Marquette Cas. Co. v. Brown, 20863

• Decision Date: 24 June 1957
• Docket Number: No. 20863,20863
• Citation: 97 So.2d 92
• Parties: MARQUETTE CASUALTY COMPANY v. Chester BROWN.
• Court: Court of Appeal of Louisiana — District of US

Page 92

97 So.2d 92

MARQUETTE CASUALTY COMPANY v. Chester BROWN.

No. 20863.

Court of Appeal of Louisiana, Orleans.

June 24, 1957.

Rehearing Denied Oct. 10, 1957.

James J. Morrison, Morrison & Newell, New Orleans, for plaintiff-appellant.

Herman & Herman, New Orleans, for defendant-appellee.

REGAN, Judge.

Plaintiff, Marquette Casualty Company, the compensation insurer of Paretti Pontiac Co. Inc., instituted this suit on November 15, 1955, against the defendant, Chester Brown, endeavoring to recover as indemnification the sum of $672.63, representing workmen's compensation and medical expenses which it paid to Cleotha Thomas an employee of its insured for injuries incurred on July 15, 1954, in the intersection of Dryades and Girod Streets when Brown, the operator of a Chevrolet automobile collided with a motor-cycle operated by Thomas.

The defendant pleaded the prescription of one year, and in explanation thereof asserted that Thomas incurred the injuries which are the subject matter of this litigation on July 15, 1954, and that suit was not instituted by the plaintiff until November 15, 1955, or one year and four months after the occurrence of the accident.

From a judgment in favor of defendant, maintaining the plea of prescription, plaintiff has prosecuted this appeal.

The plaintiff's petition which was filed on November 15, 1955, alleges that on July 15, 1954, Thomas, an employee of Paretti Pontiac Co. Inc., was operating a three-wheeled motor-cycle in the intersection of Dryades and Girod Streets when he was injured by Brown, who was negligently operating his automotive vehicle in the same intersection; as the result of the injuries incurred by Thomas, plaintiff, as compensation insurer of the employer Paretti Pontiac Co. Inc., was required to pay to Thomas, the sum of $672.63, therefore, plaintiff insists that it is entitled to recover the above sum as indemnification in conformity with the provisions of LSA-R.S. 23:1101, the last paragraph of which reads:

'Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.'

Plaintiff contends that it did not know the full extent of its liability to Thomas until November 21, 1954, the date that the last compensation payment was made, therefore, the prescriptive period of one year did not begin to run until that date.

Plaintiff, in order to prove the rationale of the foregoing assertion principally relies upon the jurisprudence enunciated in the following cases, to wit: Foster & Glassell Co., Limited, v. Knight Bros., 1922, 152 La. 596, 93 So. 913; Appalachian Corporation, Inc., v. Brooklyn Cooperage Co. Inc., 1922, 151 La. 41, 91 So. 539.

Defendant in order to sustain its plea that the prescriptive period of one year begins to run from the date of the injury incurred by the employee, exclusively relies upon the reasoning emanating from the case of Massachusetts Bonding & Ins. Co. v. Nelson, La.App., 1945, 22 So.2d 863, wherein the following decisions are cited and discussed by the author of the opinion. Chauvin v. Louisiana Power & Light Co. 1933, 177 La. 193, 148 So. 23; Metropolitan Casualty Ins. Co. of New York v. Bowden, 1935, 181 La. 295, 159 So. 394; Reeves v. Globe Indemnity Co. of New York, 1935, 182 La. 905, 162 So. 724; Aetna Life Ins. Co. v. DeJean, 1935, 183 La. 529, 164 So. 331.

The only question which the plea of prescription has posed for our consideration is one of law and that it whether the employer or insurer's action for indemnification against the third party tort-feasor for compensation paid to an employee is prescribed within one year of the injury incurred by the employee or within at least one year after the employer or the insurer's liability for compensation has become determined, fixed and crystallized.

It is our opinion that plaintiff's action was not prescribed until at least¹ one year after its liability became fixed and crystallized.

We believe that this case is encompassed by the ratio decidendi of Appalachian Corporation, Inc., v. Brooklyn Cooperage Co., Inc., 1922, 151 La. 41, 91 So. 539, 543. Therein the employer instituted its action for indemnification against the third person who pleaded the prescription of one year. In reversing the lower court which sustained the plea, the organ of the court reasoned:

'It is stated in Corpus Juris, vol. 13, p. 833, that the limitation applicable to an action for contribution is that fixed for an implied contract. As the right to enforce contribution is not complete and enforceable until payment or discharge in whole or in part of the common obligation, the statute of limitations does not begin to run against a claim for contribution until plaintiff has discharged the common debt. The plaintiff's right of action did not arise until it had paid the judgment, and that payment was made within the year following the finality of the judgment, and the suit was filed before the lapse of a year from either the finality of the judgment or its payment. In South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. (61) 62, 83 So. 378, it was held that a person cannot bring suit until his cause of action has accrued, and until a cause of action has accrued prescription cannot run against it, citing Jones v. Texas & P. Ry. Co., 125 La. 542, 51 So. 582, 136 Am.St.Rep. 339. * * *'

In this case, the plaintiff did not know until November 21, 1954,² the full extent of its liability.

The principle that an employer could sue for indemnification within one year after his liability was definitely fixed, was again reiterated in the case of Foster & Glassell Co., Limited v. Knight Bros., 1922, 152 La. 596, 93 So. 913, wherein the organ of the court reasoned:

'On the other hand, when, at the end of the litigation, the employer paid the employe the sums which it was compelled to under the statute, at that time, and not until then, a cause of action arose in its favor, independent of the statute, as on an implied contract for indemnification at the hands of the defendant, if the injury was caused by the latter's negligence. * * * But, as said in Appalachian Corporation v. Brooklyn Cooperage Co., the prescription governing this latter cause of action is not that applicable to actions ex delicto.'

Defendant's counsel argues that there is a sharp conflict in the decisions relied upon by him, and those relied upon by the plaintiff, all of which are cited hereinabove. A careful analysis thereof will reveal that all of these cases are reconcilable³ when the distinction is appreciated of the instances in which the employer or insurer sues in tort on behalf of himself and/or the employee as opposed to those in which the employer or insurer is exercising his independent action of indemnification to recover compensation paid to the employee. Thus in Foster & Glassell Co., Limited, v. Knight Bros., supra, the organ of the court asserted:...