an additional and cumulative remedy". In Fisher v. Home Indemnity Company, 5 Cir., 198 F.2d 218, the same court of appeals, with Judge Hutcheson as its organ, had held that Sec. 655 created a substantive right, not a remedy, insofar as it attempted to give a direct action against the insurer alone, the enforcement of which as to contracts validly made in other states would violate the Federal Constitution.
Further on in the Cushing case, it is said:
(Emphasis by the writer.)
Actions for death were unknown to the common law. In Louisiana the right to sue for personal injuries or death is purely statutory, and the liability created is confined to the person or persons at fault. The insurer, or persons secondarily liable, are not included, nor does Sec. 655 purport to make it an additional tort feasor. It simply authorizes the injured person or his heirs, at their option, to bring a direct proceeding against the insurer alone or against the insurer and insured together on the one cause of action created by the Code, and otherwise specifically preserves all other terms of the policy. Therefore, any such suit by a third person against the insurer must necessarily arise from an implied subrogation to the rights of the insured under his policy to demand of the insurer that it discharge his liability once it is established. Certainly the insured himself has no cause of action to sue his insurer until the controversy as to whose fault, under Art. 2315 of the LSA-Civil Code, caused the injury, is determined; nor can that right of action of the subrogee, the injured person, it would seem, rise any higher than that of the insured, that is, to require payment by the insurer of the judgment against the insured.
In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 511, 85 L.Ed. 826, the court stated the circumstances as follows:
Orteca demurred to the complaint on the ground that it did not "state a cause of action against him", which was sustained by the trial court and affirmed by the Court of Appeals in 111 F.2d 214. In disposing of the matter, the Supreme Court said:
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Lumbermen Mutual Casualty Company v. Elbert
...Petitioner moved to dismiss the complaint for lack of federal jurisdiction; the district judge granted the motion. 107 F.Supp. 299, 108 F.Supp. 157. The Court of Appeals, 201 F.2d 500; 202 F.2d 744, reversed and remanded the case to the District Court for trial, one judge dissenting from th......