Hebert v. Blankenship

• Citation: 187 So.2d 798
• Decision Date: 02 June 1966
• Docket Number: No. 1699,BRITISH-AMERICAN,1699
• Parties: Janel Trahan HEBERT, Plaintiff-Appellee, v. Thomas A. BLANKENSHIP, Jr., and C. R. Atwell, Individually (et al.), Defendants-Third-Party Plaintiffs-Appellants, v.OIL PRODUCING COMPANY, Third-Party Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 798

187 So.2d 798

Janel Trahan HEBERT, Plaintiff-Appellee, v. Thomas A. BLANKENSHIP, Jr., and C. R. Atwell, Individually (et al.), Defendants-Third-Party Plaintiffs-Appellants, v. BRITISH-AMERICAN OIL PRODUCING COMPANY, Third-Party

Defendant-Appellee.

No. 1699.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1966.

Rehearing Denied June 29, 1966.

J. Minos Simon, Phil Trice, John Rixie Mouton and Simon, Trice & Mouton, Lafayette, for original plaintiff, defendant in intervention, Janel Trahan Hebert.

Henry B. Alsobrook, Jr., and Adams & Reese, New Orleans, and Alfred S. Landry and Landry, Watkins, Cousin & Bonin, New Iberia, for original defendants, third-party plaintiffs-appellants. Thomas A. Blankenship, Jr., and C. R. Atwell, and defendant, Argonaut Insurance Companies.

J. J. Davidson, Jr., and Davidson, Meaux, Onebane & Donohoe, Lafayette, for original defendant, defendant in intervention, third-party defendant-appellee, British-American Oil Producing Co. and defendant, Royce G. Nelson.

Patrick T. Caffery and Helm, Simon, Caffery & Duhe, New Iberia, for original defendant, defendant in intervention and third-party defendant, Cardwell Manufacturing Co., Inc.

J. Winston Fontenot and Voorhies, Labbe, Fontenot and Leonard & McGlassen, Lafayette, for original defendant, defendant in intervention, third-party defendant, Tri-State Tool Industries, Inc. Victor E. Kellner and Pugh & Boundreaux, Lafayette, for intervenor, The Travelers Insurance Company.

Before TATE, SAVOY and HOOD, JJ.

TATE, Judge.

The principal demand of this damage suit is a widow's claim in tort for the death of her husband. He was killed when a drilling rig toppled over on which he was working. The widow sues various parties whose negligence in the manufacture, installation, location, or operation of the rig and derrick allegedly contributed to the accident causing her husband's death.

The present appeal relates only to the dismissal of a third-party demand filed by two individuals who had been sued as tortfeasors by the plaintiff widow. By the present third-party demand these individuals demand contribution or indemnification from the decedent's statutory employer, whose fault allegedly primarily caused or contributed to the accident. In granting summary judgment dismissing the third-party demand, the trial court held that the employer could not be held liable over for tort damages resulting from the death of its injured employee, because by statute its sole liability for the workmen's death was in compensation.

The appellants' contentions that the trial court erred may more easily be understood after the factual context is set forth.

1. Facts and parties.

The decedent Hebert was killed while working on a drilling rig operated by his employer ('A. & B. Inc.'). The employer was engaged in re-working (re-drilling) a well pursuant to a contract with the owner and operator of the well (British-American') whereby A. & B. Inc. had agreed to furnishing the drilling rig, labor, and materials used for the work.

The principal demand of the plaintiff, as well as the instant third-party demand, reveal that alleged as a primary or contributory cause of the accident is the negligence or the breach of contractual obligation by British-American, the well owner. Allegedly, it was the duty of British-American to provide a proper foundation and location for A. & B. Inc.'s workover drilling rig. According to the pleadings, because of British-American's failure in this regard the drilling rig toppled over and killed the decedent Hebert, although the negligence of other parties likewise contributed. ¹

Insofar as against the two present defendants-appellants, Blankenship and Atwell, the tort suit by Hebert's widow is based upon their alleged individual negligence in permitting the rig to be put into operation without proper foundation and without proper safety equipment, and in continuing to use the decedent's drilling crew to operate the rig after the danger of its collapse should have become apparent to supervisory personnel because of the dangerous lean of the drilling rig.

