Hoefly v. Government Employees Ins. Co.

• Decision Date: 21 June 1982
• Docket Number: No. 81-C-2770,81-C-2770
• Court: Louisiana Supreme Court
• Parties: William HOEFLY & Joann C. Hoefly v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al.

Page 575

418 So.2d 575

William HOEFLY & Joann C. Hoefly v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al.

No. 81-C-2770.

Supreme Court of Louisiana.

June 21, 1982.

Rehearing Denied Sept. 3, 1982.

A. R. Snell, Fayard & Snell, Bossier City, for applicant-plaintiff.

Roland J. Achee, Nelson & Achee, Ltd., Samuel W. Caverlee, Cook, Yancey, King & Galloway, Shreveport, for respondent-defendant.

DENNIS, Justice.

The question presented by this case is whether an automobile accident victim's uninsured motorist carrier is solidarily obliged with the tortfeasor so that the victim's timely suit against the latter interrupts prescription with regard to the insurer. The court of appeal affirmed the trial court's judgment sustaining the insurer's plea of prescription, holding that the plaintiffs' timely suit against two tortfeasors, one uninsured and another underinsured, failed to interrupt prescription because the uninsured motorist insurer and the tortfeasors were not solidary obligors. We reverse. An obligation is solidary among debtors when they are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor. When these characteristics result from provisions of law, as in the case of the obligation of the tortfeasor and uninsured motorist carrier, an obligation in solido exists without requiring an express declaration. Consequently, the plaintiff's timely and properly filed suit against the tortfeasors interrupted prescription as to his uninsured motorist carrier.

This suit arises out of an automobile accident which occurred on November 1, 1976, when Mrs. Joann C. Hoefly was struck and injured by an automobile driven by Kim Lewiston, a minor, as Mrs. Hoefly was getting out of her own vehicle. On October 12 1977, Mrs. Hoefly and her husband filed this suit against Neftali Rodriquez, the owner of the automobile driven by Kim Lewiston, Mrs. Margaret C. Lewiston, the mother of Kim Lewiston, and Government Employees Insurance Company, Mrs. Lewiston's liability insurer. In their original and amended petitions the plaintiffs alleged that Kim Lewiston was negligent in operating the vehicle without an operator's license, failing to maintain proper speed and control of the vehicle, and in failing to discover a defective condition in the vehicle. Plaintiffs also alleged that Rodriquez was negligent in allowing an unlicensed minor to operate the vehicle, failing to maintain the vehicle in proper working condition and in seizing the steering wheel from the minor just before the accident. On September 5, 1980, plaintiffs filed an amended and supplemental petition naming Allstate Insurance Company, the Hoeflys' uninsured motorist carrier, as a defendant and alleging that Rodriquez was an uninsured motorist and that the insurance provided by Government Employees to Mrs. Lewiston was insufficient to pay for all of the damages sustained by plaintiffs. Allstate filed a peremptory exception of prescription which was sustained by the trial court. Plaintiffs appealed and the court of appeal affirmed. 403 So.2d 853 (La.App. 2d Cir. 1981). We granted certiorari to review the appeals court's holding that "[a]n uninsured motorist carrier is not liable in solido with the tort-feasor; therefore the filing of suit against the tort-feasor and/or his liability insurer does not interrupt prescription against the uninsured motorist carrier of the injured party." Id. p. 854-855.

Allstate's plea of prescription is based on the circumstance that the accident occurred on November 1, 1976, whereas the amended and supplemental petition naming it as a defendant was not filed until September 5, 1980. It is thus urged that the action for recovery of damages sustained in a motor vehicle accident brought pursuant to uninsured motorist insurance coverage has prescribed, having been filed more than two years after the date of the accident in which the damage was sustained. La.R.S. 9:5629 (Supp.1977). The plaintiffs, however, rely upon the timely institution of their suit against Mr. Rodriquez, Mrs. Lewiston and her insurer as an interruption of prescription.

In our opinion, the trial court and the court of appeal incorrectly decided that Allstate's plea of prescription should be sustained. The timely and proper filing of the suit against Mr. Rodriquez, Mrs. Lewiston and her insurer prevented the accrual of prescription against them. La.R.S. 9:5801 provides: "All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. * * * " Since the original filing of the suit interrupted prescription against Mr. Rodriquez, Mrs. Lewiston and her insurer, it also interrupted prescription against Allstate. "A suit brought against one of the debtors in solido interrupts prescription with regard to all." La.C.C. art. 2097. Although the court of appeal held, and Allstate contends, that the filing of suit against the tortfeasor and his liability insurer does not interrupt prescription against the uninsured motorist carrier of the injured party, we are constrained to disagree.

