Melancon v. Travelers Insurance Company

• Decision Date: 17 August 1962
• Docket Number: Civ. A. No. 8651.
• Citation: 209 F. Supp. 68
• Parties: Gladney MELANCON, Plaintiff, v. TRAVELERS INSURANCE COMPANY and C. F. Bean, d/b/a C. F. Bean Dredging Company, Defendants.
• Court: U.S. District Court — Western District of Louisiana

209 F. Supp. 68

Gladney MELANCON, Plaintiff, v. TRAVELERS INSURANCE COMPANY and C. F. Bean, d/b/a C. F. Bean Dredging Company, Defendants.

Civ. A. No. 8651.

United States District Court W. D. Louisiana, Lafayette Division.

August 17, 1962.

Domengeaux & Wright, Bob F. Wright, Lafayette, La., for plaintiff.

Davidson, Meaux, Onebana & Donohoe, James E. Diaz, Lafayette, La., for defendant, Travelers Ins. Co.

George A. Frilot, III, Lemle & Kelleher, New Orleans, La., for defendant, C. F. Bean d/b/a C. F. Bean Dredging Co.

PUTNAM, District Judge.

Alleging that personal injuries were sustained by him while working on a dredging barge owned by C. F. Bean, plaintiff has filed this suit against the liability insurer of his employer under the Direct Action Statute of Louisiana. (LSA-R.S. 22:655) The complaint is laid under the Jones Act for negligence and the general maritime law for unseaworthiness of the vessel in question seeking a total of $150,000 in damages, and for maintenance and cure.

From the record and pleadings it is established that the accident occurred in St. Mary Parish, Louisiana on October 26, 1957. Suit was filed against Travelers on August 8, 1958 in the Eastern District of Louisiana and subsequently transferred to this court. On May 25, 1962, after pretrial procedures had been carried out and the trial set for August 15th, Melancon moved to add C. F. Bean, doing business as C. F. Bean Dredging Company, his former employer, as a party defendant.

At the second pretrial conference held on August 12, it was admitted that the policy of insurance issued by Travelers to Bean has a limit of liability of $50,000; that it covers the claims for unseaworthiness and for damages under the Jones Act (46 U.S.C.A. § 688); that it does not cover liability for maintenance and cure.

On June 28, 1962, defendant Bean moved to dismiss on grounds that under Louisiana law and the express provisions of the Jones Act, plaintiff's claims are barred by the prescription of three years, and as to the claims for unseaworthiness and maintenance and cure, using the Jones Act as the appropriate Statute of Reference, such claims are barred by laches, for all amounts in excess of the policy limits of $50,000. He prays for dismissal of the action against him "insofar as it applies to any liability exceeding the obligation stated in the Travelers Insurance Company's policy."

The motion is based upon the theory that although Bean and Travelers are co-debtors in solido, the solidarity of the obligation extends only to $50,000, the policy limit, and Article 2097 of the LSA-Civil Code providing for the interruption of prescription against all of the debtors in solido by filing of a suit against any one of them, does not apply to that portion of the claim for damages above the policy limits, as to which they are not co-debtors in solido. (In the civil law, liability "in solido" or "solidary liability" is similar to the joint and several obligation known to the common law.)

The following articles of the LSA-Civil Code are pertinent to this discussion:

"Art. 2091. There 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."

"Art. 2092. The obligation may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other."

"Art. 2093. An obligation in solido is not presumed; it must be expressly stipulated.

"This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law."

"Art. 2094. The creditor of an obligation contracted in solido may apply to any one of the debtors he pleases, without the debtors' having a right to plead the benefit of division."

"Art. 2095. A suit brought against one of the debtors does not bar the creditor from bringing suits on the same account against the others."

"Art. 2097. A suit brought against one of the debtors in solido interrupts prescription with regard to all."

From the foregoing it will readily be seen that under the civil law concept of solidarity the creditor can look to either debtor for payment of the whole, may prosecute his remedy against them jointly or separately, and that the filing of a suit against one co-debtor has the effect of interrupting the current of prescription as to the remaining debtors so that, if the debt is not wholly satisfied by the first suit, his remedy against the others is preserved. The debtor so selected for suit may urge all defenses available to him resulting from the nature of the obligation, those personal to himself, and those common to all the co-debtors. He cannot plead defenses which are merely personal to one of the other co-debtors. LSA-C.C. Art. 2098.

Defendant Bean calls the attention of the Court to the recent decision of Martin v. Mud Supply Company, 239 La. 616, 119 So.2d 484 (La.S.Ct.1959), wherein it was held that the filing of a suit against the employer of the tort feasor resulting in a finding that there was no legal responsibility for the employees tort, did not interrupt prescription against the insurer of the tort feasor-employee, neither of whom was made defendant until after prescription had accrued. The Court correctly held that there was no interruption of prescription, as there was no solidarity of the obligation to pay, and said further that mere knowledge of the suit, in the absence of fraud or artifice on the part of the defendant, was likewise insufficient to stop running of the liberative period. This decision has since been followed in Borey v. Rood, 140 So.2d 158 (La.App.1962).

It is our opinion that the Martin and Borey cases, supra, are not apposite. There was no semblance of a solidary obligation between the alleged co-debtors in these cases, whereas here Melancon sues for the full amount of his damages against Travelers under the Jones Act and for unseaworthiness, and, by virtue of its obligation to Bean under its contract of insurance, that company is liable in solido with Bean to pay for all such damages subject only to the contractual limit of $50,000. Nor is the solidary nature of the obligation created by the Direct Action Statute of the state, it flows from the engagements of the policy. Hidalgo v. Dupuy, 122 So.2d 639 (La. App.1960). Finn v. Employers Liability Assurance Corporation, 141 So.2d 852 (La.App.1962).

In Hidalgo, supra, suit was first brought against Dupuy's insurer under the Direct Action Statute in the United States District Court for the Western District of Louisiana, for damages sustained in an accident which took place in the State of Alabama. Because the statute itself limits its application to matters occurring in Louisiana, the suit was dismissed by the Honorable Benjamin C. Dawkins, then presiding, under the policy provisions providing that no action could be brought against the insurer before final judgment had been obtained against the insured. (D.C., 104 F.Supp. 230). Plaintiff then filed suit against the insured in the State Court and was met by a plea of prescription of one year, which had long since accrued. Finding that the suit against the insurer interrupted prescription against the insured, the First Circuit Court of Appeal of Louisiana cited LSA-C.C. Art. 2091, Supra, and found that the Direct Action Statute "does not convert into a solidary liability the obligation of the insurer to pay the damages for which the insured may be cast, for by virtue of the contract it is already such." (122 So.2d 639, 644. Emphasis supplied.)

Making specific reference to the "No action" clause contained in the policy of insurance, the Court further made this significant observation:

"Although the obligation of the insurer to pay to the injured person the same damages for which the insured is cast is conditioned upon the injured person first obtaining judgment against the insured, the obligation of the insurer and the insured to the injured person is nevertheless solidary. For, as LSA-C.C. Art. 2092 provides: `The obligation may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple,

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