Migliore v. Traina

• Decision Date: 29 July 1985
• Docket Number: No. 85-CA-145,85-CA-145
• Citation: 474 So.2d 980
• Parties: Jeannette MIGLIORE v. Debora TRAINA, United States Fidelity and Guaranty Company, and Century Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 980

474 So.2d 980

Jeannette MIGLIORE v. Debora TRAINA, United States Fidelity and Guaranty Company, and Century Insurance Company.

No. 85-CA-145.

Court of Appeal of Louisiana, Fifth Circuit.

July 29, 1985.

Henry L. Klein, New Orleans, for Jeannette Migliore, plaintiff-appellant.

Hulse, Nelson & Wanek, John A. Stewart, Jr., New Orleans, for Sentry Ins., A Mut. Co., defendant-appellee.

Before CHEHARDY, CURRAULT and DUFRESNE, JJ.

CHEHARDY, Judge.

Jeannette Migliore appeals from summary judgment dismissing her action against her uninsured/underinsured motorist insurance (UM) carrier, Sentry Insurance, A Mutual Company.

The only issue is whether plaintiff's release of the tort-feasor and the tort-feasor's insurer operated to release the UM carrier also.

Migliore, individually and on behalf of her minor child, Toni Migliore, had sued Debora Traina, United States Fidelity & Guaranty Company (USF & G) and Sentry Insurance, A Mutual Company, for injuries arising out of an automobile accident on October 25, 1982. Migliore settled with Dennis Traina (who presumably is the named insured of the policy under which Debora Traina was insured) and USF & G for Traina's liability policy limits of $5,000, signing two releases. Under one release she received $4,500 for her own damages; under the other she received $500 on behalf of her minor child.

The releases each contained the following relevant wording:

"I/We * * * release and forever discharge the said Payer and all other persons, firms, and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, or whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 25th day of October, 1982, at New Orleans, La.

"I/We * * * further understand that this release is made as a compromise to avoid expense and to terminate all controversy and/or claims for injuries or damages of whatsoever nature, known or unknown, including future developments thereof, in any way growing out of or connected with said accident.

"I/We admit * * * that in determining said sum there has been taken into consideration the fact that serious or unexpected consequences might result from the present injuries, known or unknown, from said accident, and it is therefore specifically agreed that this release shall be a complete bar to all claims or suits for injuries or damages of whatsoever nature resulting or to result from said accident."

On May 2, 1984 Sentry Insurance filed an exception of no cause of action and a motion for summary judgment, arguing that because the releases contained no reservation of rights against Sentry or other parties, they operated to discharge Sentry also because the UM insurer is a solidary obligor with the tort-feasor and her insurer. Under former LSA-C.C. art. 2203 (now repealed), the release of one solidary obligor without an express reservation of rights against other solidary co-obligors releases all. It is now settled that a UM carrier is liable in solido with the tort-feasor. Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982).

On May 10, 1984 plaintiff filed a motion to dismiss the action as to USF & G only, stating that her claim had been compromised only as to her cause of action against USF & G. The motion to dismiss further stated that Migliore specifically reserved all rights of action against Allstate Insurance Company and Sentry Insurance. The order following the motion stated that "plaintiff's claim(s) shall remain in effect as to Allstate Insurance Company and Sentry Insurance."

On October 31, 1984 the district court granted Sentry's motion for summary judgment and exception of no cause of action, without assigning reasons.

On appeal, Migliore makes the following arguments:

First, although the releases did not contain a reservation of her rights against Sentry, the motion to dismiss USF & G specifically indicated her intention to reserve her rights against all remaining defendants. Further, the order of dismissal included within her motion and signed by the trial court contained language reserving her rights against Sentry.

Secondly, she cites the recent Supreme Court decision in Carona v. State Farm Ins. Co., 458 So.2d 1275 (La.1984), in which the court held that when an automobile accident victim settles with his tort-feasor, his claim against his uninsured motorist insurer is not discharged merely because he does not expressly reserve his right against the latter:

"The rule of Civil Code article 2203 (1870), according to which an obligee who remits a debt in favor of one solidary obligor without expressly reserving his right against others is deemed to have forfeited the entire obligation, does not apply to a personal injury claimant's right to recover from his UM insurer. Article 2203, which is an exception to the well settled general rule that no one is presumed to have renounced his rights against others unless it clearly appears that he intended to do so, has been superseded in part by the UM statute which preserves the insured's ability to exercise his rights of recovery after a settlement with one of his codebtors in solido. La.R.S. 22:1406(D)(4).

* * *

* * *

"The object of the UM statute is to promote full recovery for damages by automobile accident victims. * * *

"The technical rule of article 2203 serves as a barrier to full recovery by innocent accident victims, and thereby conflicts with the basic object of the UM legislation. * * *

* * *

* * *

"Since full recovery is the goal of the legislation and because the tortfeasor and the UM carrier are codebtors in solido, we infer that a victim merely by his release of the tortfeasor does not forfeit any right against his UM carrier."

Carona v. State Farm Ins. Co., supra, at 1277, 1278, 1279.

The court also noted in Carona that C.C. art. 2203 has been abolished by the legislature and replaced by new Article 1803, effective January 1, 1985, which...