Gifford v. Aurand Mfg. Co., 2815

Decision Date05 February 1968
Docket NumberNo. 2815,2815
Citation207 So.2d 160
PartiesEdith J. GIFFORD and Robert L. Gifford, Jr. v. AURAND MANUFACTURING COMPANY, Russell Simoneaux, d/b/a West Side Electric Service, the William F. Surgi Equipment Corporation, General Accident Fire and Life Assurance Corp., Ltd., Zurich Insurance Company, and Argonaut-Southwest Insurance Company.
CourtCourt of Appeal of Louisiana — District of US

Kierr & Gainsburgh, Eldon E. Fallon, New Orleans, for Edith J. Gifford and Robert L. Gifford, Jr., plaintiffs-appellees.

Adams & Reese, Thomas J. Wyllie, New Orleans, for Argonaut-Southwest Insurance Co., defendant-appellant.

Schoemann, Gones & Ducote, Monte J. Ducote, New Orleans, for Aurand Manufacturing Co. and General Accident Fire & Life Assurance Corp., Ltd., third-party plaintiffs-appellants.

Coe, Nowalsky & Lambert, John D. Lambert, Jr., New Orleans, for Russell Simoneaux, d/b/a West Side Electric Service, defendant-appellant.

Lloyd C. Melancon, of counsel: McLoughlin, Barranger, West, Provosty & Melancon, New Orleans, for Chevron Oil Co., the California Co. Division, defendant-appellee.

Before YARRUT, CHASEZ and JANVIER, JJ.

CHASEZ, Judge.

The principal demand of this suit is a claim for negligence seeking relief in tort for wrongful death and other injuries sustained by the widow, Edith J. Gifford, and Robert L. Gifford, Jr., the minor son of an offshore oil-rig worker who was electrocuted while using a rust scraping tool. In her suit the plaintiff has sued Aurand Manufacturing Company and its insurer, General Accident Fire and Life Assurance Corporation, Ltd., as responsible for the manufacture of the tool. She has also named Russell Simoneaux, doing business as West Side Electric Service, and his alleged insurer, Argonaut-Southwest Insurance Co., for the faulty repair of the tool prior to its use by the decedent. Also originally named but now dismissed from this action is William F. Surgi Equipment Corporation and its insurer, The Zurich Insurance Corporation.

The defendants remaining in the principal demand, have sought to establish a third party demand against the California Company for contribution or indemnity as a joint tort-feasor. This demand was heard by summary process in the district court and dismissed insofar as California Company was concerned. The appeal now before us thus relates only to the dismissal of these third party demands and the attempt to reestablish appellants' claim against the California Company.

The factual basis of the case may offer further insight into the multiple issues and parties to this appeal.

The decedent, Robert L. Gifford, was employed by Oil Field Maintenance Company to work on offshore platforms owned and operated by the California Company. During the course of such employment, while working on California's 'L' structure located approximately one mile from the Louisiana coast line, he was electrocuted by an electric tool furnished to him by the California Company.

The legal representative of the deceased and his minor son then brought suit against the California Company in the United States District Court alleging the sole negligence of the California Company as the cause of the death. This suit was compromised by the California Company with a payment of $5,000.00, and the plaintiff executed a restricted release to the California Company which contained hold harmless and indemnity provisions reserving, however, whatever rights she may have against numerous their parties listed therein.

The plaintiff then filed a suit under Article 2315 in the Civil District Court for the Parish of Orleans against the manufacturer of the tool, the retailer who sold the tool to the California Company, and a repair shop which allegedly repaired the tool prior to the accident, along with various insurance companies allegedly providing insurance to those defendants.

From this suit the third party demands which are presently before us have arisen. There are other claims and exceptions thereto which are not listed in this statement of facts, but we find a simplified development of the case to be more helpful in understanding the rights of the parties to this appeal. Therefore, our determination of this controversy shall be restricted to whatever rights the appellants may have to bring in California Company as a third party defendant in the principal demand.

The basis of this appeal and the issues thereto have been somewhat clouded by several arguments presented for our consideration. The parties to this litigation depending on their interest have unturned every conceivable facet of the question of contribution and indemnification arising under the circumstances of this third party demand. Perhaps a mere listing of the arguments presented for our consideration would be illustrative of the choice of law before us and the possibility of confusing the real issue of this controversy.

