Gauthier v. O'Brien

• Decision Date: 24 May 1993
• Docket Number: No. 92-CC-2921,92-CC-2921
• Citation: 618 So.2d 825
• Parties: Vicky GAUTHIER v. William O'BRIEN, Jr., et al.
• Court: Louisiana Supreme Court

Page 825

618 So.2d 825

Vicky GAUTHIER v. William O'BRIEN, Jr., et al.

No. 92-CC-2921.

Supreme Court of Louisiana.

May 24, 1993.

Concurring Opinion of Justice

Lemmon June 1, 1993.

J. Morgan Passman, Walker, Passman, Michiels, Alexandria, for applicant.

Darrel Ryland, Joseph B. Treuting, Marksville, for respondent.

ORTIQUE, Justice ¹.

Defendants appeal a trial court ruling that fault of a statutorily immune employer should not be assessed under La.Civ.Code art. 2324, as amended, in a tort action brought by an injured employee against a third party tortfeasor. The Court of Appeal affirmed, holding that the 1987 amendment to article 2324 does not require assessment of an immune employer's fault in order to arrive at an appropriate assessment of fault between or among plaintiff(s) and a third party tortfeasor(s), 606 S.2d 915. We find that employer fault must be assessed in order to appropriately assess the fault of third party tortfeasors; however, because the employer is immune from suit in tort, indemnity and/or contribution, the employer cannot be required to pay damages and therefore will not be adversely effected by an assessment of fault. The ruling refusing to permit the assessment of employer fault is reversed and the case remanded.

On May 10, 1990, plaintiff, Vicky Gauthier, was injured while a passenger in a pick-up truck driven by her employer, Curry J. Cooper, and owned by Pete Roy Ford, Inc. As plaintiff and Cooper drove North on Highway 29 in Bunkie, Avoyelles Parish, a tractor owned by defendant O'Brien and operated by defendant Pearce, attempted to negotiate a left turn at the same time that Cooper attempted to pass the tractor on the left in a no-passing zone, causing a collision between the tractor and the pick-up truck.

Plaintiff brought an action against Pete Roy Ford, Inc., William O'Brien, William S. Pearce, Economy Fire & Casualty Co., Cooper's insurer, and Commercial Union Insurance Co., O'Brien's insurer ². In response to Commercial Union's Answer(s), plaintiff filed a Motion to Strike, Motion for Partial Summary Judgment & In the Alternative, Motion In Limine, seeking a judgment precluding assessment of employer fault, striking those portions of defendants' Answer and Supplemental Answers relating to settlement or collateral sources and precluding the introduction of evidence relating to settlement and/or collateral sources. The Motion for Partial Summary Judgment urged that the 1987 amendment is dispositive of the issue of quantifying employer fault. Defendants filed a Motion in Limine seeking a judgment preventing the testimony of a law enforcement officer as to point of impact; the motion was based upon the officer's alleged lack of expertise as well as the fact that he came on the accident scene after the vehicles had been moved. The district court granted plaintiff's motions and denied defendants' motion and defendants appealed; the Court of Appeal affirmed the trial court's judgment, focusing upon the issue of assessing employer fault.

Appellants suggest that La.Civ. Code art. 2324 B, as amended, by 1987 La. Acts 373 requires assessment of employer fault in order to implement the statutory purpose of limiting solidary liability among multiple tortfeasors to the extent necessary for a plaintiff to collect 50% of his or her damages and to insure that a tortfeasor is liable only for his or her virile share once a plaintiff has collected 50% of his or her damages. ³ We agree in part with this assertion. Specifically, we agree that the liability of multiple tortfeasors is solidary up to 50% of plaintiff's recoverable damages unless the tortfeasor is assessed more than 50% of the fault. However, unless the judgment creditor is assessed a greater degree of fault than the tortfeasor(s), the tortfeasor's liability is not limited to the percentage of fault with which they have been assessed ⁴. Appellants buttress their assertion by relying on La.Code Civ. Proc. art. 1812 C(2) which provides that special written interrogatories may be submitted to the jury inquiring whether a person, party or not, was at fault in cases to recover damages for injury, death or loss. ⁵ Appellants point to the seeming unfairness of not quantifying employer fault, predicting a result wherein third party tortfeasors pay damages in excess of their virile shares, which, in their view, is contrary to the language of La. Civ. Code art. 2324 B.