Under Civil Code Article 2091, "[t]here is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor." When an obligation fulfills this definition and contains these ingredients, the obligation is in solido. Sampay v. Morton Salt Co., 395 So.2d 326 (La.1981); Foster v. Hampton, 381 So.2d 789 (La.1980); Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724 (La.1973); Thomas v. W. W. Clarklift, Inc., 375 So.2d 375 (La.1979) (Dennis, J., concurring); Wooten v. Wimberly, 272 So.2d 303 (La.1972) (Tate, J., concurring and Barham, J., dissenting); Kern v. Travelers Insurance Co., 407 So.2d 2 (La.App. 4th Cir. 1981); Granger v. General Motors Corp., 171 So.2d 720 (La.App. 3d Cir. 1965); Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960); The Work of the Louisiana Appellate Courts for the 1973-1974 Term--Obligations, 35 La.L.Rev. 280, 297 (1975). As we analyze the obligation in this case, it satisfies the prerequisites for a solidary obligation. ¹

The tortfeasor and the uninsured motorist carrier are obliged to the same thing. A tortfeasor is obliged to repair the damage that he has wrongfully caused to the innocent automobile accident victim. La.C.C. art. 2315. Subject to conditions not granted the tortfeasor, the uninsured motorist carrier is independently obliged to repair the same damage. By effect of the uninsured motorist statute, La.R.S. 22:1406(D)(1)(a), and its insuring agreement, the plaintiffs' uninsured motorist carrier is required to pay, subject to statutory and policy conditions, amounts which they are entitled under other provisions of law to recover as damages from owners or operators of uninsured or underinsured motor vehicles. By effect of law and the terms of the insuring agreement, therefore, both the uninsured motorist carrier and the tortfeasor are obliged to the same thing. The Work of the Louisiana Appellate Courts, 1974-1975 Term--Obligations, 36 La.L.Rev. 375, 379-380 at n. 23; The Work of the Louisiana Appellate Courts for the 1967-1968 Term--Insurance, 29 La.L.Rev. 253, 257 (1969); The Work of the Louisiana Appellate Courts for the 1966-1967 Term--Insurance, 28 La.L.Rev. 372, 373-374 (1968).

The tortfeasor and the uninsured motorist carrier each may be compelled for the whole. The principal result of solidarity is to prevent the division of the debt and to obligate each debtor for the whole, as if he were alone. 2 M. Planiol, Civil Law Treatise, pt. 1, no. 745 (11th ed. La.St.L.Inst. trans. 1959). This essential element of solidarity, that each debtor may be compelled for the whole, means simply that the debtor who has been sued cannot plead the benefit of division, which was invented for the benefit of sureties whereby the creditor is required to divide his action between them. This is covered expressly in Article 2094 because under the ancient law several attempts had been made to extend benefit of division to solidary co-debtors. That each debtor is held for the whole, i.e., unable to plead the benefit of division, is solidarity's most direct consequence. 2 M. Planiol, supra, no. 746.

This requisite of solidarity is satisfied in the case of the uninsured motorist and the tortfeasor because neither may plead the benefit of division, as if each were alone. To permit the tortfeasor or uninsured motorist carrier to plead the benefit of division would be inimical to the legislative aim of the uninsured motorist statute. The object of that legislation is to promote full recovery for damages by innocent automobile accident victims by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured. Bond v. Commercial Union Assur. Co., 407 So.2d 401, 407 (La.1981) (on rehearing); Booth v. Fireman's Fund Ins. Co., 253 La. 521, 218 So.2d 580, 28 A.L.R.3d 573 (1968). The statute is to be liberally construed to carry out this objective of providing reparation for those injured through no fault of their own. Niemann v. Travelers Insurance Co., 368 So.2d 1003 (La.1979); Elledge v. Warren, 263 So.2d 912 (La.App. 3d Cir. 1972); Valdez v. Fed. Mut. Ins. Co., 272 Cal.App.2d 223, 77 Cal.Rptr. 411 (1969). The legislation cannot be construed, therefore, to benefit the insurer and the tortfeasor by requiring the accident victim to divide his action between them.

The uninsured motorist carrier is obliged differently from the tortfeasor because its liability is conditioned by the tortfeasor's total or partial lack of liability...