Mid-States Ins. Co. v. Fireman's Fund Ins. Co.
| Decision Date | 02 November 1970 |
| Docket Number | MID-STATES,Nos. 4140,4141,s. 4140 |
| Citation | 240 So.2d 908 |
| Parties | INS. CO. v. FIREMAN'S FUND INS. CO. et al. Joseph BRADLEY et al. v. Max LANG et al. |
| Court | Court of Appeal of Louisiana — District of US |
Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Fireman's Fund American Ins. Co.
Huddleston & Davis, Benjamin B. Saunders, New Orleans, for Max Lang, defendant-appellant.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, R. Henry Sarpy, Jr., New Orleans, for Jacat, Inc., third-party defendant-appellee.
Before LEMMON, GULOTTA, and BARNETTE, JJ.
This matter is on appeal from a judgment maintaining a plea of prescription to a third party demand for personal injuries received by defendant and third party plaintiff as a result of an automobile accident.
The record reflects that on January 22, 1968, an automobile accident occurred involving an automobile owned by Joseph Bradley, the plaintiff in the original suit, and driven by his wife, and an automobile owned by Max Lang, the defendant herein. The accident occurred in the 8900 block of Old Gentilly Road in the City of New Orleans.
On September 20, 1968, Mid-States Insurance Company, the collision insurer of Bradley, filed a subrogation suit against Max Lang and Fireman's Fund Insurance Company, his insurer, seeking recovery of the amount paid to Bradley.
On December 24, 1968, Lang and Fireman's Fund Insurance Company, defendants in the subrogation suit, answered and filed a third party demand against Jacat, Inc., for indemnity and contribution alleging that Jacat was negligent in causing said accident.
On January 22, 1969, Joseph Bradley and Zerita Bradley filed suit against Max Lang, Lincoln Cemetery Lots Sales Agency, Inc., and Fireman's Fund American Insurance Company, endeavoring to recover damages for personal injuries and medical and special expenses, which they assert, were incurred as a result of the negligent act of said Max Lang in causing the collision in which Mrs. Bradley sustained injuries.
The defendants, Lang and Fireman's Funds, on March 14, 1969, answered the petition filed by Joseph and Zerita Bradley denying all allegations of negligence, and further impleaded by third party petition Jacat, Inc., for indemnification and/or contribution.
On May 8, 1969, (more than one year from the date of the accident), Max Lang, defendant and third party plaintiff, filed an amended third party demand against Jacat, Inc., to recover for medical expenses and personal injuries which he asserts were incurred as the result of the negligence of the third party defendant.
Jacat, Inc., third party defendant, filed a peremptory exception to the amended third party demand filed by Max Lang on the grounds that the filing of the amended demand occurred more than one year from the date of the accident, and that the amended demand was actually the assertion of a separate claim which had prescribed under the one year limitation for offenses ex delicto as set out in LSA-C.C. art. 3536.
The exception of prescription filed by Jacat, Inc., was originally overruled. Jacat, Inc. filed an application for a rehearing on its exception of prescription, and upon rehearing the exception of prescription filed by the third party defendant was maintained on the grounds that the third party plaintiff's original demand against Jacat, Inc., was for indemnification in the amount the original plaintiff claimed of the third party plaintiff, and that the amended demand was for personal injuries allegedly suffered by third party plaintiff. Because the trial judge found that the amended claim for personal injuries was an entirely new cause of action, he held that prescription had tolled in that the claim was filed more than one year after the date of alleged injury.
From the judgment maintaining the plea of prescription, third party plaintiff, Max Lang, has prosecuted this appeal.
The question presented for our determination is whether the petition filed by third party plaintiff for indemnification and/or contribution served to interrupt prescription so as to permit his filing of an amended petition for personal injuries more than one year from the date of the accident.
In maintaining the plea of prescription, the trial court said that the original third party demand for indemnification and/or contribution and the amended demand for personal injuries represented separate causes of action. We agree that if the original and amended third-party demands did constitute distinct causes of action, that the amended demand would have prescribed as it was filed more than one year from the date of the accident.
However, we find authority to the contrary.
In Hope v. Madison, 192 La. 593, 188 So. 711, 715 (1939), the Louisiana Supreme Court, citing 2 Words and Phrases, First Series, Cause of Action, p. 1017, stated:
'A cause of action is an act on the part of a defendant which gives rise to a plaintiff's cause of complaint; 'the existence of those facts which give a party a right to judicial interference in his behalf;' the situation or state of facts which entitled a party to sustain an action.'
'When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies the facts upon which the plaintiff's right to sue is based, and upon which the defendant's duty has arisen, coupled with the facts which constitute the latter's wrong.'
In the present case the 'situation or state of facts which entitled' the third-party plaintiff, Max Lang, to sustain an action is the asserted negligence of third-party defendant, Jacat, Inc., in causing gravel to be strewn on the roadway. And the same claimed wrongful 'act' of Jacat, Inc. (i.e., negligence) gives rise to third party plaintiff's cause of complaint both for indemnity and/or contribution as well as for personal injury.
The Louisiana Supreme Court has stated, one tort (i.e., negligence) constitutes one cause of action, Marquette Casualty Co. v. Brown, 235 La. 245, 103 So.2d 269 (1958).
When third party plaintiff filed an additional demand for personal injuries, he did not instigate a new cause of action, but simply enlarged his demand. A new demand is not a new cause of action. De Lee v. Price, 94 So.2d 79 (La.App.1957); Dupre v. Consolidated Underwriters, 99 So.2d 522 (La.App.1957); Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954).
The Supreme Court stated in National Surety Corporation v. Standard Accident Insurance Company, 247 La. 905, 175 So.2d 263 (1965), that where the employer alleged negligence against the tort-feasor in a suit for workmen's compensation and medical expenses incurred on behalf of employee, and the employee intervened alleging a claim for personal injuries sustained, only one cause of action existed because recovery for both parties was predicated upon proving the negligence of the tort-feasor. On Page 268 of the opinion, the Court stated:
'We find that one principal cause of action resulting from a single tort exists herein--namely, the alleged negligence of Brown Ferguson.'
In the instant case, recovery against Jacat, Inc., is similarly predicated upon proof of his negligence.
So in light of the above...
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