Appellee argues that the Louisiana workers' compensation scheme precludes the assessment of employer fault as the concept of fault has no place in the scheme. Appellee asserts that the compensation scheme is based upon the concept of an employer's no fault liability and the employee's relinquishing his or her right to sue his or her employer in tort where an injury occurs within the course and scope of his or her employment. Appellee asserts that quantifying employer fault can result in a plaintiff's recovery being reduced by the proportion of fault assessed to the employer because of the employer's tort immunity, a result appellee asserts is unfair and flies in the face of well established and jurisprudentially approved principles of the Louisiana workers' compensation scheme.

Resolution of the issues presented by this case requires a review of several statutes as well as an analysis of how these statutes work together to effectuate the operation of La.Civ. Code art. 2324 B. The philosophical basis for workers' compensation schemes is grounded in the need for employers to anticipate and provide in advance by means of insurance for the human injury involved in production. The element of personal fault is relegated to a position secondary to broader economic considerations. Compensation eliminates the notion of fault on the part of either party to the employee-employer relationship and provides for the payment of compensation according to a limited schedule rather than through the recovery of damages as in a tort action. W. Malone & A. Johnson, Workers' Compensation Law and Practice, reprinted in 13 Louisiana Civil Law Treatise Sec. 32, at 39 (2nd ed. 1980).

Employees are provided with an exclusive remedy for injuries sustained while in the course and scope of their employment by La.R.S. 23:1032. ⁶ The employer is provided with statutory immunity from tort actions. In exchange for this immunity, an employee has a right to compensation benefits without proving fault. This bargain between the parties to the workers' compensation scheme results in benefit to both parties arising out of their having given up certain rights. Of course, an employer is not immune from tort liability where an employee's injuries are the result of an intentional act. ⁷ Caudle v. Betts, 512 So.2d 389 (La.1987) and Bazely v. Tortorich, 397 So.2d 475 (La.1981). An injured employee's right to sue a negligent or strictly liable third party in tort is maintained in the worker's compensation scheme. La.R.S. 23:1101. ⁸ A third party whose fault in conjunction with the fault of an employer causes a work related injury is barred by the employer's statutory immunity from seeking indemnity or contribution from that employer. ⁹ This bar restricts the third party's cause of action for indemnity or contribution against the employer that would normally accrue from the solidary obligation which would arise between the negligent employer and the tortfeasor, but for the employer's immunity, even though the third party derives no benefit from the compensation bargain. Franklin v. Oilfield Heavy Haulers, 478 So.2d 549 (La.Ct.App. 3rd Cir.1985), writ denied, 481 So.2d 1330 (La.1986); LeJeune v. Highlands Insurance Company, 287 So.2d 531 (La.Ct.App. 3rd Cir.1973), writ refused, 290 So.2d 903 (La.1974) and Edmonds v. Boh Bros. Construction Co., 502 So.2d 1137 (La.Ct.App. 4th Cir.1987).

Appellants suggest that the language of La.Code Civ.Proc. art. 1812 C(2) requires that courts submit interrogatories to juries to obtain an assessment of fault for each tortfeasor whether or not a party to the action. The language of art. 1812 includes "may", a term which has been interpreted to indicate the permissive nature of a request; however, comment (b) of the 1983 Official Revision Comments indicates that Paragraph B of former art. 1811, the predecessor to art. 1812, provided that in actions to recover for death, injury or loss, the court was required to submit certain written questions to the jury. This court has recognized that La.Code Civ.Proc. art. 1812 requires the submission of jury interrogatories requesting an allocation of fault as to persons other than the person suffering injury, death, or loss. Lemire v. New Orleans Public Service, Inc. 458 So.2d 1308 (La.1984). The question presented in Lemire, involved whether asking a jury to allocate fault as to the Sewerage and Water Board of New Orleans, a political subdivision, contravened La.R.S. 13:5105 which prohibited jury trials in cases where the state or a political subdivision is a defendant. NOPSI was the private corporate defendant whose case was being tried to the jury. This court, Calogero, J. writing for the majority, characterized La.Code Civ.Proc. art. 1812 as "[a] procedural statute which implements Louisiana's comparative fault scheme (C.C. 2323) and which the legislature determined was necessary to the appropriate determination of damages to which plaintiff is entitled against the private defendant, (in this case N.O.P.S.I.)" 458 So.2d 1311, 1310. ¹⁰ In our view, the statutorily immune employer is analogous to the political subdivision defendant in Lemire. Allocating fault with respect to the employer pursuant to La.Code Civ.Proc. art. 1812(C)(2) will likewise serve to implement Louisiana's comparative fault scheme. See Cambre v. Tassin Amphibious Equipment Corp., 464 So.2d 878 (La.Ct.App. 4th Cir.1985).

We are fully apprised that pre-amendment jurisprudence interpreting La.Civ. Code art. 2324, with reference to quantifying employer fault, held...