These individual defendants, Blankenship and Atwell, were officers and the stock-owners of A. & B. Inc., the decedent Hebert's immediate employer. Blankenship was also a consulting engineer for British-American, the decedent's statutory employer. These individuals were made defendants in this tort suit, for officers or agents of corporate employers may themselves be held individually liable in tort insofar as their own personal negligence contributed to the accident causing injury to an employee of the corporation, Adams v. Fidelity and Casualty Co., La.App. 1 Cir., 107 So.2d 496, even though the exclusive remedy against the corporation itself for the workmen's injuries is in compensation, LSA-R.S. 23:1032.

The thrust of the appellants' contentions is that the primary or principal cause of the accident was British-American's failure to provide an adequate foundation or location for the drilling rig to be erected thereupon and operated by Hebert's immediate employer, A. & B. Inc. The appellants argue that their own merely passive failure to appreciate the seriousness of the danger to the decedent occasioned by this underlying structural fault, while perhaps a basis for their individual liability to the decedent's widow, nevertheless should not bar their own recovery of indemnification or contribution from British-American, whose negligence or contractual breach in failing to provide a safe foundation was the principal cause of the accident.

By their third-party demand, the appellant individuals seek contribution or indemnification from British-American for any damages for which they are cast, upon three alternative grounds to be discussed more fully below. Succinctly, they involve: (a) contribution in tort from British-American as a joint tortfeasor; (b) full indemnity in tort from British-American as the torfeasor primarily or actively negligent; or (c) full indemnity from British-American on the basis of its breach of a contractual obligation to provide a safe foundation, breach of which caused the drilling rig to collapse. ²

2. British-American's immunity from contribution in tort.

British-American's claim to immunity from liability for contribution in tort for Hebert's death is founded solely upon LSA-R .S. 23:1032. This statute provides:

'The rights and remedies herein granted To an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies Of such employee, his personal representatives, dependents, or relations.

'Nothing in this Chapter shall affect the liability of the employer to a fine or penalty under any other statute.' (Italics ours.)

The statute thus merely provides that the sole remedy of the employee against the employer is for compensation. It does not in terms confer upon an employer immunity from contribution to other tortfeasors held liable in tort for an accident to which the employer's fault contributed. However, the greatly preponderant American jurisprudence has exculpated an employer from contributing on the grounds of joint fault to tort damages for an employee's injuries recovered against a tort-feasor, even though the employer's active fault contributed or may even have been the predominant cause of the accident. Larson, Workman's Compensation Law, Section 76 (1961 next); Annotation, Workman's Compensation--Contribution, 53 A.L .R.2d 977.

The usual basis for such holding is simple: The employer being himself immune from suit by the employee, there is no solidary (common, joint) liability between him and the defendant tortfeasor so as to entitle the latter to contribution. Larson, 76.21; 53 A.L.R.2d 980 (Section 2b). This, in fact, is the basis of denial of contribution by the only Louisiana state decision directly in point. Sanderson v. Binning Construction Co., La.App., 4 Cir., 172 So.2d 721; followed: Yale & Towne Manufacturing Co . v. J. Ray McDermott Co., CA 5, 347 F.2d 371 (1965)

In Louisiana, the sole statutory basis for contribution for mutual fault is provided by LSA-Civil Code Article 2103, which provides that an obligation should be divided between them 'When two or more debtors are liable in solido.' In Smith v. Southern Farm Bureau Cas . Ins. Co., 247 La. 695,175 So.2d 112, our Supreme Court held (a) that this statute created independent substantive and procedural rights of solidary obligors to obtain contribution from their solidary co-debtors, 174 So.2d 126; (b) that in absence of specific exception established by law, then under LSA-C.C. Arts. 2315, 2324 persons who caused or assisted each other in the commission of a tort were solidarily liable for the cause of action in tort, 174 So.2d 122; and (c) that they are thus entitled to contribution from each other, even though there was a procedural bar preventing the plaintiff-claimant himself from suing and recovering from one of these solidary obligors (joint tort feasors).

As the appellants suggest, the Smith decision by our Supreme Court could be interpreted as overruling Sanderson in providing an independent basis for requiring contribution from a wrongdoer whose fault contributed to an accident, even though the workmen's compensation act creates a procedural bar preventing recovery from the wrongdoer by the injured person himself. Under this rationale, the decedent's wrongful death created a single Cause of action, Marquette Casualty Co. v. Brown, 235 La. 245, 103 So.2d 269, for which all persons jointly negligent are solidarily bound, LSA-C.C. Art. 2324, Smith v. Southern Farm Bureau Casualty Ins. Co., cited above, even though as to some of these wrongdoers the decedent's widow had no Right of action because of the provision of the compensation act providing that Her (see LSA-R.S. 23:1032 quoted above) sole remedy was in compensation, Atchison v. May, ...