Krueger v. Tabor

• Decision Date: 28 June 1989
• Docket Number: No. 88-328,88-328
• Citation: 546 So.2d 1317
• Parties: Charlotte KRUEGER, Plaintiff-Appellee, v. Billy TABOR, Defendant, and James Odiorne, Appellant. 546 So.2d 1317
• Court: Court of Appeal of Louisiana — District of US

Page 1317

546 So.2d 1317

Charlotte KRUEGER, Plaintiff-Appellee, v. Billy TABOR, Defendant and James Odiorne, Appellant.

No. 88-328.

546 So.2d 1317

Court of Appeal of Louisiana Third Circuit.

June 28, 1989.

Thomas & Dunahoe, Gerard Thomas, Robert Thomas, Natchitoches, for plaintiff-appellee.

Harrington & Harrington, Rodney Harrington, Natchitoches, Hailey, McNamara, Michael P. Mentz, Metairie, for defendant/appellant.

Campbell, Campbell & Johnson, Mark O. Foster, Minden, Henry H. Bernard, Baton Rouge, Cook, Yancey, King & Galloway, Brian Homza, Shreveport, Fish, Montgomery & Robinson, Roy Fish, Minden, for defendants-appellees.

Before GUIDRY, FORET and DOUCET, JJ.

DOUCET, Judge.

The above numbered and entitled appeal was consolidated with five other appeals entitled KRUEGER V. TABOR, 546 So.2d 1325 (La.App. 3rd Cir.1989); CURTIS V. TABOR, 546 So.2d 1324 (La.App. 3rd Cir.1989): CURTIS V. INSURED LLOYD'S, 546 So.2d 1325 (La.App. 3rd Cir.1989); CURTIS V. TABOR, 546 So.2d 1324 (La.App. 3rd Cir.1989); and CURTIS V. INSURED LLOYD'S, 546 So.2d 1324 (La.App. 3rd Cir.1989). We decide all issues presented in all appeals in this opinion but render separate decrees in the companion appeals.

The accident giving rise to these appeals occurred on February 18, 1986. Charlotte L. Krueger, plaintiff-appellee, was driving a 1972 Chevrolet Caprice automobile occupied by her two minor daughters, Misty Lane Krueger and Tracy Lynn Krueger. The Krueger vehicle was traveling eastward on Louisiana Highway 6, approximately 150 feet south of the intersection of Petty Road in Sabine Parish, Louisiana. The Krueger vehicle stopped behind a line of automobiles which were stopped in the eastbound lane so as to permit the lead vehicle to make a left hand turn. Thereafter, a wrecker-type vehicle driven by defendant, Billy J. Tabor, was traveling in an easterly direction on Highway 6 and was unable to stop due to brake failure. As the Tabor vehicle tried to avoid hitting the Krueger vehicle by crossing the center line, the Tabor vehicle struck the Krueger vehicle and ultimately struck a truck driven by James H. Curtis, which was traveling in a westerly direction on Highway 6. Curtis, Krueger and Krueger's two minor children were allegedly injured in the accident.

Krueger instituted suit to recover for the personal injuries which she and her two minor children allegedly sustained as a result of the accident. Made defendants were Tabor and his insurer, Texas Fire and Casualty Company (Texas Fire). Before suit was filed, Texas Fire was placed into temporary receivership and James T. Odiorne, duly qualified liquidator for the Texas State Board of Insurance, was appointed permanent receiver of Texas Fire in the proceeding entitled "The State of Texas v. Texas Fire and Casualty Company, Dallas, Texas," No. 396, 246 of the Fifty-third Judicial District Court for Travis County, Texas. Odiorne was never made a defendant by Krueger.

Curtis instituted suit against Tabor for the personal injuries which he allegedly sustained as a result of the accident. Curtis instituted a separate suit against Insured Lloyd's of Dallas, Texas, (Insured Lloyd's) his uninsured/underinsured motorist carrier.

The aforementioned three suits were consolidated at trial.

Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), Krueger's insurer, intervened in the suits and named Odiorne and Tabor as defendants-in-intervention.

Insured Lloyd's, Curtis' insurer, also intervened in the suits and named Odiorne as a defendant-in-intervention.

Tabor filed a third party demand against Odiorne as receiver for Texas Fire, and also against his insurance agent, Phares and Lites. However, Tabor did not obtain service on Phares and Lites, and an exception of improper service was filed on behalf of Phares and Lites on February 23, 1987. Since the trial on the main demand was set for March 18, 1987, and proper service was still not obtained on Phares and Lites, the trial judge severed the third party demand filed by Tabor against Phares and Lites.

Tabor obtained proper service on Phares and Lites after the trial on the main demand was held. Phares and Lites timely answered Tabor's third party demand and in the same pleading, instituted a third party demand against Tri-State Underwriters, Inc. (Tri-State), seeking indemnification and/or contribution from Tri-State. Tri-State filed a "Motion for Rule" asking that the third party demand of Phares and Lites against it be dismissed. The trial court granted Tri-State's motion.