Generally the argument voiced by Argonaut-Southwest Insurance Company and adopted by Russell Simoneaux, d/b/a West Side Electric Service, embraces theories under Louisiana Law of both tort and workman's compensation which are presented to serve as authority for the retention of California Co. in the trial on the merits. On the other hand, Aurand Manufacturing Company and its insurer take the tact that federal compensation law applies to this situation and attempts to maintain its third party demand under an application of the Longshoremen's and Harbor Workers' Compensation Act.

In answer to these arguments the California Company frames its defense primarily on the fact that as an 'undisputed' statutory employer, the Louisiana Workmen's Compensation Act grants it immunity from third party demands which arise beyond the authority granted in the act. In addition to this statutory immunity, California argues that the restrictive indemnity release signed by the plaintiff in the original demand is sufficient to exempt them from contribution as a joint tort-feasor.

Having considered the legal maze presented by the multitude of alleged errors of the district court and the issues of the appeal as voiced by the several parties to this litigation, we find that the matter may be best examined under the theory of tort as framed by the plaintiffs in their original claim. All other aspects of this appeal will of course be dealt with, but we find the real issue and the underlying principal which gives the proper basis on which each party may litigate his rights to be grounded in tort. Therefore, we shall examine the rights of the appellants on the basis of tort which we feel dispositive of the real issue to this appeal.

In its brief California Company argues correctly that among joint tort-feasors, if one tort-feasor is released from liability even though all rights are reserved against the others, then those not released are deprived of their rights to enforce contribution against the one released. Louisiana Civil Code, article 2103. This article has been interpreted by this court in Danks v. Maher, 177 So .2d 412 for reasons which we think are pertinent to the parties of this appeal at least to the extent that they may be determined to be joint tort-feasors. The applicable reasoning of the court is as follows:

'Our interpretation of the law relating to conventional obligations, therefore, is that where there are only two solidary obligors, and the creditor settles with and grants a remission as to one of them, reserving his rights against the other, the creditor thereby deprives the remaining obligor of his right to a legal subrogation against the released debtor, and accordingly, the creditor thereafter can claim only one-half the debt from the debtor who has not been released.

'The right to enforce contribution among joint tort-feasors is based on the same right to legal subrogation which takes place among solidary debtors under conventional obligations. Since the distinction between the two types of solidary obligations has been erased with the 1960 amendment of Article 2103 of the Civil Code, we think the rules heretofore set out relating to the right to legal subrogation in conventional debts apply also to delictal obligations .

'We conclude therefore, that where the claimant in a tort action settles with and releases one of two joint tort-feasors, reserving all of his rights against the other, the remaining tort-feasor is thereby deprived of his right to enforce contribution against the one who has been released. And,...

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  • Herb Welding, Inc v. Gray
    • United States
    • U.S. Supreme Court
    • March 18, 1985
    ...limit were left to recover under state schemes. See, e.g., Freeman v. Chevron Oil Co., 517 F.2d 201 (CA5 1975); Gifford v. Aurand Mfg. Co., 207 So.2d 160 (La.App.1968). Any worker, inside or outside the 3-mile limit, who qualified as a seaman was not covered by the LHWCA, but could sue unde......
  • Easton v. Chevron Industries, Inc.
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    • Court of Appeal of Louisiana — District of US
    • May 28, 1992
    ...the third party tortfeasor is deprived of any right to seek contribution from the employer. See generally, Gifford v. Aurand Manufacturing Company, 207 So.2d 160 (La.App. 4 Cir.1968), writs denied, 252 La. 113, 209 So.2d 41 and 252 La. 115, 209 So.2d 41 (1968); LeJeune v. Highlands Insuranc......
  • Melton v. General Elec. Co., Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 14, 1990
    ...to its employee for job related injuries is limited to worker's compensation benefits. See generally, Gifford v. Aurand Manufacturing Company, 207 So.2d 160 (La.App. 4th Cir.1968), writs denied, 252 La. 113, 209 So.2d 41 and 252 La. 115, 209 So.2d 41 (1968); LeJeune v. Highlands Insurance C......
  • White v. Naquin
    • United States
    • Court of Appeal of Louisiana — District of US
    • December 23, 1986
    ...So.2d 209 (1971); Bagwell v. South Louisiana Electric Co-op. Ass'n., 228 So.2d 555 (La.App. 3rd Cir.1969); Gifford v. Aurand Manufacturing Company, 207 So.2d 160 (La.App. 4th Cir.), writ refused, 252 La. 115, 209 So.2d 41, (1968); Hebert v. Blankenship, 187 So.2d 798 (La.App. 3rd Cir.1966).......
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