After a trial was held on the merits of the consolidated suits, the trial judge ruled that the negligence of Tabor was the sole, proximate cause of the accident and the resulting injuries and damages. The court entered judgment against Tabor and Odiorne and in favor of all the plaintiffs.

Damages were awarded as follows: $15,000.00 in favor of Charlotte L. Krueger for general damages; $5,634.95 in favor of Ronald C. Krueger for the medical expenses of Charlotte Kureger ($4,223.00) and her lost wages ($1,411.26); $500.00 and $300.00 in favor of Misty L. Krueger and Tracy L. Krueger, respectively, for general damages; $14,909.00 to Louisiana Farm Bureau Casualty Insurance Company, intervenor, and as the uninsured motorist insurer of Charlotte L. Krueger to be paid from the judgment rendered in favor of Charlotte L. and Ronald C. Krueger; $11,034.95 in favor of James H. Curtis for medical expenses ($2,957.51), lost wages ($3,077.44), and general damages $5,000.00); and $6,750.00 in favor of Insured Lloyd's, intervenor and as the uninsured motorist insurer of James H. Curtis.

It is from this judgment that Odiorne appeals. Phares and Lites appeals from the judgment of the lower court dismissing its third party demand against Tri-State.

ODIORNE APPEAL

On appeal, Odiorne specifies two assignments of error, the first being that the judgment in favor of plaintiffs-appellees (Krueger and Curtis) should be set aside as null and void. Odiorne supports this assertion by pointing to the fact that neither Krueger nor Curtis ever named Odiorne as a defendant in their respective petitions. Odiorne also directs our attention to the fact that neither plaintiff ever served Odiorne. We agree with Odiorne's assertion.

As previously stated, judgment was rendered in favor of Krueger and Curtis and against Odiorne. Odiorne was appointed the permanent receiver of Texas Fire and despite being a separate legal entity apart from Texas Fire, neither of the plaintiffs at any time amended their respective petitions to name Odiorne as a defendant. Additionally, neither plaintiff ever served Odiorne.

It is well established in our jurisprudence that a valid judgment cannot be rendered unless the court has jurisdiction over the party cast in judgment based on service of process. Succession of Griffith, 415 So.2d 670 (La.App. 4th Cir.1982). Additionally, a judgment rendered against a party who is not named as a defendant is absolutely void. Tracy v. Dufrene, 240 La. 232, 121 So.2d 843 (1960), on remand, 146 So.2d 678 (La.App. 4th Cir.1962); Kling v. Collins, 407 So.2d 478 (La.App. 1st Cir.1981); Luneau v. Hanover Ins. Co., 478 So.2d 752 (La.App. 3rd Cir.1985). Because Odiorne was not served by either plaintiff and because he was not named as a defendant in plaintiffs' respective petitions, plaintiffs are not entitled to judgment against Odiorne. Thus, the judgment rendered by the trial court in favor of plaintiffs and against Odiorne, must be set aside and reversed.

We are aware of the fact that Odiorne was named a defendant-in-intervention by intervenors, State Farm and Insured Lloyd's, and that he was named a defendant by Tabor in Tabor's third party demand against him. Appellees urge that by virtue of these acts, Odiorne was brought in as a defendant with respect to the main demands. We reject appellee's assertion. In order for plaintiffs to have obtained a valid judgment, plaintiffs were required to name Odiorne as a defendant in the principal action. See Guilbeau v. Roger, 443 So.2d 773 (La.App. 3rd Cir.1983), writ denied, 446 So.2d 1224 (La.1984); Hobbs v. Fireman's Fund American Ins. Co., 339 So.2d 28 (La.App. 3rd Cir.1976), writs refused, 341 So.2d 896 (La.1977); Deblieux v. P.S. & Sons Painting, Inc., 405 So.2d 600 (La.App. 3rd Cir.1981). Because they failed to do so, the judgment rendered in favor of plaintiffs and against Odiorne is invalid.

In Odiorne's second assignment of error, he urges that "The trial court does not have jurisdiction over the subject matter of the plaintiffs' suit and the intervenors have failed to state a cause of action and/or do not have a right of action against James T. Odiorne, receiver of Texas Fire and Casualty Company."

Essentially, what Odiorne is arguing is that the judgment rendered by the trial court against him and in favor of the intervenors was improper since the court lacked subject matter jurisdiction over the action. Specifically, Odiorne asserts that a party must bring any action naming the receiver as a defendant in the Fifty-third Judicial District Court of Travis County, Texas, and that the Texas court has exclusive venue to hear and determine all actions or proceedings against Texas Fire exclusively because it is the court where the receivership proceedings have been instituted. In support of this proposition, Odiorne cites the restraining order issued by the court in Texas prohibiting the commencement or prosecution of any action against Texas Fire or its assets in any forum other than the court where the receivership proceeding had been ordered and article 21.28 of the Texas Insurance Code. We reject this assertion.

At the outset, it is important to note that the State of Texas has not adopted the Uniform Insurers Liquidation Act (La.R.S. 22:757-22:763). This act requires that when no receivership proceedings have been initiated in Louisiana, residents of Louisiana must assert their claims in the proceedings of the...